B-209497 L/M, NOV 16, 1982, OFFICE OF GENERAL COUNSEL

B-209497 L/M: Nov 16, 1982

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UNITED STATES SENATOR: THIS IS IN REPLY TO YOUR CORRESPONDENCE OF SEPTEMBER 30. WE ARE UNABLE TO CONSIDER THIS MATTER ON THE MERITS BECAUSE YOUR CONSTITUENT'S PROTEST WAS UNTIMELY FILED. BID OPENING WAS CONDUCTED ON SEPTEMBER 20. REQUIRE THAT PROTESTS BASED UPON ALLEGED SOLICITATION IMPROPRIETIES WHICH ARE APPARENT BEFORE BID OPENING BE FILED EITHER WITH OUR OFFICE OR THE PROCURING AGENCY BEFORE THAT DATE. ROBINSON SHOULD HAVE BEEN AWARE OF THE ALLEGED IMPROPRIETIES UPON RECEIPT OF THE SOLICITATION SENT TO ROBINSON ON AUGUST 31. THE PROTEST IS UNTIMELY AND CANNOT BE CONSIDERED ON THE MERITS. NO PROTEST WILL BE CONSIDERED ON THE MERITS UNLESS IT FIRST MEETS OUR TIMELINESS RULE. THE REASON FOR THIS IS TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION IF SUCH ACTION IS FOUND TO BE NECESSARY.

B-209497 L/M, NOV 16, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

LLOYD BENTSEN, UNITED STATES SENATOR:

THIS IS IN REPLY TO YOUR CORRESPONDENCE OF SEPTEMBER 30, 1982, REQUESTING THAT WE REVIEW THE ALLEGATIONS OF YOUR CONSTITUENT, ROBINSON COMPANY OF AUSTIN, INC. (ROBINSON), THAT THE BERGSTROM AIR FORCE BASE HAS PURCHASED LOCKS ON A SOLE-SOURCE BASIS FROM BEST LOCK COMPANY UNDER REQUISITION/PURCHASE REQUESTS NOS. FQ 4857223 50002 AND FQ 4857223 10010.

WE ARE UNABLE TO CONSIDER THIS MATTER ON THE MERITS BECAUSE YOUR CONSTITUENT'S PROTEST WAS UNTIMELY FILED.

THE AIR FORCE HAS INFORMALLY ADVISED US THAT IT SENT SOLICITATIONS TO PROSPECTIVE BIDDERS, INCLUDING ROBINSON, ON AUGUST 31. BID OPENING WAS CONDUCTED ON SEPTEMBER 20. ON SEPTEMBER 22, THE AIR FORCE RECEIVED A SEPTEMBER 20 LETTER FROM ROBINSON THAT TOOK EXCEPTION TO THE SOLICITATION. THE AIR FORCE RESPONDED TO ROBINSON'S ALLEGATIONS IN REPLY TO INQUIRIES FROM YOURSELF AND ANOTHER CONGRESSIONAL SOURCE.

OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(1) (1982), REQUIRE THAT PROTESTS BASED UPON ALLEGED SOLICITATION IMPROPRIETIES WHICH ARE APPARENT BEFORE BID OPENING BE FILED EITHER WITH OUR OFFICE OR THE PROCURING AGENCY BEFORE THAT DATE. IN THIS CASE, ROBINSON SHOULD HAVE BEEN AWARE OF THE ALLEGED IMPROPRIETIES UPON RECEIPT OF THE SOLICITATION SENT TO ROBINSON ON AUGUST 31. AS WE NOTED ABOVE, THE AIR FORCE DID NOT RECEIVE ROBINSON'S SEPTEMBER 20 PROTEST LETTER UNTIL 2 DAYS AFTER BID OPENING. BECAUSE ROBINSON FAILED TO FILE A PROTEST WITH EITHER THE AIR FORCE OR OUR OFFICE BEFORE BID OPENING, THE PROTEST IS UNTIMELY AND CANNOT BE CONSIDERED ON THE MERITS. LE PRIX ELECTRICAL DISTRIBUTORS, LTD., B-207721, SEPTEMBER 21, 1982, 82-2 CPD 252.

CONCERNING THE APPLICABILITY OF OUR BID PROTEST PROCEDURES TO PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS, NO PROTEST WILL BE CONSIDERED ON THE MERITS UNLESS IT FIRST MEETS OUR TIMELINESS RULE. THE REASON FOR THIS IS TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION IF SUCH ACTION IS FOUND TO BE NECESSARY. 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 OUR TIMELINESS PROVISIONS CAN BE CIRCUMVENTED BY SUBMITTING THE PROTEST THROUGH A MEMBER OF CONGRESS.

SECTION 21.2(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 TIMELY FILED. HOWEVER, THESE EXCEPTIONS ARE NOT INVOLVED HERE. SEE 52 COMP.GEN. 821 (1973). THEREFORE, THE PROTEST WILL NOT BE CONSIDERED ON THE MERITS.

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