B-234159.3, Jul 12, 1989, 89-2 CPD ***

B-234159.3, Jul 12, 1989, 89-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: A protest that was dismissed because protester failed to contact the General Accounting Office within 10 days after receipt of agency report, as required by Bid Protest Regulations, may not be reopened and considered on the merits; requirement is in the Regulations that protester express continued interests in pursuing the protest after having opportunity to read agency report ensures that resources of our Office will not be occupied with a protest about whose merits the protester has changed his mind after reading the agency report.

Honorable Frank R. Wolf

Member, United States

House of Representatives:

Your letter of April 4, 1989, to the General Services Administration (GSA) has been referred to our Office. Your letter concerns questions raised by your constituent, Joseph T. Siewick, on behalf of Applied Systems Corporation, regarding our dismissal of that firm's bid protest challenging a contract award under invitation for bids No. F33659-88-B A037. Mr. Siewick asked that the protest be reopened for consideration on the merits, and you have asked that the matter be reviewed.

We dismissed Applied Systems' protest on March 13 because the firm did not respond to the Air Force's report on the protest within 10 working days after receipt of the report, as required by our Bid Protest Regulations. We later affirmed the dismissal in our decision dated March 28, 1989, on the basis of longstanding precedent to the effect that the protester's alleged unawareness of our bid protest filing requirements is not a basis for waiving the requirements because as a matter of law protesters are charged with constructive notice of the requirements through their publication in the Federal Register and the Code of Federal Regulations.

As we explained in our March 28 decision, the filing deadlines in our Bid Protest Regulations were prescribed under the authority of the Competition in Contracting Act (CICA) for the purpose of enabling our Office to comply with the statute's mandate that we resolve bid protests expeditiously. light of CICA's requirement that we issue a final decision 90 days after a protest is filed, and to assure that government procurements are not burdened by protests that the parties no longer have an interest in pursuing, our Regulations require the protester to express its continued interest, if any, in pursuing the protest after the report has been submitted. The requirement is necessary because it has been our experience that protesters often change their view of the merits of the protest after reading the agency report, and decide not to pursue the protest further; the requirement thus prevents delays to the procurement process that would occur if we were to prepare decisions on the merits in matters that protesters were no longer interested in pursuing.

We consider legal objections to government contract awards to be serious matters. At stake are the rights and interest not only of the protester, but of the contracting agency and other interested parties as well. Effective and equitable procedural standards are necessary to provide parties a fair opportunity to present their cases and to assure that protests are resolved in a reasonably speedy manner. Accordingly, our Regulations impose strict time standards. Waiving these standards would undermine the purposes they are intended to promote. Thus, while it is unfortunate that Applied Systems did not comply with our procedural rules because apparently it did not understand their import, we cannot consider the merits of its protest.

In any case, as we stated in our March 28 decision, even had the protest not been dismissed for failure to comment, it appears that dismissal would have been called for on the ground that Applied Systems was not an interested party to maintain the protest, i.e., the firm was not an actual or prospective bidder whose direct economic interest would be affected by the award of a contract or the failure to award a contract. The record in this case indicated that the protester was only the third low offeror; since the firm thus would not have been next in line for award if its protest succeeded, it was not sufficiently interested to challenge the award to the low offeror.

Unless you publicly announce its contents earlier, we plan no further distribution of this letter until 30 days from the date of the letter.