B-207594 L/M, JUN 15, 1982, OFFICE OF GENERAL COUNSEL

B-207594 L/M: Jun 15, 1982

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DIGEST: PROTEST FILED MORE THAN 10 WORKING DAYS AFTER INITIAL ADVERSE AGENCY ACTION ON PROTEST (RECEIPT OF PROPOSAL WITHOUT AMENDING SOLICITATION) IS UNTIMELY. PROTEST WILL NOT BE CONSIDERED EVEN WHERE REFERRED BY MEMBER OF CONGRESS BECAUSE TO DO SO WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT TIMELINESS PROCEDURES COULD BE CIRCUMVENTED BY SUBMITTING PROTESTS THROUGH A MEMBER OF CONGRESS. HOUSE OF REPRESENTATIVES: THIS IS IN RESPONSE TO YOUR LETTER OF MAY 13. UNITED CONTENDS THAT THE RFP UNDULY RESTRICTS COMPETITION IN THAT OFFERS MUST BE SUBMITTED FOR ALL 50 ARMY INSTALLATIONS IN ORDER TO BE CONSIDERED FOR AWARD AND THAT ONLY ONE CONTRACT WILL BE AWARDED. ITS PROTEST IS UNTIMELY. WE HAVE DECIDED THAT WE WILL NOT CONSIDER AN UNTIMELY PROTEST ON ITS MERITS.

B-207594 L/M, JUN 15, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: PROTEST FILED MORE THAN 10 WORKING DAYS AFTER INITIAL ADVERSE AGENCY ACTION ON PROTEST (RECEIPT OF PROPOSAL WITHOUT AMENDING SOLICITATION) IS UNTIMELY. PROTEST WILL NOT BE CONSIDERED EVEN WHERE REFERRED BY MEMBER OF CONGRESS BECAUSE TO DO SO WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT TIMELINESS PROCEDURES COULD BE CIRCUMVENTED BY SUBMITTING PROTESTS THROUGH A MEMBER OF CONGRESS.

MARC LINCOLN MARKS, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER OF MAY 13, 1982, ENCLOSING CORRESPONDENCE CONCERNING THE PROTEST OF THE UNITED TELEPHONE COMPANY OF PENNSYLVANIA (UNITED) AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAB07-82-R-D081 ISSUED BY THE DEPARTMENT OF THE ARMY.

UNITED CONTENDS THAT THE RFP UNDULY RESTRICTS COMPETITION IN THAT OFFERS MUST BE SUBMITTED FOR ALL 50 ARMY INSTALLATIONS IN ORDER TO BE CONSIDERED FOR AWARD AND THAT ONLY ONE CONTRACT WILL BE AWARDED. MOREOVER, UNITED RAISES SEVERAL OTHER CONTENTIONS RELATING TO ALLEGED SOLICITATION IMPROPRIETIES.

UNITED INITIALLY PROTESTED TO THE ARMY PRIOR TO THE APRIL 19, 1982, CLOSING DATE FOR RECEIPT OF PROPOSALS. NOTWITHSTANDING THE PROTEST, THE ARMY RECEIVED PROPOSALS AS SCHEDULED. WE RECEIVED UNITED'S PROTEST ON MAY 19, 1982, WHICH RENDERS IT UNTIMELY FILED FOR OUR CONSIDERATION ON THE MERITS.

OUR BID PROTEST PROCEDURES (PROCEDURES) REQUIRE THAT WHERE A PROTEST HAS BEEN INITIALLY FILED WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED (RECEIVED) WITHIN 10 WORKING DAYS AFTER THE PROTESTER RECEIVES NOTICE OF THE AGENCY'S INITIAL ADVERSE AGENCY ACTION ON THE PROTEST AT THAT LEVEL. 4 C.F.R. SEC. 21.2(A) (1981). THE ARMY'S RECEIPT OF PROPOSALS AS SCHEDULED WITHOUT TAKING ANY ACTION IN RESPONSE TO UNITED'S PROTEST CONSTITUTES THE CONTRACTING AGENCY'S INITIAL ACTION ADVERSE TO ITS PROTEST AGAINST THE TERMS OF THE RFP. MIL-AIR ENGINES & CYLINDERS, INC., B-203659, OCTOBER 26, 1981, 81-2 CPD 341, AFFIRMED B-203659.2, NOVEMBER 30, 1981, 81-2 CPD 430. SUCH ACTION REQUIRES THE FILING OF A PROTEST TO OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE CLOSING DATE.

SINCE UNITED DID NOT PROTEST TO OUR OFFICE WITHIN THE REQUIRED TIME FOLLOWING THE CLOSING DATE FOR RECEIPT OF PROPOSALS, ITS PROTEST IS UNTIMELY. SEE BORG-WARNER HEALTH PRODUCTS, INC., B-204855, APRIL 20, 1982, 82-1 CPD 360.

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 4 C.F.R. SEC. 21.1(C) 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 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.

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 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.

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