B-212464, AUG 10, 1983, OFFICE OF GENERAL COUNSEL

B-212464: Aug 10, 1983

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THIS REQUEST WAS DENIED BY THE CONTRACTING AGENCY IN 1981. THE PROTEST WAS FILED IN OUR OFFICE ON JULY 22. THE PROTEST IS UNTIMELY. NO PROTEST WILL BE CONSIDERED ON THE MERITS UNLESS IT FIRST MEETS OUR TIMELINESS RULE. THE REASON FOR THIS IS TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION IF SUCH ACTION IS FOUND TO BE NECESSARY. IF OUR OFFICE WERE TO CONSIDER AN UNTIMELY PROTEST ON THE MERITS WHEN SUBMITTED BY A MEMBER OF CONGRESS. SECTION 21.2(C) OF OUR PROCEDURES PROVIDES THAT FOR GOOD CAUSE SHOWN OR WHERE THERE ARE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES. OUR OFFICE MAY CONSIDER A PROTEST WHICH IS NOT TIMELY FILED. THESE EXCEPTIONS ARE NOT INVOLVED HERE.

B-212464, AUG 10, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE FRANK R. LAUTENBERG,

UNITED STATES SENATE:

WE REFER TO YOUR LETTER OF JULY 14, 1983, ON BEHALF OF MR. PHILIP VAN ROOYEN REGARDING THE DEPARTMENT OF ENERGY'S (DOE) SOLICITATION NO. PR01- 81AD58005 ISSUED IN APRIL 1981. MR. VAN ROOYEN PROTESTS THAT DOE REFUSED HIS REQUEST THAT THE CLOSING DATE FOR RECEIPT OF PROPOSALS BE EXTENDED.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS INITIALLY FILED WITH THE CONTRACTING AGENCY BE FILED WITH OUR OFFICE WITHIN 10 WORKING DAYS OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION. C.F.R. SEC. 21.2 IN A LETTER TO THE CONTRACTING AGENCY IN APRIL 1981, THE PROTESTER REQUESTED THAT THE OPENING DATE OF THE SOLICITATION BE EXTENDED. THIS REQUEST WAS DENIED BY THE CONTRACTING AGENCY IN 1981. THE PROTEST WAS FILED IN OUR OFFICE ON JULY 22, 1983. THEREFORE, THE PROTEST IS UNTIMELY. S/S&W LANDSCAPE MAINTENANCE, B-209964, DECEMBER 22, 1982, 82-2 CPD 569.

CONCERNING THE APPLICABILITY OF OUR BID PROTEST PROCEDURES TO PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS, NO PROTEST WILL BE CONSIDERED ON THE MERITS UNLESS IT FIRST MEETS OUR TIMELINESS RULE. THE REASON FOR THIS IS TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION IF SUCH ACTION IS FOUND TO BE NECESSARY. MOREOVER, IF OUR OFFICE WERE TO CONSIDER AN UNTIMELY PROTEST ON THE MERITS WHEN SUBMITTED BY A MEMBER OF CONGRESS, THIS WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT OUR TIMELINESS PROVISIONS CAN BE CIRCUMVENTED BY SUBMITTING THE PROTEST THROUGH A MEMBER OF CONGRESS.

SECTION 21.2(C) OF OUR PROCEDURES PROVIDES THAT FOR GOOD CAUSE SHOWN OR WHERE THERE ARE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES, OUR OFFICE MAY CONSIDER A PROTEST WHICH IS NOT TIMELY FILED. HOWEVER, THESE EXCEPTIONS ARE NOT INVOLVED HERE. SEE 52 COMP.GEN. 821 (1973).

THEREFORE, THE PROTEST WILL NOT BE CONSIDERED ON THE MERITS.

THE ENCLOSURE WITH YOUR JULY 14 LETTER IS RETURNED AS REQUESTED.