B-182795, DEC 23, 1974

B-182795, DEC 23, 1974

CONTRACTING OFFICER'S LETTER DENYING INITIAL PROTEST TO AGENCY CONSTITUTES ADVERSE ACTION WITHIN MEANING OF SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS AND PROTEST FILED WITH GAO MORE THAN 5 DAYS AFTER RECEIPT OF DENIAL LETTER IS UNTIMELY.

HOLT BROS. ENERGY DIVISION:

HOLT BROS. ENERGY DIVISION (HOLT) PROTESTED BY LETTER DATED DECEMBER 3, 1974 (RECEIVED BY THE GENERAL ACCOUNTING OFFICE (GAO) ON DECEMBER 6, 1974), THE INCLUSION OF A REQUIREMENT THAT THE DIESEL ENGINES IN BUREAU OF PRISONS, DEPARTMENT OF JUSTICE SOLICITATION NO. 170-11450, INCLUDE "A MINIMUM OF 465 BHP AT 1800 RPM WITH A NATURAL ASPERATED ENGINE." HOLT CONTENDS THIS PROVISO RENDERS THE SPECIFICATION RESTRICTIVE.

HOLT PROTESTED THE MATTER TO THE CONTRACTING OFFICER BY TELEX OF NOVEMBER 18, 1974. THE CONTRACTING OFFICER DENIED THE PROTEST BY LETTER DATED NOVEMBER 20, 1974, RECEIVED BY HOLT ON NOVEMBER 25, 1974.

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES:

"*** 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 'FILES' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE PROTESTERS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT."

THE CONTRACTING OFFICER'S LETTER OF NOVEMBER 20, 1974, RECEIVED BY HOLT ON NOVEMBER 25, 1974, DENYING THE PROTEST CONSTITUTED AN ADVERSE AGENCY ACTION ON HOLT'S INITIAL PROTEST. ANY SUBSEQUENT PROTEST TO GAO FILED WITHIN 5 WORKING DAYS OF NOVEMBER 25, 1974, OR BY DECEMBER 3, 1974, WOULD HAVE BEEN TIMELY.

SINCE THE PROTEST WAS NOT RECEIVED UNTIL DECEMBER 6, 1974, IT IS UNTIMELY AND WILL NOT BE CONSIDERED FURTHER.