B-209443, MAR 30, 1983

B-209443: Mar 30, 1983

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DIGEST: IF PROTESTER'S TELEPHONE CALL TO THE CONTRACTING OFFICER CONSTITUTED AN ORAL PROTEST OF THE REJECTION AS NONRESPONSIVE OF ITS BIDS ON THREE SOLICITATIONS BECAUSE THE BIDS WERE ACCOMPANIED BY DEFECTIVE BID BONDS. THE SUBSEQUENT PROTEST TO OUR OFFICE WAS UNTIMELY UNDER SECTION 21.2(A) OF OUR BID PROTEST PROCEDURES. SINCE IT WAS RECEIVED IN OUR OFFICE MORE THAN 10 DAYS AFTER PROTESTER HAD ACTUAL NOTICE OF THE AGENCY'S INITIAL ADVERSE ACTION. IF THE PHONE CALL WAS NOT AN ORAL PROTEST TO THE AGENCY. THE PROTEST TO OUR OFFICE WAS RECEIVED MORE THAN 10 DAYS AFTER BEING NOTIFIED BY THE CONTRACTING OFFICER OF THE BASIS OF ITS PROTEST AND IS UNTIMELY UNDER SECTION 21.2(B)(2) OF THE PROCEDURES.

B-209443, MAR 30, 1983

DIGEST: IF PROTESTER'S TELEPHONE CALL TO THE CONTRACTING OFFICER CONSTITUTED AN ORAL PROTEST OF THE REJECTION AS NONRESPONSIVE OF ITS BIDS ON THREE SOLICITATIONS BECAUSE THE BIDS WERE ACCOMPANIED BY DEFECTIVE BID BONDS, THE SUBSEQUENT PROTEST TO OUR OFFICE WAS UNTIMELY UNDER SECTION 21.2(A) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(A) (1982), SINCE IT WAS RECEIVED IN OUR OFFICE MORE THAN 10 DAYS AFTER PROTESTER HAD ACTUAL NOTICE OF THE AGENCY'S INITIAL ADVERSE ACTION. IF THE PHONE CALL WAS NOT AN ORAL PROTEST TO THE AGENCY, THE PROTEST TO OUR OFFICE WAS RECEIVED MORE THAN 10 DAYS AFTER BEING NOTIFIED BY THE CONTRACTING OFFICER OF THE BASIS OF ITS PROTEST AND IS UNTIMELY UNDER SECTION 21.2(B)(2) OF THE PROCEDURES, 4 C.F.R. SEC. 21.2(B)(2) (1982).

JOHN H. BOSTICK CONSTRUCTION, INC.:

JOHN H. BOSTICK CONSTRUCTION, INC. (BOSTICK), PROTESTS THE REJECTION OF ITS BIDS ON INVITATIONS FOR BIDS (IFB) NOS. R6-18-82-131, R6-18-82 143 AND R6-18-82-159 ISSUED BY WILLAMETTE NATIONAL FOREST, UNITED STATES DEPARTMENT OF AGRICULTURE (AGRICULTURE), EUGENE, OREGON, FOR CONSTRUCTION WORK IN REPAIR OF ROADS. THE BOSTICK BIDS WERE LOW, BUT WERE REJECTED BECAUSE THE ACCOMPANYING BID BONDS WERE DETERMINED BY THE CONTRACTING OFFICER TO BE MATERIALLY DEFECTIVE.

WE DISMISS THE PROTEST AS UNTIMELY.

THE STATEMENT OF THE CONTRACTING OFFICER SHOWS THAT ON SEPTEMBER 23, 1982, THE CONTRACTING OFFICER PHONED AND NOTIFIED THE PROTESTER OF THE INTENTION TO REJECT THE THREE BIDS BECAUSE THE BID BONDS WERE DEFECTIVE. LATER ON THE SAME DAY, MR. JOHN BOSTICK PHONED THE CONTRACTING OFFICER AND COMPLAINED OF THE PROPOSED REJECTION OF THE BIDS AND WE ARE ADVISED BY THE CONTRACTING OFFICER THAT HE TOLD MR. BOSTICK THAT HE HAD NO CHOICE BUT TO REJECT BOSTICK'S BIDS AND AWARD THE CONTRACTS TO THE SECOND LOW BIDDERS. BOSTICK'S PROTEST TO OUR OFFICE WAS RECEIVED ON OCTOBER 8, 1982.

SECTION 21.2(B)(2) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(2) (1982), PROVIDES THAT A PROTEST MUST BE RECEIVED IN OUR OFFICE WITHIN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. HOWEVER, UNDER SECTION 21.2(A) OF THE PROCEDURES, 4 C.F.R. SEC. 21.2(A) (1982), IF A TIMELY PROTEST IS INITIALLY MADE TO THE AGENCY, A SUBSEQUENT PROTEST TO OUR OFFICE MUST BE RECEIVED WITHIN 10 DAYS OF FORMAL NOTIFICATION OF OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE INITIAL ADVERSE AGENCY ACTION.

BOSTICK WAS NOTIFIED OF THE BASIS OF ITS PROTEST BY THE TELEPHONE CALL OF THE CONTRACTING OFFICER ON SEPTEMBER 23, 1982. IF WE VIEW THE RETURN CALL OF JOHN BOSTICK ON THAT DATE AS AN ORAL PROTEST TO THE AGENCY, BOSTICK ALSO HAD ACTUAL KNOWLEDGE OF THE AGENCY DENIAL OF THIS PROTEST ON THAT DATE WHEN NOTIFIED BY THE CONTRACTING OFFICER THAT HE HAD NO CHOICE BUT TO REJECT BOSTICK'S BIDS AS NONRESPONSIVE BECAUSE OF DEFECTIVE BID BONDS. BOSTICK'S PROTEST WAS NOT RECEIVED IN OUR OFFICE UNTIL OCTOBER 8, 1982, MORE THAN 10 DAYS AFTER BOSTICK KNEW OF THE BASIS FOR ITS PROTEST AND ALSO HAD ACTUAL KNOWLEDGE OF THE ADVERSE AGENCY ACTION ON ITS ORAL PROTEST. THE PROTEST IS, THEREFORE, UNTIMELY UNDER SECTIONS 21.2(A) AND (B)(2) OF OUR PROCEDURES AND NOT FOR CONSIDERATION. CF. MONACO ENTERPRISES, INC., B-204418, FEBRUARY 16, 1982, 82-1 CPD 134.