B-192061, OCTOBER 20, 1978, 58 COMP.GEN. 26

B-192061: Oct 20, 1978

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IS UNTIMELY SINCE SELECTION CONSTITUTED ADVERSE AGENCY ACTION AS DEFINED IN GAO BID PROTEST PROCEDURES. CONTRACTS - PROTESTS - WITHDRAWAL - ORAL - PROTESTS FILED WITH AGENCY - WRITTEN CONFIRMATION/ACKNOWLEDGMENT RECOMMENDED WHERE WRITTEN PROTEST FILED WITH AGENCY IS ORALLY WITHDRAWN. BROOKHAVEN IS A FEDERALLY OWNED FACILITY OPERATED BY ASSOCIATED UNIVERSITIES. ONE OF THE EXCEPTIONS TO OUR GENERAL POLICY IS THOSE AWARDS MADE "FOR" DOE BY PRIME MANAGEMENT CONTRACTORS WHO OPERATE AND MANAGE DOE FACILITIES. SINCE BROOKHAVEN IS OPERATED "FOR" DOE. IT IS. THE RFP WAS ISSUED ON NOVEMBER 15. IT WAS TELEPHONICALLY ADVISED BY SONO-TEK THAT THE LETTER WAS NOT TO BE CONSIDERED A PROTEST. CONTENDS THAT IT DID NOT RESCIND ITS WRITTEN PROTEST AND BELIEVED THAT THE PROTEST WAS BEING CONSIDERED.

B-192061, OCTOBER 20, 1978, 58 COMP.GEN. 26

CONTRACTS - PROTESTS - PROCEDURES - BID PROTEST PROCEDURES - TIME FOR FILING - "ADVERSE AGENCY ACTION" EFFECT PROTEST FILED WITH GENERAL ACCOUNTING OFFICE (GAO) MORE THAN 10 WORKING DAYS AFTER RECEIPT BY PROTESTER OF NOTICE THAT ANOTHER FIRM HAS BEEN SELECTED FOR AWARD, DESPITE PENDING PROTEST FILED WITH AGENCY, IS UNTIMELY SINCE SELECTION CONSTITUTED ADVERSE AGENCY ACTION AS DEFINED IN GAO BID PROTEST PROCEDURES. CONTRACTS - PROTESTS - WITHDRAWAL - ORAL - PROTESTS FILED WITH AGENCY - WRITTEN CONFIRMATION/ACKNOWLEDGMENT RECOMMENDED WHERE WRITTEN PROTEST FILED WITH AGENCY IS ORALLY WITHDRAWN, AGENCY SHOULD SEEK WRITTEN CONFIRMATION FROM PROTESTER OR SHOULD, IN WRITING, ACKNOWLEDGE WITHDRAWAL. IN ABSENCE OF SUCH A WRITING IN THE RECORD, GAO CANNOT RESOLVE DISPUTE CONCERNING ALLEGED ORAL WITHDRAWAL OF PROTEST.

IN THE MATTER OF SONO-TEK CORPORATION, OCTOBER 29, 1978:

SONO-TEK CORPORATION (SONO-TEK) PROTESTS THE AWARD OF A CONTRACT BY BROOKHAVEN NATIONAL LABORATORY (BROOKHAVEN) TO FOSTER-MILLER ASSOCIATES, INC. (FOSTER) UNDER REQUEST FOR PROPOSALS (RFP) NO. CPT 78-1 FOR THE DEVELOPMENT OF HEATING EQUIPMENT.

BROOKHAVEN IS A FEDERALLY OWNED FACILITY OPERATED BY ASSOCIATED UNIVERSITIES, INC. UNDER PRIME MANAGEMENT CONTRACT NO. EY-76-C-02-0016 WITH THE U.S. DEPARTMENT OF ENERGY (DOE). THIS OFFICE DOES NOT ORDINARILY REVIEW THE AWARD OF SUBCONTRACTS BY GOVERNMENT PRIME CONTRACTORS, EXCEPT IN LIMITED CIRCUMSTANCES. SEE OPTIMUM SYSTEMS, INC., 54 COMP.GEN. 767 (1975), 75-1 CPD 166. ONE OF THE EXCEPTIONS TO OUR GENERAL POLICY IS THOSE AWARDS MADE "FOR" DOE BY PRIME MANAGEMENT CONTRACTORS WHO OPERATE AND MANAGE DOE FACILITIES. SEE COHU, INC., B-191264, SEPTEMBER 6, 1978, 57 COMP.GEN. 759, 78-2 CPD 175; FIBER MATERIALS, INC., 57 COMP.GEN. 527 (1978), 78-1 CPD 422. SINCE BROOKHAVEN IS OPERATED "FOR" DOE, THE PROTEST FALLS WITHIN OUR SUBCONTRACT AWARD REVIEW POLICY. IT IS, HOWEVER, UNTIMELY.

THE RFP WAS ISSUED ON NOVEMBER 15, 1977, WITH FEBRUARY 6, 1978, AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS. PROPOSAL EVALUATION RESULTS SHOWED THAT OUT OF SEVEN OFFERORS, FOSTER SCORED HIGHEST WITH 815 POINTS OUT OF A POSSIBLE 1,000 POINTS AND SONO-TEK SCORED FOURTH WITH 589 POINTS. BROOKHAVEN'S EVALUATION PANEL RECOMMENDED FOSTER FOR AWARD IN A REPORT DATED MARCH 3, 1978. BY LETTER OF APRIL 3, SONO-TEK FILED A PROTEST WITH DOE, OBJECTING TO THE PROPOSED AWARD AND ALLEGING THAT A "COVERT RELATIONSHIP" EXISTED BETWEEN FOSTER AND "CERTAIN KEY" EMPLOYEES OF BROOKHAVEN AND THAT BROOKHAVEN'S EVALUATION PANEL LACKED THE TECHNICAL COMPETENCY ESSENTIAL FOR PROPER EVALUATION OF THE PROPOSALS. DOE FORWARDED THE PROTEST TO BROOKHAVEN.

THE DOE BROOKHAVEN AREA OFFICE CONTENDS THAT ON APRIL 14, 1978, ONE DAY AFTER IT RECEIVED SONO-TEK'S PROTEST, IT WAS TELEPHONICALLY ADVISED BY SONO-TEK THAT THE LETTER WAS NOT TO BE CONSIDERED A PROTEST. BROOKHAVEN FURTHER CONTENDS THAT IT THEREFORE ADVISED SONO-TEK THAT IT WOULD PROCEED WITH THE AWARD IN LIGHT OF THE WITHDRAWAL. SONO-TEK, HOWEVER, CONTENDS THAT IT DID NOT RESCIND ITS WRITTEN PROTEST AND BELIEVED THAT THE PROTEST WAS BEING CONSIDERED.

BY LETTER OF APRIL 28, 1978, BROOKHAVEN ADVISED SONO-TEK OF THE PROPOSAL AWARD TO FOSTER. ON MAY 24, SONO-TEK RECEIVED A COPY OF A MAY 19 LETTER FROM DOE TO A CONGRESSMAN WHICH INDICATED THAT THE SONO-TEK PROTEST WAS NOT BEING CONSIDERED IN LIGHT OF THE ALLEGED TELEPHONIC WITHDRAWAL. SONO- TEK CONTENDS THAT THIS WAS ITS FIRST NOTICE OF BROOKHAVEN'S ACTION ON ITS PROTEST. SONO-TEK FILED ITS PROTEST WITH THIS OFFICE ON JUNE 2, 1978.

SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.2(A) (1978), STATES:

IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 20 DAYS OF * * * INITIAL ADVERSE AGENCY ACTION WILL BE CONSIDERED * * * .

ADVERSE AGENCY ACTION IS DEFINED AS ANY ACTION OR INACTION WHICH IS PREJUDICIAL TO THE POSITION TAKEN IN A PROTEST FILED WITH AN AGENCY. C.F.R. 20.0(B). THE PROCEDURES FURTHER PROVIDE THAT IN CASES WHERE A PROTEST HAS NOT BEEN FILED WITH THE CONTRACTING AGENCY, A PROTEST MUST BE FILED WITH THIS OFFICE WITHIN 10 DAYS OF THE PROTESTER'S LEARNING OF THE GROUNDS FOR PROTEST. SEE 4 C.F.R. 20.2(B) (2).

UNDER DOE'S VERSION OF THE FACTS, THERE WAS IN EFFECT NO PROTEST FILED WITH IT, SO THAT IN ACCORDANCE WITH 4 C.F.R. 20.2(B) (2), SONO TEK'S PROTEST HERE WOULD BE UNTIMELY BECAUSE SONO-TEK CLEARLY KNEW OF ITS GROUNDS FOR PROTEST NOT LATER THAN APRIL 3, SOME 2 MONTHS PRIOR TO THE FILING OF ITS PROTEST WITH THIS OFFICE.

THE PROTEST IS ALSO UNTIMELY UNDER SONO-TEK'S VERSION OF THE FACTS, SINCE WE BELIEVE IT RECEIVED NOTICE OF "INITIAL ADVERSE AGENCY ACTION" ON ITS PROTEST WHEN IT RECEIVED BROOKHAVEN'S APRIL 28 LETTER ADVISING OF THE SELECTION OF A FIRM TO PROVIDE THE REQUIRED SERVICES AND REQUESTING DISPOSITION INSTRUCTIONS FOR SONO-TEK'S PROPOSAL. SONO-TEK ASSERTS THAT THE LETTER SHOULD NOT BE REGARDED AS NOTICE OF ADVERSE AGENCY ACTION BECAUSE 1) THE NOTICE OF CONTRACTOR SELECTION DOES NOT IMPLY "THAT AN AWARD HAD BEEN MADE OR WAS IN THE PROCESS OF BEING MADE"; 2) SONO-TEK BELIEVED ITS PROTEST WAS STILL PENDING; AND 3) IT REGARDED THE AGENCY MAKING AWARD AS DOE AND NOT BROOKHAVEN. WE FIND THESE REASONS TO BE WITHOUT MERIT.

ADVERSE AGENCY ACTION NEED NOT BE AN ACTUAL AWARD. AS INDICATED ABOVE, ADVERSE AGENCY ACTION IS ANY ACTION WHICH IS PREJUDICIAL TO THE PROTESTER'S POSITION, SUCH AS THE OPENING OF BIDS, 52 COMP.GEN. 821 (1973), OR "THE REJECTION OF A BID DESPITE THE PENDENCY OF A PROTEST * * * ." 4 C.F.R. 20.0(B). HERE, OF COURSE, SONO-TEK WAS CLEARLY PLACED ON NOTICE THAT ITS PROPOSAL HAD BEEN REJECTED DESPITE WHAT IT CLAIMS TO HAVE VIEWED AS ITS STILL PENDING PROTEST. MOREOVER, SONO-TEK KNEW BOTH FROM THE SOLICITATION ITSELF AND FROM BROOKHAVEN'S APRIL 28 LETTER THAT IT WAS BROOKHAVEN AS PRIME CONTRACTOR AND NOT DOE THAT WAS CONDUCTING THE PROCUREMENT AND AWARDING THE CONTRACT.

SONO-TEK ALSO SUBMITS THAT IF ITS PROTEST IS REGARDED AS UNTIMELY, IT SHOULD BE CONSIDERED "FOR GOOD CAUSE SHOWN" AS PROVIDED IN 4 C.F.R. 20.2(C). THE "GOOD CAUSE" EXCEPTION TO OUR TIMELINESS RULES IS LIMITED TO CIRCUMSTANCES WHERE SOME COMPELLING REASON BEYOND THE PROTESTER'S CONTROL PREVENTS THE FILING OF TIMELY PROTEST. 52 COMP.GEN. 20 (1972). WE FIND NOTHING IN THE RECORD TO WARRANT INVOKING THIS EXCEPTION. HAMMER SECURITY SERVICE OF CALIFORNIA, INC. - RECONSIDERATION, B-190056, APRIL 4, 1978, 78-1 CPD 265.

ALTHOUGH IT DOES NOT AFFECT THE OUTCOME HERE, WE ARE CONCERNED OVER DOE'S WILLINGNESS TO ACT ON THE BASIS OF AN ORAL WITHDRAWAL OF A WRITTEN PROTEST. ORAL COMMUNICATIONS OFTEN GIVE RISE TO DIFFERING UNDERSTANDINGS AS TO EXACTLY WHAT WAS SAID OR INTENDED, AND AS A RESULT WE BELIEVE ALL MATTERS OF SIGNIFICANCE SHOULD BE REDUCED TO WRITING. WHEN THEY ARE NOT, GENERALLY WE ARE UNABLE TO RESOLVE DISPUTES CONCERNING ALLEGED ORAL STATEMENTS. FOR EXAMPLE, WHEN A PROTESTOR ASSERTS THAT IT FILED AN ORAL PROTEST WITH AN AGENCY BUT THE AGENCY DENIES IT, WE HAVE BEEN UNABLE TO CONCLUDE THAN IN FACT THE ORAL PROTEST HAD BEEN MADE. SEE, E.G., MARION HEALTH AND SAFETY, INC., B-186451, AUGUST 3, 1976, 76-2 CPD 121; CONTINENTAL ELECTRONICS CORP., B-183891, JUNE 23, 1976, 76-1 CPD 399. SIMILARLY, IN THE SITUATION PRESENTED IN THIS CASE, WE WOULD BE UNABLE TO CONCLUDE THAT THERE WAS AN ORAL WITHDRAWAL OF THE WRITTEN PROTEST WITHOUT SOME WRITTEN CONFIRMATION IN THE RECORD. THIS CONFIRMATION COULD TAKE THE FORM OF A LETTER FROM THE AGENCY TO THE PROTESTER ACKNOWLEDGING THE ORAL WITHDRAWAL. THE LATTER, OF COURSE, WOULD SERVE TO PLACE THE PROTESTER ON NOTICE OF THE AGENCY'S INTERPRETATION OF THE ORAL CONVERSATION.

THE PROTEST IS DISMISSED.