B-181564, AUG 28, 1974

B-181564, AUG 28, 1974

TIME LIMITATIONS IMPOSED BY 4 CFR 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVISIONS FOR FILING PROTEST, FIRST WITH CONTRACTING AGENCY AND THEN WITH GAO, ARE INTENDED TO PROVIDE EFFECTIVE REMEDIAL ACTION AND THEREFORE MUST BE OBSERVED. THUS, WHERE PROTEST ALLEGING IMPROPRIETY IN SOLICITATION IS NOT FILED WITH CONTRACTING AGENCY WITHIN STATED TIME LIMITATION, IT MAY NOT BE CONSIDERED BY GAO.

JOHNSON SERVICE COMPANY:

THIS DECISION CONCERNS A PROTEST SUBMITTED BY JOHNSON SERVICE COMPANY (JOHNSON) AGAINST AWARD OF CONTRACT UNDER INVITATION FOR BIDS (IFB) 62474- 73-B-5236, ISSUED BY THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND.

THE IFB CALLED FOR BIDS TO UPGRADE AND REPLACE SUPPORTING FACILITIES AT THE NAVAL HOSPITAL, OAKLAND, CALIFORNIA. BIDS WERE OPENED ON MAY 21, 1974. ON JUNE 4, 1974, JOHNSON FILED A PROTEST WITH THE PROCURING AGENCY ALLEGING THAT THE IFB CONTAINED AN UNDULY RESTRICTIVE SPECIFICATION. ITS PROTEST WAS DENIED ON JUNE 20, 1974, WHEREUPON JOHNSON FILED A PROTEST WITH OUR OFFICE.

THIS PROTEST WILL NOT BE CONSIDERED BY OUR OFFICE SINCE, FOR THE REASONS THAT FOLLOW, IT WAS FILED UNTIMELY. THE INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVISIONS FOR FILING A PROTEST (4 CFR 20.2(A)) PROVIDE IN PART:

"*** 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 CLOSING DATE FOR RECEIPT OF PROPOSALS. *** 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 TIMELY. ***"

IF THE IFB CONTAINED AN UNDULY RESTRICTIVE SPECIFICATION, THIS IMPROPRIETY WAS APPARENT AND SHOULD HAVE BEEN PROTESTED PRIOR TO BID OPENING. SINCE THE PURPOSE OF SECTION 20.2(A) IS TO EXPEDITIOUSLY RESOLVE PROTESTS AT A STAGE IN THE PROCUREMENT WHEN SOME EFFECTIVE REMEDIAL ACTION MAY BE TAKEN ON MERITORIOUS PROTESTS, WE THINK IT INAPPROPRIATE FOR THERE TO BE FILED AN ALLEGATION OF IMPROPRIETY IN AN IFB AFTER BIDS HAVE BEEN OPENED AND BIDS EXPOSED. 52 COMP. GEN. 20 (1972). THEREFORE, JOHNSON'S PROTEST, FILED 14 DAYS AFTER BID OPENING, WAS UNTIMELY.

IN VIEW OF THE DETERMINATION THAT THE PROTEST TO OUR OFFICE IS UNTIMELY, THE QUESTION ARISES WHETHER THERE IS GOOD CAUSE SHOWN OR WHETHER THE PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES THAT WARRANT CONSIDERATION OF THE PROTEST. SEE SECTION 20.2(B) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS.

AS STATED IN 52 COMP. GEN., SUPRA:

"*** 'GOOD CAUSE' VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST, ALTHOUGH IT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTOR'S CONTROL, WHICH HAS PREVENTED HIM FROM FILING A TIMELY PROTEST. ***"

WE FIND NOTHING IN THE RECORD WHICH WOULD INDICATE THAT THERE WERE CIRCUMSTANCES BEYOND JOHNSON'S CONTROL THAT PREVENTED IT FROM FILING A TIMELY PROTEST. FURTHER, AS STATED IN THE ABOVE-CITED DECISION:

"*** 'ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES' REFERS *** TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD INTEREST. ***"

WE FIND NO SUCH PRINCIPLE TO BE EVIDENCED BY THE MATERIAL AND ALLEGATIONS CONTAINED IN THE RECORD.

ACCORDINGLY, THE PROTEST WILL NOT BE CONSIDERED ON THE MERITS BY OUR OFFICE.