B-206182 L/M, FEB 17, 1982, OFFICE OF GENERAL COUNSEL

B-206182 L/M: Feb 17, 1982

Additional Materials:

Contact:

Ralph O. White
(202) 512-8278
WhiteRO@gao.gov

Kenneth E. Patton
(202) 512-8205
PattonK@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DIGEST: CLAIM FOR BID PREPARATION COSTS IS DISMISSED WHERE CONSIDERATION OF CLAIM WOULD REQUIRE GAO TO CONSIDER UNTIMELY RAISED ISSUE IN CIRCUMVENTION OF GAO'S BID PROTEST PROCEDURES. THEREFORE ITS BID SHOULD HAVE BEEN REJECTED. WE WILL NOT CONSIDER THE CLAIM BECAUSE YOU FAILED TO TIMELY PROTEST THE BASIS FOR THE CLAIM. YOUR CLAIM FOR BID PREPARATION COSTS WAS RECEIVED BY THIS OFFICE ON DECEMBER 15. WE WILL NOT CONSIDER A CLAIM FOR BID OR PROPOSAL COSTS THAT WOULD INVOLVE OUR CONSIDERATION OF ISSUES WHICH WERE NOT TIMELY PROTESTED TO THIS OFFICE. WE CANNOT TREAT YOUR CLAIM AS A TIMELY PROTEST BECAUSE IT WAS FILED WITH - THAT IS RECEIVED BY - THIS OFFICE ALMOST ONE MONTH AFTER YOU RECEIVED ACTUAL NOTICE OF INITIAL ADVERSE AGENCY ACTION ON YOUR PROTEST.

B-206182 L/M, FEB 17, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: CLAIM FOR BID PREPARATION COSTS IS DISMISSED WHERE CONSIDERATION OF CLAIM WOULD REQUIRE GAO TO CONSIDER UNTIMELY RAISED ISSUE IN CIRCUMVENTION OF GAO'S BID PROTEST PROCEDURES.

L.A.DOWNEY & SON, INC.:

ATTENTION: ROBERT L. DOWNEY, PRESIDENT

THIS RESPONDS TO YOUR CLAIM FOR BID PREPARATION COSTS AND ANTICIPATED PROFIT BASED ON YOUR ALLEGATION THAT THE NAVAL FACILITIES ENGINEERING COMMAND (NAVY) WRONGFULLY AWARDED A CONTRACT UNDER INVITATION FOR BIDS NO. N62470-81-B-3486 TO ANOTHER BIDDER. YOU ALLEGE THAT THE AWARDEE FAILED TO ACKNOWLEDGE RECEIPT OF A MATERIAL AMENDMENT, AND THEREFORE ITS BID SHOULD HAVE BEEN REJECTED. WE WILL NOT CONSIDER THE CLAIM BECAUSE YOU FAILED TO TIMELY PROTEST THE BASIS FOR THE CLAIM.

YOUR SUBMISSION TO THIS OFFICE SHOWS THAT YOU FILED AN INITIAL PROTEST WITH THE NAVY BY A LETTER DATED OCTOBER 7, 1981, AND ON NOVEMBER 19 YOU RECEIVED A LETTER FROM THE NAVY DENYING YOUR PROTEST OF THE ALLEGEDLY WRONGFUL AWARD. YOUR CLAIM FOR BID PREPARATION COSTS WAS RECEIVED BY THIS OFFICE ON DECEMBER 15, 1981.

WE WILL NOT CONSIDER A CLAIM FOR BID OR PROPOSAL COSTS THAT WOULD INVOLVE OUR CONSIDERATION OF ISSUES WHICH WERE NOT TIMELY PROTESTED TO THIS OFFICE, BECAUSE TO DO OTHERWISE WOULD CIRCUMVENT THE TIMELINESS REQUIREMENTS OF OUR BID PROTEST PROCEDURES. THE LAND GROUP OF SALT LAKE CITY, B-202433, APRIL 6, 1981, 81-1 CPD 296.

OUR BID PROTEST PROCEDURES REQUIRE THAT AFTER A PROTESTER HAS FILED AN INITIAL PROTEST WITH THE CONTRACTING AGENCY, A SUBSEQUENT PROTEST TO THIS OFFICE MUST BE FILED WITHIN TEN WORKING DAYS AFTER FORMAL NOTIFICATION OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 21.2(A) (1981). YOU DID NOT FILE A PROTEST HERE, AND WE CANNOT TREAT YOUR CLAIM AS A TIMELY PROTEST BECAUSE IT WAS FILED WITH - THAT IS RECEIVED BY - THIS OFFICE ALMOST ONE MONTH AFTER YOU RECEIVED ACTUAL NOTICE OF INITIAL ADVERSE AGENCY ACTION ON YOUR PROTEST. SEE ENVIROTRONICS, B-202094.2, JUNE 10, 1981, 81-1 CPD 477.

IN OTHER WORDS, EVEN THOUGH YOU DISAGREE WITH THE AGENCY'S POSITION, SINCE WE HAVE NEVER CONSIDERED THE MERIT OF YOUR PROTEST AND BECAUSE IT IS TOO LATE TO DO SO NOW, WE DECLINE TO CONSIDER YOUR CLAIM FOR BID PREPARATION COSTS. MOREOVER, WE POINT OUT THAT THERE IS NO BASIS IN LAW TO ALLOW A CLAIM FOR ANTICIPATED PROFIT UNDER THESE CIRCUMSTANCES.