B-238896.3, Dec 5, 1990, 90-2 CPD ***

B-238896.3, Dec 5, 1990, 90-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Protest filed more than 10 working days after protester knows of its basis of protest is untimely filed under Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a) (1990).

Honorable Benjamin L. Cardin Member, United States House of

Representatives:

In your letter of November 1, 1990, you express interest in a protest of Shel International, Inc., against alleged irregularities under solicitation No. DADA15-90-R-0004, which was issued by the Army for laundry services to be performed at Walter Reed Army Medical Center.

By letter of October 31, Shel filed a protest concerning this matter with our Office. By notice dated November 5, we dismissed Shel's protest as untimely under our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(2) (1990), because it was filed more than 10 working days after its basis of protest was known.

The procurement was set aside for exclusive small business participation. The Army awarded a contract to Robertson Penn, Inc., and Shel International, the second low bidder, filed a size challenge with the Small Business Administration (SBA). On July 13, 1990, the SBA determined that Robertson & Penn did not meet the small business size standard under this procurement. The contracting officer was advised of the SBA ruling on July 17. The contracting officer advised Shel on August 23 that the agency had made a decision not to terminate Robertson & Penn's contract, deciding instead to "rebid the procurement sometime later this year." letter of August 30, Shel requested assistance from your office concerning the Army's refusal to immediately terminate the award to the large business. By letter of August 31, you wrote the Army, enclosing the correspondence from Shel and expressing interest in the issues outlined by Shel. On October 23, the agency responded, advising your office that it had decided the award to Robertson & Penn was proper because it was "validly awarded at the time."

As stated above, on October 31, Shel filed a protest in our Office. dismissed the protest as untimely on November 5, since our Bid Protest Regulations require that a protest be filed not later than 10 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). Since Shel knew of the Army's failure to terminate Robertson & Penn's contract notwithstanding the SBA ruling at the latest by August 23, we found that its protest had to be filed in our Office within 10 working days of that date in order to be timely. Although Shel contends that it attempted to argue its case with the Army directly, these communications did not constitute a protest that would make a subsequent protest to our Office timely, since there is no provision for oral protests under Federal Acquisition Regulation Sec. 33.101. Americover Co., B-234352, Mar. 28, 1989, 89-1 CPD Para. 320.

Since the protest is untimely, we are unable to consider this matter on the merits. Our Regulations regarding the timeliness of protests reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Air Inc.-- Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD Para. 129.

While our Regulations provide at 4 C.F.R. Sec. 21.2(c) that, for good cause shown or where there are issues significant to the procurement system, our Office may consider any protest which is not timely filed, we do not find these exceptions applicable here. In order to prevent those rules from becoming meaningless, exceptions are strictly construed and rarely used. Air Inc.-- Recon., B-238220.2, supra. Therefore, Shel's protest cannot be considered on the merits.

For your information, we enclose a copy of our publication, Bid Protests at GAO-- A Descriptive Guide, which contains a copy of our Bid Protest Regulations and information concerning GAO's bid protest function.