[Protest of DLA Contract Award]
Highlights
A firm protested a Defense Logistics Agency contract award. GAO held that the protester: (1) untimely filed its protest more than 10 working days after it knew or should have known the basis of protest; and (2) assumed the risk that its protest would be untimely received, by relying upon a facsimile machine to file its protest. Accordingly, the protest was dismissed.
B-243166.2, Jun 27, 1991, 91-1 CPD 610
PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Facsimile DIGEST: Protest repeatedly misdirected to incorrect telefax (fax) number will not be considered since General Accounting Office (GAO) did not timely receive the protest within 10 working days after the basis of protest was known or should have been known. Protester relying on fax equipment to file a protest bears the risk of untimely receipt of protest by GAO. I. Becker for the protester. Edwin Rodriguez, and John Van Schaik, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
Comspace Corporation:
Comspace Corporation protests the award of a contract to another firm under request for proposals No. DLA900-90-R-6396, issued by Defense Logistics Agency.
The protest is dismissed as untimely.
On June 3, 1991, we received a telefax (fax) from Comspace informing us that Comspace had been unable to obtain an acknowledgment of a protest it had attempted to file with our Office on April 1. Attached to the June 3 letter were copies of prior faxs, including a protest dated April 1, and two subsequent attempts to have the April 1 protest acknowledged by our Office. All the faxs except the June 3 transmission were sent to the incorrect number. We, therefore, did not actually receive the protest until June 3.
Our Bid Protest Regulations require that protests "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). The term "filed" means "receipt of the protest ... in the General Accounting Office." C.F.R. Sec. 21.0(g). When using fax equipment, a protester assumes the risk that the protest will not be received at our Office within the 10-day timeliness period. Danville-Findorff, Inc.-- Recon., B-242934.2, Mar. 21, 1991, 91-1 CPD Para. 313.
According to Comspace's correspondence, it was on notice of the grounds of its protest on March 29. In sending the April 1 protest by fax, the protester took the risk that it would not be received on time. Because we did not actually receive it until June 3, more than 10 days after the protester knew the basis of the protest, the protest is untimely and will not be considered.
The protest is dismissed.