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B-175779, JUL 13, 1972, 52 COMP GEN 20

B-175779 Jul 13, 1972
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ARE INTENDED TO PROVIDE EFFECTIVE REMEDIAL ACTION AND. ALTHOUGH A PROTEST THAT THE SUCCESSFUL BIDDER WAS NOT RESPONSIBLE - A PROTEST THAT DOES NOT INVOLVE AN IMPROPRIETY - WAS TIMELY FILED WITH THE CONTRACTING AGENCY. IT MAY NOT BE CONSIDERED BY GAO SINCE THE PROTEST WAS NOT FILED WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. THE PROTEST MAY NOT BE CONSIDERED FOR "GOOD CAUSE" - A COMPELLING REASON FOR DELAYED FILING BEYOND A PROTESTOR'S CONTROL - OR ON THE BASIS A SIGNIFICANT ISSUE OF PROCUREMENT PRACTICES OR PROCEDURES WAS RAISED. 1972: REFERENCE IS MADE TO YOUR LETTER OF MAY 12. YOU STATE THAT SECTION 20.2(A) OF THE "INTERIM BID PROTEST PROCEDURES AND STANDARDS" IS CONTRADICTORY AND MISLEADING IN THAT IT URGES PROTESTORS TO INITIALLY SEEK RESOLUTION OF THEIR COMPLAINTS WITH THE CONTRACTING AGENCY AND YET IMPOSES RELATIVELY SHORT TIME LIMITS FOR FILING PROTESTS WITH OUR OFFICE.

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B-175779, JUL 13, 1972, 52 COMP GEN 20

CONTRACTS - PROTESTS - TIMELINESS THE TIME LIMITATIONS IMPOSED BY 4 CFR 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVISIONS FOR FILING A PROTEST, FIRST WITH THE CONTRACTING AGENCY AND THEN WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO), ARE INTENDED TO PROVIDE EFFECTIVE REMEDIAL ACTION AND, THEREFORE, MUST BE OBSERVED. ALTHOUGH A PROTEST THAT THE SUCCESSFUL BIDDER WAS NOT RESPONSIBLE - A PROTEST THAT DOES NOT INVOLVE AN IMPROPRIETY - WAS TIMELY FILED WITH THE CONTRACTING AGENCY, IT MAY NOT BE CONSIDERED BY GAO SINCE THE PROTEST WAS NOT FILED WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. FURTHERMORE, THE PROTEST MAY NOT BE CONSIDERED FOR "GOOD CAUSE" - A COMPELLING REASON FOR DELAYED FILING BEYOND A PROTESTOR'S CONTROL - OR ON THE BASIS A SIGNIFICANT ISSUE OF PROCUREMENT PRACTICES OR PROCEDURES WAS RAISED, BECAUSE A PROTEST CHALLENGING THE RESPONSIBILITY OF A BIDDER INVOLVES NEITHER EXCEPTION TO THE TIMELY FILING OF A PROTEST.

TO THE PANORAMIC STUDIOS, JULY 13, 1972:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1972, WHICH RESPONDED TO OUR LETTER B-175779, MAY 10, 1972, WHEREIN WE ADVISED YOU THAT UNDER OUR "INTERIM BID PROTEST PROCEDURES AND STANDARDS" WE WOULD REGARD AS UNTIMELY YOUR PROTEST UNDER REP DAAK01-71-R-6301, ISSUED BY THE ARMY MOBILITY EQUIPMENT COMMAND.

YOU STATE THAT SECTION 20.2(A) OF THE "INTERIM BID PROTEST PROCEDURES AND STANDARDS" IS CONTRADICTORY AND MISLEADING IN THAT IT URGES PROTESTORS TO INITIALLY SEEK RESOLUTION OF THEIR COMPLAINTS WITH THE CONTRACTING AGENCY AND YET IMPOSES RELATIVELY SHORT TIME LIMITS FOR FILING PROTESTS WITH OUR OFFICE. YOU SUGGEST THAT THIS PERMITS CONTRACTING AGENCIES TO "SPIN OUT" DISCUSSIONS OF PROTESTS "SECURE IN THE KNOWLEDGE THAT THE GENERAL ACCOUNTING OFFICE WILL THEN SAY THAT NO 'TIMELY' PROTEST WAS EVER SUBMITTED." YOU ALLEGE THAT THIS HAS OCCURRED IN YOUR PROTEST, WHICH HAS NOT RECEIVED THE "OBJECTIVE, INDEPENDENT AND IMPARTIAL" HANDLING OUR BID PROTEST PROCEDURES ARE INTENDED TO PROVIDE.

SECTION 20.2(A) OF THE "INTERIM BID PROTEST PROCEDURES AND STANDARDS" STATES:

PROTESTORS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. THE TERM "FILED" AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE AND PROTESTORS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT.

THE LIMITED FACTUAL INFORMATION CONTAINED IN YOUR LETTER OF APRIL 14, 1972, INDICATES THAT THE BASIS OF YOUR PROTEST TO THE PROCURING AGENCY WAS THAT THE SUCCESSFUL OFFEROR WAS NOT A RESPONSIBLE CONTRACTOR. SINCE YOUR PROTEST DID NOT INVOLVE AN IMPROPRIETY APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, THE SECOND SENTENCE OF SECTION 20.2(A) IS INAPPLICABLE TO YOUR PROTEST.

THE NEXT SENTENCE OF SECTION 20.2(A) PROVIDES THAT IN OTHER CASES (SUCH AS YOURS), BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. A PROTEST WHICH ALLEGES THAT THE SUCCESSFUL OFFEROR IS NOT RESPONSIBLE COULD NOT HAVE BEEN MADE UNTIL YOU WERE AWARE OF THE IDENTITY OF THAT OFFEROR. IN THE INSTANT CASE, AWARD WAS MADE ON JUNE 16, 1971, AND WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE ARMY THAT YOUR PROTEST LETTER OF JUNE 21, 1971, WAS RECEIVED BY THE CONTRACTING OFFICER ON JUNE 23, 1971. SINCE YOUR PROTEST WAS RECEIVED BY THE CONTRACTING AGENCY 5 WORKING DAYS AFTER THE AWARD, WHICH WAS WHEN THE BASIS OF YOUR PROTEST WOULD FIRST HAVE BEEN KNOWN TO YOU, YOUR PROTEST TO THE CONTRACTING AGENCY WAS TIMELY.

THE NEXT SENTENCE OF SECTION 20.2(A) STATES THAT WHEN A TIMELY PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, SUBSEQUENT PROTESTS TO OUR OFFICE MUST BE FILED "WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION" IN ORDER TO BE CONSIDERED. WE ARE ADVISED BY THE ARMY THAT IT DENIED YOUR PROTEST BY LETTER OF JUNE 25, 1971, WHICH YOU SUBSEQUENTLY TOLD THE ARMY WAS TOO BRIEF. IN RESPONSE TO YOUR COMPLAINT, A FULLER EXPLANATION WAS MADE BY THE ARMY ON JULY 7, 1971. THUS, THE "NOTIFICATION OF ADVERSE AGENCY ACTION" OCCURRED UPON YOUR RECEIPT OF THE ARMY'S LETTER OF JUNE 25, 1971. AS WE OBSERVED IN OUR LETTER OF MAY 10, 1972, YOU DID NOT FILE A PROTEST UNDER THIS PROCUREMENT WITH OUR OFFICE UNTIL APRIL 25, 1972, 10 MONTHS AFTER YOU HAD BEEN NOTIFIED OF ADVERSE AGENCY ACTION CONCERNING YOUR PROTEST. THEREFORE, YOUR PROTEST IS UNTIMELY UNDER THE PROVISIONS OF THE FOURTH SENTENCE OF SECTION 20.2(A). FURTHERMORE, IT DOES NOT APPEAR THAT ANY REMEDIAL ACTION OF BENEFIT TO YOUR FIRM IS NOW AVAILABLE FROM THIS OFFICE, EVEN IF WE SHOULD CONCLUDE THAT THE CONTRACT WAS ILLEGALLY AWARDED, SINCE THE SUPPLIES THEREUNDER HAVE BEEN DELIVERED AND PAYMENT HAS BEEN MADE.

WE DO NOT REGARD THE PROVISIONS OF SECTION 20.2(A) TO BE CONFLICTING AND MISLEADING. WE URGE PROTESTORS TO INITIALLY SEEK RESOLUTION OF THEIR COMPLAINTS WITH THE CONTRACTING AGENCY, WITHIN CERTAIN TIME LIMITS, IN ORDER THAT PROTESTS MAY BE EXPEDITIOUSLY RESOLVED AT A STAGE IN THE PROCUREMENT WHEN SOME EFFECTIVE REMEDIAL ACTION MAY BE TAKEN ON MERITORIOUS PROTESTS. WE THINK IT INAPPROPRIATE, FOR EXAMPLE, FOR A BIDDER TO FIRST ALLEGE THAT THERE IS AN IMPROPRIETY IN AN INVITATION FOR BIDS AFTER BIDS HAVE BEEN OPENED AND HIS COMPETITORS' PRICES EXPOSED. THE INSTANT CASE, YOU MET THE REQUIREMENT THAT A PROTEST MUST BE TIMELY FILED WITH THE CONTRACTING AGENCY.

OUR BID PROTEST REGULATIONS THEN PROVIDE THAT FOLLOWING "ADVERSE AGENCY ACTION" UPON A PROTEST, THE PROTESTOR SEEKING A DECISION OF OUR OFFICE MUST FILE HIS PROTEST IN A TIMELY MANNER. THE INTENT OF THIS PROVISION ALSO IS TO SECURE THE RESOLUTION OF THE MATTER WHEN SOME MEANINGFUL RELIEF MAY BE AFFORDED, NOT - AS IN THIS CASE - AFTER THE CONTRACT IS COMPLETELY PERFORMED.

"ADVERSE AGENCY ACTION" MAY CONSIST OF A PROCUREMENT ACTION (SUCH AS THE AWARD OF A CONTRACT DESPITE THE PENDENCY OF A PROTEST) OR, AS IN THE INSTANT CASE, A DECISION ON THE MERITS OF THE PROTEST. WE REALIZE THAT A PROTESTOR MAY CONSIDER AN AGENCY'S INITIAL ADVERSE ACTION TO BE ILL- FOUNDED OR INADEQUATELY EXPLAINED, LEADING THE PROTESTOR TO ENGAGE IN FURTHER CORRESPONDENCE WITH THE AGENCY. AS YOU OBSERVE IN YOUR LETTER OF MAY 12, IT THEN BECOMES DIFFICULT TO IDENTIFY THE "FINAL" ADVERSE AGENCY ACTION. FOR THIS REASON, WE REGARD IT AS OBLIGATORY UPON A PROTESTOR TO FILE HIS PROTEST WITH OUR OFFICE WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION, IF IT IS TO BE CONSIDERED TIMELY. IT APPEARS THAT THE "ADVERSE AGENCY ACTION" IN THIS CASE OCCURRED NO LATER THAN JUNE 25, 1971. ADDITIONALLY, THERE IS NO EVIDENCE OF RECORD THAT THE ARMY ACTED TO "SPIN OUT THE DISCUSSION *** FOR WEEKS OR MONTHS ***" AS YOU ALLEGE MAY BE POSSIBLE UNDER OUR REGULATIONS.

YOU FURTHER STATE IN YOUR LETTER OF MAY 12, 1972:

WE NOTE ALSO IN SECTION 20.2(B) THAT A PROTEST NOT TIMELY CAN BE CONSIDERED IF IT RAISES A "SIGNIFICANT" ISSUE. DOES "SIGNIFICANT" MEAN A LARGE SUM OF MONEY, OR A GLARINGLY OBVIOUS FLAW, OR IS THERE A QUESTION OF PRINCIPLE? WHAT IS "GOOD CAUSE?"

THE SUBSECTION TO WHICH YOU REFER PROVIDES:

THE COMPTROLLER GENERAL, FOR GOOD CAUSE SHOWN, OR WHERE HE DETERMINES THAT A PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES, MAY CONSIDER ANY PROTEST WHICH IS NOT FILED TIMELY.

"GOOD CAUSE" VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST, ALTHOUGH IT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTOR'S CONTROL, WHICH HAS PREVENTED HIM FROM FILING A TIMELY PROTEST. THERE IS NO INDICATION OF RECORD THAT ANY SUPERVENING CIRCUMSTANCE DELAYED THE FILING OF YOUR PROTEST BEFORE THIS OFFICE. "ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES" REFERS NOT TO THE SUM OF MONEY INVOLVED, BUT TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD INTEREST. ARE NOT INCLINED TO VIEW A PROTEST CHALLENGING THE RESPONSIBILITY OF A PARTICULAR BIDDER AS COMING WITHIN THIS PROVISION.

FOR THE FOREGOING REASONS, WE REMAIN OF THE OPINION THAT YOUR PROTEST IS INAPPROPRIATE FOR CONSIDERATION BY OUR OFFICE.

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