B-218711.2, AUG 20, 1985, OFFICE OF GENERAL COUNSEL
Highlights
DISMISSED BECAUSE PROTESTER FAILED TO RESPOND TO CONTRACTING AGENCY'S REPORT (RECEIVED BY GAO ON SCHEDULE DUE DATE) WITHIN 7 WORKING- DAY PERIOD FOR COMMENTS WILL NOT BE REOPENED SINCE GAO'S ACKNOWLEDGMENT OF PROTEST GAVE NOTICE THAT FILE WOULD BE CLOSED ABSENT TIMELY RESPONSE. NOTING THAT NFA SUBMITTED A TIMELY PROTEST TO OUR OFFICE AND WAS CONTINUALLY IN CONTACT WITH THE CONTRACTING AGENCY SO AS TO FOLLOW THE CORRECT STEPS IN PROTESTING. YOU ARE REQUIRED WITHIN 7 WORKING DAYS OF RECEIPT OF THE REPORT TO SUBMIT WRITTEN COMMENTS OR TO ADVISE OUR OFFICE THAT YOU WISH TO HAVE THE PROTEST DECIDED ON THE EXISTING RECORD. WE WILL CLOSE OUR FI1E.". WE ALSO ADVISED THAT THE CONTRACTING AGENCY'S REPORT WAS DUE IN OUR OFFICE ON MAY 28 AND THAT WE WOULD PRESUME THAT NFA ALSO RECEIVED ITS COPY OF THAT REPORT ON THAT DATE.
B-218711.2, AUG 20, 1985, OFFICE OF GENERAL COUNSEL
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES TIMELINESS OF COMMENTS ON AGENCY'S REPORT DIGEST: PROTEST, DISMISSED BECAUSE PROTESTER FAILED TO RESPOND TO CONTRACTING AGENCY'S REPORT (RECEIVED BY GAO ON SCHEDULE DUE DATE) WITHIN 7 WORKING- DAY PERIOD FOR COMMENTS WILL NOT BE REOPENED SINCE GAO'S ACKNOWLEDGMENT OF PROTEST GAVE NOTICE THAT FILE WOULD BE CLOSED ABSENT TIMELY RESPONSE.
THE HONORABLE HERBERT H. BATEMAN: HOUSE OF REPRESENTATIVES
YOUR LETTER DATED JUNE 18, 1985, QUESTIONS OUR JUNE 12 DISMISSAL OF NFA INC.'S PROTEST UNDER UNITED STATES MILITARY ACADEMY (WEST POINT) INVITATION FOR BIDS NO. DAAG60-85-B-1415. WE DISMISSED THE PROTEST BECAUSE NFA FAILED TO COMMENT TO OUR OFFICE ON THE CONTRACTING AGENCY'S REPORT WITHIN THE TIME REQUIREMENTS OF OUR BID PROTEST REGULATIONS, 4 C.F.R. 21.3(E) (1985). NOTING THAT NFA SUBMITTED A TIMELY PROTEST TO OUR OFFICE AND WAS CONTINUALLY IN CONTACT WITH THE CONTRACTING AGENCY SO AS TO FOLLOW THE CORRECT STEPS IN PROTESTING, YOU REQUEST THAT WE NOW CONSIDER THE PROTEST ON ITS MERITS.
ON APRIL 22, WE ACKNOWLEDGED THE APRIL 16 NFA PROTEST AND ADVISED THAT:
"UNDER 4 C.F.R. 21.3(E), YOU ARE REQUIRED WITHIN 7 WORKING DAYS OF RECEIPT OF THE REPORT TO SUBMIT WRITTEN COMMENTS OR TO ADVISE OUR OFFICE THAT YOU WISH TO HAVE THE PROTEST DECIDED ON THE EXISTING RECORD. UNLESS WE HEAR FROM YOU BY THE SEVENTH WORKING DAY, WE WILL CLOSE OUR FI1E."
WE ALSO ADVISED THAT THE CONTRACTING AGENCY'S REPORT WAS DUE IN OUR OFFICE ON MAY 28 AND THAT WE WOULD PRESUME THAT NFA ALSO RECEIVED ITS COPY OF THAT REPORT ON THAT DATE, UNLESS NPA ADVISED US TO THE CONTRARY. DID RECEIVE THE REPORT ON MAY 28. NO COMMUNICATION REGARDING THE REPORT WAS RECEIVED FROM NFA BY OUR OFFICE AS OF THE DATE OF OUR DISMISSAL, JUNE 12, WELL OVER 7 WORKING DAYS FROM MAY 28.
THE EFFECT OF THE PRESUMPTION REGARDING THE PROTESTER'S RECEIPT OF THE CONTRACTING AGENCY'S REPORT IS TO PLACE THE SLIGHT BURDEN ON THE PROTESTER TO ADVISE US IF IT DID NOT RECEIVE AN AGENCY REPORT WHEN DUE, SINCE WE OTHERWISE HAVE NO WAY OF KNOWING WHETHER OR NOT IT RECEIVED THE REPORT. OUR OFFICE GENERALLY IS REQUIRED TO ISSUE A FINAL DECISION WITHIN 90 WORKING DAYS AFTER THE PROTEST IS FILED, WHILE THE CONTRACTING AGENCY IS AFFORDED 25 WORKING DAYS AFTER NOTIFICATION OF THE PROTEST TO PREPARE ITS REPORT. 31 U.S.C. SECS. 3553 AND 3554, AS ADDED BY THE COMPETITION IN CONTRACTING ACT, PUB.L. NO. 98-369, 2741, 98 STAT. 1175, 1199 (1984). THERE WERE NO REQUIREMENT THAT A PROTESTER NOTIFY US OF ITS FAILURE TO RECEIVE A REPORT, THEN THE PROTESTER COULD IDLY AWAIT THE REPORT FOR AN INDEFINITE TIME TO THE DETRIMENT OF THE PROTEST SYSTEM GENERALLY, AS WELL AS TO OUR ABILITY TO RESOLVE BID PROTESTS EXPEDITIOUSLY.
WE BELIEVE OUR REGULATIONS PROVIDE EFFECTIVE AND EQUITABLE STANDARDS SO THAT PARTIES HAVE A FAIR OPPORTUNITY TO PREVENT THEIR CASES AND SO THAT PROTESTS CAN BE RESOLVED IN A REASONABLY DILIGENT MANNER WITHOUT UNDULY DISRUPTING THE GOVERNMENT'S PROCUREMENT PROCESS. NFA'S FAILURE TO FOLLOW THE REGULATIONS OF WHICH IT HAD BEEN EXPRESSLY NOTIFIED CLEARLY PROVIDED A PROPER BASIS FOR DISMISSING PROTEST THEREUNDER.