B-198391.2, JUL 8, 1980

B-198391.2, JUL 8, 1980

DIGEST: WHEN PRE-BID OPENING PROTEST IS FILED INITIALLY WITH AGENCY, BID OPENING CONSTITUTES ADVERSE AGENCY ACTION AND SUBSEQUENT PROTEST TO GAO MUST BE FILED WITHIN 10 DAYS THEREAFTER. GAO'S RECEIPT, PRIOR TO BID OPENING, OF LETTER INDICATING FUTURE INTENT TO PROTEST IF SPECIFICATIONS WERE NOT CHANGED DOES NOT SATISFY REQUIREMENT FOR FILING PROTEST AND PROVIDES NO BASIS FOR RECONSIDERATION OF PRIOR DECISION DISMISSING PROTEST AS UNTIMELY.

AUTOTRONIC PRODUCTS, INC. - REQUEST FOR RECONSIDERATION:

AUTOTRONIC PRODUCTS, INC. (API) REQUEST THAT WE RECONSIDER OUR DECISION IN AUTOTRONIC PRODUCTS, INC., B-198391, MAY 1, 1980, 80-1 CPD 314, IN WHICH WE DISMISSED AS UNTIMELY THE FIRM'S PROTEST THAT SOLICITATION NO. DAAA09-80-B-4218, ISSUED BY THE DEPARTMENT OF THE ARMY FOR THE PROCUREMENT OF ENGINE ANALYZERS, WAS RESTRICTIVE.

API SENT A LETTER TO THE ARMY ON FEBRUARY 20, 1980, REQUESTING A CHANGE IN THE SOLICITATION PROVISIONS. BID OPENING WAS HELD ON MARCH 3. VIEWED THE PROTEST FILED WITH THIS OFFICE ON APRIL 8 AS UNTIMELY BECAUSE, ASSUMING THE FEBRUARY 20 LETTER TO THE AGENCY CONSTITUTED A PROTEST, API SHOULD HAVE FILED ITS PROTEST HERE WITHIN 10 DAYS AFTER THE BID OPENING, SINCE, UNDER OUR BID PROTEST PROCEDURES THE BID OPENING CONSTITUTED ADVERSE ACTION ON THE PROTEST. SEE 4 C.F.R. SEC. 20.2(A) (1980).

API NOW ASSERTS THAT IT HAS A CERTIFIED MAIL RECEIPT SHOWING "NOTIFICATION OF PROTEST BEFORE BID OPENING" DATED FEBRUARY 26, 1980. THIS APPARENTLY REFERS TO A LETTER TO THIS OFFICE OF THAT DATE, WHICH ONLY ADVISED OF API'S INTENTION TO FILE A PROTEST IF THE ARMY DID NOT CHANGE THE SOLICITATION TO ALLOW IT TO COMPETE. THAT LETTER, HOWEVER, OBVIOUSLY WAS NOT ITSELF A PROTEST. CONSEQUENTLY, WE FAIL TO SEE THE RELEVANCE OF THE CERTIFIED MAIL RECEIPT AND FIND NO BASIS TO RECONSIDER THE DECISION.