B-205145.2,L/M, DEC 9, 1981, OFFICE OF GENERAL COUNSEL

B-205145.2,L/M: Dec 9, 1981

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ASSUMES RISK THAT PROTEST WILL NOT BE RECEIVED AT GAO IN TIME FOR CONSIDERATION ON MERITS. BECAUSE IT WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR IT WAS KNOWN OR SHOULD HAVE BEEN KNOWN. YOU INDICATE THAT SINCE YOUR LETTER TO GAO WAS DATED SEPTEMBER 30. THERE WAS ADEQUATE TIME FOR DELIVERY. WHILE WE AGREE THAT A LETTER THAT WAS MAILED SEPTEMBER 30 SHOULD HAVE BEEN RECEIVED BY OCTOBER 7. WE HAVE NO WAY OF DETERMINING WHAT. PROTESTERS ARE CAUTIONED IN SECTION 21.2(B)(3) OF OUR PROCEDURES TO TRANSMIT PROTESTS IN A MANNER WHICH WILL INSURE THE EARLIEST RECEIPT BY OUR OFFICE. WE WILL NOT CONSIDER A PROTEST ARRIVING AFTER THE TIME SPECIFIED UNLESS IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH DAY OR BY MAILGRAM NOT LATER THAN THE THIRD DAY BEFORE THE FINAL DATE FOR FILING.

B-205145.2,L/M, DEC 9, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: DELAY IN MAILS GENERALLY DOES NOT PROVIDE BASIS FOR GAO'S CONSIDERING UNTIMELY PROTEST, AND PROTESTER WHO USES REGULAR MAIL, RATHER THAN REGISTERED OR CERTIFIED MAIL WITHIN TIME SPECIFIED IN BID PROTEST PROCEDURES, ASSUMES RISK THAT PROTEST WILL NOT BE RECEIVED AT GAO IN TIME FOR CONSIDERATION ON MERITS.

DONALD J. MITCHELL, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER OF NOVEMBER 4, 1981, IN WHICH YOU REQUEST THAT WE RECONSIDER OUR DISMISSAL OF A PROTEST AGAINST CANCELLATION OF A SOLICITATION FOR SECURITY GUARDS BY THE GENERAL SERVICES ADMINISTRATION (GSA) WHICH YOU FORWARDED TO US ON BEHALF OF A&R SECURITY-PATROLS AND INVESTIGATIONS, INC.

WE DISMISSED THE PROTEST IN ACCORDANCE WITH OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2 (1981), BECAUSE IT WAS NOT RECEIVED IN OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR IT WAS KNOWN OR SHOULD HAVE BEEN KNOWN.

YOU INDICATE THAT SINCE YOUR LETTER TO GAO WAS DATED SEPTEMBER 30, 1981, THERE WAS ADEQUATE TIME FOR DELIVERY, AND YOU DO NOT THINK A&R SHOULD BE DENIED CONSIDERATION BECAUSE EITHER THE U. S. POSTAL SERVICE OR GAO ADMINISTRATIVE PROCEDURES PREVENTED EARLIER RECEIPT. UNFORTUNATELY IN THIS SITUATION, A DELAY IN THE MAILS DOES NOT PROVIDE A BASIS FOR OUR CONSIDERING AN UNTIMELY PROTEST. ENVIROTRONICS, B-202094.2, JUNE 10, 1981, 81-1 CPD 477.

WHILE WE AGREE THAT A LETTER THAT WAS MAILED SEPTEMBER 30 SHOULD HAVE BEEN RECEIVED BY OCTOBER 7, WE HAVE NO WAY OF DETERMINING WHAT, IF ANY, DELAYS OCCURRED EN ROUTE. THUS, PROTESTERS ARE CAUTIONED IN SECTION 21.2(B)(3) OF OUR PROCEDURES TO TRANSMIT PROTESTS IN A MANNER WHICH WILL INSURE THE EARLIEST RECEIPT BY OUR OFFICE. THIS MAY BE A BRIEF TELEGRAM, SETTING FORTH THE BASIS FOR THE PROTEST AND OTHER ESSENTIAL INFORMATION. A PROTESTER WHO USES REGULAR MAIL, HOWEVER, DOES SO AT HIS OWN RISK, SINCE AS THE PROCEDURES STATE, WE WILL NOT CONSIDER A PROTEST ARRIVING AFTER THE TIME SPECIFIED UNLESS IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH DAY OR BY MAILGRAM NOT LATER THAN THE THIRD DAY BEFORE THE FINAL DATE FOR FILING.

ABSENT DOCUMENTARY EVIDENCE TO THE CONTRARY, WE CONSIDER THE FILING TIME AT GAO TO BE THAT INDICATED BY THE GAO TIME-DATE STAMP. IN THIS CASE, BECAUSE A&R'S PROTEST HAD BEEN FORWARDED BY A MEMBER OF CONGRESS, IT WAS ROUTED DIRECTLY TO OUR OFFICE OF CONGRESSIONAL RELATIONS, WHERE IT WAS STAMPED ON OCTOBER 8, 1981. THUS, WE BELIEVE WE HAVE GIVEN YOUR CONSTITUENT THE BENEFIT OF THE EARLIEST POSSIBLE DOCUMENTARY EVIDENCE OF TIME OF RECEIPT. RECEIPT ON THAT DATE RENDERS THE PROTEST UNTIMELY UNDER THE STANDARDS SET FORTH IN OUR PROCEDURES, AND WE THEREFORE MUST DECLINE TO CONSIDER IT.

I AM ENCLOSING A COPY OF OUR DECISION LINGUISTIC SYSTEMS, INCORPORATED, 58 COMP.GEN. 403 (1979), 79-1 CPD 250, WHICH MORE FULLY EXPLAINS THE RATIONALE FOR OUR STRICT TIMELINESS POLICY.

FOLLOWING YOUR MOST RECENT INQUIRY, HOWEVER, WE INFORMALLY CONTACTED GSA REGARDING A&R'S PROTEST. THE AGENCY ADVISES US THAT IN AUGUST 1981, BEFORE OPENING OF BIDS FOR THE GUARD SERVICES IN QUESTION, THE BROCK INTERNATIONAL SECURITY CORPORATION WROTE GSA'S NEW YORK OFFICE, STATING THAT IT WAS IMPOSSIBLE TO PRICE THE SERVICES BEING PROCURED WITHOUT ADDITIONAL INFORMATION AS TO WHERE AND WHEN GUARDS WERE TO BE PROVIDED.

ACCORDING TO GSA, AFTER REVIEWING THIS PROTEST, IT AGREED THAT THE SOLICITATION DID NOT INCLUDE SUFFICIENT INFORMATION TO ALLOW BIDDERS TO ESTIMATE COSTS OF MILEAGE, VEHICLE OPERATION, SUPERVISORS' TRAVEL, OR RADIO COMMUNICATION BETWEEN GUARDS AND THE CONTRACTOR; IN ADDITION, IT WAS UNCLEAR WHAT HOURS PARTICULAR GUARD POSTS WERE TO BE MANNED. GSA ADVISES US THAT IT THEREFORE CANCELED THE SOLICITATION AND ISSUED A NEW ONE INCLUDING THIS TYPE OF INFORMATION.

AS A GENERAL RULE, A PROCURING AGENCY MUST GIVE BIDDERS OR OFFERORS SUFFICIENT DETAILS TO ENABLE THEM TO COMPETE INTELLIGENTLY AND ON AN EQUAL BASIS. KLEIN-SIEB ADVERTISING AND PUBLIC RELATIONS, INC., B-200399, SEPTEMBER 28, 1981, 81-2 CPD 251. IN OUR OPINION, IF GSA WAS CAPABLE OF PROVIDING BIDDERS WITH AN ACCURATE DESCRIPTION OF THE WORK WHICH WOULD BE REQUIRED UNDER THE CONTRACT, BUT FAILED TO DO SO, THIS CONSTITUTED A COGENT AND COMPELLING REASON TO CANCEL THE SOLICITATION, AND A PROTEST AGAINST SUCH CANCELLATION, EVEN IF TIMELY FILED, WOULD NOT HAVE BEEN SUSTAINED BY OUR OFFICE. MOREOVER, YOUR CONSTITUENT AND OTHER BIDDERS SHOULD HAVE BEEN ABLE TO COMPETE ON A MORE EQUAL BASIS UNDER THE REVISED SOLICITATION.

I HOPE THIS INFORMATION WILL BE HELPFUL TO YOU.