B-218089, MAR 7, 1985

B-218089, MAR 7, 1985

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: 1. UNDER THE BID PROTEST REGULATIONS, A PROTEST WILL BE DISMISSED AS UNTIMELY WHEN THE PROTEST IS NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR PROTEST. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - COMPUTATION OF TIMELINESS - PRESIDENTIAL INAUGURATION DAY 2. INAUGURATION DAY IS A WORKING DAY OF THE FEDERAL GOVERNMENT GENERALLY, AND THUS WILL BE COUNTED AS A WORKING DAY IN CONSIDERING WHETHER A PROTEST HAS BEEN TIMELY FILED.

SACO DEFENSE SYSTEMS DIVISION, MAREMONT CORPORATION:

SACO DEFENSE SYSTEMS DIVISION, MAREMONT CORPORATION (SACO), PROTESTS THE PROPOSED AWARD OF A CONTRACT TO BERETTA, U.S.A. UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA09-84-R-8805, ISSUED BY THE UNITED STATES ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND. THE PROCUREMENT IS FOR THE ACQUISITION OF A SINGLE 9MM PISTOL MODEL TO REPLACE THE M1911A1 CALIBER .45 PISTOL AND VARIOUS .38 CALIBER PISTOL MODELS IN CURRENT USE. SACO ESSENTIALLY ALLEGES THAT THE ARMY'S DECISION TO SELECT BERETTA FOR THE AWARD WAS NOT THE RESULT OF A FAIR COMPETITION CONDUCTED IN ACCORDANCE WITH THE EVALUATION FACTORS SET FORTH IN THE RFP. WE DISMISS THE PROTEST AS UNTIMELY.

UNDER OUR BID PROTEST REGULATIONS, PROTESTS MUST BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR PROTEST. BID PROTEST REGULATIONS, SEC. 21.2(A)(2), 49 FED.REG. 49,417, 49,420 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.2(A)(2)). THE TERM "WORKING DAYS" MEANS WORKING DAYS OF THE FEDERAL GOVERNMENT. ID., SEC. 21.0(D). HERE, AFTER OBTAINING THE ARMY'S ADMINISTRATIVE REPORT IN THE MATTER, WE FIND THAT SACO'S BASIS FOR PROTEST AROSE AT THE LATEST WHEN THE FIRM LEARNED BY MEANS OF THE ARMY'S JANUARY 14, 1985 PRESS RELEASE THAT THE ARMY INTENDED TO AWARD THE CONTRACT TO BERETTA. THE RECORD SHOWS THAT SACO WAS AWARE OF THE AWARD ON THAT DATE. TO BE TIMELY, THEREFORE, SACO'S PROTEST HAD TO BE FILED NO MORE THAN 10 WORKING DAYS AFTER JANUARY 14-- THAT IS, BY JANUARY 28. SINCE WE DID NOT RECEIVE THE PROTEST UNTIL JANUARY 29 11 DAYS LATER, IT IS UNTIMELY AND WILL NOT BE CONSIDERED. /1/

OUR CONCLUSION REFLECTS THE FACT THAT INAUGURATION DAY, JANUARY 21, 1985, WAS A WORKING DAY OF THE FEDERAL GOVERNMENT GENERALLY, CONTRARY TO SACO'S ASSERTION THAT IT SHOULD BE REGARDED AS A FEDERAL HOLIDAY, AND THEREFORE SHOULD NOT BE COUNTED AS A WORKING DAY FOR TIMELINESS PURPOSES. ALTHOUGH INAUGURATION DAY IS A HOLIDAY FOR FEDERAL EMPLOYEES WHO WORK IN OFFICES IN THE DISTRICT OF COLUMBIA, AND OFFICES, INCLUDING OURS, ARE THUS CLOSED, INAUGURATION DAY IS NOT A NATIONAL HOLIDAY AND FEDERAL OFFICES OTHER THAN THOSE IN THE DISTRICT OF COLUMBIA ARE NORMALLY OPEN. CONSEQUENTLY, WE VIEW INAUGURATION DAY AS A FEDERAL WORKING DAY TO BE COUNTED IN DETERMINING THE TIMELINESS OF A PROTEST. TRACOR APPLIED SCIENCES, B-218051, FEB. 8, 1985, 85-1 CPD PARA. ---. THE ONLY EXCEPTION ARISES WHEN INAUGURATION DAY IS THE TENTH DAY OF THE TIMELINESS COMPUTATION PERIOD, IN WHICH EVENT THE PERIOD IS EXTENDED TO INCLUDE THE NEXT WORKING DAY, SINCE THE PROTEST REALISTICALLY COULD NOT BE FILED IN THIS OFFICE ON INAUGURATION DAY. SEE MUTUAL OF OMAHA INSURANCE CO., B-201710, JAN. 4, 1982, 82-1 CPD PARA. 2. THAT EXCEPTION CLEARLY IS NOT APPLICABLE HERE.

THE PROTEST IS DISMISSED.

/1/ UNDER OUR BID PROTEST REGULATIONS, WHEN THE PROPRIETY OF A DISMISSAL BECOMES CLEAR ONLY AFTER INFORMATION IS PROVIDED BY THE CONTRACTING AGENCY OR IS OTHERWISE OBTAINED BY GAO, WE WILL DISMISS THE PROTEST AT THAT TIME. SEC. 21.3(F), 49 FED. REG. AT 49,421 (TO BE CODIFIED AT 4 C.F.R. SEC. 21.3(F)).