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PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule - Adverse agency actions DIGEST: Prior dismissal of protest as untimely is affirmed where protest to the General Accounting Office was filed more than 10 working days after protester was notified of agency's denial of protester's initial protest to the procuring agency. Which were timely received. National's submission indicated that the contracting officer notified National by telephone on April 10 that its hard copy offver was submitted late and therefore its offer would not be considered. When a protest is filed initially with the contracting agency. A protest is considered filed when it is received by our Office. 4 C.F.R.

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B-239647.2, Jul 6, 1990

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule - Adverse agency actions DIGEST: Prior dismissal of protest as untimely is affirmed where protest to the General Accounting Office was filed more than 10 working days after protester was notified of agency's denial of protester's initial protest to the procuring agency.

Attorneys

National General Supply, Inc.-- Reconsideration:

National General Supply, Inc. requests reconsideration of our dismissal as untimely of its protest concerning request for proposals (RFP) No. F64133-89-R-0005, issued by the Department of the Air Force for a supply store.

We affirm the dismissal.

By letter received in our Office on May 11, National protested that the Air Force improperly rejected as late the proposal National submitted in response to the RFP. In that letter, and in its reconsideration request, National argues that it relied on the contracting officer's oral permission to facsimile (fax) pertinent parts of its proposal, which were timely received, althou;gh the RFP did not contain a provision allowing for submission of faxed proposals. National's submission indicated that the contracting officer notified National by telephone on April 10 that its hard copy offver was submitted late and therefore its offer would not be considered. National filed an agency-level protest with the Air Force by letter dated April 11, objecting to the rejection of its offer. National's submission further showed that as of April 24, National knew that its agency-level protest had been denied by the Air Force.

When a protest is filed initially with the contracting agency, any subsequent protest to our Office must be received within 10 working days of the protester's notice of the initial adverse agency action. Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(3) (1990). A protest is considered filed when it is received by our Office. 4 C.F.R. Sec. 21.0(g). We dismissed National's protest as untimely because we did not receive it until May 11, more than 10 working days after National was aware that the Air Force had rejected the firm's agency-level protest.

In its request for reconsideration, National does not dispute our finding that its protest was untimely. Instead, it argues again the merits of its protest, emphasizing its position that it relied on a government official's advice in submitting portions of its offer by fax machine.

Our timeliness rules reflect the dual requirement of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Grant Technical Servs., B-235231.2, May 26, 1989, 89-1 CPD Para. 514. In order to prevent those rules from becoming meaningless, exceptions are strictly construed and rarely used. The only exceptions to the timeliness requirements are where there was good cause for the untimely filing some coompelling reason beyond the protester's control prevented the protester from filing a timely protest or a significant issue one of widespread interest to the procurement community or one that has not been considered before is involved. See 4 C.F.R. Sec. 21.2(b); Hunter Envtl. Servs., Inc., B-232359, Sept. 15, 1988, 88-2 CPD Para. 251.

As stated above, National in its reconsideration request does not dispute our conclusion that its protest to our Office was untimely. It also has offered no explanation as to why it failed to protest the rejection of its offer within 10 working days of the April 25 notification. Thus, the protester provides no compelling reason beyond its control which prevented it from timely filing its protest. Further, while we recognize the importance of the matter to the protester, we do not think the protest raises a significant issue-- it does not involve an issue which is of widespread interest to the procurement community, and the issue of an offeror's reliance on oral advice given by government officials is one we have dealt with often. See, e.g., Metro Recycling Co.-- Request for Recon., B-233816.2, Mar. 2, 1989, 89-1 CPD Para. 225; Oscar Vision Sys. Inc., B-232289, Nov. 7, 1988, 88-2 CPD Para. 450.

Our prior dismissal is affirmed.

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