B-184893, DEC 10, 1975
Highlights
IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS. BIDS WERE OPENED BY THE FOREST SERVICE ON AUGUST 27. AWARDS WERE MADE ON THE SAME DAY TO FORT VANCOUVER PLYWOOD CO. WCO WAS APPARENTLY ATTEMPTING TO THEREBY INDICATE ITS DISAGREEMENT WITH A SMALL BUSINESS SIZE APPEALS BOARD DETERMINATION OF DECEMBER 1974 THAT HELD WCO TO BE OTHER THAN A SMALL BUSINESS. WE NOTE HERE THAT NEITHER OF THE INSTANT TIMBER SALES WERE IN WHOLE OR IN PART SMALL BUSINESS SET-ASIDES. THIS DETERMINATION WAS BASED UPON THE FACT THAT THE WCO REPRESENTATIVE PRESENT AT THE BID OPENING REPORTEDLY REFUSED TO EXPLAIN WHAT "UNDER PROTEST" REFERRED TO. SINCE THE RECORD WAS UNCLEAR AS TO WHETHER WCO ORALLY PROTESTED THE REJECTION OF ITS BIDS AT THIS TIME.
B-184893, DEC 10, 1975
PURSUANT TO BID PROTEST PROCEDURES, 40 FED. REG. 17979 (1975) SEC. 20.2(A), PROTEST ORIGINALLY FILED AND REJECTED BY PROCURING AGENCY ON AUGUST 27, 1975, AND NOT FILED WITH GAO UNTIL SEPTEMBER 11, 1975, MORE THAN 10 WORKING DAYS AFTER INITIAL ADVERSE AGENCY ACTION, IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.
WEST COAST ORIENT CO.:
BY TELEGRAM (RECEIVED AT GAO ON SEPTEMBER 11, 1975) WEST COAST ORIENT COMPANY (WCO) HAS PROTESTED THE AWARD OF CONTRACTS TO ANY OTHER BIDDER ON THE MARBLE MOUNTAIN TIMBER SALE AND THE SALT TIMBER SALE FROM THE GIFFORD PINCHOT NATIONAL FOREST BY THE FOREST SERVICE. BIDS WERE OPENED BY THE FOREST SERVICE ON AUGUST 27, 1975. AWARDS WERE MADE ON THE SAME DAY TO FORT VANCOUVER PLYWOOD CO. ON THE SALT TIMBER SALE (CONTRACT NO. 02199-5) AND TO BOISE CASCADE CORPORATION ON THE MARBLE MOUNTAIN TIMBER SALE (CONTRACT NO. 02200-1).
THE RECORD REFLECTS THAT IN THE PORTION OF THE INVITATION FOR BIDS DEALING WITH SMALL BUSINESS ADMINISTRATION SIZE CLASSIFICATION, WCO WROTE IN THE WORDS "UNDER PROTEST" NEXT TO THE SIZE CLASSIFICATION "LARGE." WCO WAS APPARENTLY ATTEMPTING TO THEREBY INDICATE ITS DISAGREEMENT WITH A SMALL BUSINESS SIZE APPEALS BOARD DETERMINATION OF DECEMBER 1974 THAT HELD WCO TO BE OTHER THAN A SMALL BUSINESS. WE NOTE HERE THAT NEITHER OF THE INSTANT TIMBER SALES WERE IN WHOLE OR IN PART SMALL BUSINESS SET-ASIDES.
BASED ON THE NOTATION "UNDER PROTEST" THE FOREST SERVICE REJECTED WCO'S BIDS AT THE BID OPENING AS QUALIFIED BIDS. THIS DETERMINATION WAS BASED UPON THE FACT THAT THE WCO REPRESENTATIVE PRESENT AT THE BID OPENING REPORTEDLY REFUSED TO EXPLAIN WHAT "UNDER PROTEST" REFERRED TO.
SINCE THE RECORD WAS UNCLEAR AS TO WHETHER WCO ORALLY PROTESTED THE REJECTION OF ITS BIDS AT THIS TIME, WE QUERIED WCO ON THIS POINT. WCO CONFIRMED NOT ONLY THAT THEY MADE AN INITIAL PROTEST AT THE AUGUST 27, 1975, BID OPENINGS BUT THAT THEY INTERPRETED THE FOREST SERVICE REACTION TO THEIR PROTEST AT THAT TIME AS A REJECTION OF THEIR PROTEST.
OUR BID PROTEST PROCEDURES, 40 FED. REG. 17979 (1975) SEC. 20.2(A), PROVIDE THAT WHEN PROTESTS ARE INITIALLY FILED WITH THE CONTRACTING AGENCY ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE MUST BE FILED WITHIN 10 WORKING DAYS OF FORMAL NOTIFICATION OF OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION.
IN THE INSTANT CASE, THE RECORD INDICATES THAT WCO PROTESTED TO THE FOREST SERVICE AND RECEIVED NOTIFICATION OF ADVERSE AGENCY ACTION ON AUGUST 27, 1975. THE WCO PROTEST WAS NOT FILED IN OUR OFFICE UNTIL SEPTEMBER 11, 1975, MORE THAN 10 WORKING DAYS AFTER THE INITIAL ADVERSE AGENCY ACTION. UNDER THESE CIRCUMSTANCES, WCO'S PROTEST MUST BE CONSIDERED AS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.