B-183415, APR 8, 1975

B-183415, APR 8, 1975

PROTEST RECEIVED MORE THAN 5 WORKING DAYS AFTER INITIAL PROTEST TO AGENCY WAS DENIED IS UNTIMELY UNDER 4 C.F.R. 20.2(A), AND CONTINUED CORRESPONDENCE BETWEEN PROTESTER AND AGENCY AFTER INITIAL ADVERSE ACTION DOES NOT EXTEND TIME LIMITS FOR FILING IN GAO.

JDL GENERAL CONTRACTORS & ASSOCIATES:

JDL GENERAL CONTRACTORS AND ASSOCIATES (JDL), ANCHORAGE, ALASKA, HAS FILED A PROTEST AGAINST ANY AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAKF70-75-B-0038, ISSUED BY THE DEPARTMENT OF THE ARMY, FORT RICHARDSON, ALASKA, FOR CERTAIN WORK TO BE EFFECTED ON POL STORAGE TANKS. BIDS WERE OPENED ON FEBRUARY 14, 1975.

BY TELEGRAM DATED FEBRUARY 11, 1975, JDL INITIALLY FILED A PROTEST WITH THE DEPARTMENT OF THE ARMY, ALLEGING THAT CERTAIN PROVISIONS OF THE IFB WERE DISCRIMINATORY AND UNDULY RESTRICTIVE. JDL ALSO ARGUED FOR AN EXTENSION OF BID OPENING UNTIL APPROPRIATE MODIFICATIONS WERE MADE TO THE IFB. BY LETTER DATED FEBRUARY 12, 1975, THE ARMY ADVISED JDL THAT IT HAD RECEIVED JDL'S PROTEST, REVIEWED THE SPECIFICATIONS, AND DECIDED TO CONTINUE WITH THE BID OPENING AS SET FORTH IN THE IFB. IN RESPONSE TO THIS LETTER, JDL AGAIN ADVISED THE ARMY BY LETTER OF FEBRUARY 18, 1975, THAT JDL STILL CONSIDERED THE IFB TO BE IMPROPERLY RESTRICTIVE, THAT THE IFB SHOULD NOT HAVE BEEN OPENED UNTIL THE IFB WAS CORRECTED, AND THAT ACCORDINGLY ALL BIDS SHOULD BE DECLARED VOID AND A MODIFIED IFB ISSUED.

WITH RESPECT TO THIS LETTER, THE ARMY INFORMED JDL BY LETTER DATED FEBRUARY 28, 1975, THAT THE ARMY DID NOT BELIEVE THE SPECIFICATIONS OF THE IFB TO BE OVERLY RESTRICTIVE, THAT ADEQUATE COMPETITION WAS OBTAINED, AND THAT NO OTHER RECIPIENT OF THE IFB RAISED ALLEGATIONS REGARDING DISCRIMINATION. ACCORDINGLY, JDL PROTESTED TO THIS OFFICE BY LETTER OF MARCH 7, 1975, RECEIVED HERE ON MARCH 13, 1975. JDL AGAIN REPEATED ITS ALLEGATIONS REGARDING THE AGENCY'S OVERLY RESTRICTIVE SPECIFICATIONS AND ITS FAILURE TO EXTEND BID OPENING, AND QUESTIONS WHETHER ANY OF THE FIRMS WHO SUBMITTED BIDS ON THIS IFB COULD IN FACT PERFORM PURSUANT TO THESE REQUIREMENTS.

SECTION 20.2(A) OF OUR OFFICE'S INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. SEC. 20.2(A) (1974)) PROVIDES IN PERTINENT PART AS FOLLOWS:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE ***."

THE RECORD INDICATES THAT JDL'S INITIAL PROTEST TO THE ARMY, DATED FEBRUARY 11, 1975, WAS CONSIDERED BY THE ARMY AND REJECTED BY LETTER OF FEBRUARY 12, 1975, TO THE PROTESTER. WHILE JDL REITERATED ITS GROUNDS OF PROTEST TO THE ARMY IN A SECOND LETTER DATED FEBRUARY 18 (WHICH WAS AGAIN DENIED BY A LETTER OF FEBRUARY 28, 1975), WE CONSIDER THE ARMY'S FIRST REJECTION OF JDL'S PROTEST TO HAVE BEEN THE NOTIFICATION OF ADVERSE AGENCY ACTION FROM WHICH TIME JDL HAD 5 WORKING DAYS IN WHICH TO PROTEST TO THIS OFFICE. 52 COMP. GEN. 20, 22-23 (1972). JDL'S CONTINUING CORRESPONDENCE WITH THE ARMY REITERATING ITS PROTEST DID NOT EXTEND THE TIME LIMITS FOR FILING WITH THIS OFFICE. B-176717(1), FEBRUARY 8, 1973. THUS, AS THE ARMY'S FEBRUARY 12, 1975, LETTER CONSTITUTED ADVERSE AGENCY ACTION, JDL'S PROTEST TO THIS OFFICE APPROXIMATELY ONE MONTH LATER IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.