B-213812, MAR 15, 1984

B-213812, MAR 15, 1984

DIGEST: PROTEST FILED IN GAO SEVERAL MONTHS AFTER PROTESTER KNEW ITS BASIS FOR PROTEST IS UNTIMELY, WHERE NEITHER GAO NOR PROCURING ACTIVITY RECEIVED A LETTER WHICH ALLEGEDLY PROTESTED THE PROCUREMENT AND ALLEGEDLY WAS SUBMITTED IN A TIMELY FASHION.

CANBERRA INDUSTRIES, INC.:

CANBERRA INDUSTRIES, INC. (CANBERRA), PROTESTS THE ISSUANCE BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, NATIONAL INSTITUTES OF HEALTH (NIH), OF DELIVERY ORDER NO. 263-FE-34-0964 FOR AUTOMATIC DATA PROCESSING EQUIPMENT TO NUCLEAR DATA INC. (NUCLEAR DATA), UNDER FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT NO. GS005-45166. CANBERRA STATES THAT THE EQUIPMENT WHICH NUCLEAR DATA FURNISHED TO NIH UNDER THE DELIVERY ORDER WAS NOT ON THAT COMPANY'S FSS CONTRACT AND, THEREFORE, THE PURCHASE WAS IMPROPER.

WE DISMISS THE PROTEST AS UNTIMELY.

THE FIRST CORRESPONDENCE FROM CANBERRA CONCERNING THIS MATTER WAS RECEIVED IN OUR OFFICE ON NOVEMBER 30, 1983. THE SUBMISSION INDICATED THAT CANBERRA HAD PROTESTED THE PROPOSED ISSUANCE OF A DELIVERY ORDER TO NUCLEAR DATA BY LETTER OF AUGUST 15, 1983, TO NIH, AND SENT THIS OFFICE A COPY OF THAT LETTER. THIS OFFICE DID NOT RECEIVE A COPY OF THE LETTER. NIH REPORTS THAT IT NEVER RECEIVED THE AUGUST 15 PROTEST LETTER. SEPTEMBER 9, 1983, THE PROCURING ACTIVITY ISSUED THE DELIVERY ORDER TO NUCLEAR DATA.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 C.F.R. SEC. 21.2(B)(2) (1983). THE TERM "FILED" MEANS RECEIPT IN THE CONTRACTING AGENCY OR GAO, AS THE CASE MAY BE. 4 C.F.R. SEC. 21.2(B)(3) (1983). FURTHER, OUR BID PROTEST PROCEDURES CAUTION BIDDERS THAT THEY SHOULD TRANSMIT PROTESTS IN A MANNER WHICH WILL INSURE THEIR EARLIEST RECEIPT, AND THAT OTHERWISE UNTIMELY PROTESTS WILL NOT BE CONSIDERED UNLESS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH WORKING DAY PRIOR TO THE FINAL DATE FOR FILING A PROTEST. WHERE THE LETTER IS LOST IN THE MAIL, THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE DATE OF MAILING IS THE ORIGINAL RECEIPT FROM THE UNITED STATES POSTAL SERVICE. 4 C.F.R. SEC. 21.2(B)(3), SUPRA.

HERE, SINCE NEITHER GAO NOR NIH RECEIVED A COPY OF CANBERRA'S AUGUST 15 LETTER AND, IN RESPONSE TO INQUIRIES BY THIS OFFICE, CANBERRA HAS BEEN UNABLE TO PRESENT ANY EVIDENCE WHICH ESTABLISHES TIMELY RECEIPT OF ITS PROTEST BY EITHER AGENCY, CANBERRA'S PROTEST MUST BE CONSIDERED TO HAVE BEEN FILED UPON RECEIPT OF THE FIRM'S NOVEMBER 30 LETTER BY OUR OFFICE (SEVERAL MONTHS AFTER CANBERRA KNEW THE BASIS FOR ITS PROTEST) AND, THEREFORE, IS UNTIMELY. ENVIROTRONICS, B-202094.2, JUNE 10, 1981, 81-1 CPD 477; MARK DUNNING INDUSTRIES, INC., B-208150.2, DECEMBER 27, 1982, 82-2 CPD 577.

MOREOVER, EVEN IF GAO RECEIVED CANBERRA'S INFORMATIONAL COPY OF THE FIRM'S AUGUST 15 PROTEST TO NIH, WE DO NOT CONSIDER THE AUGUST 15 LETTER TO BE A DIRECT PROTEST TO THIS OFFICE. ENVIROTRONICS, SUPRA. OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.1(C)(4) (1983), REQUIRE THAT PROTESTS TO THIS OFFICE SPECIFICALLY REQUEST A RULING BY THE COMPTROLLER GENERAL.

FINALLY, ASSUMING THAT NIH RECEIVED CANBERRA'S AUGUST 15 PROTEST LETTER, THE FIRM'S PROTEST TO THIS OFFICE IS UNTIMELY BECAUSE IF A PROTEST IS INITIALLY FILED WITH THE CONTRACTING ACTIVITY, ANY SUBSEQUENT PROTEST TO THIS OFFICE MUST BE FILED WITHIN 10 WORKING DAYS OF ACTUAL OR CONSTRUCTIVE NOTICE OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 21.1(A) (1983). HERE, BOTH GENERAL SERVICES ADMINISTRATION AND NIH ADVISED CANBERRA PRIOR TO AWARD, AND SUBSEQUENT TO ITS PROTEST, THAT THE DELIVERY ORDER WOULD BE ISSUED TO NUCLEAR DATA. SHORTLY THEREAFTER, THE DELIVERY ORDER WAS ISSUED TO NUCLEAR DATA ON SEPTEMBER 9, 1983. THIS CONSTITUTES INITIAL ADVERSE AGENCY ACTION AND, THEREFORE, CANBERRA'S PROTEST TO THIS OFFICE SEVERAL MONTHS LATER IS UNTIMELY. SEE LINERO, INC., B-195703, NOVEMBER 5, 1979, 79-2 CPD 322.

PROTEST DISMISSED.