BNUMBER:  B-270506.2
DATE:  April 18, 1996
TITLE:  ACRO-TECH, Inc.--Reconsideration

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Matter of:ACRO-TECH, Inc.--Reconsideration

File:     B-270506.2

Date:     April 18, 1996

Reggie D. Huff for the protester.
Behn Miller, Esq., Office of the General Counsel, GAO, participated in 
the preparation of the decision.

DIGEST

Request for reconsideration of dismissal of protest as untimely is 
denied where protest was not filed within 14 days from when the 
protester first learned basis for protest.

DECISION

ACRO-TECH, Inc. requests reconsideration of our December 11, 1995, 
dismissal of its protest under Environmental Protection Agency (EPA) 
Fiscal Year 1995 Small Business Innovation Research Program (SBIR) 
solicitation No. D500001M1 for pollution prevention research.[1]  We 
dismissed the protest because it was untimely filed.

We deny the request for reconsideration.

The EPA announced its SBIR award selections in early October 1995.  On 
October 13, the protester--who had not been selected--contacted the 
contracting officer and asked her to send the firm the results of the 
agency's technical evaluation for its proposal.  On October 16, by 
facsimile, the contracting officer transmitted a copy of the agency's 
one-page "PROPOSAL TECHNICAL EVALUATION" form to the protester which 
detailed ACRO-TECH's proposal deficiencies.  In response, by facsimile 
to the contracting officer dated October 18, ACRO-TECH requested a 
telephone debriefing; ACRO-TECH advised the contracting officer that 
it wanted to discuss EPA's failure to award the firm an SBIR contract 
in 1995 as well as its nonselection under the prior year's 1994 SBIR 
solicitation.  On November 8, a telephone debriefing was conducted by 
the contracting officer and the agency's SBIR program director, and on 
November 9, EPA sent ACRO-TECH a second copy of the "PROPOSAL 
TECHNICAL EVALUATION" form that it had provided to the protester on 
October 16, along with a list of the contractors who had been awarded 
contracts under the 1995 SBIR program.  On November 13, ACRO-TECH 
filed this protest at our Office, essentially arguing that the reasons 
set forth by EPA in the "PROPOSAL TECHNICAL EVALUATION" summary were 
invalid, and that the protester was not awarded either a 1994 or 1995 
SBIR contract as a result of bias by the agency's SBIR director.

In accordance with our Bid Protest Regulations, section  sec.  21.2(a)(2), 
60 Fed. Reg. 40,737, 40,740 (Aug. 10, 1995) (to be codified at 4 
C.F.R.  sec.  21.2(a)(2)), we dismissed ACRO-TECH's protest as untimely 
since it was filed more than 14 calendar days after the protester 
learned of its basis for protest.  The record showed that although 
ACRO-TECH had first received the written evaluation summary that 
formed the basis for its protest on October 16, it had delayed filing 
its protest at our Office until November 13.[2]  We dismissed the 
protest on December 11.

On reconsideration, ACRO-TECH argues that its November 13 protest to 
this Office was timely filed because it was unable to proceed with a 
protest at this Office until it had obtained the November 8 telephone 
debriefing.  In this regard, ACRO-TECH maintains that the evaluation 
summary faxed to the protester on October 16 did not equip it with 
"enough logical basis for a credible protest." 

ACRO-TECH never mentioned--either in its original protest, its 
comments on the agency dismissal request, or its reconsideration 
request--any details from the November 8 telephone debriefing.  
Instead, ACRO-TECH's November 13 protest, on its face, only attacked 
the agency's evaluation results outlined in the "PROPOSAL TECHNICAL 
EVALUATION" form, which it had received on October 16; ACRO-TECH's 
protest challenged each finding in the written evaluation on a 
paragraph-by-paragraph basis.  Moreover, although the agency filed a 
detailed request for summary dismissal on the grounds that ACRO-TECH's 
protest was untimely since it was not filed within 14 days of October 
16, the protester's response to this dismissal request failed to 
mention any details from the November 8 debriefing to rebut the 
agency's untimeliness arguments.[3]  Nor does the request for 
reconsideration refer to any information first obtained at the 
debriefing that formed the basis for the protest.  Accordingly, the 
record clearly shows that ACRO-TECH was on notice of its basis of 
protest as of its receipt of the evaluation results on October 16.  
Compare S-Cubed, A Div. of Maxwell Labs., Inc., B-242871, June 17, 
1991, 91-1 CPD  para.  571 (protest is timely where, prior to agency 
debriefing, protester was only informed about contract award amount, 
and therefore did not have any reason to suspect or know that its 
technical proposal had been misevaluated by the agency) with Martin 
Marietta Data Sys.; National Data Corp.; Technicon Data Sys., B-216310 
et al., Aug. 26, 1985, 85-2 CPD  para.  228 (protest challenging agency's 
application of cost/technical tradeoff criteria is untimely where, as 
a result of agency's telephone award notice, protester knew the 
specifics and basis for its protest prior to the agency's debriefing).  
Since the protest was filed more than 14 days later, it was properly 
dismissed as untimely. 

In any case, a protester must provide information establishing the 
timeliness of its protest in the original protest pleading, see Bid 
Protest Regulations, section 21.1(c)(6), 60 Fed. Reg. supra at 40,740 
(to be codified at 4 C.F.R.  sec.  21.2(c)), and where a protest appears 
untimely on its face and is dismissed for this reason, a protester 
will not be permitted to introduce, for the first time, in a 
reconsideration request, facts and information establishing its 
timeliness where the facts and information were in the protester's 
possession and could have been provided to our Office during the 
course of the initial protest's resolution.  See Eurometalli 
s.p.a.--Recon., B-250522.2, Apr. 15, 1993, 93-1 CPD  para.  323.  Since 
ACRO-TECH did not mention the November 8 telephone debriefing--or 
offer any other evidence during the course of the initial protest to 
rebut the agency's untimeliness argument--its current timeliness 
arguments provide no basis for reconsidering our prior decision.  
Palmer Contracting--Recon., B-256461.2, Apr. 29, 1994, 94-1 CPD  para.  284.

Alternatively, ACRO-TECH argues that if its protest is untimely, this 
is caused by our Office.  ACRO-TECH reports that on November 9--after 
receiving the second copy of the agency's "PROPOSAL TECHNICAL 
EVALUATION" form--ACRO-TECH contacted the our Office's bid protest 
status line, and "after describing in detail the agency debriefing 
conducted the day before," was advised that it had "a minimum of 5 
calendar days" to file a timely protest.  Because it followed the bid 
protest status line's advice, ACRO-TECH contends that its protest's 
untimeliness should be waived.  
As a preliminary matter, as discussed above, at the time of this 
telephone call, ACRO-TECH's protest, if filed then, would have been 
considered untimely because it was not filed within 14 calendar days 
of receiving the October 16 facsimile.  Thus, no advice by our Office 
could have caused ACRO-TECH's protest to be filed untimely.  See 
Whelen Eng'g Co., B-239189, Aug. 1, 1990, 90-2 CPD  para.  89; Garden State 
Brickface & Stucco Co., B-237153, Oct. 31, 1989, 89-2 CPD  para.  410.

Moreover, we do not think that we provided erroneous information to 
the protester.  With its request for reconsideration, the protester 
provided a tape recording of the call to our bid protest status line.  
In that conversation, the protester advised the clerk that it had 
received an agency debriefing the day before, and then asked how much 
time it had to file a protest.  We responded that in order to obtain a 
stay of contract performance and be considered timely filed, the 
protester should file its protest within 5 calendar days of the 
debriefing.  The protester did not advise that it first learned its 
basis for protest prior to the November 8 debriefing--when it received 
the written evaluation results on October 16--and thus we reasonably 
assumed that the basis for protest first became known to ACRO-TECH 
during the debriefing.  Based on this assumption--which the clerk had 
no reason to suspect was erroneous--our advice was accurate.[4]

ACRO-TECH also contends that its untimeliness should be excused since 
it resulted--in part--from the protester's efforts to comply with 
Federal Acquisition Regulation (FAR)  sec.  33.102(c)(1), which 
"encourage[s]" contractors "to seek resolution within the agency . . . 
before filing a protest with GAO."  However, a contractor's decision 
to pursue agency resolution does not waive or toll our timeliness 
requirements.  See General Home Corp., B-242357.2, Mar. 22, 1991, 91-1 
CPD  para.  322.

ACRO-TECH requests that we consider its protest under the significant 
issue exception to our timeliness requirements.  Bid Protest 
Regulations, section 21.2(c), 60 Fed. Reg. supra at 40,740 (to be 
codified at 4 C.F.R.  sec.  21.2(c)).  We decline to do so.  In order to 
prevent the timeliness requirements of our Bid Protest Regulations 
from becoming meaningless, we will invoke the significant issue 
exception only where the protest raises an issue of widespread 
interest to the procurement community that has not previously been 
addressed on the merits by our Office.  Dash Eng'g, Inc.; Engineered 
Fabrics Corp., B-246304.8; B-246304.9, May 4, 1993, 93-1 CPD  para.  363.  
Because our Office has considered numerous protests challenging the 
propriety of an agency's evaluation and selection decision under an 
SBIR solicitation, see, e.g., Systems Research Co., B-260280.2, Aug. 
8, 1995, 95-2 CPD  para.  62; Noise Cancellation Technologies, Inc., 
B-246476; B-246476.2, Mar. 9, 1992, 92-1 CPD  para.  269, ACRO-TECH's 
challenge to this SBIR solicitation evaluation is not considered to be 
a significant issue.

The request for reconsideration is denied.

Comptroller General
of the United States

1. The SBIR Program was established under the Small Business 
Innovation Development Act, 15 U.S.C.  sec.  648 (1994), and requires 
federal agencies to reserve a portion of their research requirements 
for small businesses.  Pursuant to the Act, agencies enter into 
funding agreements in the form of grants, cooperative agreements or 
contracts with small businesses after receiving and evaluating 
proposals submitted in response to a solicitation.  In this case, EPA 
has advised our Office that the agency will award a research contract 
to each small business selected under the current solicitation.

2. To be timely, ACRO-TECH should have filed its protest by Monday, 
October 30-- 14 calendar days after its October 16 receipt of the 
written evaluation summary.

3. While ACRO-TECH also complains that the dismissal of its protest 
was "premature," apparently because the agency had not submitted a 
report on the protest but instead submitted a dismissal request, our 
Bid Protest Regulations state that our Office will dismiss a protest 
"any time sufficient information is obtained by [the General 
Accounting Office] warranting dismissal" and that "where an entire 
protest is dismissed, no agency report shall be filed."  Bid Protest 
Regulations, section 21.5, 60 Fed. Reg. supra at 40,741 (to be 
codified at 4 C.F.R.  sec.  21.5).

4. In any event, even assuming the advice was not correct, it is 
well-settled that a government employee's erroneous advice--including 
misinformation provided by this Office's staff--regarding our bid 
protest filing deadlines does not toll or otherwise excuse a protest's 
untimeliness.  This is because our Bid Protest Regulations are 
published in the Federal Register; as such, protesters are charged 
with constructive notice of our filing requirements, even where 
erroneous information about protest procedures is provided by a 
government agency.  See Whelen Eng'g Co., supra; Garden State 
Brickface & Stucco Co., supra.