B-214279, FEB 22, 1984

B-214279, FEB 22, 1984

DIGEST: PROTEST NOT FILED UNTIL MORE THAN 3 YEARS AFTER PROTESTER LEARNS THE BASIS OF ITS PROTEST IS DISMISSED AS UNTIMELY.

NIKISKI MARINE, INC.:

NIKISKI MARINE, INC. (NIKISKI), PROTESTS AN INTERIM LEASE OF THE DEACTIVATED FLAXMAN ISLAND DISTANT EARLY WARNING SITE (FLAXMAN) GRANTED TO THE NORTH SLOPE BOROUGH (NORTH SLOPE).

THE PROTEST IS DISMISSED.

THE FACTS PRESENTED BY NIKISKI'S PROTEST LETTER ARE NOT ENTIRELY CLEAR. HOWEVER, IT SEEMS THAT IN AUGUST 1972 THE AIR FORCE FILED A NOTICE THAT IT WAS GOING TO RELEASE MOST OF FLAXMAN TO THE SECRETARY OF THE INTERIOR TO LEASE PURSUANT TO 49 U.S.C. SEC. 211 (1976); 43 C.F.R. SEC. 2911 (1983). NIKISKI FILED AN APPLICATION TO LEASE THIS AREA IN OCTOBER 1978. AFTER SOME INVESTIGATION AND CONTACT WITH THE DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT (BLM), THE AIR FORCE LEARNED THAT BLM COULD NOT ACCEPT THE LAND UNTIL CERTAIN WORK WAS PERFORMED THERE AND THAT THE AIR FORCE WOULD HAVE TO MAKE THE DECISION TO LEASE THE AREA ON AN INTERIM BASIS.

THE RECORD INDICATES THAT INITIALLY THE AIR FORCE CONTEMPLATED GRANTING A NONCOMPETITIVE LEASE TO NIKISKI SINCE NIKISKI WAS THE ONLY FIRM THAT EXPRESSED INTEREST IN LEASING THE SITE. HOWEVER, THE AIR FORCE LATER LEARNED THAT EXXON U.S.A. ALSO WAS INTERESTED IN LEASING THE LAND AND DETERMINED THAT THE LEASE WOULD HAVE TO BE GRANTED PURSUANT TO A COMPETITIVE BID. THE RECORD ALSO INDICATES THAT NORTH SLOPE SUBMITTED AN APPLICATION TO LEASE THE LAND IN NOVEMBER 1980, AND THAT NIKISKI BECAME AWARE OF NORTH SLOPE'S INTEREST AND THE AIR FORCE'S INTENT TO ISSUE THE LEASE COMPETITIVELY IN DECEMBER 1980.

NIKISKI REQUESTS THAT WE INVESTIGATE THE POSSIBILITY OF HAVING NORTH SLOPE'S LEASE SET ASIDE. NIKISKI SEEMINGLY BELIEVES THAT IT SHOULD HAVE BEEN AWARDED THE LEASE ON A NONCOMPETITIVE BASIS BECAUSE IT WAS THE FIRST FIRM TO EXPRESS AN INTEREST IN LEASING THE AREA AND THAT OTHER FIRMS ONLY BECAME AWARE OF THE POSSIBILITY OF LEASING THE LAND THROUGH NIKISKI'S APPLICATION. NIKISKI ALSO ALLEGES THAT NORTH SLOPE IS NOT PERFORMING ITS RESPONSIBILITIES IN ACCORDANCE WITH THE TERMS OF THE LEASE.

THE PROTEST IS DISMISSED.

UNDER OUR BID PROTEST PROCEDURES, A PROTEST NOT BASED ON A SOLICITATION IMPROPRIETY MUST BE FILED WITH OUR OFFICE OR THE AGENCY INVOLVED WITHIN 10 DAYS AFTER THE PROTESTER LEARNS THE BASIS OF ITS PROTEST. 4 C.F.R. SEC. 21.2(A), (B)(2) (1983). HERE, THE RECORD DEMONSTRATES THAT NIKISKI BECAME AWARE OF THE BASIS OF ITS PROTEST AT LEAST AS EARLY AS NOVEMBER 1980. THUS, SINCE NIKISKI'S PROTEST WAS NOT FILED WITH OUR OFFICE UNTIL FEBRUARY 2, 1984, IT IS CLEARLY UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.