B-242944, Apr 10, 1991, 91-1 CPD 366

B-242944, Apr 10, 1991, 91-1 CPD 366

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Protest filed with the General Accounting Office more than 10 days after agency denied agency-level protest is untimely. Protester's continued pursuit of the matter with the contracting agency did not alter its responsibility to conform to timeliness requirement of Bid Protest Regulations.

Attorneys

WesTest Engineering Corporation:

WesTest Engineering Corporation protests the rejection of its proposal as technically unacceptable under request for technical proposals (RFTP) No. F42600-89-R-20210, step one of a two-step sealed bid procurement, issued by the Department of the Air Force for eight depot utility small testers and test program sets for the capability to repair circuit card assemblies for the F-16 fighter aircraft.

We dismiss the protest as untimely.

On December 3, 1990, WesTest received notification that its technical proposal was rated technically unacceptable. In an attachment to its notification letter, the Air Force listed the basis for WesTest's unacceptable rating. The following day WesTest submitted a letter to the contracting officer which stated that: "we have reviewed the results of the subject technical evaluation and, after a careful analysis, find that we must protest the fact that our proposal was deemed UNACCEPTABLE." The protester was informed on January 3, 1991, by the contracting officer in a telephone conversation that the technical evaluators had reviewed WesTest's proposal again and that it was still unacceptable. WesTest then disputed this determination and sent a Freedom of Information Act (FOIA) request for the complete technical evaluation of its proposal. The protester received these documents on February 4, and protested this matter to the General Accounting Office on February 14.

Our Bid Protest Regulations provide that if an initial protest has been filed timely with the contracting agency, we will consider a subsequent protest to our Office if it is filed within 10 working days after the protester has acquired knowledge of initial adverse agency action on the protest. 4 C.F.R. Sec. 21.2(a)(3) (1991). In this case, WesTest's December 4 letter to the contracting officer constituted a protest to the agency as it requested the contracting officer to reconsider its determination that WesTest's proposal was technically unacceptable. Lawrence Realty, B-243063, Mar. 5, 1991, 91-1 CPD Para. ***.

Section 21.0(f) of our Regulations defines adverse agency action as any action or inaction on the part of contracting agency which is prejudicial to the position taken in a protest filed with the agency," including a decision on the merits of a protest. The telephone conversation between WesTest and the Air Force on January 3 constituted initial adverse agency action as the contracting officer denied WesTest's protest. As a result, to be timely, WesTest's protest to our Office had to be filed within 10 working days after that date, January 17. Since WesTest's protest was not filed until February 14, it is untimely. The fact that the protester filed an FOIA request with the agency in the meantime does not change the untimeliness of the protest. The filing of a FOIA request does not toll our timeliness requirements where, as here, the protest is based on information known to the protester prior to the filing of the request. Hydro-Pure Sys. Co.-- Recon., B-237362.2, Nov. 7, 1989, 89-2 CPD Para. 444.

The protest is dismissed.