B-218410.3, MAY 24, 1985, 85-1 CPD 602

B-218410.3: May 24, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: PRIOR DISMISSAL OF PROTEST AS UNTIMELY IS AFFIRMED WHERE PROTEST WAS NOT FILED AT GAO WITHIN 10 WORKING DAYS AFTER PROTESTER LEARNED OF ADVERSE AGENCY ACTION ON ITS PROTEST INITIALLY FILED WITH PROCURING AGENCY. WHERE THE INITIAL PROTEST WAS TIMELY FILED WITH THE CONTRACTING AGENCY. BECAUSE FLOWSEAL'S PROTEST WAS RECEIVED BY OUR OFFICE ON MAY 1. PROTEST IS TIMELY BECAUSE THE AGENCY REQUESTED FLOWSEAL TO EXTEND ITS BID ON APRIL 29. IS IRRELEVANT. OUR REGULATIONS CAUTION PROTESTERS TO FILE PROTESTS WITH OUR OFFICE WITHIN 10 WORKING DAYS AFTER NOTICE IS RECEIVED OF AN AGENCY'S "INITIAL" ADVERSE ACTION TO THE PROTESTER.

B-218410.3, MAY 24, 1985, 85-1 CPD 602

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: PRIOR DISMISSAL OF PROTEST AS UNTIMELY IS AFFIRMED WHERE PROTEST WAS NOT FILED AT GAO WITHIN 10 WORKING DAYS AFTER PROTESTER LEARNED OF ADVERSE AGENCY ACTION ON ITS PROTEST INITIALLY FILED WITH PROCURING AGENCY.

MCC FLOWSEAL-- RECONSIDERATION:

MCC FLOWSEAL, A DIVISION OF MARK CONTROLS CORP. (FLOWSEAL), REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST AS UNTIMELY UNDER SEC. 21.2(A)(3) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(3) (1985). SECTION 21.3(A)(3) PROVIDES THAT IN ORDER FOR A PROTEST TO BE CONSIDERED BY OUR OFFICE, THAT PROTEST, WHERE THE INITIAL PROTEST WAS TIMELY FILED WITH THE CONTRACTING AGENCY, MUST BE FILED WITH OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE PROTESTER HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION ON ITS PROTEST FILED WITH THE AGENCY.

WE AFFIRM OUR PRIOR DISMISSAL.

FLOWSEAL'S PROTEST LETTER TO THIS OFFICE INDICATED THAT ON FEBRUARY 1, 1985, FLOWSEAL PROTESTED TO THE ARMY CORPS OF ENGINEERS (CORPS) THE AWARD OF A CONTRACT TO EQUIPMENT, INC., THE LOW BIDDER, UNDER INVITATION FOR BIDS NO. DACA87-85-B-0036 AND THAT THE CORPS DENIED FLOWSEAL'S AGENCY PROTEST ON APRIL 8, 1985. BECAUSE FLOWSEAL'S PROTEST WAS RECEIVED BY OUR OFFICE ON MAY 1, 1985 (MORE THAN 10 WORKING DAYS AFTER FLOWSEAL STATES THAT IT HAD BEEN NOTIFIED OF THE AGENCY'S DENIAL OF ITS FEBRUARY 1 PROTEST), WE DISMISSED IT AS UNTIMELY UNDER SECTION 21.2(A)(3), SUPRA.

ON RECONSIDERATION, FLOWSEAL ARGUES THAT BECAUSE THE CORPS HAS REQUESTED THAT FLOWSEAL EXTEND ITS BID, THE FIRM'S MAY 1, 1985, PROTEST TO THIS OFFICE SHOULD BE CONSIDERED TIMELY.

FLOWSEAL'S ARGUMENT THAT ITS MAY 1, 1985, PROTEST IS TIMELY BECAUSE THE AGENCY REQUESTED FLOWSEAL TO EXTEND ITS BID ON APRIL 29, 1985, IS IRRELEVANT. OUR REGULATIONS CAUTION PROTESTERS TO FILE PROTESTS WITH OUR OFFICE WITHIN 10 WORKING DAYS AFTER NOTICE IS RECEIVED OF AN AGENCY'S "INITIAL" ADVERSE ACTION TO THE PROTESTER. PIERCE COAL SALES INTERNATIONAL-- REQUEST FOR RECONSIDERATION, B-218003.2, FEB. 25, 1985, 85-1 CPD PARA. 236; EXPERIMENTAL PATHOLOGY LABORATORIES, INC., B-211282, JULY 28, 1983, 83-2 CPD PARA. 136. HERE, THE CORPS' APRIL 8 DENIAL OF FLOWSEAL'S FEBRUARY 1, 1985, PROTEST CONCERNING AN AWARD TO EQUIPMENT, INC., CONSTITUTED SUCH "INITIAL" ADVERSE ACTION AND, THUS, FLOWSEAL'S PROTEST FILED WITH THIS OFFICE MORE THAN 10 WORKING DAYS AFTER NOTIFICATION OF THE DENIAL OF ITS AGENCY PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS. PIERCE COAL SALES INTERNATIONAL-- REQUEST FOR RECONSIDERATION, B-218003.2, SUPRA; EXPERIMENTAL PATHOLOGY LABORATORIES, INC., B-211282, SUPRA.

FLOWSEAL ALSO COMPLAINS THAT IT WAS UNAWARE OF OUR BID PROTEST REGULATIONS REGARDING THE TIMELINESS OF PROTESTS. HOWEVER, WE CONSISTENTLY HAVE HELD THAT A PROTESTER'S LACK OF ACTUAL KNOWLEDGE OF OUR REGULATIONS IS NO DEFENSE TO A DISMISSAL SINCE OUR REGULATIONS ARE PUBLISHED IN THE FEDERAL REGISTER, AND PROTESTERS ARE CHARGED WITH CONSTRUCTIVE NOTICE OF THEIR CONTENTS. C-RAN, B-218553.2, MAY 14, 1985, 85-1 CPD PARA. ---; WESTWOOD PHARMACEUTICALS, INC., B-214603, JULY 25, 1984, 84-2 CPD PARA. 111.