B-181950, NOV 1, 1974

B-181950, NOV 1, 1974

PROTEST TELEFAX TO GAO ON JULY 31, 1974, AND PROTEST LETTER DATED JULY 22, 1974, ADDRESSED TO "THE OFFICE OF COMPTROLLER GENERAL" THROUGH THE PROCUREMENT ACTIVITY TRANSMITTED SUBSEQUENT TO DENIAL OF PROTEST BY CONTRACTING AGENCY WILL NOT BE CONSIDERATION BY GAO UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS WHERE RECORD SHOWS THAT NEITHER COMMUNICATION WAS RECEIVED AT GAO WITHIN 5 WORKING DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION ON JULY 15, 1974. FAILURE OF CONTRACTING AGENCY TO FORWARD JULY 22 LETTER TO GAO DID NOT CONTRIBUTE TO THE UNTIMELINESS OF PROTEST SINCE LETTER NOT RECEIVED AT CONTRACTING AGENCY UNTIL SIXTH WORKING DAY AFTER NOTIFICATION OF ADVERSE AGENCY ACTION.

ABC CLEANING SERVICE INC.:

THIS MATTER CONCERNS THE PROTEST FILED BY ABC CLEANING SERVICE INC. (ABC) AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DSA710-74-B-0067, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

THE IFB, ISSUED ON JUNE 7, 1974, INVITED BIDS ON A REQUIREMENTS-TYPE CONTRACT OF 1-YEAR'S DURATION FOR THREE TYPES OF REFUSE SERVICES. BID OPENING WAS SCHEDULED FOR JUNE 24, 1974. BY LETTER DATED JUNE 18, 1974, ABC REQUESTED THAT DCSC CLARIFY AND ANSWER QUESTIONS CONCERNING CERTAIN PROVISIONS IN THE IFB. THE SEPTEMBER 9 REPORT FROM THE CONTRACTING AGENCY TO OUR OFFICE INDICATES THAT DCSC DID NOT RESPOND TO ABC'S LETTER PRIOR TO THE JUNE 24, 1974, BID OPENING DATE AND NO REASON IS GIVEN FOR THE FAILURE TO RESPOND. ABC SUBMITTED A TIMELY BID. BIDS WERE OPENED AS SCHEDULED AND THE FOUR BIDS RECEIVED RANGED FROM A LOW BID OF $73,285 TO THE HIGH BID OF ABC IN THE AMOUNT OF $117,450. BY LETTER DATED JUNE 26, 1974, ABC FILED A PROTEST WITH THE CONTRACTING AGENCY CONTENDING THAT IT HAD NOT RECEIVED AN ANSWER TO ITS PREBID OPENING LETTER TO ITS COMPETITIVE DETRIMENT.

AFTER MEETING WITH ABC ON JULY 2, 1974, THE CONTRACTING OFFICER DENIED ABC'S PROTEST IN A LETTER DATED JULY 12, 1974.

ACCORDING TO THE REPORT, THE LETTER WAS RECEIVED BY ABC NO LATER THAN JULY 15, 1974. BY LETTER DATED JULY 22, 1974, RECEIVED AT DCSC IN COLUMBUS ON JULY 23, 1974, THE PROTESTER APPEALED THE CONTRACTING OFFICER'S DENIAL OF ITS PROTEST. THIS LETTER WAS ADDRESSED AS FOLLOWS:

"THE OFFICE OF COMPTROLLER GENERAL

THRU: DIRECTORATE OF DEFENSE SUPPLY AGENCY

DEFENSE CONSTRUCTION SUPPLY CENTER

BLDG 12 SEC. 1

COLUMBUS, OHIO 43215"

DCSC REPLIED TO THIS LETTER ON JULY 23, 1974, STATING THAT "THIS CENTER HAS NOT FORWARDED THE RENEWAL OF YOUR PROTEST TO HIGHER AUTHORITY INASMUCH AS IT HAS NOT BEEN PROPERLY FILED AND, IN ANY EVENT, HAS BEEN FILED UNTIMELY." BY TELEFAX DATED JULY 31, 1974, ABC PROTESTED DIRECTLY TO THIS OFFICE. DETAILS OF ABC'S PROTEST WERE FURNISHED OUR OFFICE IN A LETTER DATED AUGUST 2, 1974.

THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF THE GENERAL ACCOUNTING OFFICE (4 C.F.R., PART 20(1974)), REQUIRE THAT, WHERE, AS HERE, A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY ON A TIMELY BASIS, ANY SUBSEQUENT PROTEST TO OUR OFFICE FILED, I.E. RECEIVED, WITHIN 5 WORKING DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED. 4 C.F.R. 20.2(A) (1974). PURSUANT TO THE ABOVE PROCEDURES, ANY PROTEST TO OUR OFFICE BY ABC WAS REQUIRED TO BE FILED NO LATER THAN 5 WORKING DAYS AFTER JULY 15, 1974, WHEN ABC RECEIVED NOTIFICATION OF THE CONTRACTING OFFICER'S DENIAL OF ITS PROTEST. SINCE NEITHER THE JULY 22 LETTER NOR THE JULY 31 TELEFAX REACHED GAO WITHIN THE REQUISITE 5-DAY PERIOD (BY JULY 22, 1974), ITS PROTEST IS UNTIMELY AND WE DECLINE TO CONSIDER ITS MERITS. RECOGNIZE THAT DCSC DID NOT FORWARD THE JULY 22 LETTER TO OUR OFFICE AS APPEARED TO HAVE BEEN CONTEMPLATED BY THAT LETTER. HOWEVER, SUCH FACT DID NOT CONTRIBUTE TO THE UNTIMELINESS OF THE ABC PROTEST SINCE THE LETTER WAS NOT RECEIVED AT DCSC UNTIL THE SIXTH WORKING DAY AFTER ABC'S PROTEST HAD BEEN DENIED BY DCSC.

WE NOTE IN PASSING THAT THE CONTRACTING AGENCY HAS ADVISED THAT STEPS WILL BE TAKEN TO INSURE IN FUTURE PROCUREMENTS THAT, WHEN REASONABLY PRACTICABLE UNDER THE CIRCUMSTANCES, CONTRACTING OFFICERS WILL RESPOND TO PREBID OPENING LETTERS OF THE TYPE SUBMITTED BY ABC HERE.