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Protest filed more than 10 working days after the protester received notification of denial of its agency-level protest is untimely. Because Skolnik indicated that its option prices were equal to its base price as adjusted by the IFB's economic price adjustment (EPA) clause. DLA notified Skolnik that its bid was rejected as nonresponsive. Skolnik's protests regarding both solicitations were filed in our Office on October 2. Provide that when a protest is initially filed with a procuring agency. Any subsequent protest to our Office must be filed within 10 working days of initial adverse agency action or inaction that is prejudicial to the position taken in the protest. 4 C.F.R. We have recognized that oral notification of the denial of an agency-level protest is sufficient to start the 10 working-day period running.

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B-237250, B-237251, Nov 14, 1989, 89-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: 1. Protest filed more than 10 working days after the protester received notification of denial of its agency-level protest is untimely. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties 2. Protest concerning an alleged apparent solicitation impropriety must be filed prior to bid opening to be timely.

Skolnik Industries, Inc.:

Skolnik Industries, Inc. (Skolnik), protests the rejection of its low bids as nonresponsive under invitations for bids (IFB) Nos. DLA400 89-B- 2062 and DLA400-89-B-3460, issued by the Defense Logistic Agency (DLA) for recovery drums.

We dismiss the protests as untimely.

DLA rejected Skolnik's bid under IFB No. DLA400-89-B-2062, because Skolnik indicated that its option prices were equal to its base price as adjusted by the IFB's economic price adjustment (EPA) clause. However, the solicitation did not contain an EPA clause. Therefore, by letter dated June 14, 1989, DLA notified Skolnik that its bid was rejected as nonresponsive. Skolnik protested to the agency by letter dated June 20, and the DLA contracting officer denied this protest by telephone call on August 15. Skolnik's protests regarding both solicitations were filed in our Office on October 2.

Our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(3) (1989), provide that when a protest is initially filed with a procuring agency, any subsequent protest to our Office must be filed within 10 working days of initial adverse agency action or inaction that is prejudicial to the position taken in the protest. 4 C.F.R. Sec. 21.0(f). We have recognized that oral notification of the denial of an agency-level protest is sufficient to start the 10 working-day period running. Discount Mach. & Equip., Inc.-- Reconsideration, B-233541.2, Apr. 3, 1989, 89-1 CPD Para. 341. Accordingly, Skolnik's protest in this regard is untimely, since it was filed in our Office more than a month and a half after Skolnik was notified that its agency-level protest had been denied.

With respect to IFB No. DLA400-89-B-3460, bid opening occurred on June 6. Skolnik's bid was determined to be nonresponsive, and the solicitation was canceled for "failure to obtain coverage," on September 22. Skolnik's bid was found nonresponsive because it failed to price all of the option quantities as required by the IFB. Skolnik protests that the solicitation was ambiguous with respect to the option pricing requirement because it contained unidentified "misleading questions." This protest concerns an alleged apparent solicitation impropriety which, under 4 C.F.R. Sec. 21.2(a)(1), must be filed either with the agency or in our Office prior to the time set for bid opening. Turbo Mechanical Inc., B-232483, Jan. 9, 1989, 89-1 CPD Para. 14. Accordingly, Skolnik's protest in this regard, which was first filed in our Office after bid opening, is not for consideration on the merits.

The protests are dismissed.

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