B-215392.2, AUG 15, 1984, OFFICE OF GENERAL COUNSEL

B-215392.2, AUG 15, 1984, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: PROTEST CONCERNING REJECTION OF PROPOSAL FILED WITH GAO MORE THAN 10 WORKING DAYS AFTER PROTESTER RECEIVED WRITTEN NOTICE FROM THE AGENCY OF THE BASIS FOR REJECTION IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.

THE HONORABLE JAMES A. MCCLURE UNITED STATES SENATOR ROOM 149 BORAH STATION BOISE, IDAHO 83702:

THIS IS IN REPLY TO YOUR CORRESPONDENCE OF JULY 27, 1984, REGARDING THE ADDITIONAL MATERIALS SUBMITTED TO YOU BY THE GRANGEVILLE CHAMBER OF COMMERCE AND WHETHER THAT CORRESPONDENCE PROVIDES A BASIS FOR REVERSING OUR DECISION IN GRANGEVILLE CHAMBER OF COMMERCE, B-215392, JUNE 27, 1984, 84-1 CPD PARA. 682. OUR DECISION DISMISSED AS UNTIMELY A PROTEST FILED BY GRANGEVILLE CONCERNING THE FEDERAL AVIATION ADMINISTRATION'S (FAA) DETERMINATION THAT GRANGEVILLE DID NOT MEET THE MINIMUM REQUIREMENTS FOR THE ESTABLISHMENT OF AN AUTOMATED FLIGHT SERVICE STATION.

IN YOUR LETTER, YOU ASK WHETHER CONSIDERATION OF GRANGEVILLE'S PROTEST IS POSSIBLE SINCE GRANGEVILLE ADVISED THE FAA OF ITS INTENT TO PROTEST AND REQUESTED INFORMATION CONCERNING THE PROCEDURES TO FOLLOW WITHIN 10 WORKING DAYS OF BEING NOTIFIED OF THE FAA'S DECISION. IN OUR VIEW, GRANGEVILLE'S LETTER DATED MARCH 23, WHICH WAS IN RESPONSE TO THE FAA'S NOTIFICATION OF MARCH 13 THAT GRANGEVILLE WOULD NOT BE CONSIDERED, MERELY INDICATED AN INTENTION TO FILE A PROTEST IN THE FUTURE AND CANNOT BE USED TO FIX THE DATE OF THE PROTEST FOR TIMELINESS PURPOSES. SEE JRS INDUSTRIES, INC., B-208867, APR. 4, 1983, 83-1 CPD PARA. 348.

HOWEVER, EVEN IF WE WERE TO FIND THAT THE LETTER CONSTITUTED THE FILING OF A PROTEST WITH THE FAA, GRANGEVILLE'S PROTEST TO OUR OFFICE IS STILL UNTIMELY. SECTION 21.2(A) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(A) (1984), REQUIRES THAT WHEN A PROTEST IS INITIALLY FILED WITH THE CONTRACTING AGENCY, A SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED WITHIN 10 WORKING DAYS OF THE PROTESTER'S KNOWLEDGE OF THE INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. BY LETTER DATED APRIL 17, THE FAA ADVISED GRANGEVILLE THAT ITS OFFER WAS UNACCEPTABLE AND SINCE WE DID NOT RECEIVE GRANGEVILLE'S PROTEST IN OUR OFFICE UNTIL MORE THAN 10 WORKING DAYS AFTER THIS DATE, IT IS UNTIMELY.

WITH RESPECT TO GRANGEVILLE'S ALLEGATION THAT IT HAD NEVER BEEN ADVISED OF OUR PROTEST PROCEDURES, OUR BID PROTEST PROCEDURES ARE PUBLISHED IN THE FEDERAL REGISTER (AT 40 FED. REG. 17979 (1975), AS AMENDED BY 48 FED. REG. 1931 (1983)) AND THE CODE OF FEDERAL REGULATIONS (AT 4 C.F.R. PART 21 (1984)), AND THE PUBLIC IS ON CONSTRUCTIVE NOTICE OF THEIR CONTENTS. STARCK VAN LINES OF COLUMBUS, INC. - RECONSIDERATION, B-211361.2, JUNE 8, 1983, 83-1 CPD PARA. 627. POTENTIAL PROTESTERS THEREFORE HAVE FAIR NOTICE OF OUR FILING REQUIREMENTS, SEE COVENTRY MANUFACTURING COMPANY, INC., B-201626, APR. 21, 1981, 81-1 CPD PARA. 304, AND CANNOT RELY ON THEIR UNAWARENESS OF OUR PROCEDURES OR ON THE ALLEGEDLY ERRONEOUS ADVICE, OR LACK THEREOF, OF CONTRACTING PERSONNEL TO EXCUSE THE FAILURE TO COMPLY WITH THE TIMELINESS RULES. IMPACT INSTRUMENTATION, INC.--RECONSIDERATION, B-198704, OCT. 3, 1980, 80-2 CPD PARA. 239.

ACCORDINGLY, WE REMAIN OF THE VIEW THAT GRANGEVILLE'S PROTEST WAS NOT TIMELY FILED.