B-217445, JAN 23, 1985, OFFICE OF GENERAL COUNSEL

B-217445: Jan 23, 1985

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WE ARE UNABLE TO CONSIDER THE MATTER ON THE MERITS BECAUSE BIOMEDICAL'S PROTEST WAS FILED UNTIMELY. OUR BID PROTEST PROCEDURES REQUIRE THAT IF A PROTEST IS FILED INITIALLY WITH A CONTRACTING AGENCY. IT IS CLEAR FROM BIOMEDICAL'S LETTER OF NOVEMBER 16. IT HAS BEEN DECIDED THAT NO PROTEST WILL BE CONSIDERED ON ITS MERITS IF UNTIMELY FILED. UNLESS ONE OF THE EXCEPTIONS IN SECTION 21.1(C) OF OUR PROCEDURES IS APPLICABLE. THIS POLICY WAS ADOPTED BECAUSE OUR OFFICE CAN BEST FUNCTION IF IT IS PERMITTED TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION WITH RESPECT TO THE PROCUREMENT WHERE THE CIRCUMSTANCES WARRANT. WE ARE UNABLE TO DO SO IF A PROTEST IS FILED AFTER WHAT WE CONSIDER TO BE A REASONABLE TIME FOR THE FILING OF A PROTEST.

B-217445, JAN 23, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE LLOYD BENTSEN: UNITED STATES SENATE

WE REFER TO YOUR LETTER OF DECEMBER 6, 1984 (RECEIVED BY OUR OFFICE ON DECEMBER 13), CONCERNING YOUR CONSTITUENT, MR. R. A. WELCH, PRESIDENT OF BIOMEDICAL SUPPORT SYSTEMS, INC. (BIOMEDICAL). BY LETTER DATED NOVEMBER 16, 1984, WHICH YOU ENCLOSED, MR. WELCH OBJECTS TO THE DEPARTMENT OF THE ARMY'S RESPONSE TO HIS PROTEST OF THE SOLE SOURCE AWARD OF CONTRACT NO. DAKF48-84-C-0160 FOR ANESTHESIA EQUIPMENT MAINTENANCE AT FORT HOOD, TEXAS.

WE ARE UNABLE TO CONSIDER THE MATTER ON THE MERITS BECAUSE BIOMEDICAL'S PROTEST WAS FILED UNTIMELY. OUR BID PROTEST PROCEDURES REQUIRE THAT IF A PROTEST IS FILED INITIALLY WITH A CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO GAO MUST BE FILED WITHIN 10 WORKING DAYS OF THE PROTESTER'S LEARNING OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 21.2(A) (1984). IT IS CLEAR FROM BIOMEDICAL'S LETTER OF NOVEMBER 16, 1984, THAT BY THAT DATE, IT KNEW OF THE DENIAL OF THE PROTEST BY THE ARMY. BIOMEDICAL DID NOT FILE A PROTEST WITH OUR OFFICE WITHIN 10 DAYS OF RECEIVING THE ARMY'S DENIAL.

CONCERNING THE APPLICABILITY OF OUR PROCEDURES TO PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS, IT HAS BEEN DECIDED THAT NO PROTEST WILL BE CONSIDERED ON ITS MERITS IF UNTIMELY FILED, UNLESS ONE OF THE EXCEPTIONS IN SECTION 21.1(C) OF OUR PROCEDURES IS APPLICABLE, REGARDLESS OF THE SOURCE OF THE PROTEST. THIS POLICY WAS ADOPTED BECAUSE OUR OFFICE CAN BEST FUNCTION IF IT IS PERMITTED TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION WITH RESPECT TO THE PROCUREMENT WHERE THE CIRCUMSTANCES WARRANT. WE ARE UNABLE TO DO SO IF A PROTEST IS FILED AFTER WHAT WE CONSIDER TO BE A REASONABLE TIME FOR THE FILING OF A PROTEST. MOREOVER, IF OUR OFFICE WERE TO CONSIDER AN UNTIMELY PROTEST ON THE MERITS WHEN SUBMITTED BY A MEMBER OF CONGRESS, THIS WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT THE TIMELINESS PROVISIONS OF OUR PROCEDURES COULD BE CIRCUMVENTED BY SUBMITTING THE PROTEST THROUGH A MEMBER OF CONGRESS.

WHILE SECTION 21.1(C) OF OUR PROCEDURES PROVIDES THAT, FOR GOOD CAUSE SHOWN OR WHERE THERE ARE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES, OUR OFFICE MAY CONSIDER A PROTEST WHICH IS NOT FILED TIMELY, WE DO NOT FIND THESE EXCEPTIONS APPLICABLE HERE. SEE 52 COMP.GEN. 821 (1973). THEREFORE, THE PROTEST WILL NOT BE CONSIDERED ON THE MERITS.

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