B-222530.3, JUL 2, 1986, 86-2 CPD 25
Highlights
PROTESTERS MUST COMPLY WITH REQUIREMENT TO FURNISH A COPY OF A PROTEST FILED WITH THE GENERAL ACCOUNTING OFFICE (GAO) TO THE CONTRACTING OFFICER EVEN WHERE PROTESTER HAS PREVIOUSLY ADVISED CONTRACTING OFFICER OF THE PROBLEM AND OF ITS INTENT TO PURSUE "ADMINISTRATIVE HEARINGS" SINCE AGENCY MUST BE ADVISED OF WHAT EXACTLY IS BEING PROTESTED AT GAO. ORAL NOTIFICATION OF BASIS FOR PROTEST IS SUFFICIENT TO START 10 DAY PERIOD FOR FILING A PROTEST RUNNING AND THE PROTESTER MAY NOT DELAY IN FILING A PROTEST UNTIL THE RECEIPT OF WRITTEN JUSTIFICATION OF PROTEST BASIS. A COPY OF ITS PROTEST TO THE CONTRACTING OFFICER WITHIN 1 WORKING DAY AFTER THE PROTEST WAS FILED WITH OUR OFFICE. THE EMS PROTEST WAS FILED WITH OUR OFFICE ON MAY 13.
B-222530.3, JUL 2, 1986, 86-2 CPD 25
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - FILING PROTEST WITH AGENCY DIGEST: 1. PROTESTERS MUST COMPLY WITH REQUIREMENT TO FURNISH A COPY OF A PROTEST FILED WITH THE GENERAL ACCOUNTING OFFICE (GAO) TO THE CONTRACTING OFFICER EVEN WHERE PROTESTER HAS PREVIOUSLY ADVISED CONTRACTING OFFICER OF THE PROBLEM AND OF ITS INTENT TO PURSUE "ADMINISTRATIVE HEARINGS" SINCE AGENCY MUST BE ADVISED OF WHAT EXACTLY IS BEING PROTESTED AT GAO. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER 2. ORAL NOTIFICATION OF BASIS FOR PROTEST IS SUFFICIENT TO START 10 DAY PERIOD FOR FILING A PROTEST RUNNING AND THE PROTESTER MAY NOT DELAY IN FILING A PROTEST UNTIL THE RECEIPT OF WRITTEN JUSTIFICATION OF PROTEST BASIS.
EAGLEVISION MANAGEMENT SERVICES, INC.-- REQUEST FOR RECONSIDERATION:
EAGLEVISION MANAGEMENT SERVICES, INC. (EMS), REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST AGAINST THE REJECTION OF ITS BID FOR BOND DEFICIENCIES UNDER EGLIN AIR FORCE BASE INVITATION FOR BIDS NO. F08651-86- B-0052. WE DISMISSED THE PROTEST BECAUSE EMS FAILED TO FURNISH-- AS REQUIRED BY OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.1(D) (1986)-- A COPY OF ITS PROTEST TO THE CONTRACTING OFFICER WITHIN 1 WORKING DAY AFTER THE PROTEST WAS FILED WITH OUR OFFICE.
WE AFFIRM THE DISMISSAL.
THE EMS PROTEST WAS FILED WITH OUR OFFICE ON MAY 13, 1986. AS OF MAY 21, THE DATE WE DISMISSED THE PROTEST, THE CONTRACTING OFFICER HAD NOT RECEIVED A COPY OF THE PROTEST. EMS STATES THAT ITS APRIL 30 LETTER TO THE CONTRACTING OFFICER SET FORTH THE FACTS WHICH LATER SERVED AS THE BASIS FOR THE PROTEST SUBMITTED HERE AND ADVISED THAT EMS "WILL SEEK ADMINISTRATIVE HEARINGS TO DETERMINE THE VALIDITY OF THEIR (EMS) BONDING. ..." ACCORDINGLY, EMS CONTENDS THAT THE CONTRACTING OFFICER WAS PROVIDED WITH NOTICE OF THE PROTEST BASIS AND THAT EMS FULLY COMPLIED WITH THE REQUIREMENT IN 4 C.F.R. SEC. 21.2(D).
THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C. SEC. 3554 (SUPP. II 1984), AND OUR IMPLEMENTING REGULATIONS IMPOSE A STRICT TIME LIMIT OF 25 WORKING DAYS FOR AN AGENCY TO FILE A WRITTEN REPORT WITH OUR OFFICE FROM THE DATE OF OUR TELEPHONIC NOTICE OF THE PROTEST. 4 C.F.R. SEC. 21.3(C). EXTENSIONS ARE CONSIDERED EXCEPTIONAL AND ARE SPARINGLY GRANTED. FURTHER, WE GENERALLY MUST ISSUE A FINAL DECISION WITHIN 90 WORKING DAYS AFTER THE PROTEST IS FILED. PERMITTING DELAYS IN FURNISHING COPIES OF PROTESTS TO THE CONTRACTING AGENCY WOULD HAMPER CONTRACTING AGENCIES' ABILITIES TO COMPLY WITH THE STATUTORILY IMPOSED TIME LIMITATION FOR FILING A REPORT AND COULD FRUSTRATE OUR EFFORTS TO PROVIDE EFFECTIVE AND TIMELY CONSIDERATION OF ALL OBJECTIONS TO PROCUREMENT ACTIONS. SEE GILBERT- TUCKER ASSOCIATES, INC.-- REQUEST FOR RECONSIDERATION, B-220731.2, NOV. 12, 1985, 85-2 CPD PARA. 541.
THE EMS APRIL 30 LETTER SENT TO THE CONTRACTING OFFICER DID NOT OBVIATE THE NEED FOR FILING A COPY OF THE PROTEST WITH THE CONTRACTING OFFICER. EVEN WHERE A PROTESTER HAS HAD PREVIOUS COMMUNICATIONS WITH THE CONTRACTING OFFICER REGARDING DISAGREEMENTS ON THE MANNER IN WHICH A PROCUREMENT WAS CONDUCTED, THE PROTESTER MUST STILL FILE A COPY OF THE PROTEST FILED HERE WITH THE CONTRACTING OFFICER SO THAT THE AGENCY CAN KNOW EXACTLY WHAT IS BEING PROTESTED TO OUR OFFICE. SEE WASHINGTON STATE COMMISSION FOR VOCATIONAL EDUCATION-- RECONSIDERATION, 64 COMP.GEN. 682 (1985), 85-2 CPD PARA. 59; GILBERT-TUCKER ASSOCIATES, INC.-- REQUEST FOR RECONSIDERATION, SUPRA.
IN ANY EVENT, ACCORDING TO THE CONTRACTING AGENCY, TELEPHONE CONVERSATIONS BETWEEN THE CONTRACTING OFFICER AND EMS OCCURED ON APRIL 18 AND APRIL 24. DURING THE APRIL 18 CONVERSATION, EMS WAS INFORMED OF THE REASON ITS BID WAS BEING REJECTED. THEREFORE, EMS WAS INFORMED OF THE BASIS OF PROTEST ON APRIL 18. AT NO TIME DURING THESE TWO CONVERSATIONS DID EMS PROTEST THE BID REJECTION. UNDER 4 C.F.R. SEC. 21.2(A)(2), EMS HAD 10 WORKING DAYS AFTER APRIL 18, OR UNTIL MAY 2, TO FILE A PROTEST WITH OUR OFFICE OR THE AGENCY. ALTHOUGH EMS STATES THAT, ON APRIL 30, IT RECEIVED WRITTEN CONFIRMATION FROM THE CONTRACTING OFFICER, THE PRIOR ORAL NOTIFICATION OF THE BASIS FOR PROTEST IS SUFFICIENT TO START THE 10-DAY PERIOD FOR FILING A PROTEST RUNNING WHEN SUBSEQUENT AGENCY CONFIRMATION MERELY REITERATES THE BASIS OF PROTEST. AUBURN TIMBER, INC.-- REQUEST FOR RECONSIDERATION, B-221523.2, FEB. 20, 1986, 86-1 CPD PARA. 182. FINALLY, EVEN IF THE EMS APRIL 30 LETTER TO THE CONTRACTING OFFICER IS VIEWED AS AN AGENCY PROTEST, THE LETTER WAS NOT RECEIVED BY THE CONTRACTING AGENCY UNTIL MAY 8. THEREFORE, THE PROTEST FILED WITH OUR OFFICE ON MAY 13 WAS UNTIMELY.
ACCORDINGLY, THE DISMISSAL IS AFFIRMED.