B-233164, Nov 1, 1988, 68 Comp.Gen. 43

B-233164: Nov 1, 1988

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Procurement - Bid Protests - Definition - GAO procedures - Protest timeliness - 10-day rule - Adverse agency actions Letter to agency stating intent to protest rejection of proposal which does not state any basis for protest is not sufficient to constitute a protest to agency. Shankle's asserts that its proposal was "evaluated unfairly.". Shankle's states that it was informed. The debriefing was conducted by telephone on September 20. /1/ On September 19. Shankle's was advised specifically why its proposal was found outside the competitive range. In which it claims it was "evaluated unfairly.". The agency dismissed this "protest" because it was untimely since it was filed on September 28.

B-233164, Nov 1, 1988, 68 Comp.Gen. 43

Procurement - Bid Protests - Definition - GAO procedures - Protest timeliness - 10-day rule - Adverse agency actions Letter to agency stating intent to protest rejection of proposal which does not state any basis for protest is not sufficient to constitute a protest to agency; in any event, agency-level protest must be filed within 10 working days of date protester knew the basis for its protest.

Shankle's Engineering & Consulting:

Shankle's Engineering & Consulting protests the Department of the Interior's decision to exclude its proposal from the competitive range under request for proposals No. 3424. Shankle's asserts that its proposal was "evaluated unfairly."

We dismiss the protest.

Shankle's states that it was informed, no later than September 7, 1988, that its proposal did not fall within the competitive range. Shankle's then requested a debriefing. According to the agency, the debriefing was conducted by telephone on September 20. /1/ On September 19, Shankle's informed the contracting officer by telephone that it intended to protest the agency's determination to exclude it from the competitive range. September 20, Interior conducted a detailed debriefing with Shankle's by telephone. Shankle's was advised specifically why its proposal was found outside the competitive range. The contracting officer received, on September 28, a written confirmation of Shankle's intent to protest dated September 20. On September 30, Interior dismissed Shankle's protest as untimely filed. Shankle's subsequently filed a protest with our Office on October 12, in which it claims it was "evaluated unfairly."

Initially, we note that Interior considered Shankle's letter of September 20 as a protest. However, the letter merely confirms Shankle's intent to protest which it orally communicated to Interior on September 19, and fails to state any basis of protest. On September 30, the agency dismissed this "protest" because it was untimely since it was filed on September 28, more than 10 working days after the protester knew its proposal was rejected. See 4 C.F.R. Sec. 21.2(a)(2) (1988). While the letter was not timely filed, in our view, this letter was not sufficient to constitute a protest since it merely confirmed an intent to protest and did not specify any basis for protest. See MedSource, Inc., B-225635, Jan. 27, 1987, 87-1 CPD Par. 92. In any event, under our Bid Protest Regulations, a protest which was initially untimely filed with the contracting agency is untimely when subsequently filed with our Office. C.F.R. Sec. 21.2(a)(3) (1988); Tioga Pipe Supply Company, Inc., B-230040, Feb. 24, 1988, 88-1 CPD Para. 190.

Furthermore, if we consider Shankle's protest to our Office as the initial protest, it is untimely because it was filed on October 12, more than 10 working days after Shankle's learned of any possible basis of protest at the debriefing on September 20. Under our Bid Protest Regulations, a protest based on other than an apparent impropriety in the solicitation, to be deemed timely, must be filed within 10 working days after the basis for protest is known or should have been known, whichever is earlier. See 4 C.F.R. Sec. 21.2(a)(2) (1988); Eastman Kodak Co., B-228908, Sept. 24, 1987, 87-2 CPD Para. 298.

The protest is dismissed.

/1/ The agency has provided us a chronology of events and copies of correspondence and documents to support the chronology.