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A firm requested reconsideration of a prior decision dismissing as untimely its protest that a Bureau of Indian Affairs' (BIA) contract award for engineering services without preference for Indian-owned businesses was in violation of the Buy Indian Act. GAO had also declined to consider the firm's claim for proposal preparation costs which would have required consideration of the same issues found to be untimely protested. The protester conceded that the protest was untimely but contended that BIA has not adopted regulations implementing the Act; and the absence of regulation confused and complicated the protester's response to the procurement and was the real cause of the untimely filing of the protest. The protester received both the Commerce Business Daily notice and the solicitation which did not provide for preference to be given to Indian-owned firms. The protester's pre-closing date contacts with the procuring agency constituted timely oral protests to the agency against the unrestricted nature of the procurement, but BIA did not amend the solicitation to include Indian preference before the closing date for the receipt of proposals. GAO held that the alleged absence of regulation did not impede the protester's timely protests to the procuring agency, did not constitute good cause, a supervening circumstance beyond the protester's control which caused or even contributed to the delay in filing the subsequent protest with GAO. Accordingly, the prior decision was affirmed.


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