Matter of: J. Rax Garbage Disposal Service, Inc.-- Reconsideration File: B-251442.2 Date: January 15, 1993
Highlights
PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Dismissal of protest is affirmed where protest based upon alleged impropriety apparent on the face of the solicitation was not filed until well after the bid opening date. A protester is on constructive notice of Bid Protest Regulations concerning the proper time for filing a protest. Rax argued that the agency should not have issued a competitive solicitation. Instead should have placed the procurement under the 8(a) program for award to J. The IFB was issued on August 12. Was not the low bidder. The contract was awarded to Omega I Company on November 20. Since it was clear from the agency's decision to issue the IFB that an 8(a) award would not be made to J.
Matter of: J. Rax Garbage Disposal Service, Inc.-- Reconsideration File: B-251442.2 Date: January 15, 1993
PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Dismissal of protest is affirmed where protest based upon alleged impropriety apparent on the face of the solicitation was not filed until well after the bid opening date, making it untimely; a protester is on constructive notice of Bid Protest Regulations concerning the proper time for filing a protest.
Attorneys
DECISION J. Rax Garbage Disposal Service, Inc. requests reconsideration of our December 7, 1992 dismissal of its protest of the award of a contract under invitation for bids (IFB) No. 265-0009, issued by the Department of Justice for garbage disposal services at two federal detention facilities in Oakdale, Louisiana.
We affirm the dismissal.
In its protest, J. Rax alleged that the agency led it to believe that it would receive a contract under the 8(a) program to provide the services called for under the IFB. Consequently, J. Rax argued that the agency should not have issued a competitive solicitation, but instead should have placed the procurement under the 8(a) program for award to J. Rax. The IFB was issued on August 12, 1992; the protester submitted a bid by the September 16 bid opening date, but was not the low bidder. The contract was awarded to Omega I Company on November 20, and J. Rax filed its protest in our Office on November 25.
Under our Bid Protest Regulations, protests based upon alleged improprieties apparent on the face of a solicitation must be filed by the time designated for bid opening. 4 C.F.R. Sec. 21.2(a)(1) (1992). Since it was clear from the agency's decision to issue the IFB that an 8(a) award would not be made to J. Rax, to be timely the protester should have filed its protest by the bid opening date, September 16. As this protest was not filed until November 25, more than 2 months later, we found it untimely and dismissed it.
J. Rax contends that it did not file its protest prior to award because it believed a protest could be made only after award. The protester bases this contention on the IFB's inclusion of Federal Acquisition Regulation (FAR) Sec. 52.233-3, titled "Protest After Award," and on information allegedly provided by an agency employee. However, FAR Sec. 52.233-3 merely refers to the procedures which the agency must follow should a protest be filed after award; its inclusion in the IFB has no bearing on the requirement that a protest challenging an alleged solicitation impropriety, like the one here, be filed before award. Further, protester is on constructive notice of our regulations concerning the proper time for filing a protest, even where allegedly erroneous information is provided by agency personnel, as our Bid Protest Regulations are published in the Federal Register and the Code of Federal Regulations. Whelen Eng'g Co., B-239189, Aug. 1, 1990, 90-2 CPD Para. 89. Accordingly, the protester's erroneous belief regarding the time for filing did not relieve it of the obligation to file the protest before bid opening. Since it was not filed until after award was made, the protest was untimely.
The dismissal is affirmed.