B-219312.9, APR 18, 1986, OFFICE OF GENERAL COUNSEL

B-219312.9, APR 18, 1986, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE GARY HART:

UNITED STATES SENATE

WE REFER TO YOUR LETTER TO OUR OFFICE DATED MARCH 27, 1986, IN REGARD TO THE PROTEST AND SUBSEQUENT REQUEST FOR RECONSIDERATION OF BRUCE RAHMANI (RAHMANI) CONCERNING SOLICITATION NO. F05600-84-B-0036 ISSUED BY THE UNITED STATES AIR FORCE. SPECIFICALLY, YOU ARE CONCERNED WITH OUR DECISION TO DISMISS RAHMANI'S REQUEST FOR RECONSIDERATION.

WE DISMISSED RAHMANI'S REQUEST FOR RECONSIDERATION ON DECEMBER 23, 1985, UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.12 (1985), BECAUSE IT WAS FILED ON DECEMBER 18, 1985, MORE THAN 10 WORKING DAYS AFTER NOVEMBER 29, 1985, WHEN RAHMANI STATED IT RECEIVED OUR DISMISSAL OF ITS INITIAL PROTEST. WE SUBSEQUENTLY AFFIRMED THIS DISMISSAL IN BRUCE RAHMANI-- RECONSIDERATION, B-219312.5, JAN. 9, 1986, 86-1 CPD PARA. 20; BRUCE RAHMANI-- RECONSIDERATION, B-219312.6, FEB. 3, 1986, 86-1 CPD PARA. 116; BRUCE RAHMANI-- RECONSIDERATION, B-219312.7, MAR. 13, 1986, 86-1 CPD PARA. ***.

RAHMANI HAS ASSERTED THAT ALTHOUGH ITS FIRST REQUEST FOR RECONSIDERATION WAS TIME/DATE STAMPED (FILED) IN GAO ON DECEMBER 18, 1985, IT WAS "PROPERLY MAILED" ON DECEMBER 2, 1985 AND, THEREFORE, THE FAILURE OF GAO TO TIMELY RECEIVE THE REQUEST (BY DECEMBER 13, 1985), MUST BE ATTRIBUTABLE TO THE GOVERNMENT'S NEGLIGENCE-- POSSIBLY MISHANDLING AT GAO. REJECTING RAHMANI'S CONTENTION, WE REFERRED TO OUR LONGSTANDING RULE THAT THE TIME/DATE STAMP IS ACCEPTED AS EVIDENCE OF THE TIME OF RECEIPT OF MATERIALS RELATING TO PROTESTS AT GAO ABSENT AFFIRMATIVE EVIDENCE TO THE CONTRARY TO SHOW ACTUAL EARLIER RECEIPT BY OUR OFFICE.

TO DATE, RAHMANI HAS NOT OFFERED ANY PROBATIVE EVIDENCE TO SUPPORT ITS ALLEGATION OF GAO MISHANDLING. YOU ADVISE US THAT MR. RAHMANI, THROUGH HIS ATTORNEY, IS PREPARED TO OFFER AFFIDAVITS FROM THE ATTORNEY'S LEGAL SECRETARY WHO MAILED THE REQUEST FOR RECONSIDERATION STATING THAT THE LETTER WAS MAILED ON DECEMBER 2, AND FROM THE UNITED STATES POSTAL SERVICE STATING THAT DELAYS IN DELIVERY BEYOND 10 DAYS WOULD BE HIGHLY UNUSUAL AND OUTSIDE THE ORDINARY COURSE OF DELIVERY. IN RHAMANI'S VIEW, THESE AFFIDAVITS CONSTITUTE AFFIRMATIVE EVIDENCE ON THE FACTUAL ISSUE OF RECEIPT. YOU URGE US TO CONSIDER THIS INFORMATION SINCE IT SEEMS TO ESTABLISH SOME DOUBT AS TO THE VALIDITY OF OUR POSITION THAT THE TIME/DATE STAMP SHOULD BE ACCEPTED AS EVIDENCE OF RECEIPT.

IN ITS MOST RECENT REQUEST FOR RECONSIDERATION, RAHMANI PROVIDED OUR OFFICE AN AFFIDAVIT FROM THE LEGAL SECRETARY AND OFFERED TO OBTAIN AN AFFIDAVIT FROM THE POST OFFICE. HOWEVER, AS WE INDICATED IN OUR DECISION DATED MARCH 13, THE SHOWING AS FACT THAT RAHMANI PROPERLY MAILED THE REQUEST FOR RECONSIDERATION OF DECEMBER 2, 1985, DOES NOT ESTABLISH THAT WE RECEIVED THE CORRESPONDENCE TIMELY. THE AFFIDAVITS DO NOT CONSTITUTE AFFIRMATIVE EVIDENCE OF TIMELY RECEIPT BY GAO, OR INDICATE GAO MISHANDLING, SINCE THEY DO NOT DIRECTLY CONTRADICT THE EVIDENCE OF THE THE TIME/DATE STAMP WHICH WE RELY ON AS EVIDENCE OF THE TIME OF RECEIPT. THE POSTAL SERVICE ASSERTION, FOR EXAMPLE, THAT IT NORMALLY DOES NOT TAKE 10 DAYS TO DELIVER A LETTER TO WASHINGTON, D.C., FROM DENVER, DOES NOT SHOW THAT A DELAY BEYOND 10 DAYS DID NOT, IN FACT, OCCUR IN THIS CASE. AS WE ALSO RECOGNIZED IN THE DECISION OF MARCH 13, WHILE THE RULE OF ACCEPTING THE TIME/DATE STAMP MAY APPEAR HARSH TO RAHMANI, OR "SELF-SERVING" AS RAHMANI HAS ASSERTED, WE THINK THIS PROCEDURE IS CONSISTENT WITH OUR NEED TO PROMPTLY AND FAIRLY CARRY OUT OUR BID PROTEST FUNCTION. A TIME/DATE STAMP IS THE USUAL MEANS OF ESTABLISHING RECEIPT IN THE ORDINARY COURSE OF BUSINESS.

WE FURTHER NOTE THAT RAHMANI'S PROTEST TO OUR OFFICE WAS ORIGINALLY DISMISSED AS UNTIMELY BY OUR OFFICE ON NOVEMBER 22, 1985. RAHMANI'S REQUEST FOR RECONSIDERATION SEEKS TO REVERSE OUR DISMISSAL OF ITS PROTEST. ESSENTIALLY, IN ITS PROTEST, RAHMANI ALLEGED BAD FAITH ON THE PART OF THE SMALL BUSINESS ADMINISTRATION (SBA) AND THE AIR FORCE IN FINDING RAHMANI INELIGIBLE FOR AWARD. WE POINT OUT THAT THE AIR FORCE INITIALLY DETERMINED RAHMANI TO BE A NONRESPONSIBLE BIDDER UNDER THIS SOLICITATION FOR MEALS AND LODGING FOR THE MILITARY ENTRANCE PROCESSING STATION IN DENVER, COLORADO AND INELIGIBLE FOR AWARD. THE AIR FORCE CONCLUDED AFTER TWO INSPECTIONS OF RAHMANI'S MOTEL FACILITIES THAT IT DID NOT MEET THE CONTRACT REQUIREMENTS. BECAUSE RAHMANI WAS A SMALL BUSINESS, THE AIR FORCE REFERRED THE ISSUE OF RAHMANI'S NONRESPONSIBILITY TO THE SBA UNDER ITS CERTIFICATE OF COMPETENCY (COC) PROCEDURES. UNDER THE COC PROCEDURES, THE SBA COULD HAVE DETERMINED RAHMANI RESPONSIBLE AND, THEREFORE, ELIGIBLE FOR THE AWARD. ON MAY 30, 1985, THE SBA DECLINED TO ISSUE A COC TO RAHMANI BASED ON ITS FINDING THAT THERE WERE DEFICIENCIES IN THE MOTEL'S KITCHEN, ROOMS, BUILDINGS AND GROUNDS AND THAT THE FACILITIES WERE NOT IN SUBSTANTIAL COMPLIANCE WITH THE CONTRACT REQUIREMENTS AND, THUS, RAHMANI'S BID WAS REJECTED. IN HIS ORIGINAL LETTER OF PROTEST TO OUR OFFICE DATED NOVEMBER 21, 1985, COPY ENCLOSED, RAHMANI CONCEDES THAT HE WAS ADVISED OF THE SBA REJECTION OF RAHMANI'S COC APPLICATION ON MAY 30, 1985, AND MET WITH SBA OFFICIALS ON JUNE 4, 1985, CONCERNING HIS REJECTION. THUS, RAHMANI ESSENTIALLY KNEW HIS BASIS OF PROTEST, THAT IN HIS VIEW, GOVERNMENT OFFICIALS HAD ACTED FRAUDULENTLY, AT THE LATEST ON JUNE 4, 1985, YET RAHMANI'S INITIAL PROTEST TO THE AIR FORCE WAS DATED SEPTEMBER 10, 1985, AND RAHMANI FILED A PROTEST WITH OUR OFFICE ON NOVEMBER 21.

OUR BID PROTEST REGULATIONS REQUIRE THAT IN SUCH CASES, PROTESTS SHALL BE FILED WITH EITHER THE CONTRACTING AGENCY OR GAO, NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(A)(2). CLEARLY, RAHMANI'S PROTESTS WERE FILED SIGNIFICANTLY BEYOND 10 WORKING DAYS OF HIS KNOWLEDGE OF THE AIR FORCE AND SBA'S ACTIONS. WHILE OUR REGULATIONS CONTAIN CERTAIN EXCEPTIONS TO THE TIMELINESS REQUIREMENTS, 4 C.F.R. SEC. 21.2(C), THOSE EXCEPTIONS ARE NOT APPLICABLE HERE.

WE FURTHER NOTE THAT IN HIS INITIAL PROTEST, RAHMANI ASKED FOR VARIOUS FORMS OF RELIEF AND AMONG THOSE WAS A REQUEST THAT, IN THE ABSENCE OF AWARD TO RAHMANI, THE SOLICITATION BE CANCELED AND A NEW SOLICITATION BE ISSUED. WE UNDERSTAND THAT ON NOVEMBER 15, 1985, THE AIR FORCE CANCELED SOLICITATION NO. F05600-85-B-0036 BECAUSE THE AIR FORCE REQUIREMENTS HAD SIGNIFICANTLY INCREASED AND THAT THE REVISED REQUIREMENT WAS RESOLICITED UNDER SOLICITATION NO. F05600-86-B-0014. THUS, NOTWITHSTANDING THE DISMISSAL OF ITS PROTEST, RAHMANI RECEIVED ONE OF THE ALTERNATIVE REMEDIES IT SOUGHT WHEN IT FILED ITS PROTEST.

WE TRUST THIS INFORMATION IS HELPFUL.