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B-209017, OCT 21, 1982

B-209017 Oct 21, 1982
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A PROTEST ALLEGING VARIOUS IMPROPRIETIES IN THE PREAWARD ACTIONS OF THE CONTRACTING AGENCY IS UNTIMELY UNDER GAO BID PROTEST PROCEDURES WHERE THE PROTEST IS FILED MORE THAN 10 DAYS AFTER THE PROTESTER SHOULD HAVE KNOWN THE BASES OF ITS PROTEST. 2. WHETHER A CONTRACTOR IS PERFORMING ACCORDING TO THE TERMS OF A CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION TO BE RESOLVED BY THE CONTRACTING PARTIES. THUS IS NOT FOR CONSIDERATION BY GAO UNDER ITS BID PROTEST PROCEDURES. OUR BID PROTEST PROCEDURES STIPULATE THAT A PROTEST MUST BE FILED WITH THIS OFFICE NO LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. WHICHEVER IS EARLIER. 4 C.F.R. WE HAVE HELD THAT A PROTESTER'S FAILURE TO PURSUE A MATTER WITHIN A REASONABLE TIME BY SEEKING INFORMATION THAT MIGHT REVEAL THE BASIS FOR A PROTEST REQUIRES REJECTION OF THE PROTEST AS UNTIMELY.

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B-209017, OCT 21, 1982

DIGEST: 1. A PROTEST ALLEGING VARIOUS IMPROPRIETIES IN THE PREAWARD ACTIONS OF THE CONTRACTING AGENCY IS UNTIMELY UNDER GAO BID PROTEST PROCEDURES WHERE THE PROTEST IS FILED MORE THAN 10 DAYS AFTER THE PROTESTER SHOULD HAVE KNOWN THE BASES OF ITS PROTEST. 2. GAO HAS NO AUTHORITY UNDER THE FREEDOM OF INFORMATION ACT TO DETERMINE WHEN OR WHAT INFORMATION MUST BE DISCLOSED BY GOVERNMENT AGENCIES. 3. WHETHER A CONTRACTOR IS PERFORMING ACCORDING TO THE TERMS OF A CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION TO BE RESOLVED BY THE CONTRACTING PARTIES, AND THUS IS NOT FOR CONSIDERATION BY GAO UNDER ITS BID PROTEST PROCEDURES.

FOREIGN EXCHANGE SERVICE-DULLES:

FOREIGN EXCHANGE SERVICE-DULLES (FES) PROTESTS THE AWARD OF A CONTRACT TO TELE-TRIP COMPANY, INCORPORATED, FOR FOREIGN MONEY EXCHANGE SERVICES UNDER SOLICITATION NO. DOT-FA-81-4 ISSUED BY THE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION (FAA). FES, WHICH SUBMITTED A TECHNICAL PROPOSAL UNDER THE SOLICITATION, GENERALLY ALLEGES CERTAIN IMPROPRIETIES IN THE ACTIONS OF THE FAA BOTH PRIOR TO AND AFTER CONTRACT AWARD, INCLUDING DELAYS, DEFECTIVE TECHNICAL EVALUATIONS, FAILURE TO PROVIDE INFORMATION, AND IMPROPER CONTRACT ADMINISTRATION.

WE DISMISS THE PROTEST.

OUR BID PROTEST PROCEDURES STIPULATE THAT A PROTEST MUST BE FILED WITH THIS OFFICE NO LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(B)(2) (1982). THE FAA INFORMALLY ADVISES THIS OFFICE THAT IT OFFERED FES A POST-AWARD ORAL DEBRIEFING IN A LETTER DATED MARCH 31, 1982, TO WHICH FES DID NOT RESPOND, AND THAT ON AUGUST 12 IT FORWARDED TO FES THE BULK OF THE PROCUREMENT DOCUMENTS THAT FES SOUGHT UNDER THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552 ET SEQ. (1976), AS AMENDED. FES DID NOT FILE ITS PROTEST WITH THIS OFFICE UNTIL SEPTEMBER 10.

WE HAVE HELD THAT A PROTESTER'S FAILURE TO PURSUE A MATTER WITHIN A REASONABLE TIME BY SEEKING INFORMATION THAT MIGHT REVEAL THE BASIS FOR A PROTEST REQUIRES REJECTION OF THE PROTEST AS UNTIMELY. SEE, E.G., INFORMATICS, INC., B-206765, JUNE 30, 1982, 82-1 CPD 638. SINCE FES HAD BUT DID NOT TAKE THE OPPORTUNITY FOR A DEBRIEFING, WE CONCLUDE THAT FES DID NOT ACT DILIGENTLY HERE. AT THE LATEST, THE BASES OF THE PORTION OF FES'S PROTEST CONCERNING PREAWARD EVENTS WERE EVIDENT UPON EXAMINATION OF THE FOIA DOCUMENTS, AND THUS FES SHOULD HAVE PROTESTED WITHIN 10 WORKING DAYS AFTER RECEIPT OF THAT MATERIAL. DICTAPHONE CORPORATION, B-204966, MAY 11, 1982, 82-1 CPD 452. CLEARLY, THE PORTION OF FES'S PROTEST CONCERNING THE SELECTION PROCESS IS UNTIMELY, AND THUS WE WILL NOT CONSIDER IT.

FES ALSO IMPLIES THAT THE FAA FAILED TO SUPPLY OR DELAYED IN SUPPLYING CERTAIN INFORMATION UNDER THAT FIRM'S FOIA REQUEST. OUR OFFICE HAS NO AUTHORITY UNDER THE FOIA TO DETERMINE WHEN OR WHAT INFORMATION MUST BE DISCLOSED BY GOVERNMENT AGENCIES. THE PROTESTER'S RECOURSE IS TO PURSUE ITS DISCLOSURE REMEDIES UNDER THE PROCEDURES PROVIDED BY THE FOIA. WESTEC SERVICES, INC., B-204871, MARCH 19, 1982, 82-1 CPD 257.

FINALLY, FES ALLEGES THAT THE FAA IS PERMITTING TELE-TRIP TO PERFORM THE CONTRACT WITHOUT ADHERING TO ITS TERMS. THIS ALLEGATION IS A MATTER OF CONTRACT ADMINISTRATION AND MUST BE RESOLVED BY THE CONTRACTING PARTIES. THUS THE MATTER IS NOT FOR OUR CONSIDERATION UNDER OUR BID PROTEST PROCEDURES. A.R.&S. ENTERPRISES, INC., B-197303, JULY 8, 1980, 80-2 CPD 17.

THE PROTEST IS DISMISSED.

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