B-247617.2, Mar 31, 1992

B-247617.2: Mar 31, 1992

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DIGEST: Request for reconsideration of prior dismissal of protest is denied where initial protest challenging alleged apparent solicitation improprieties was filed after the closing date for receipt of proposals. It further stated that it was offering a model that met all of the specifications except one. DLA sent a letter by telefacsimile transmission to Ciba in which it stated that Ciba's offered product was unacceptable. Our Bid Protest Regulations specifically require that protests based upon alleged improprieties in a solicitation which are apparent prior to the closing date for receipt of initial proposals must be filed prior to the closing time. 4 C.F.R. These alleged solicitation improprieties were apparent on the face of the solicitation.

B-247617.2, Mar 31, 1992

DIGEST: Request for reconsideration of prior dismissal of protest is denied where initial protest challenging alleged apparent solicitation improprieties was filed after the closing date for receipt of proposals.

Attorneys

Ciba Corning Diagnostics Corporation-- Reconsideration:

Ciba Corning Diagnostics Corporation requests reconsideration of our February 20, 1992, dismissal of its protest against the terms of request for proposals (RFP) No. DLA120-91-R-1958, issued by the Defense Logistics Agency (DLA) for a portable blood gas analyzer, identified in the RFP by national stock number 6630-01-332-7885. We dismissed the protest as untimely because Ciba filed its protest against alleged apparent solicitation improprieties after the closing date for receipt of proposals.

We deny the request for reconsideration.

The solicitation established October 17, 1991, as the closing date for receipt of proposals. In a letter to the agency dated October 14, Ciba stated that it found the specifications to be a "total lockout" in favor of a particular brand name product, and it further stated that it was offering a model that met all of the specifications except one. Ciba submitted an offer for its model by the closing date. On January 29, 1992, DLA sent a letter by telefacsimile transmission to Ciba in which it stated that Ciba's offered product was unacceptable. Ciba filed a protest with our Office on February 14, 1992.

Our Bid Protest Regulations specifically require that protests based upon alleged improprieties in a solicitation which are apparent prior to the closing date for receipt of initial proposals must be filed prior to the closing time. 4 C.F.R. Sec. 21.2(a)(1) (1991), as amended by 56 Fed.Reg. 3759 (1991); Englehard Corp., B-237824, Mar. 23, 1990, 90-1 CPD Para. 324. Ciba's protest of February 14 challenged the cartridge pack specification, the weight specification, and the automatic calibration specification. These alleged solicitation improprieties were apparent on the face of the solicitation. Since the February 14 protest was filed well after the October 17 closing date for receipt of initial proposals, we dismissed the protest as untimely.

In its request for reconsideration, Ciba argues that its October 14 letter to the agency was an agency-level protest filed before the closing date for receipt of proposals.

Assuming Ciba's October 14 letter was an agency-level protest, Ciba's February 14 protest to our Office was still untimely. When a protest is filed with the contracting agency, any subsequent protest to our Office must be received within 10 working days after the protester has "actual or constructive knowledge of initial adverse agency action." 4 C.F.R. Sec. 21.2(a)(3) (1991). This includes knowledge that the agency proceeded with the receipt of proposals in the face of the protest. 4 C.F.R. Sec. 21.0(f). /1/ Here, DLA proceeded with receipt of proposals without addressing Ciba's concerns; this constituted initial adverse agency action on the agency-level protest. Since more than 10 working days elapsed between the October 17 receipt of proposals closing date and the February 14 protest to our Office, the protest was untimely.

In any event, Ciba's January 29 receipt of the agency's telefacsimile transmission constituted, at the very latest, knowledge of adverse agency action triggering the 10-day filing period. The agency's January 29 telefacsimile transmission stated that Ciba's offered product did not meet the requirements and was unacceptable] this is clearly an adverse agency action. The record shows that Ciba received the transmission on January 29. /2/ To be timely, Ciba had to file its protest in our Office no later than February 12; we received the protest on February 14.

Ciba also appears to argue that its protest to our Office was timely because the agency's January 29 telefacsimile transmission extended the date of acceptance of Ciba's proposal until March 27. However, as discussed above, where the grounds for protest concern alleged apparent solicitation improprieties, those alleged improprieties must be protested before the time established for receipt of proposals. The fact that the agency allowed the protester to submit more information regarding its proposal after that date is irrelevant.

The established standard for reconsideration is that the requesting party must show that our prior decision contains either errors of fact or of law or any information not previously considered that warrant reversal or modification. 4 C.F.R. Sec. 21.12(a). Since Ciba has not met this standard, we will not reconsider our decision.

The request for reconsideration is denied.

/1/ Our decisions have consistently taken this position. See, e.g., Ramer Prods. Ltd.-- Recon., B-224027.7, Sept. 28, 1987, 87-2 CPD Para. 304; Shaw Aero Dev., Inc., B-221980, Apr. 11, 1986, 86-1 CPD Para. 357.

/2/ Ciba argues that we should consider the fact that the agency did not respond to its October 14 letter until January 29. We note that Ciba had the affirmative obligation to diligently pursue the protest, Excel Envtl., B-242577, Jan. 29, 1991, 91-1 CPD Para. 77, and that a protester may wait only a reasonable time for a contracting agency's response before filing a protest here. Sterling Envtl. Servs., Inc., B-234798, May 12, 1989, 89-1 CPD Para. 455. Also, 4 months had elapsed between Ciba's October 14 letter and its February 14 protest to our Office; waiting 4 months to file a protest in our Office after an initial protest with the agency simply is, in any case, not reasonable. Id.