B-245800, Jan 27, 1992

B-245800: Jan 27, 1992

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Atlantic Coast maintains that the process required by the solicitation for rehabilitation of the lines is unduly restrictive of competition. After a notice of the solicitation was published in the Commerce Business Daily. That the solicitation requirement of "Insituform Liner Process or approved equal" for the rehabilitation of sewer lines was restrictive of competition since this is a sole source process. The agency subsequently revised the specifications and when the solicitation was issued on July 31. Which are based on alleged improprieties in a solicitation. In cases where an alleged solicitation impropriety is timely protested to the contracting agency. Section 21.0(f) of our Regulations defines adverse agency action as "any action or inaction on the part of a contracting agency which is prejudicial to the position taken in a protest filed with the agency.".

B-245800, Jan 27, 1992

DIGEST: PRECIS-UNAVAILABLE

Atlantic Coast Contractors, Inc:

Atlantic Coast Contractors, Inc. protests the terms of invitation for bids (IFB) No. F49642-91-B0050, issued by the Department of the Air Force for the replacement of water distribution and service lines at Bolling Air Force Base. Atlantic Coast maintains that the process required by the solicitation for rehabilitation of the lines is unduly restrictive of competition.

We dismiss the protest as untimely.

After a notice of the solicitation was published in the Commerce Business Daily, Atlantic Coast protested to the agency on July 2, 1991, that the solicitation requirement of "Insituform Liner Process or approved equal" for the rehabilitation of sewer lines was restrictive of competition since this is a sole source process. The agency subsequently revised the specifications and when the solicitation was issued on July 31, it required "Insituform Liner Process, U-Liner Contracting Co., Mitsui and Co., Spiniello Construction Co., In-Line Process or approved equal." Bid opening occurred on September 13 and Atlantic Coast protested to this Office on September 23.

Our Bid Protest Regulations provide that protests such as the one here, which are based on alleged improprieties in a solicitation, shall be filed prior to the bid opening date. 4 C.F.R. Sec. 21.2(a)(1) (1991), as amended by 56 Fed.Reg. 3759 (1991). In cases where an alleged solicitation impropriety is timely protested to the contracting agency, any subsequent protest to this Office must be 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). Section 21.0(f) of our Regulations defines adverse agency action as "any action or inaction on the part of a contracting agency which is prejudicial to the position taken in a protest filed with the agency."

In this case, the IFB, which was issued including the process objected to by Atlantic Coast, was prejudicial to the protester's interests-- Atlantic Coast was obviously not satisfied with the agency's action in adding several firms, processes to the requirement-- and thus its issuance constituted initial adverse agency action on the protest to the agency. See Chestnut Venture Reality Ltd. Partnership, B-242263, Feb. 21, 1991, 91-1 CPD Para. 199. As a result, to be timely, Atlantic Coast's protest to our Office had to be filed within 10 working days of when Atlantic Coast received the July 31 solicitation. Since Atlantic Coast did not protest to this Office until September 23, more than 10 working days after it knew of the initial adverse agency action on its protest, the protest is untimely.

The protest is dismissed.