Matter of: G. Davidson Company, Inc. File: B-249331 Date: July 14, 1992

Matter of: G. Davidson Company, Inc. File: B-249331 Date: July 14, 1992

PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Adverse agency actions Protest of agency's rejection of bid as nonresponsive due to defective bid bond is dismissed as untimely where previous agency-level protest was untimely filed. PROCUREMENT Bid Protests GAO procedures Protest timeliness Significant issue exemptions Applicability Untimely protest of agency's refusal to accept facsimile copy of bid bond will not be considered under "significant issue" exception to General Accounting Office (GAO) timeliness requirements where identical issue has been considered in prior GAO decisions.

Attorneys

DECISION

G. Davidson Company, Inc. protests the rejection of its bid under invitation for bids (IFB) No. DACW63-92-B-0054, issued by the U.S. Army Corps of Engineers for construction. Davidson's bid was found nonresponsive for failure to include the required bid guarantee; Davidson alleges that the agency is at fault because it improperly refused to accept the firms's bid bond by facsimile transmission.

We dismiss the protest.

The IFB required the submission of a bid bond in the amount of 20 percent of the bid. Davidson had submitted its bid on March 3, 1992, the bid opening date, without including a bid bond. Three hours before bid opening, a Davidson employee telephoned the contracting office to request a fax number for sending the bid bond; the employee was told that a faxed bid bond would not be accepted. Davidson therefore did not submit a bid bond. On March 10, the agency mailed Davidson a notice of rejection.

On March 20, Davidson faxed a protest of its rejection to the contracting officer; the protest apparently was transmitted after the agency's close of business and so was received the following day. The agency denied the protest on June 29, finding that (1) the protest was untimely to the extent that it concerned the agency's refusal to accept a faxed bid bond, and (2) the agency properly had rejected Davidson's bid since it did not include the required bid bond. Upon learning of the denial of its agency- level protest, Davidson filed this protest in our Office.

Davidson challenges the agency's finding that the protest was untimely as to the issue of acceptability of a faxed bid bond. Davidson asserts that the agency improperly failed to invoke Federal Acquisition Regulation (FAR) Sec. 33.103(b)(2), which provides that an agency may consider an untimely protest that raises issues significant to its acquisition system. Davidson argues that its protest should be considered under this provision because it "point[s] out a significant inequity in the acquisition policies of the agency."

Under our Bid Protest Regulations, protests not based on alleged solicitation improprieties must be filed within 10 working days after the basis for protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) (1992). Our Regulations also provide that a matter initially protested to an agency will be considered only if the initial protest to the agency was filed within the time limits for filing a protest with our Office. 4 C.F.R. Sec. 21.2(a)(3); Tandy Constr., Inc., B-238619, Feb. 22, 1990, 90-1 CPD Para. 206. Thus, to be timely under our Regulations, Davidson's agency-level protest would have to have been filed within 10 working days after it learned of the basis of its protest. Since Davidson learned on March 3 that the agency would not accept a faxed bid bond, it had until March 17, 10 working days later, to protest the agency's action. [1] Since Davidson did not file its protest until March 21, the agency properly found the protest untimely; its subsequent protest to our Office therefore is untimely.

Further, we have no basis to question the agency's failure to consider Davidson's protest under the "significant issue" exception to the FAR's timeliness requirements. The FAR requirements mirror those of our Regulations; in order to prevent those requirements from becoming meaningless, we limit the use of the significant issue exception to protests that raise issues of widespread interest to the procurement community, and which have not been considered on the merits in a previous decision. See 4 C.F.R. Sec. 21.2(c); DynCorp, 70 Comp.Gen. 39 (1990), 90-2 CPD Para. 310. We have previously considered the issue of acceptability of a facsimile copy of a bid bond. Executone Info. Sys., Inc., B-246155, Oct. 21, 1991, 91-2 CPD Para. 353; J T Roofing, Inc., B-245823, Oct. 8, 1991, 91-2 CPD Para. 318; Hugo Key & Son, Inc., 91-2 CPD Para. 189; The King Co., Inc., B-228489, Oct. 30, 1987, 87-2 CPD Para. 423 (facsimile bid bonds are not acceptable because they do not provide sufficient evidence that the surety intended to be bound under the IFB, leaving uncertain the enforceability of the bond). We therefore do not consider this a significant issue for the purpose of exempting Davidson's protest from either the FAR timeliness requirements or those of our Regulations.

The protest is dismissed.

1. The agency asserts that a protest of improper agency instructions for bid submission must be filed before bid opening under 4 C.F.R. Sec. 21.2(a)(1). Even assuming that this is generally true, we would not have required Davidson to file its protest in the remaining 2 hours and 45 minutes before bid opening, but instead would have applied the 10-day rule of 4 C.F.R Sec. 21.2(a)(2). See The Big Picture Co., B-210535, Feb. 17, 1983, 83-1 CPD Para. 166. In any case, Davidson's agency-level protest was untimely under either standard.