B-206266 L/M, FEB 22, 1982, OFFICE OF GENERAL COUNSEL

B-206266 L/M, FEB 22, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: PROTEST TO GAO AGAINST CANCELLATION OF SOLICITATION BY A MEMBER OF CONGRESS ON BEHALF OF CONSTITUENT IS UNTIMELY UNDER 4 C.F.R. SEC. 21.2(B)(2) (1981), SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS FROM THE DATE THAT THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS OF PROTEST.

DONALD J. MITCHELL, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER OF JANUARY 18, 1982, ENCLOSING CORRESPONDENCE FROM THE ATTORNEY FOR WHITE MOP WRINGER COMPANY (WHITE MOP) CONCERNING ITS PROTEST AGAINST THE CANCELLATION OF ITEMS 106-144 OF SOLICITATION NO. 9FCC -OKU-A-A0513/81, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

BY LETTER DATED SEPTEMBER 17, 1981, WHITE MOP FILED A PROTEST WITH GSA CONTENDING THAT THE LOW BIDDER FOR ITEMS 106-144 OF THE SOLICITATION FAILED TO MEET THE APPLICABLE SMALL BUSINESS SIZE STANDARD SET FORTH IN THE SOLICITATION. WHITE MOP APPARENTLY IS THE SECOND LOW BIDDER FOR THESE ITEMS. GSA REFERRED THE PROTEST TO THE SMALL BUSINESS ADMINISTRATION, BOSTON REGION, FOR A SIZE DETERMINATION. BY LETTER DATED DECEMBER 22, 1981, GSA ADVISED WHITE MOP THAT THE PORTION OF THE SOLICITATION COVERING ITEMS 106-144 WAS CANCELED BECAUSE OF AN AMBIGUOUS SIZE STANDARD.

OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(2) (1981), PROVIDE THAT, ABSENT CERTAIN EXCEPTIONS NOT APPARENTLY APPLICABLE HERE, THIS TYPE OF BID PROTEST SHOULD BE FILED NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER.

WHITE MOP KNEW OR SHOULD HAVE KNOWN THE BASIS FOR ITS PROTEST UPON RECEIPT OF THE DECEMBER 22, 1981, LETTER FROM GSA. THE ATTORNEY FOR WHITE MOP STATES THAT THE LETTER WAS RECEIVED ON THE SAME DAY THE LETTER WAS DATED, DECEMBER 22, 1981. THE STATEMENT AS TO THE DATE OF RECEIPT APPEARS TO BE IN ERROR BECAUSE THE LETTER WAS TRANSMITTED COAST TO-COAST. NEVERTHELESS, WE ASSUME THE LETTER WAS RECEIVED NOT LATER THAN DECEMBER 31, 1981. SINCE YOUR JANUARY 18, 1982, LETTER TRANSMITTING THE PROTEST WAS RECEIVED HERE ON JANUARY 21, 1982, THE PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES.

CONCERNING THE APPLICABILITY OF OUR BID PROTEST PROCEDURES TO PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS, NO PROTEST WILL BE CONSIDERED ON ITS MERITS UNLESS IT FIRST MEETS OUR TIMELINESS RULES. THE REASON FOR THIS IS TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION IF SUCH ACTION IS FOUND TO BE NECESSARY. 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 OUR TIMELINESS PROVISIONS CAN BE CIRCUMVENTED BY SUBMITTING THE PROTEST THROUGH A MEMBER OF CONGRESS.

WHILE IT IS UNFORTUNATE THAT THE PROTEST WAS NOT TIMELY FILED, THE PROTEST WILL NOT BE CONSIDERED ON ITS MERITS.