B-218051.2, APR 12, 1985, 85-1 CPD 422

B-218051.2, APR 12, 1985, 85-1 CPD 422

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST DIGEST: 1. GAO REJECTS SUGGESTION THAT PRECISE TIME LIMITS FOR FILING PROTESTS BE REPLACED BY A "REASONABLE TIME" REQUIREMENT, SINCE PROTESTS ARE SERIOUS MATTERS THAT REQUIRE EFFECTIVE AND EQUITABLE PROCEDURAL STANDARDS SO THAT PROTESTERS HAVE A FAIR OPPORTUNITY TO PRESENT THEIR CASES AND PROTESTS CAN BE RESOLVED REASONABLY QUICKLY. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER 2. DISMISSAL AS UNTIMELY OF PROTEST FILED ON THE ELEVENTH WORKING DAY AFTER THE PROTESTER KNEW THE BASIS FOR IT, WHERE THE NINTH DAY OF THE PERIOD WAS INAUGURATION DAY, IS AFFIRMED, SINCE THE PROTESTER HAD TIME AFTER INAUGURATION DAY TO FILE.

TRACOR APPLIED SCIENCES-- RECONSIDERATION:

TRACOR APPLIED SCIENCES REQUESTS RECONSIDERATION OF OUR DECISION IN TRACOR APPLIED SCIENCES, B-218051, FEB. 8, 1985, 85-1 CPD PARA. 168, IN WHICH WE DISMISSED AS UNTIMELY TRACOR'S PROTEST AGAINST THE DEPARTMENT OF THE NAVY'S CONTRACT AWARD TO RCA CORPORATION UNDER REQUEST FOR PROPOSALS NO. N00612-84-R-0183. WE AFFIRM THE DECISION.

WE FOUND THAT TRACOR'S PROTEST WAS UNTIMELY BECAUSE IT WAS NOT FILED UNTIL 11 WORKING DAYS AFTER THE DATE TRACOR LEARNED THE BASIS OF ITS PROTEST, WHICH WAS 1 WORKING DAY MORE THAN PERMITTED BY OUR BID PROTEST REGULATIONS, 4 C.F.R. SECS. 21.2(A)(2) (1985). IN REACHING THIS CONCLUSION WE NOTED THAT TRACOR'S PROTEST WOULD HAVE BEEN TIMELY IF INAUGURATION DAY, WHICH WAS THE NINTH DAY OF THE PERIOD, WAS NOT CONSIDERED A WORKING DAY OF THE FEDERAL GOVERNMENT. WE HELD, HOWEVER, THAT INAUGURATION DAY WAS A FEDERAL WORKING DAY FOR PURPOSES OF COMPUTING THE TIMELINESS OF A PROTEST BECAUSE ALTHOUGH FEDERAL OFFICES IN THE DISTRICT OF COLUMBIA, INCLUDING THIS OFFICE, GENERALLY WERE CLOSED, INAUGURATION DAY IS NOT A NATIONAL HOLIDAY AND FEDERAL OFFICES AROUND THE COUNTRY GENERALLY WERE OPEN. WE ALSO POINTED OUT THAT IN MUTUAL OF OMAHA INSURANCE CO., B-201710, JAN. 4, 1982, 82-1 CPD PARA. 2, WE CONSIDERED A PROTEST FILED ON THE ELEVENTH DAY AFTER THE PROTEST BASIS WAS KNOWN BECAUSE THE PROTEST COULD NOT BE FILED ON THE TENTH DAY, INAUGURATION DAY.

IN ITS REQUEST FOR RECONSIDERATION, TRACOR ARGUES THAT INAUGURATION DAY SHOULD NOT BE CONSIDERED A FEDERAL WORKING DAY FOR PURPOSES OF COMPUTING THE TIMELINESS OF PROTESTS, AND THAT IT SHOULD NOT MAKE ANY DIFFERENCE WHETHER INAUGURATION DAY FALLS ON THE TENTH DAY AFTER A PROTEST BASIS IS KNOWN OR ANY DAY IN BETWEEN. TRACOR ALSO SUGGESTS THAT SINCE THE STATUTE GOVERNING OUR BID PROTEST JURISDICTION DOES NOT PRESCRIBE A TIME PERIOD FOR THE FILING OF PROTESTS, WE SHOULD CONSIDER ANY PROTEST FILED WITHIN A REASONABLE TIME AFTER THE PROTEST BASIS IS LEARNED.

INITIALLY, WE REJECT TRACOR'S SUGGESTION THAT WE GENERALLY DISPENSE WITH THE PRECISE TIME LIMITS WE HAVE SET FOR FILING PROTESTS. WE REGARD BID PROTESTS AS SERIOUS MATTERS WHICH REQUIRE EFFECTIVE AND EQUITABLE PROCEDURAL STANDARDS BOTH SO THAT PROTESTERS HAVE A FAIR OPPORTUNITY TO PRESENT THEIR CASES AND SO THAT PROTESTS CAN BE RESOLVED IN A REASONABLY SPEEDY MANNER. IKARD MFG. CO., B-213606.2, MAY 21, 1984, 84-1 CPD PARA. 533. MOREOVER, IT IS IMPORTANT IN TERMS OF MAINTAINING THE INTEGRITY OF OUR TIMELINESS RULES THAT WE NOT CONSIDER THE MERITS OF A PROTEST FILED OUTSIDE THE PRECISE TIME FRAME REQUIRED EXCEPT IN VERY LIMITED CIRCUMSTANCES). SEE IAL COMMUNICATIONS SYSTEMS INC.-- RECONSIDERATION, B-215479.2, AUG. 13, 1984, 84-2 CPD PARA. 169.

WE ALSO ARE NOT PERSUADED THAT THE EFFECT OF INAUGURATION DAY ON THE FILING REQUIREMENT SHOULD BE THE SAME NO MATTER WHICH DAY IN THE 10-DAY FILING PERIOD IT FALLS ON. AS INDICATED IN MUTUAL OF OMAHA INSURANCE CO., B-201710, SUPRA, IT WOULD BE INEQUITABLE TO ENFORCE THE TIME LIMIT ON A DAY IN WHICH IT WOULD BE IMPOSSIBLE TO FILE A PROTEST WITH OUR OFFICE. WHERE, HOWEVER, THE PROTESTER HAS TIME AFTER INAUGURATION DAY TO FILE, AS IN TRACOR'S CASE, WE DO NOT BELIEVE THE SAME CONSIDERATION APPLIES.

UNDER OUR BID PROTEST REGULATIONS, THIS OFFICE WILL RECONSIDER A DECISION ONLY WHEN THE PARTY REQUESTING US TO DO SO DEMONSTRATES THAT THE INITIAL DECISION CONTAINS AN ERROR OF FACT OR LAW. 4 C.F.R. SEC. 21.12. TRACOR'S DISAGREEMENT WITH OUR CONCLUSION THAT ITS PROTEST MUST BE VIEWED AS UNTIMELY DOES NOT PROVIDE A BASIS TO REVERSE OUR INITIAL DECISION UNDER THAT STANDARD. THE DECISION THEREFORE IS AFFIRMED.