B-228144.2, Oct 1, 1987, 67 Comp.Gen. 1

B-228144.2, Oct 1, 1987, 67 Comp.Gen. 1

Procurement - Bid Protests - GAO Procedures - Protest Timeliness - Apparent Solicitation Improprieties DIGEST: 1. Protest alleging solicitation improprieties is untimely when filed after time set for receipt of proposals. Protester's contention that it attempted to protest by sending TWX to the General Accounting Office (GAO) prior to the closing time but that the GAO TWX terminal was not working properly is denied where GAO's records show that GAO's TWX terminal was neither shut off nor malfunctioning at the times pertinent to the protest. 2. Protest alleging solicitation improprieties is untimely when received in the General Accounting Office (GAO) after the time set for submission of initial proposals, even though a copy of the protest addressed to the GAO was timely received by the contracting agency. Procurement - Bid Protests - GAO Procedures - Protest Timeliness - Significant Issue Exemptions - Applicability 3. Untimely protest that does not raise issues of widespread interest to the procurement community will not be considered under the exception to the General Accounting Office timeliness requirements for significant issues.

AAR Brooks & Perkins, Advanced Structures Division-- Reconsideration:

AAR Brooks & Perkins, Advanced Structures Division, requests that we reconsider our decision, AAR Brooks & Perkins, Advanced Structures Division, B-228144, Sept. 17, 1987, 87-2 CPD Par. ***, in which we dismissed the firm's protest under request for proposals (RFP) No. DAJA37- 87-R-0639, issued by the United States Army Contracting Command, Frankfurt, Germany. We held that AAR Brooks' protest was untimely because it alleged deficiencies in the RFP which should have been apparent to AAR Brooks prior to the closing date, 2 p.m., Central European Time, September 10, 1987, for receipt of initial proposals, but it was not filed in our Office until after the time set for receipt (see 4 C.F.R. Sec. 21.2(a)(1) (1987)).

We affirm the decision.

AAR Brooks contends that it did, in fact, attempt to file its protest in our Office before the time set for closing but was unable to do so because the TWX terminal in the General Accounting Office (GAO) was not working. The protester states that it actually sent a TWX from its office to the GAO shortly after 4 p.m. on September 9, 1987, the day before proposals were due, but the GAO TWX machine would not respond. Two other unsuccessful attempts to connect with the GAO TWX machine were made a short time later. The protester then sent a copy of the TWX it had attempted to send to our Office to the contracting activity in Germany. The following day, the protester states, it again attempted unsuccessfully to transmit its protest by TWX to our Office at about 8 a.m. (eastern daylight time), the exact time set for closing in Germany. Ultimately, AAR Brooks' protest was received in our Office at 1:53 p.m., or 5 hours and 53 minutes after the closing in Europe.

AAR Brooks advances several arguments in support of its request that we consider its protest on its merits. First, AAR Brooks contends that the protest should be considered timely because AAR Brooks attempted several times before the closing to file the protest in our Office, but the GAO TWX terminal was obviously not working properly. Our investigation, however, reveals no malfunction or shutdown of our TWX terminal at any time during the period in question. In fact, our Office successfully received TWX's from other parties both shortly before and shortly after AAR Brooks attempted to transmit its protest via TWX. Moreover, the protester acknowledges that it had some problems with its own TWX machine when it attempted again to send our Office a TWX on the morning of September 10. In the absence of any indication, other than the protester's assertions, that our TWX machine was not working properly, we assume that the transmission problem was somewhere in Western Union's system, and we, therefore, consider the protest received by our Office after the time set for closing to be untimely. See All-Bann Enterprises, Inc., B-221935, Apr. 2, 1986, 86-1 CPD Par. 315; see also John Wile Construction Co., Inc., B-195717, Nov. 16, 1979, 79-2 CPD Par. 358.

AAR Brooks next argues that we should consider the protest to be timely because a copy of the initial protest, while addressed to the GAO, was received at the contracting office before the closing time. However, the term "filed" regarding protests means receipt of the protest submission in the GAO. 4 C.F.R. Sec. 21.2(b). The timely receipt of a copy of a protest addressed to our Office by the contracting agency does not satisfy the requirement to file a timely protest with this Office. GTE Telecom Inc.-- Reconsideration, B-222459.4, May 14, 1987, 87-1 CPD Par. 505.

Finally, AAR Brooks argues that our Office should consider its protest under section 21.2(c) of our Bid Protest Regulations, which sets out an exception to our timeliness rules for issues that are significant to the procurement system. We do not agree. In order to prevent the timeliness requirements from becoming meaningless, the significant issue exception is strictly construed and seldom used. The exception is limited to considering untimely protests that raise issues of widespread interest to the procurement community and which have not been considered on the merits in a previous decision. Emerson Electric Co.-- Reconsideration, B-220517.2, Nov. 26, 1985, 85-2 CPD Par. 607. Here, AAR Brooks has alleged that the RFP contained a number of improprieties, including a short time to prepare proposals, that unfairly restricted competition. do not view the issues AAR Brooks raises as having the widespread interest necessary to invoke the exception to our timeliness rules for significant issues.

Our September 17, 1987, decision is affirmed.