BNUMBER: B-274749.2
DATE: November 18, 1996
TITLE: L. Washington & Associates, Inc.--Reconsideration
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Matter of:L. Washington & Associates, Inc.--Reconsideration
File: B-274749.2
Date:November 18, 1996
Brian M. Fleischer, Esq., Fleischer & Fleischer, for the protester.
Seth Binstock, Esq., Social Security Administration, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against elimination of proposal from the competitive range was
properly dismissed as untimely where the protest was filed more than
10 days after the protester was orally notified that its proposal was
eliminated; a protester cannot wait until it receives written
confirmation of oral notification that its proposal has been
eliminated to file its protest.
DECISION
L. Washington & Associates, Inc. (LWA) requests reconsideration of our
October 6, 1996, dismissal of its protest alleging that the Social
Security Administration (SSA) improperly eliminated its proposal from
the competitive range under request for proposals (RFP) No. 96-2548
for security guard services. We dismissed the protest as untimely
because it was filed more than 1 month after the protester knew that
its proposal had been eliminated.
We affirm the dismissal.
In dismissing LWA's protest, we noted that the contracting officer had
notified LWA (by letter dated August 14, 1996) that its proposal was
not included in the competitive range and informed LWA of the specific
reasons why the proposal was rejected. We also noted that, after LWA
wrote to the contracting officer to refute the agency's determination
that its technically unacceptable proposal should be rejected and
furnished additional related information, the contracting officer told
LWA (during an August 21 telephone call) that its proposal was still
considered unacceptable. Because LWA knew upon receipt of the
contracting officer's August 14 letter that its proposal was
eliminated from the competitive range as well as the specific reasons
for the agency's decision to reject its proposal, and because LWA knew
from the contracting officer's August 21 telephone call that the
agency still considered its proposal to be technically unacceptable
and not in the competitive range, we dismissed LWA's September 24
protest to our Office as untimely under section 21.2(a)(2) of our Bid
Protest Regulations which requires that a protest be filed not later
than 10 days after the protester knows its basis for protest. Bid
Protest Regulations, sec. 21.2(a)(2), 61 Fed Reg. 39039, 39043 (1996) (to
be codified at 4 C.F.R. sec. 21.2(a)(2)).
In its reconsideration request, LWA contends that it did not actually
know its basis for protest until it received a letter, dated September
23, 1996, from the contracting officer notifying it that the contract
had been awarded to another firm and, therefore, that LWA's proposal
would no longer be considered for contract award. LWA states that
after it received the August 14 letter which first notified it that
its proposal was eliminated from the competitive range, LWA wrote to
the contracting officer on August 16 and refuted the agency's
determination that its proposal was deficient and would need a "major
rewrite" before it could be considered acceptable. LWA also alleges
that it had several conversations with the contracting officer who
admitted that the agency had improperly evaluated LWA's proposal and
told LWA that the proposal would be reevaluated upon LWA's submission
of additional information. Thus, LWA contends that it submitted
additional information and believed that its proposal was being
considered for award until it received the contracting officer's
September 23 letter.
The contemporaneous record of pertinent events does not support the
protester's assertion that it did not know its basis for
protest--i.e., that its proposal had been eliminated from the
competitive range--until it received the contracting officer's
September 23 letter. The contemporaneous record reveals the following
chronology. The agency initially rejected LWA's proposal and notified
LWA by letter of August 14 that it was no longer being considered for
award. Upon receipt of LWA's letter of August 16 and additional
information concerning LWA's references, the agency reevaluated LWA's
proposal and again determined that it was not in the competitive
range. In a telephone conversation on August 21, the contracting
officer advised LWA's president that, after reevaluation of its
proposal, the contracting officer had again concluded that the
proposal did not have a reasonable chance of award and, therefore, was
not considered in the competitive range; this oral notification is
confirmed by the contracting officer's contemporaneous handwritten
record of the telephone call. The fact that the contracting officer
told LWA that its proposal was still considered unacceptable after
reevaluation was also confirmed in an August 22 letter from the
protester's attorney to the contracting officer in which protester's
attorney indicated that LWA had submitted additional information
(after it was requested on August 19) and stated:
"Very shortly thereafter, in a matter of hours, you notified LWA
that their proposal was unacceptable. Apparently, LWA's proposal
was disregarded without the proper analysis and consideration . .
. ."
Thus, while LWA now argues that it thought the contracting agency was
still considering its proposal based upon the additional information
LWA had submitted, the contemporaneous record of the pertinent events
does not support LWA's argument. Furthermore, the contemporaneous
record includes a conference and call record, written by the
contracting officer on August 26, which shows that the contracting
officer and the evaluation team leader telephoned the protester's
counsel on August 23 and explained in great detail how SSA had
reevaluated LWA's proposal after receiving additional information from
the firm and again concluded that the proposal was unacceptable
stating:
"However, the re-scoring did not give [LWA] enough points to
compete with the other good offerors we had; in other words,
[LWA] still did not have a reasonable chance for award."
Thus, both LWA's president and its attorney knew that LWA's proposal
was no longer being considered for award (via the August 21 and 23
telephone calls, respectively), and LWA was required to file a protest
with our Office no later than 10 days after the earlier notification
(i.e., the August 21 telephone call). Bid Protest Regulations, sec.
21.2(a)(2), supra. Instead, LWA waited more than 1 month--after it
received the contracting officer's September 23 letter notifying it
that the contract should be awarded to AREAWIDE Services Limited--to
file its protest with our Office. However, since LWA already knew its
proposal had been rejected, LWA could not wait until it received
formal, written notification of award to another offeror. See Phoenix
Prods., Inc., B-248790; B-248791, Aug. 17, 1992, 92-2 CPD para. 111; GBF
Medical Group/Safety Prod. Mktg., Inc.--Recon., B-250923.2, Nov. 24,
1992, 92-2 CPD para. 378. Moreover, once the contracting officer notified
LWA that its proposal was rejected, the fact that LWA and its attorney
subsequently tried to convince the agency to include its proposal in
the competitive range and that the agency may have accommodated the
protester by discussing the matter did not toll the timeliness
requirement of our Bid Protest Regulations. See, e.g., International
Enters., Inc., B-251403, Apr. 1, 1993, 93-1 CPD para. 283; Allied-Signal,
Inc., B-243555, May 14, 1991, 91-1 CPD para. 468.
Alternatively, LWA contends that its August 16 letter to the
contracting officer should be considered an agency-level protest, and
that since the contracting officer did not respond to the agency-level
protest, the agency's September 23 letter notifying LWA that its
proposal would no longer be considered for contract award was the
initial adverse action on its agency-level protest. However, our
examination of its August 16 letter to the contracting officer reveals
that the letter clearly was not intended to be a protest, and, in
fact, the letter plainly stated that it was intended to refute the
agency decision to reject LWA's proposal and that it was not an
agency-level protest. Thus, the letter did not serve to toll our
timeliness requirement. See Aero Components Co. of Arlington, Inc.,
B-244100, June 20, 1991, 91-1 CPD para. 586. In any event, even if we did
consider LWA's letter to be a protest to the contracting agency, the
contracting officer's telling LWA's president on August 21 that the
agency had reevaluated LWA's proposal and again rejected it would have
been the initial adverse agency action on the protest, and LWA would
have had to file its protest in our Office within 10 days to be
timely. As LWA did not file its protest in our Office until September
24, the protest would be untimely even under this scenario. Bid
Protest Regulations, sec. 21.2(a)(3), 61 Fed Reg. 39039, 39043 (1996) (to
be codified at 4 C.F.R. sec. 21.2(a)(3)).
The dismissal is affirmed.
Comptroller General
of the United States