B-203228 L/M, JUN 8, 1981, OFFICE OF GENERAL COUNSEL
Highlights
DIGEST: PROTEST FILED MORE THAN 10 WORKING DAYS AFTER PROTESTER KNEW BASIS OF PROTEST IS UNTIMELY. PROTEST WILL NOT BE CONSIDERED EVEN WHERE REFERRED BY MEMBER OF CONGRESS BECAUSE TO DO SO WOULD EVISCERATE TIMELINESS PROCEDURES BY SUGGESTING TO PROCUREMENT COMMUNITY THAT TIMELINESS PROCEDURES COULD BE CIRCUMVENTED BY SUBMITTING PROTESTS THROUGH MEMBER OF CONGRESS. HOUSE OF REPRESENTATIVES: THIS IS IN REGARD TO YOUR LETTER OF APRIL 22. THE WAYNESBORO CONSTRUCTION COMPANY COMPLAINS THAT ITS LOW BID WAS NOT ACCEPTED BY LITTON BIONETICS BECAUSE DESCRIPTIVE LITERATURE WAS NOT SUBMITTED WITH THE BID. BIDS WERE OPENED ON APRIL 17. AT WHICH TIME THE WAYNESBORO CONSTRUCTION COMPANY APPARENTLY WAS AWARE THAT ITS BID COULD NOT BE ACCEPTED.
B-203228 L/M, JUN 8, 1981, OFFICE OF GENERAL COUNSEL
DIGEST: PROTEST FILED MORE THAN 10 WORKING DAYS AFTER PROTESTER KNEW BASIS OF PROTEST IS UNTIMELY. PROTEST WILL NOT BE CONSIDERED EVEN WHERE REFERRED BY MEMBER OF CONGRESS BECAUSE TO DO SO WOULD EVISCERATE TIMELINESS PROCEDURES BY SUGGESTING TO PROCUREMENT COMMUNITY THAT TIMELINESS PROCEDURES COULD BE CIRCUMVENTED BY SUBMITTING PROTESTS THROUGH MEMBER OF CONGRESS.
BUD SHUSTER, HOUSE OF REPRESENTATIVES:
THIS IS IN REGARD TO YOUR LETTER OF APRIL 22, 1981, ENCLOSING A LETTER FROM THE WAYNESBORO CONSTRUCTION COMPANY CONCERNING THE AWARD OF A CONTRACT BY LITTON BIONETICS, INC., FOR THE RENOVATION OF BUILDINGS AT THE FREDERICK CANCER RESEARCH CENTER IN FREDERICK, MARYLAND.
THE WAYNESBORO CONSTRUCTION COMPANY COMPLAINS THAT ITS LOW BID WAS NOT ACCEPTED BY LITTON BIONETICS BECAUSE DESCRIPTIVE LITERATURE WAS NOT SUBMITTED WITH THE BID. ACCORDING TO YOUR LETTER, BIDS WERE OPENED ON APRIL 17, 1981, AT WHICH TIME THE WAYNESBORO CONSTRUCTION COMPANY APPARENTLY WAS AWARE THAT ITS BID COULD NOT BE ACCEPTED. THE ENCLOSED LETTER FROM THE WAYNESBORO CONSTRUCTION COMPANY STATES THAT ON APRIL 20, 1981, LITTON BIONETICS CALLED AND INFORMED THE PRESIDENT OF THE COMPANY THAT ITS BID COULD NOT BE ACCEPTED BECAUSE DESCRIPTIVE LITERATURE HAD NOT BEEN INCLUDED.
SECTION 20.2(B)(2) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), REQUIRES THAT PROTESTS BE FILED WITHIN 10 WORKING DAYS OF WHEN THE PROTESTER KNOWS THE BASIS OF THE PROTEST. THE WAYNESBORO CONSTRUCTION COMPANY KNEW THAT ITS BID WOULD NOT BE ACCEPTED, ON APRIL 20 AT THE LATEST, EVEN THOUGH NO AWARD HAD BEEN MADE. IT WAS REQUIRED TO FILE ITS PROTEST WITHIN 10 WORKING DAYS OF THAT DATE. SEE C.B. GOAD CONSTRUCTION CO., B-199142, OCTOBER 17, 1980, 80-2 CPD 294. IF WE CONSIDER YOUR LETTER, RECEIVED BY US ON MAY 5, 1981, AS A PROTEST ON BEHALF OF THE WAYNESBORO CONSTRUCTION COMPANY, IT IS UNTIMELY.
CONCERNING THE APPLICABILITY OF OUR PROCEDURES TO PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS, WE HAVE DECIDED THAT WE WILL NOT CONSIDER AN UNTIMELY PROTEST ON ITS MERITS, UNLESS ONE OF THE EXCEPTIONS IN SECTION 20.2(C), INFRA, IS APPLICABLE. WE ADOPTED THIS POLICY BECAUSE OUR OFFICE CAN BEST FUNCTION IF IT DECIDES 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 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.
SECTION 20.2(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 ANY 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.