B-216551.2, JUN 5, 1985, OFFICE OF GENERAL COUNSEL

B-216551.2, JUN 5, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE PAUL B. HENRY: HOUSE OF REPRESENTATIVES

WE REFER TO YOUR LETTER OF MAY 14, 1985, IN WHICH YOU ASK THIS OFFICE WHETHER JOHN CUDIA AND ASSOCIATES, INC., OF SAN JOSE, CALIFORNIA, MAY NOW PROTEST TO THIS OFFICE IN CONNECTION WITH A CONTRACT AWARD UNDER SOLICITATION NO. DADA16-84-R-0026, ISSUED BY THE DEPARTMENT OF THE ARMY FOR THE ACQUISITION OF SURGICAL CEILING LIGHTS.

THE CORRESPONDENCE ATTACHED TO YOUR LETTER REVEALS THAT CUDIA AND ASSOCIATES, BY LETTER OF FEBRUARY 1, 1985, HAD PROTESTED TO THE CONTRACTING OFFICER THE AWARD OF THE CONTRACT TO ANOTHER FIRM, ALLEGING CERTAIN IRREGULARITIES WITH RESPECT TO THE ARMY'S EVALUATION OF TRANSPORTATION COSTS IN DETERMINING THE LOW OFFEROR. BY LETTER OF FEBRUARY 14, THE CONTRACTING OFFICER DENIED THE PROTEST. THE FIRM THEN FILED A SECOND PROTEST WITH THE CONTRACTING OFFICER, IN PART ON THE SAME ISSUE, WHICH WAS DENIED BY THE CONTRACTING OFFICER BY LETTER OF MARCH 22.

SKYTRON, ON BEHALF OF CUDIA AND ASSOCIATES, COMPLAINS THAT THE ARMY NEGLECTED TO INFORM THE FIRM THAT IT RETAINED THE RIGHT TO PROTEST DIRECTLY TO THIS OFFICE WITHIN CERTAIN TIME LIMITATIONS. SKYTRON BELIEVES THAT THIS FAILURE WAS FUNDAMENTALLY PREJUDICIAL TO CUDIA AND ASSOCIATES, AND, THEREFORE, THAT THE FIRM IS NOW ENTITLED TO HAVE THE MATTER REVIEWED BY THIS OFFICE. WE CANNOT AGREE.

OUR BID PROTEST REGULATIONS, WHICH IMPLEMENT 31 U.S.C. SEC. 3551 ET SEQ., AS ADDED BY SECTION 2741(A) OF THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), PUB.L. NO. 98-369, 98 STAT. 1175, 1199, PROVIDE THAT IF AN INITIAL PROTEST HAS BEEN TIMELY FILED WITH THE CONTRACTING AGENCY, WE WILL CONSIDER A SUBSEQUENT PROTEST TO THIS OFFICE THAT IS FILED WITHIN 10 (WORKING) DAYS AFTER THE PROTESTER HAS FORMAL NOTIFICATION OF OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. C.F.R. SEC. 21.2(A)(3) (1985). IT APPEARS THAT CUDIA AND ASSOCIATES' FEBRUARY 1 PROTEST TO THE CONTRACTING OFFICER REGARDING THE TRANSPORTATION COST ISSUE WAS TIMELY. INITIAL ADVERSE AGENCY ACTION OCCURRED WHEN THE CONTRACTING OFFICER DENIED THE PROTEST ON FEBRUARY 14. THEREFORE, IT WAS INCUMBENT UPON CUDIA AND ASSOCIATES TO FILE A PROTEST WITH US NO LATER THAN 10 WORKING DAYS AFTER THE FIRM RECEIVED THE FEBRUARY 14 LETTER OF DENIAL. SIMILARLY, IF THE OTHER ISSUES IN THE FIRM'S SECOND PROTEST TO THE AGENCY WERE TIMELY RAISED, THE FIRM WAS REQUIRED TO PROTEST TO THIS OFFICE NO LATER THAN 10 WORKING DAYS AFTER ITS RECEIPT OF THE ARMY'S MARCH 22 DENIAL.

ALTHOUGH IT MAY BE UNFORTUNATE THAT CUDIA AND ASSOCIATES WAS NOT INFORMED BY THE ARMY OF ITS PROCEDURAL RIGHTS BEFORE THIS OFFICE, THIS DOES NOT NOW ENTITLE THE FIRM TO OUR REVIEW OF THE MATTER. OUR REGULATIONS ARE PUBLISHED IN THE FEDERAL REGISTER, AND FIRMS SEEKING TO DO BUSINESS WITH THE GOVERNMENT ARE CHARGED WITH CONSTRUCTIVE NOTICE OF THEIR CONTENTS. REGARD BID PROTESTS AS SERIOUS MATTERS WHICH REQUIRE EFFECTIVE AND EQUITABLE PROCEDURES SO THAT ALL PARTIES TO A FEDERAL PROCUREMENT HAVE AN OPPORTUNITY TO PRESENT THEIR CASES, AND SO THAT PROTESTS CAN BE RESOLVED WITHIN THE STRICT TIME FRAMES ESTABLISHED BY THE CICA AND OUR IMPLEMENTING REGULATIONS. ACCORDINGLY, WE COULD NOT CONSIDER THE PROTEST SUBMITTED BY CUDIA AND ASSOCIATES AT THIS TIME.

WE ARE ENCLOSING A COPY OF A BOOKLET THAT DESCRIBES THE BID PROTEST PROCESS AT GAO. A REPRINT OF OUR PUBLISHED REGULATIONS APPEAR IN THE APPENDIX TO THE BOOKLET. WE TRUST THAT THIS RESPONSE WILL BE HELPFUL TO YOU.