B-206938 L/M, APR 12, 1982

B-206938 L/M, APR 12, 1982

PRECIS-UNAVAILABLE

DON RITTER, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR COMMUNICATION OF MARCH 25, 1982, WITH WHICH YOU FORWARDED FOR OUR CONSIDERATION CERTAIN MATERIAL RELATING TO A PROTEST FILED BY THE OWNER-DEVELOPERS OF THE ZOLLINGER-HARNED COMPANY BUILDING (ZOLLINGER) AGAINST THE AWARD OF A LEASE CONTRACT IN RESPONSE TO SOLICITATION FOR OFFERS MPA 81712, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE MATERIAL SHOWS THAT BY LETTER DATED FEBRUARY 18, 1982, ZOLLINGER FILED A PROTEST AGAINST AWARD OF A LEASE AND REQUESTED A DETAILED WRITTEN EXPLANATION FROM GSA. BY LETTER DATED MARCH 3, 1982, GSA RESPONDED TO THIS PROTEST, GIVING ZOLLINGER A DETAILED EXPLANATION OF THE EVALUATION OF THE TWO OFFERS RECEIVED. OUR OFFICE RECEIVED YOUR LETTER OF PROTEST ON ZOLLINGER'S BEHALF ON APRIL 1, 1982.

OUR BID PROTEST PROCEDURES (PROCEDURES), 4 C.F.R. SEC. 21.2(A) (1981), PROVIDE THAT WHERE A PROTEST HAS BEEN INITIALLY FILED WITH AN AGENCY ON A TIMELY BASIS, AS HERE, ANY SUBSEQUENT PROTEST TO OUR OFFICE WILL BE CONSIDERED IF FILED WITHIN 10 DAYS OF FORMAL NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION, HERE THE RECEIPT OF GSA'S MARCH 3, 1982, LETTER. SINCE NO PROTEST WAS RECEIVED BY OUR OFFICE WITHIN THE "10-DAY REQUIREMENT," EVEN ALLOWING 7 DAYS FOR ZOLLINGER TO RECEIVE GSA'S RESPONSE, ANY SUBSEQUENT PROTEST TO OUR OFFICE WOULD BE UNTIMELY.

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 21.2(C), INFRA, 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.

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 GARRISON CONSTRUCTION COMPANY, INC., B-196959, FEBRUARY 26, 1980, 80-1 CPD 159.

THEREFORE, THE PROTEST IS NOT FOR CONSIDERATION ON THE MERITS.