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