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PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Protest is untimely where filed more than 10 working days after the basis of protest. Is known. That Whelen was not formally notified of the award of the contract. Whelen indicated in its cover letter to its offer that it was submitting an "alternative proposal to the project specifications.". We believe that the system you have specified will not work.". Martin Marietta determined that Whelen's offer was technically unacceptable and awarded a contract to ACA. Arguing that a March 5 demonstration test of an exterior public address system at Martin Marietta's facility using an ACA speaker unit was improper.

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B-239189, Aug 1, 1990, 90-2 CPD 89

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Protest is untimely where filed more than 10 working days after the basis of protest, an alleged improper demonstration of another offeror's product, is known.

Attorneys

Whelen Engineering Company:

Whelen Engineering Company protests the award of a contract to Alerting Communicators of America (ACA) under solicitation No. BP2 XK270-47, issued by Martin Marietta Energy Systems, Inc., pursuant to its operation and management contract with the Department of Energy (DOE), for an offsite alerting and notification system (ANS) for the Oak Ridge National Laboratory. Whelen asserts that an improper onsite demonstration of ACA's product prejudiced Whelen, and that Whelen was not formally notified of the award of the contract.

We dismiss the protest.

The solicitation, issued on December 15, 1989, sought offers to supply an offsite public warning system, including related data, installation and training, to a plant operated by Martin Marietta. Three options provided for offsite ANS systems to be installed around another DOE plant and other offsite locations. The solicitation included a detailed technical specification and provided for award to the responsible offeror whose offer, conforming to the solicitation, would be most advantageous to Martin Marietta, the total cost of the acquisition and other factors considered.

Martin Marietta received offers from Whelen and ACA by the February 21, 1990, closing date for receipt of offers. Whelen indicated in its cover letter to its offer that it was submitting an "alternative proposal to the project specifications." The letter further stated, "With all due respect to Martin Marietta Energy Systems, Inc., we believe that the system you have specified will not work." Martin Marietta determined that Whelen's offer was technically unacceptable and awarded a contract to ACA, the low offeror, on March 28.

Whelen filed a protest in our Office on April 5, arguing that a March 5 demonstration test of an exterior public address system at Martin Marietta's facility using an ACA speaker unit was improper. Whelen states that Martin Marietta emphasized to all vendors at the preproposal conference that their only contact regarding the procurement should be through Martin Marietta's Purchasing Department, and, therefore, the ACA demonstration, which Whelen learned of on March 20, put Whelen at a disadvantage.

We find Whelen's protest to be untimely. Under our Bid Protest Regulations, protests, other than those based upon alleged improprieties in a solicitation, must be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. C.F.R. Sec. 21.2(a)(2) (1990). Whelen's own protest letter acknowledges that the firm learned of the basis of its protest, the demonstration of the ACA equipment by Martin Marietta, on March 20. Whelen did not file its protest in our Office until April 5, more than 10 working days following the allegedly improper demonstration.

With respect to the timeliness of its protest, Whelen contends that an employee in the Atlanta, Georgia, Office of the General Accounting Office (GAO) misinformed the firm as to the timeliness requirements for the filing of bid protests. Whelen's account of its alleged conversation with the GAO employee is nonspecific, and therefore we are not able to determine whether anyone in our Office in fact provided the allegedly erroneous advice. However, a protester is on constructive notice of the rules concerning the proper time for filing a protest since our Bid Protest Regulations are published in the Federal Register and appear in the Code of Federal Regulations, even where allegedly erroneous information about protest procedures is provided by a government agency. Garden State Brickface & Stucco Co., B-237153, Oct. 31, 1989, 89-2 CPD Para. 410.

In any event, Whelen's offer, by its own admission, did not conform to the requirements of the solicitation and, therefore, was technically unacceptable. Moreover, Martin Marietta asserts that the test of the ACA equipment referred to by Whelen was held to determine the capability of the speaker to perform as an exterior public address system onsite, rather than offsite, as was required for the subject procurement and, in any case, the test was not conducted until March 5, after Whelen's offer was determined to be technically unacceptable on March 1. Accordingly, we find no evidence of bad faith on the part of Martin Marietta with respect to consideration of Whelen's offer.

Whelen also contends that it was not given formal notification of award. The solicitation stated that unsuccessful offerors would be notified of the award and award amount upon request. Whelen contacted Martin Marietta on April 2, and was informed that award had been made on March 28. Whelen was informed of the award amount on April 10. Accordingly, Whelen's contention in this regard is academic.

The protest is dismissed.

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