B-211547.2, JUN 28, 1983

B-211547.2: Jun 28, 1983

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DIGEST: WHILE A REASONABLE DISPUTE OVER THE TIMELINESS OF A PROTEST ORDINARILY IS RESOLVED IN THE PROTESTER'S FAVOR. A PROTESTER ALLEGING THAT IT TIMELY PROTESTED TO THE AGENCY BOTH ORALLY AND IN WRITING BEFORE PROPOSALS WERE DUE STILL MUST PRESENT SOME REASONABLE DEGREE OF EVIDENCE TO SUPPORT ITS VERSION OF THE FACTS WHERE THE AGENCY UNEQUIVOCALLY DISAGREES. NEITHER COPIES OF TELEPHONE BILLS THAT SHOW THAT CALLS WERE PLACED TO THE AGENCY. NOR COPIES OF LETTERS OF PROTEST THAT WERE INCORRECTLY ADDRESSED TO THAT AGENCY. UNIVERSAL HAD PROTESTED THAT VARIOUS PROVISIONS IN A VETERANS ADMINISTRATION (VA) SOLICITATION FOR SOFTWARE CONVERSION SERVICES AT A VA FACILITY WERE ARBITRARY OR UNDULY RESTRICTIVE.

B-211547.2, JUN 28, 1983

DIGEST: WHILE A REASONABLE DISPUTE OVER THE TIMELINESS OF A PROTEST ORDINARILY IS RESOLVED IN THE PROTESTER'S FAVOR, A PROTESTER ALLEGING THAT IT TIMELY PROTESTED TO THE AGENCY BOTH ORALLY AND IN WRITING BEFORE PROPOSALS WERE DUE STILL MUST PRESENT SOME REASONABLE DEGREE OF EVIDENCE TO SUPPORT ITS VERSION OF THE FACTS WHERE THE AGENCY UNEQUIVOCALLY DISAGREES. NEITHER COPIES OF TELEPHONE BILLS THAT SHOW THAT CALLS WERE PLACED TO THE AGENCY, WHICH THE CONTRACTING OFFICER DENIES RECEIVING, NOR COPIES OF LETTERS OF PROTEST THAT WERE INCORRECTLY ADDRESSED TO THAT AGENCY, WHICH THE AGENCY ALSO SAYS IT NEVER RECEIVED, CONSTITUTE THE NECESSARY EVIDENCE.

UNIVERSAL DESIGN SYSTEMS, INC. - RECONSIDERATION:

UNIVERSAL DESIGN SYSTEMS, INC. (UDS) REQUESTS THAT WE RECONSIDER OUR DECISION IN UNIVERSAL DESIGN SYSTEMS, INC., B-211547, MAY 9, 1983, 83-1 CPD 489. UNIVERSAL HAD PROTESTED THAT VARIOUS PROVISIONS IN A VETERANS ADMINISTRATION (VA) SOLICITATION FOR SOFTWARE CONVERSION SERVICES AT A VA FACILITY WERE ARBITRARY OR UNDULY RESTRICTIVE, AND PRECLUDED THE FIRM FROM PARTICIPATING IN THE PROCUREMENT. AS UNIVERSAL'S PROTEST INVOLVED ALLEGED SOLICITATION IMPROPRIETIES THAT WERE APPARENT PRIOR TO THE APRIL 7, 1983 CLOSING DATE FOR RECEIPT OF PROPOSALS, BUT WAS FILED AFTER THAT DATE, WE DISMISSED IT AS UNTIMELY FILED UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(1) (1983). UDS NOW ALLEGES THAT IT IN FACT FILED A TIMELY PROTEST ON THE MATTER WITH THE VA.

WE AFFIRM OUR PRIOR DECISION.

IN ITS REQUEST FOR RECONSIDERATION, UDS ALLEGES IT ATTEMPTED TO DISCUSS ITS OBJECTIONS TO THE SOLICITATION BY TELEPHONE ON THREE OCCASIONS IN MARCH WITH VA OFFICIALS, AND ALSO WROTE FOUR LETTERS TO THE VA OBJECTING TO THE SOLICITATION SPECIFICATIONS. UDS HAS PROVIDED COPIES OF THE LETTERS AND COPIES OF PHONE BILLS ALLEGEDLY PERTAINING TO THE ORAL COMMUNICATIONS. THE VA INFORMALLY ADVISES, HOWEVER, THAT ONLY THE FOURTH LETTER, WHICH WAS SENT BY CERTIFIED MAIL 2 DAYS BEFORE CLOSING, WAS RECEIVED, AND THEN NOT UNTIL 4 DAYS AFTER CLOSING. IN THIS RESPECT, WE NOTE THAT THE OTHER THREE LETTERS UDS ALLEGES IT SENT, WHICH ARE DATED MARCH 7, 9 AND 20, HAVE THE WRONG ZIP CODE FOR THE CONTRACTING OFFICE (THE CERTIFIED MAIL LETTER HAS THE CORRECT ZIP CODE). THE CONTRACTING OFFICER ACKNOWLEDGES THAT THE SPOKE WITH THE PROTESTER ONCE BEFORE CLOSING, BUT ADVISES THAT THE DISCUSSION SIMPLY WAS TO CLARIFY CERTAIN SOLICITATION PROVISIONS.

FOR THIS OFFICE TO CONSIDER UDS'S PROTEST ON THE MERITS, THE FIRM FIRST MUST ESTABLISH THAT IT FILED A TIMELY PROTEST WITH THE CONTRACTING OFFICIALS, EITHER ORALLY OR IN WRITING. 4 C.F.R. SEC. 21.2(A). THE PARTIES DISAGREE ON PRECISELY THIS POINT. UDS CONTENDS THAT IT IN FACT SPOKE TO CONTRACTING OFFICIALS AND SENT WRITTEN PROTESTS TO THE CONTRACTING OFFICER; THE CONTRACTING OFFICER STATES OTHERWISE. ADDITION, THE ONLY LETTER OF PROTEST TO REACH THE AGENCY WAS RECEIVED AFTER CLOSING. WHILE WE GENERALLY RESOLVE DISPUTES OVER TIMELINESS IN THE PROTESTER'S FAVOR, SEE NIELSEN, MAXWELL, & WANGSGARD, B-205418, APRIL 26, 1982, 82-1 CPD 381, THE RECORD MUST REFLECT AT LEAST SOME REASONABLE DEGREE OF EVIDENCE TO SUPPORT THE PROTESTER'S VERSION OF THE FACTS. FEDERAL SALES SERVICE, INC., B-208675, MARCH 22, 1983, 83-1 CPD 282. SIMPLY CANNOT ACCEPT UDS'S VERSION, IN LIGHT OF THE VA'S UNEQUIVOCAL DENIAL OF THE FACTS UDS ASSERTS, WHERE THE ONLY EVIDENCE UDS SUBMITS IS COPIES OF TELEPHONE BILLS THAT SHOW THAT CONNECTIONS (OF 2, 4 AND 7 MINUTES) WERE MADE WITH THE VA, SEE SYSTEM DEVELOPMENT CORPORATION AND INTERNATIONAL BUSINESS MACHINES, B-204672, MARCH 9, 1982, 82-1 CPD 218 AT P. 22, AND COPIES OF LETTERS THAT ARE INCORRECTLY ADDRESSED TO THE VA.

UNDER THE CIRCUMSTANCES, WE MUST ACCEPT THE AGENCY'S POSITION THAT IT DID NOT RECEIVE A PROTEST BY THE SPECIFIED CLOSING DATE. AS A RESULT, WE CONCLUDE THAT UDS'S PROTEST WAS UNTIMELY AND THUS CANNOT BE CONSIDERED ON ITS MERITS.

THE PRIOR DECISION IS AFFIRMED.