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PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - GOOD CAUSE EXEMPTIONS - APPLICABILITY PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - SIGNIFICANT ISSUE EXEMPTIONS - APPLICABILITY DIGEST: GAO WILL NOT CONSIDER THE MERITS OF AN UNTIMELY PROTEST UNDER EITHER THE GOOD CAUSE OR SIGNIFICANT ISSUE EXCEPTIONS WHEN THERE IS NO COMPELLING REASON BEYOND THE PROTESTER'S CONTROL THAT PREVENTED THE TIMELY FILING OF A PROTEST AND THE PROTEST DOES NOT PRESENT A UNIQUE ISSUE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY. YOU ASK WHAT FURTHER APPEALS ARE OPEN TO M&M SERVICES. MAY CONSIDER ANY PROTEST WHICH IS NOT FILED TIMELY.". THE IFB IS FOR MAINTENANCE. SINCE THE AMOUNT OF PRODUCTIVE TIME THE GOVERNMENT ESTIMATED FOR ITS EMPLOYEES ALLEGEDLY MADE NO ALLOWANCE FOR SUCH THINGS AS SICK LEAVE OR COFFEE BREAKS AND ASSUMED THAT THE EMPLOYEES ARE PRODUCTIVE FROM THE START OF THEIR WORK DAY TO THE END OF IT.

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B-225101.2, JAN 8, 1987, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - GOOD CAUSE EXEMPTIONS - APPLICABILITY PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - SIGNIFICANT ISSUE EXEMPTIONS - APPLICABILITY DIGEST: GAO WILL NOT CONSIDER THE MERITS OF AN UNTIMELY PROTEST UNDER EITHER THE GOOD CAUSE OR SIGNIFICANT ISSUE EXCEPTIONS WHEN THERE IS NO COMPELLING REASON BEYOND THE PROTESTER'S CONTROL THAT PREVENTED THE TIMELY FILING OF A PROTEST AND THE PROTEST DOES NOT PRESENT A UNIQUE ISSUE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY.

THE HONORABLE HANK BROWN:

THIS RESPONDS TO YOUR LETTER OF NOVEMBER 18, 1986, CONCERNING OUR DISMISSAL OF A PROTEST FILED BY CHARLES W. MEYERS, PRESIDENT OF M&M SERVICES, INC., CONCERNING INVITATION FOR BIDS (IFB) NO. N62474-85-B-2786, ISSUED BY THE NAVY PUBLIC WORKS CENTER, SAN DIEGO, CALIFORNIA. YOU REQUEST INFORMATION REGARDING THE POSSIBILITY OF OUR RECONSIDERING THIS DECISION, AND YOU ASK WHAT FURTHER APPEALS ARE OPEN TO M&M SERVICES.

WE DISMISSED THE PROTEST ON OCTOBER 31 BECAUSE THE FIRM FAILED TO PROTEST TO OUR OFFICE WITHIN 10 WORKING DAYS AFTER IT LEARNED OF ADVERSE AGENCY ACTION ON IT INITIAL PROTEST TO THE NAVY, AS REQUIRED BY OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(3) (1986).

M&M SERVICES, IN ITS NOVEMBER 7 LETTER TO YOUR OFFICE, STATES THAT IT DID NOT FILE ITS PROTEST WITH OUR OFFICE WITHIN THE REQUISITE TIME BECAUSE THE CONTRACTING OFFICER'S LETTER DENYING ITS AGENCY-LEVEL PROTEST DID NOT ADVISE IT OF THIS REQUIREMENT. M&M SERVICES CONTENDS THAT ITS PROTEST HAS SUBSTANTIAL MERIT AND THAT WE SHOULD CONSIDER IT PURSUANT TO 4 C.F.R. 21.2(C), WHICH STATES: "THE GENERAL ACCOUNTING OFFICE, FOR GOOD CAUSE SHOWN, OR WHERE IT DETERMINES THAT A PROTEST RAISES ISSUES SIGNIFICANT TO THE PROCUREMENT SYSTEM, MAY CONSIDER ANY PROTEST WHICH IS NOT FILED TIMELY."

THE IFB IS FOR MAINTENANCE, REPAIR, AND OPERATION OF UTILITY SYSTEMS. THE NAVY DECIDED TO PERFORM THE WORK ITSELF, RATHER THAN BY CONTRACTING OUT, AFTER REVIEWING THE BIDS SUBMITTED UNDER THE SUBJECT IFB IN ACCORD WITH OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-76. M&M SERVICES CONTENDS THAT THE GOVERNMENT COST ESTIMATE FOR PERFORMANCE OF THE WORK IN- HOUSE DOES NOT REPRESENT THE ACTUAL COST TO DO THE WORK DESCRIBED IN THE IFB, SINCE THE AMOUNT OF PRODUCTIVE TIME THE GOVERNMENT ESTIMATED FOR ITS EMPLOYEES ALLEGEDLY MADE NO ALLOWANCE FOR SUCH THINGS AS SICK LEAVE OR COFFEE BREAKS AND ASSUMED THAT THE EMPLOYEES ARE PRODUCTIVE FROM THE START OF THEIR WORK DAY TO THE END OF IT. M&M SERVICES ALSO STATES THAT THE NAVY COULD NOT PERFORM THE RECURRING MAINTENANCE TASKS WITH ITS IDENTIFIED PERSONNEL.

THE NAVY DENIED M&M SERVICES' AGENCY-LEVEL PROTEST BY LETTER DATED SEPTEMBER 22, STATING THAT UNDER INSTRUCTIONS RELATING TO THE NAVY COMMERCIAL ACTIVITIES PROGRAM, ADMINISTRATIVE APPEAL PROCEDURES MAY NOT BE USED "TO QUESTION THE GOVERNMENT'S DECISION RELATING TO ORGANIZATION AND STAFFING ACTIVITIES FOR THE MOST EFFICIENT ORGANIZATION." WHILE THE RECORD DOES NOT ESTABLISH PRECISELY WHEN M&M SERVICES RECEIVED THIS LETTER, WE GENERALLY ASSUME DELIVERY WITHIN 5 WORKING DAYS. SEE WINDWARD MOVING & STORAGE CO., INC.-- RECONSIDERATION, B-213885.3, SEPT. 17, 1984, 84-2 CPD PARA. 296. IN THIS CASE, THEN, M&M SERVICES SHOULD HAVE RECEIVED THE LETTER BY SEPTEMBER 29, AND SHOULD HAVE PROTESTED NO LATER THAN OCTOBER 6. THE PROTEST WAS NOT FILED, HOWEVER, UNTIL OCTOBER 31.

OUR BID PROTEST REGULATIONS ARE PUBLISHED IN THE FEDERAL REGISTER, AND PROTESTERS ARE CHARGED WITH CONSTRUCTIVE NOTICE OF THEIR CONTENTS. INTERNATIONAL DEVELOPMENT INSTITUTE, 64 COMP.GEN. 259 (1985), 85-1 CPD PARA. 179; ENGINEERS INTERNATIONAL, INC.-- RECONSIDERATION, B-219760.2, AUG. 23, 1985, 85-2 CPD PARA. 225. THUS, THE FACT THAT A PROTESTER IS NOT FAMILIAR WITH THEIR REQUIREMENTS IS NOT RELEVANT TO THE TIMELINESS OF A PROTEST. ALTHOUGH IT IS UNFORTUNATE THAT M&M SERVICES WAS UNAWARE OF THE 10-DAY FILING REQUIREMENT, THE FIRM'S LACK OF ACTUAL KNOWLEDGE OF OUR REGULATION DOES NOT PROVIDE A BASIS FOR RECONSIDERATION OF OUR DISMISSAL OF THIS PROTEST AS UNTIMELY.

OUR OFFICE WILL CONSIDER AN UNTIMELY PROTEST WHERE WE DETERMINE THAT GOOD CAUSE HAS BEEN SHOWN OR THAT A PROTEST RAISES AN ISSUE SIGNIFICANT TO THE PROCUREMENT SYSTEM. THE GOOD CAUSE EXCEPTION IS LIMITED TO CIRCUMSTANCES WHERE SOME COMPELLING REASON BEYOND THE PROTESTER'S CONTROL PREVENTS THE PROTESTER FROM FILING A TIMELY PROTEST. KNOX MANUFACTURING CO.-- REQUEST FOR RECONSIDERATION, B-218132.2, MAR. 6, 1985, 85-1 CPD PARA. 281. THAT DOES NOT APPEAR TO BE THE CASE HERE.

THE SIGNIFICANT ISSUE EXCEPTION IS USED WHERE THE SUBJECT MATTER OF THE PROTEST EVIDENCES A MATTER OF WIDESPREAD INTEREST OR IMPORTANCE TO THE PROCUREMENT COMMUNITY AND WHERE WE HAVE NOT CONSIDERED THE MATTER ON THE MERITS IN PREVIOUS DECISIONS. DETROIT BROACH AND MACHINE, B-213643, JAN. 5, 1984, 84-1 CPD PARA. 55. WE HAVE PREVIOUSLY CONSIDERED PROTESTS AGAINST AN AGENCY DECISION TO PERFORM IN-HOUSE, RATHER THAN CONTRACT OUT, WHERE THE ISSUES RAISED CONCERNED THE ACCURACY OF THE GOVERNMENT COST ESTIMATE. SEE RAYTHEON SUPPORT SERVICES CO., B-216898, SEPT. 25, 1985, 85-2 CPD PARA. 332. THUS, WHILE WE RECOGNIZE THE IMPORTANCE OF THESE MATTERS TO THE PROTESTER, WE DO NOT FIND M&M SERVICES' UNTIMELY PROTEST TO BE SIGNIFICANT WITHIN THE MEANING OF 4 C.F.R. SEC. 21.2(C). SEE TRITAN CORP., B-218306, MAY 23, 1985, 85-1 CPD PARA. 601.

WHILE THE STRICT APPLICATION OF OUR TIMELINESS REQUIREMENTS, AND THE LIMITED USE OF THE EXCEPTIONS TO THEM MAY SEEM HARSH IN CASES SUCH AS THAT OF YOUR CONSTITUENT, THERE ARE VALID POLICY REASONS UNDERLYING THE REQUIREMENTS. THEIR PURPOSE IS TO ESTABLISH EFFECTIVE AND UNIFORM PROCEDURAL STANDARDS THAT WILL PROVIDE ALL PARTIES WITH A FAIR OPPORTUNITY TO PRESENT THEIR CASES. EQUALLY IMPORTANT IS THE FACT THAT THESE REQUIREMENTS ALLOW OUR OFFICE TO RESOLVE PROTESTS WITHIN A STATUTORY 90- DAY TIMEFRAME, SO THAT THE GOVERNMENT'S PROCUREMENT PROCESS IS NOT UNDULY DISRUPTED AND SO THAT CORRECTIVE ACTION, IF APPROPRIATE, IS STILL PRACTICABLE. SEE ELECTRONIC RESEARCH ASSOCIATES, INC.-- REQUEST FOR RECONSIDERATION, B-220291.3, JAN. 15, 1986, 86-1 CPD PARA. 46.

TO OBTAIN RECONSIDERATION BY OUR OFFICE, A PROTESTER MUST, IN ADDITION TO FILING A TIMELY REQUEST, DEMONSTRATE THAT OUR INITIAL DECISION CONTAINED ERRORS OF FACT OR LAW THAT WOULD WARRANT MODIFYING OR OVERRULING IT OR PRESENT INFORMATION THAT WAS NOT PREVIOUSLY AVAILABLE, SO THAT WE DID NOT CONSIDER IT IN REACHING OUR INITIAL DECISION. 4 C.F.R. SEC. 21.12. WE DO NOT BELIEVE M&M SERVICES' LETTER, AS FORWARDED BY YOUR OFFICE, MEETS THESE CRITERIA. THE FIRM OF COURSE, MAY SEEK TO CHALLENGE THE NAVY'S ACTION IN THE UNITED STATES DISTRICT COURT IF IT CHOOSES TO DO SO.

ENCLOSED IS A COPY OF OUR PUBLICATION ENTITLED BID PROTESTS AT GAO WHICH I HOPE WILL BE HELPFUL TO YOU.

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