B-237026, Oct 5, 1989, 89-2 CPD 321

B-237026, Oct 5, 1989, 89-2 CPD 321

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule - Adverse agency actions DIGEST: Protest filed with General Accounting Office (GAO) more than 10 working days after protester received contracting officer's denial of its agency- level protest is dismissed as untimely. The fact that the contracting officer allegedly failed to advise the protester as to its right to protest at the GAO does not toll the time for filing at the GAO as prospective government contractors are on constructive notice of GAO's Bid Protest Regulations because they are published in the Federal Register.

Heinbaugh-Lemich Partnership:

Heinbaugh-Lemich Partnership protests the award of a contract to Trionon Development, Inc., under solicitation for offers (SFO) No. YA 651-LS9-SFO- 89010 issued by the Bureau of Land Management of the Department of the Interior for the construction and leasing of office and warehouse space in Ely, Nevada. The protester contends that the awardee proposed a building with metal siding which allegedly was prohibited by the solicitation.

We dismiss the protest.

Heinbaugh initially protested this issue to the contracting activity by a letter dated July 6, 1989, and received the contracting officer's denial of its protest by a letter dated July 13. Heinbaugh, however, did not file a protest in this Office until September 20. Our Bid Protest Regulations provide that if a protest was filed initially with the contracting agency, any subsequent protest here must be filed within 10 working days of actual or constructive knowledge of initial adverse agency action. 4 C.F.R. Sec. 21.2(a) (1989). In order to be timely, therefore, Heinbaugh should have filed its protest with this Office within 10 days of its receipt of the contracting officer's July 13 denial of the agency- level protest.

The protester contends that it did not become aware of our timeliness rules until a congressional representative advised it of its rights at the General Accounting Office. Heinbaugh further alleges that the contracting officer orally advised the firm that the only avenue of redress that remained was an action through the courts, rather than revealing to it the possibility of a protest to our Office.

We have consistently held that a protester is on constructive notice of the proper time and place for filing its protest with this Office because our Regulations are published in the Federal Register. Sho-Ge, Inc., B-234772, Mar. 24, 1989, 89-1 CPD Para. 303. In addition, contrary to the protester's understanding, there is no requirement in the Federal Acquisition Regulation (FAR) that obligates the contracting agency to inform prospective government contractors of their right to file a protest with our Office. Further, the fact that Heinbaugh may have been misled by the agency does not alter the untimeliness of its protest, as prospective government contractors are on constructive notice of our Bid Protest Regulations, and because the timeliness requirements of our Regulations may not be waived by the contracting activity. Servidyne, Inc., B-231944, Aug. 8, 1988, 88-2 CPD Para. 121. To the extent that Heinbaugh urges us to consider the protest on the merits under the "good cause" exception to our timeliness rules, 4 C.F.R. Sec. 21.2(b), because it was misled by the agency, this does not alter the untimeliness of its protest. Paul Abbott Trucking-- Request for Recon., B-232247.2, Sept. 7, 1988, 88-2 CPD Para. 220.

The protest is dismissed.