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B-218088.3, MAR 8, 1985, 64 COMP.GEN. 331

B-218088.3 Mar 08, 1985
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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SIGNIFICANT ISSUE EXCEPTION - NOT FOR APPLICATION CONCEPTS OF "SIGNIFICANT ISSUE" AND "GOOD CAUSE" IN SEC. 21.2(C) OF BID PROTEST REGULATIONS APPLY ONLY TO PROTESTS WHICH ARE UNTIMELY FILED WITH GAO AND NOT TO PROTESTS TIMELY FILED. IF THERE IS NO DESIGNATION IN THE SOLICITATION. THE CONTRACTING OFFICER MUST RECEIVE A COPY OF THE PROTEST NO LATER THAN 1 DAY AFTER THE PROTEST IS FILED WITH THE GENERAL ACCOUNTING OFFICE. THE PROTEST DOCUMENT MUST INDICATE THAT A COPY HAS BEEN FURNISHED OR WILL BE FURNISHED WITHIN 1 DAY TO THE APPROPRIATE INDIVIDUAL OR LOCATION. THERE WAS NO INDICATION THAT THE PROTESTER HAD TRANSMITTED A COPY OF ITS PROTEST TO THE APPROPRIATE INDIVIDUAL OR LOCATION AT THE PROCURING AGENCY.

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B-218088.3, MAR 8, 1985, 64 COMP.GEN. 331

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - FILING PROTEST WITH CONTRACTING AGENCY PROTESTER THAT FAILED TO FURNISH A COPY OF ITS PROTEST TO THE CONTRACTING OFFICER 1 DAY AFTER FILING WITH GENERAL ACCOUNTING OFFICE (GAO) FAILED TO COMPLY WITH BID PROTEST REGULATIONS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SIGNIFICANT ISSUE EXCEPTION - NOT FOR APPLICATION CONCEPTS OF "SIGNIFICANT ISSUE" AND "GOOD CAUSE" IN SEC. 21.2(C) OF BID PROTEST REGULATIONS APPLY ONLY TO PROTESTS WHICH ARE UNTIMELY FILED WITH GAO AND NOT TO PROTESTS TIMELY FILED, BUT OTHERWISE DEFICIENT.

MATTER OF: MARCONI ELECTRONICS, INC.-- RECONSIDERATION, MARCH 8, 1985:

MARCONI ELECTRONICS, INC. (MARCONI), HAS REQUESTED RECONSIDERATION OF OUR DISMISSAL NOTICE OF FEBRUARY 5, 1985, WHICH DISMISSED THE COMPANY'S FEBRUARY 1, 1985, PROTEST AGAINST A PURCHASE ORDER AWARDED BY THE NAVAL SURFACE WEAPONS COMMAND (NAVY) ON JANUARY 25, 1985, FOR SIGNAL GENERATORS TO "HEWLETT-PACKARD COMPANY *** UNDER THE FEDERAL SUPPLY SCHEDULE PROGRAM."

WE DISMISSED THE FEBRUARY 1 PROTEST BECAUSE WE CONCLUDED THAT THE PROTESTER HAD NOT COMPLIED WITH SECTION 21.1(D) OF OUR BID PROTEST REGULATIONS, 49 FED.REG. 49,417, 49,420 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.1(D)).

SECTION 21.1(D) PROVIDES:

THE PROTESTER SHALL FURNISH A COPY OF THE PROTEST (INCLUDING RELEVANT DOCUMENTS NOT ISSUED BY THE CONTRACTING AGENCY) TO THE INDIVIDUAL OR LOCATION DESIGNATED BY THE CONTRACTING AGENCY IN THE SOLICITATION FOR RECEIPT OF PROTESTS. IF THERE IS NO DESIGNATION IN THE SOLICITATION, THE PROTESTER SHALL FURNISH A COPY OF THE PROTEST TO THE CONTRACTING OFFICER. THE DESIGNATED INDIVIDUAL OR LOCATION, OR IF APPLICABLE, THE CONTRACTING OFFICER MUST RECEIVE A COPY OF THE PROTEST NO LATER THAN 1 DAY AFTER THE PROTEST IS FILED WITH THE GENERAL ACCOUNTING OFFICE. THE PROTEST DOCUMENT MUST INDICATE THAT A COPY HAS BEEN FURNISHED OR WILL BE FURNISHED WITHIN 1 DAY TO THE APPROPRIATE INDIVIDUAL OR LOCATION.

ALTHOUGH MARCONI FILED ITS FEBRUARY 1 PROTEST WITH OUR OFFICE ON FEBRUARY 4, 1985, THERE WAS NO INDICATION THAT THE PROTESTER HAD TRANSMITTED A COPY OF ITS PROTEST TO THE APPROPRIATE INDIVIDUAL OR LOCATION AT THE PROCURING AGENCY.

ON REQUESTING RECONSIDERATION, MARCONI STATES THAT IT FURNISHED A COPY OF ITS FEBRUARY 1, 1985, PROTEST TO "CONTRACTING AGENCY PERSONNEL AT THE SAME TIME THAT (THE FEBRUARY 1 PROTEST) WAS FURNISHED TO THE GAO."

THE NAVY ADVISES INFORMALLY THAT THERE WAS NO INDIVIDUAL OR LOCATION DESIGNATED FOR RECEIPT OF PROTESTS IN THE INFORMAL SOLICITATION FOR QUOTATIONS WHICH MARCONI RECEIVED FOR THE PURCHASE ORDER IN JANUARY 1985. CONSEQUENTLY, UNDER SECTION 21.1(D) OF OUR BID PROTEST REGULATIONS, ABOVE, MARCONI WAS OBLIGATED TO FURNISH A COPY OF ITS FEBRUARY 1 PROTEST TO THE CONTRACTING OFFICER NO LATER THAN FEBRUARY 5.

MARCONI AND THE NAVY HAVE ADVISED INFORMALLY THAT THE COPY OF MARCONI'S FEBRUARY 1 PROTEST WAS ADDRESSED TO THE NAVY LEGAL OFFICE-- NOT THE CONTRACTING OFFICER. AND MARCONI INFORMED US THAT IT CANNOT QUESTION NAVY'S FURTHER STATEMENT THAT THE COPY OF ITS FEBRUARY 1 PROTEST WAS NOT RECEIVED UNTIL FEBRUARY 7 AT THE NAVY LEGAL OFFICE AND NOT BY THE CONTRACTING OFFICER UNTIL A LATER DATE. CONSEQUENTLY, MARCONI FAILED TO COMPLY WITH THE ABOVE REGULATION.

MARCONI ALSO ARGUES THAT IT HAD TRANSMITTED TO THE PROCURING AGENCY A COPY OF AN EARLIER (JANUARY 28, 1985) PROTEST FILED WITH OUR OFFICE. DISMISSED THIS JANUARY 28, 1985, PROTEST BY DISMISSAL NOTICE DATED JANUARY 30, 1985, SINCE THIS EARLIER PROTEST WAS FOUND NOT TO STATE A BASIS FOR PROTEST. MARCONI DOES NOT CONTEST OUR FINDING THAT ITS JANUARY 28 PROTEST DID NOT STATE A BASIS FOR PROTEST. THEREFORE, IT IS IRRELEVANT AS TO WHICH DATE THE NAVY RECEIVED MARCONI'S JANUARY 28 PROTEST SINCE THIS EARLIER PROTEST WAS DEFECTIVE ON ITS FACE.

FINALLY, MARCONI REQUESTS THAT ITS PROTEST BE CONSIDERED BECAUSE IT "RAISES SIGNIFICANT ISSUES" AND BECAUSE MARCONI "HAS SPENT CONSIDERABLE TIME AND EXPENSE IN FORMULATING ITS PROTEST." THE CONCEPTS OF "SIGNIFICANT ISSUE" AND "GOOD CAUSE" IN SECTION 21.2(C) OF OUR BID PROTEST REGULATIONS APPLY ONLY TO PROTESTS WHICH ARE UNTIMELY FILED WITH OUR OFFICE UNDER SECTION 21.2 ("TIME FOR FILING") OF OUR BID PROTEST REGULATIONS, ABOVE. THESE CONCEPTS ARE NOT FOR APPLICATION IN DETERMINING WHETHER A PROTEST-- TIMELY FILED WITH OUR OFFICE BUT OTHERWISE DEFICIENT-- SHOULD BE CONSIDERED.

IN VIEW OF THE FOREGOING, THE PRIOR DISMISSAL IS AFFIRMED AND THE REQUEST ISSUED TO THE NAVY FOR A FORMAL REPORT AFTER THE RECEIPT OF THE REQUEST FOR RECONSIDERATION IS CANCELED. SEE SECTION 21.3(F) OF OUR BID PROTEST REGULATIONS, 49 FED.REG. 49,417, 49,421 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.3(F)).

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