TITLE:  Crown Support Services, Inc., B-287070, January 31, 2001
BNUMBER:  B-287070
DATE:  January 31, 2001
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Crown Support Services, Inc., B-287070, January 31, 2001

Decision

Matter of: Crown Support Services, Inc.

File: B-287070

Date: January 31, 2001

George R. Mead, II, Esq., Clark, Partington, Hart, Larry, Bond & Stackhouse,
for the protester.

Sandra D. Jumper, Esq., Naval Supply Systems Command, for the agency.

Paul I. Lieberman, Esq., Office of the General Counsel, GAO, participated in
the preparation of the decision.

DIGEST

Protest presenting argument raised in appeal under Office of Management and
Budget Circular No. A-76 is untimely where filed with the General Accounting
Office more than 10 days after contracting agency denied protester's appeal.
While the protest was filed within 10 days of cancellation of the underlying
solicitation, cancellation was merely implementation of the denial of the
appeal.

DECISION

Crown Support Services Inc. protests the Department of the Navy's decision,
pursuant to Office of Management and Budget (OMB) Circular No. A-76, that it
would be more economical to perform the Navy Northwest Region Personal
Property Services function in-house rather than to contract for these
services with

Crown under solicitation No. N00406-00-R-5012.

We dismiss the protest as untimely filed.

On September 29, 2000, Crown received notice that the Navy's cost comparison
had resulted in a determination that in-house performance under the
government's most efficient organization (MEO) would be less costly than
contracting with Crown, whose proposal the agency had previously determined
represented the best value under a solicitation issued to obtain
private-sector competition to select a proposal for cost comparison with the
government's MEO. Crown timely filed an administrative appeal protesting
that the cost comparison was flawed because, among other things, the MEO
improperly utilized group counseling rather than individual counseling for
certain services required under the applicable performance work statement
(PWS). Although the administrative appeal authority found certain other
errors in the agency's cost comparison, he explicitly determined that group
counseling was permitted and was acceptable under the PWS, and concluded
that correction of the other errors did not result in a cost adjustment
sufficient to warrant reversal of the determination that it was more
economical to perform the services in-house. As a result, by decision dated
December 21, 2000, the administrative appeal authority denied Crown's
appeal. It is uncontroverted that Crown was provided with a copy of this
adverse decision on the same date.

Thereafter, Crown's president states that, after encountering difficulty in
contacting agency representatives, he eventually engaged in a telephone
conversation with the Navy's contracting officer. During this conversation,
Crown's president allegedly stated that his company was going to file a
protest with the General Accounting Office if the solicitation was canceled,
and allegedly was misled by the contracting officer because she did not
advise Crown of the effect of the appeal authority decision for purposes of
timely filing that protest. After the Navy issued an amendment canceling the
solicitation, Crown filed this protest with our Office on January 10, 2001.

In implementing the requirements for an A-76 cost comparison using a
negotiated solicitation, Federal Acquisition Regulation (FAR) sect. 7.306(b)(2)
provides that where a cost comparison with a selectee's proposal results in
a determination in favor of government performance, there is a public review
period during which interested parties have the right to seek administrative
review of the cost comparison determination through an appeals procedure as
set forth in FAR sect. 7.307. After the public review period and upon notice to
the contracting officer if there is an adverse resolution of any appeal, FAR
sect. 7.306(b)(3) requires that the contracting officer formally implement a
decision to perform the work in-house by canceling the solicitation. An A-76
cost comparison decision is considered final, however, as soon as the
administrative appeal procedures have been exhausted. See Trans-Regional
Mfg., Inc., B-245399, Nov. 25, 1991, 91-2 CPD para. 492 at 3.

Our Office will consider a protest alleging A-76 cost comparison
deficiencies after the protester has exhausted the agency's administrative
appeal process, and only with respect to objections that have been raised in
the appeal to the agency. Id.
In determining the timeliness of a post-appeal protest, we apply the
timeliness rule applicable to protests filed with our Office after adverse
agency action on an agency-level protest. Under our Bid Protest Regulations
where a protest is first filed with the contracting agency, a subsequent
protest to our Office, to be considered timely, must be filed within
10 calendar days of "actual or constructive knowledge of initial adverse
agency action." 4 C.F.R. sect. 21.2(a)(3) (2000). Notwithstanding the
protester's position that the cost comparison somehow was not finally
determined until the contracting officer issued amendment No. 5 quantifying
the cost adjustment to the MEO resulting from the administrative appeal
authority's decision and canceling the solicitation, it is settled that the
administrative appeal authority's decision denying a protester's appeal
constitutes initial adverse agency action for purposes of determining the
timeliness of an A-76 cost comparison protest to our Office. Cumberland
Sound, Inc., B-248014.2, Aug. 21, 1992, 92-2 CPD para. 117 at 2-3; Space Age
Eng'g, Inc., B-230148, Feb. 19, 1988, 88-1 CPD para. 173 at 2. Accordingly,
Crown's protest to our Office, which was filed more than 10 days after
Crown's receipt of that decision, is untimely and is not for consideration
on the merits. [1]

The protest is dismissed.

Anthony H. Gamboa

Acting General Counsel

Notes

1. To the extent that Crown contends that it was somehow misled regarding
the timeliness requirements during its telephone conversation with the
contracting officer, alleged oral advice from a government official which is
contrary to our timeliness regulations may not serve as a basis to waive
those requirements. Lockheed, IMS, B-248686.3, July 23, 1993, 93-2 CPD para. 69
at 6; oral advice from a contracting officer does not bind the government
and an offeror relies on such advice at its own risk. New Zealand Fence
Sys.; Dept. of the Interior--Request for Advance Decision, B-257460, Sep.
12, 1994, 94-2 CPD para. 101 at 3 n.2.

Crown also requests, in the alternative, that our Office invoke either the
"significant issue" or "good cause" exception to our timeliness
requirements. 4 C.F.R. sect. 21.2(c) (2000). We decline to do so. The
significant issue exception is limited to untimely protests raising issues
that have not been considered on the merits in a prior decision and that are
of widespread interest to the procurement community. Oahu Tree Experts,
B-282247, Mar. 31, 1999, 99-1 CPD para. 69 at 3 n.2. The issue presented here
concerning the propriety of the scope of the work used for purposes of the
MEO cost estimates does not fall within the significant issue exception
because it is an issue which our Office has frequently and routinely
considered in reviewing A-76 cost comparison protests. Further, the
appropriateness of the agency's interpretation of the specific PWS provision
at issue here is not of widespread interest to the procurement community. As
for the good cause exception, it applies only where some compelling reason
beyond the protester's control prevented it from timely submitting its
protest. Wilderness Mountain Catering, B-280767.2, Dec. 28, 1998, 99-1 CPD
para. 4 at 6 n.6. No such circumstances are present here.