Hatch & Fortwangler, Inc,-- Reconsideration

B-244752.2, Sep 25, 1991

DIGEST: 1. Request for reconsideration of decision dismissing protest as untimely is denied where protester does not establish that decision was based on error of fact or law or present information not previously considered that warrants reversal or modification of our decision. 2. Untimely protest issues will not be considered under significant issue exception to General Accounting Office (GAO) timeliness requirements where protester was aware that protest was untimely; significant issue argument therefore should have been raised in initial protest.

Attorneys

Hatch & Fortwangler, Inc.-- Reconsideration:

Hatch & Fortwangler, Inc. (H&F) requests reconsideration of our decision, Hatch & Fortwangler, Inc., B-244752, July 17, 1991, 91-2 CPD Para. 71, in which we dismissed as untimely its protest of award of a contract to Computer Associates International, Inc. (CAI) under request for proposals (RFP) No. CS-91-001, issued by the U.S. Customs Service for database administration and software support. We dismissed H&F's protest because the agency-level protest on which it was based was filed more than 4 months after H&F learned of its basis of protest.

We deny the request.

In its protest, H&F stated that it became aware of certain protests grounds in September 1990, and the remaining issues in late January 1991. However, H&F did not file a protest with the contracting officer until June 4, 1991. Our Bid Protest Regulations provide that a matter initially protested to an agency will be considered only if the initial protest to the agency was filed within the time limits for filing a protest with our Office-- in this case, not later than 10 days after the basis for protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) and 21.2(a)(3) (1991). Thus, to be timely under our Regulations, H&F's agency -level protest would have to have been filed within 10 working days after it learned of the basis of its protest. Since H&F waited more than 4 months before filing its protest with the agency, the protest to our Office was untimely.

In its reconsideration request, H&F contends that its agency protest was timely filed because Federal Acquisition Regulation (FAR) Sec. 33.102 encourages prospective protesters to seek resolution of issues with the agency before filing a protest in our Office. H&F asserts that it was complying with the FAR provision when it filed its protest in our Office only after it received the agency's final response on May 28.

As we noted in our decision, our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting the procurement process. Advanced Health Sys.-- Recon., B-227779.2, Aug. 27, 1987, 87-2 CPD Para. 205. These rules are not inconsistent with the FAR. While the FAR encourages resolution of protestable issues at the agency level, it does not afford a protester unlimited time to do so; in fact, FAR Sec. 33.103 mirrors our Regulations in providing that protests of other than apparent solicitation improprieties must be filed with the contracting officer no later than 10 working days after the basis of protest is known. Thus, under either our Regulations or the FAR, H&F's protest was untimely.

H&F requests that we consider its protest under the significant issue exception to our timeliness rules, 56 Fed.Reg. 3759 (1991) (to be codified at 4 C.F.R. Sec. 21.2(c)). Under this exception, we may consider a given case notwithstanding its untimeliness when, in our judgment, the circumstances are such that our consideration of the protest would be in the interest of the procurement system. DynCorp, B-240980.2, Oct. 17, 1990, 70 Comp.Gen. ***, 90-2 CPD Para. 310. In order to prevent our timeliness requirements from becoming meaningless, however, we strictly construe and seldom use the exception, limiting it to protests that raise issues of widespread interest to the procurement community, and which have not been considered on the merits in a previous decision. Id.

There is no basis for applying the exception here. Our Regulations require that a request for reconsideration contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law or fact or information not previously considered. 4 C.F.R. Sec. 21.12. Information not previously considered means information that was not available to the protester when the initial protest was filed. Global Crane Inst.-- Recon., B-218120.2, May 28, 1985, 85-1 CPD Para. 606. Any other interpretation would permit a protester to present arguments in a piecemeal fashion, and undermine our goal of affording parties the opportunity to present their cases with the least disruption possible to the orderly and expeditious conduct of government procurements. Dynalectron Corp., 65 Comp.Gen. 92 (1985), 85-2 CPD Para. 634. Here, H&F was aware-based on the contracting officer's reason for denying its agency-level protest-- that its protest to our Office was untimely under the 10-day rule, but did not argue that the protest warranted consideration under the significant issue exception. Since H&F could have presented this argument in its initial protest, but did not do so, it is not a basis for reconsidering the matter.

Furthermore, we noted in our prior decision that H&F may have been a prospective subcontractor rather than an actual offeror under the solicitation. It now is clear that, while H&F initially was a member of a team that submitted a proposal, prior to award it became a proposed subcontractor of the other team member. Since our Office does not consider subcontractor protests, 4 C.F.R. Sec. 21.3(m)(10), we could not have considered H&F's protest of the award even if it had been timely filed.

The remainder of H&F's arguments concern the merits of its protest. we properly dismissed the protest as untimely, we have no basis to address the merits.

As H&F has not shown that our prior decision contains errors of fact or law or offered information not previously considered that warrants reversal or modification of our decision, the request for reconsideration is denied. 4 C.F.R. Sec. 21.12(a).

The Honorable George J. Mitchell

United States Senate

Senator Mitchell:

This is in response to your inquiry dated August 13, 1991, on behalf of Mr. Richard Hatch of Hatch & Fortwangler, Inc. (H&F), in regard to that firm's protest against the award of a contract by the U.S. Customs Service under request for proposals No. CS-90-001. As you are aware, we dismissed H&F's protest on July 17 because it was untimely filed. Enclosed is a copy of our decision of today denying H&F's request for reconsideration of that dismissal.

The Honorable William S. Cohen

United States Senate

Senator Cohen:

This is in response to your inquiry dated August 2, 1991, on behalf of Mr. Richard Hatch of Hatch & Fortwangler, Inc. (H&F), in regard to that firm's protest against the award of a contract by the U.S. Customs Service under request for proposals No. CS-90-001. As you are aware, we dismissed H&F's protest on July 17 because it was untimely filed. Enclosed is a copy of our decision of today denying H&F's request for reconsideration of that dismissal.