B-186948, OCTOBER 21, 1976

B-186948, OCTOBER 21, 1976

1. PROTEST WAS PROPERLY REJECTED AS UNTIMELY WHERE NEW FACTS OFFERED IN REQUEST FOR RECONSIDERATION INDICATE THAT PROTEST WAS FILED MORE THAN 10 DAYS AFTER PROTESTER KNEW OR SHOULD HAVE KNOWN OF BASIS FOR PROTEST. 2. PROTEST DOES NOT INVOLVE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES WHERE BASIS FOR PROTEST IS ALLEGED IMPROPRIETY IN CONDUCT OF PREAWARD SURVEY TEST GOING TO AGENCY'S AFFIRMATIVE DETERMINATION OF COMPETITOR'S RESPONSIBILITY. 3. UNTIMELY PROTEST WILL NOT BE CONSIDERED UNDER "GOOD CAUSE" PROVISION OF SEC. 20.2(C) OF BID PROTEST PROCEDURES ABSENT INDICATION THAT SUPERVENING CIRCUMSTANCES, BEYOND PROTESTER'S CONTROL, PREVENTED FILING OF TIMELY PROTEST.

INTERNATIONAL COMPUTAPRINT CORPORATION:

BY LETTER DATED SEPTEMBER 13, 1976, INTERNATIONAL COMPUTAPRINT CORPORATION (INTERNATIONAL) REQUESTS RECONSIDERATION OF OUR DECISION IN THE MATTER OF INTERNATIONAL COMPUTAPRINT CORPORATION, B-186948, AUGUST 27, 1976, 76-2 CPD 200, IN WHICH WE DISMISSED INTERNATIONAL'S PROTEST CONCERNING FEDERAL COMMUNICATIONS COMMISSION (FCC) IFB NO. 76-6. WE FOUND THAT THE PROTEST WAS UNTIMELY, SINCE IT WAS NOT FILED HERE, OR WITH THE AGENCY, WITHIN 10 WORKING DAYS AFTER INTERNATIONAL KNEW OR SHOULD HAVE KNOWN THAT ITS BID HAD BEEN REJECTED, WHICH IN TURN WAS BASED ON THE FCC'S DETERMINATION THAT INTERNATIONAL WAS NOT RESPONSIBLE.

INTERNATIONAL'S COMPLAINT INVOLVES ALLEGED IRREGULARITIES, OR IMPROPRIETY, WHICH IT CONTENDS OCCURRED IN THE CONDUCT OF A PREAWARD SURVEY TEST REQUIRED AS A MEANS OF ASSESSING BIDDER RESPONSIBILITY. THE TEST WAS INTENDED TO DEMONSTRATE THE BIDDER'S ABILITY TO TRANSCRIBE MATERIALS SUBMITTED IN A TEST PACKAGE PROVIDED BY THE FCC, WITHOUT INCURRING MORE THAN A MINIMUM ACCEPTABLE RATE OF ERROR.

AS INDICATED IN OUR AUGUST 27TH DECISION, THE CONTRACTING OFFICER'S DETERMINATION THAT INTERNATIONAL WAS NOT RESPONSIBLE WAS ISSUED ON FEBRUARY 3, 1976. AWARD WAS MADE TO ROCAPPI, INC. ON MARCH 19TH. APRIL 12, 1976, INTERNATIONAL REQUESTED A FORMAL DEBRIEFING, WHICH WAS HELD ON APRIL 21, 1976. AT THAT TIME, INTERNATIONAL WAS PROVIDED ITS TEST RESULTS, INCLUDING A LIST OF ERRORS.

THROUGH COUNSEL, INTERNATIONAL ASSERTS THAT WE MISCONSTRUED THE NATURE OF ITS PROTEST, AND THAT ITS PROTEST "IS BASED, NOT ON THE REJECTION OF ITS TAPE, BUT ON THE ACCEPTANCE OF THE ROCAPPI TAPE." IT CONTENDS THAT IT CANNOT BE DEEMED TO HAVE KNOWN OF THE BASIS FOR ITS PROTEST UNTIL IT HAD AN OPPORTUNITY TO EVALUATE THE ROCAPPI TEST RESULTS. IT ADMITS THAT COPIES OF THOSE RESULTS WERE SUPPLIED TO IT ON MAY 10, 1976. IT STATES THAT IT DID NOT THEN EVALUATE THE INFORMATION FURNISHED, BUT DID SO ONLY AFTER ITS FURTHER REQUEST TO OBTAIN THE ORIGINAL DOCUMENTS WAS UNAVAILING. SINCE IT LEARNED ON MAY 17, 1976, THAT THE ORIGINAL DOCUMENTS HAD BEEN RETURNED TO THE GOVERNMENT PRINTING OFFICE (WHICH HAD RUN THE TEST TAPES), IT MAINTAINS THAT IT ACTED TIMELY WHEN ON MAY 26, 1976, "IT PROMPTLY SOUGHT * * * A MEETING WITH FCC OFFICIALS TO RESOLVE ITS QUESTIONS REGARDING THE ROCAPPI TEST." IN ITS VIEW, IT IS SUFFICIENT THAT ITS MAY 26TH LETTER "PUT THE FCC ON NOTICE OF THE GROUNDS OF THIS PROTEST."

WE DO NOT AGREE. ASSUMING, WITHOUT DECIDING, THAT THE ISSUES INVOLVED COULD HAVE BEEN RAISED IN A PROTEST FILED WITHIN 10 WORKING DAYS FOLLOWING INTERNATIONAL'S RECEIPT OF THE COPY OF THE ROCAPPI TEST RESULTS, INTERNATIONAL: (A) FAILED TO EVALUATE THOSE MATERIALS TIMELY, AND (B) DID NOT FILE A FORMAL PROTEST PRIOR TO JULY 1. TARDINESS CANNOT BE EXCUSED BY A PROTESTER'S NEGLECT IN EXAMINING RECORD SUPPLIED TO HIM. THAT THE BASIS OF INTERNATIONAL'S PROTEST COULD BE DETERMINED FROM THE COPIES OBTAINED ON MAY 10TH IS SHOWN BY ITS ADMISSION THAT IT EVENTUALLY USED THOSE SAME DOCUMENTS IN FRAMING ITS PROTEST.

MOREOVER, AS NOTED IN OUR AUGUST 27TH DECISION, THE MAY 26TH LETTER ONLY ASKED FOR A MEETING AT WHICH ALLEGED SCORING ERRORS MIGHT BE DISCUSSED. OUR DECISION WENT ON, AS FOLLOWS:

"INTERNATIONAL'S FIRST FORMAL REQUEST THAT THE CONTRACT AWARDED TO ROCAPPI BE TERMINATED, AND AWARD BE MADE TO INTERNATIONAL, IS CONTAINED IN ITS LETTER TO THE FCC DATED JULY 1, 1976. ITS PROTEST TO THIS OFFICE WAS FILED ON JULY 13, 1976."

NEVERTHELESS, INTERNATIONAL MAINTAINS THAT ITS PROTEST SHOULD BE CONSIDERED UNDER SEC. 20.2(C) OF OUR BID PROTEST PROCEDURES, EVEN IF FOUND TO BE UNTIMELY, SINCE IN INTERNATIONAL'S VIEW THIS CASE INVOLVES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES. WE HAVE RECOGNIZED THAT APPLICATION OF THE PHRASE, "ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES," USED IN 4 C.F.R. 20.2(C), IS LIMITED TO MATTERS OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY GENERALLY. LEASCO INFORMATION PRODUCTS, INC., 53 COMP.GEN. 932, 948(1974), 74-1 CPD 314; 52 COMP.GEN. 20, 23(1972). WE DO NOT REGARD A PROTEST AGAINST AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY INVOLVING ONLY THE PROPRIETY OF AN AGENCY'S CONDUCT OF A SINGLE PROCUREMENT AS RAISING A SIGNIFICANT ISSUE. INDEED, WE WOULD NOT CONSIDER THIS KIND OF ISSUE BUT FOR THE FACT THAT THE USE OF DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION IS ALLEGED. CF. CENTRAL METAL PRODUCTS, INC., 54 COMP.GEN. 66(1974), 74-2 CPD 64, AND YARDNEY ELECTRIC CORPORATION, 54 COMP.GEN. 509(1974), 74-2 CPD 376.

REGARDING INTERNATIONAL'S FINAL CONTENTION, THAT ITS PROTEST SHOULD BE CONSIDERED FOR GOOD CAUSE SHOWN, WE HAVE HELD THAT "GOOD CAUSE" AS REFERRED TO IN 4 C.F.R. 20.2(C) REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTER'S CONTROL, WHICH PREVENTED IT FROM FILING A TIMELY PROTEST. LEASCO INFORMATION PRODUCTS, INC., SUPRA, 947-948; 52 COMP.GEN. 20, 23, SUPRA. WE SEE NO VALID REASON WHY INTERNATIONAL WAS PREVENTED FROM FILING A TIMELY PROTEST.

ACCORDINGLY, OUR DECISION THAT THIS PROTEST IS UNTIMELY IS AFFIRMED.