TITLE:  Supreme Edgelight Devices, Inc., B-295574, March 4, 2005
BNUMBER:  B-295574
DATE:  March 4, 2005
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   Decision

   Matter of:   Supreme Edgelight Devices, Inc.

   File:            B-295574

   Date:              March 4, 2005

   Darren Cuoghi for the protester.

   Robert E. Sebold, Esq., Defense Logistics Agency, for the agency.

   Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.A A A A A  Saturday receipt of an agency-level protest decision by a
clerk employed by the protester did not constitute actual or constructive
knowledge of the initial adverse agency action on that date, where
Saturday was a non-business day for the protester and the envelope
containing the decision was not opened until Monday, the first business
day after receipt.

   2.A A A A A  Agency had a reasonable basis to cancel a request for
quotations for an aircraft part, which the solicitation indicated was a
critical application item and for which the agency did not have technical
data, where the agency wished to investigate the impact of a change in
revision levels for the drawing that controlled the manufacture of the
part and determine whether the protester's quoted part would satisfy the
agency's needs.

   DECISION

   Supreme Edgelight Devices, Inc. protests the cancellation of request for
quotations (RFQ) No. SPO470-04-Q-6455, issued by Defense Supply Center
Richmond (DSCR), Defense Logistics Agency (DLA), for aircraft light
plates.

   We deny the protest.

   DSCR is responsible for buying and managing spare parts for United States
military aircraft.  On September 27, 2004, DSCR issued the RFQ for 174
light plates, which connect to the oxygen regulator panel on various
military aircraft.  The light plates were identified as Carleton Life
Support Systems, Inc. part number 1611735-1, National Stock Number (NSN)
1660-00-967-3664.  Vendors were informed that the light plates were a
"critical application item" subject to configuration control and that DCSR
did not currently have a technical data package available for this NSN. 
RFQ at 2.  Apart from identifying the light plates as a Carleton Life
Support Systems part, the solicitation did not specifically identify any
approved sources for the light plates.

   DSCR received quotations from Supreme and Derco Aerospace, Inc., an
authorized distributor for Carleton Life Support Systems.  Although
Supreme had provided this item under prior contracts as an approved
source, Supreme's name had been removed from the source approved list
because the design drawings had been revised.  DSCR rejected Supreme's
quote and awarded a purchase order to Derco, whose quotation indicated
that Derco would provide Carleton Life Support Systems Inc. part No.
1611735.

   Supreme timely protested to the agency, arguing that it had previously
provided the "exact item" to DSCR as an approved source and in accordance
with drawings Supreme had legally received from Draegerwerk AG, a company
that Supreme contends is strategically allied with Carleton Life Support
Systems.  Agency-Level Protest at 1-2. 

   In response, DCSR informed Supreme that Supreme was not considered an
approved source because there was a new revision level for this item--that
is, the drawing, upon which Supreme relies, is at revision level "AK" but
that the more recent drawing for the item is at revision level "AL."  The
agency states that "DCSR does not at this time know whether an offer for
material built to an earlier revision level is acceptable."  Response to
Agency-Level Protest at 1.  The agency also noted that the RFQ
inadvertently failed to include DLA's required clause No. 52.217a**9002,
"Conditions for Evaluation and Acceptance of Offers for Part Numbered
Items," which informed vendors that only the exact item identified in the
solicitation is known to be acceptable and informs vendors who wish to
quote parts from other sources what information and/or data must be
submitted to demonstrate that the offered product is interchangeable with
the listed product.  Id.; Contracting Officer's Statement at 4-5. 
Accordingly, the agency decided to terminate the award to Derco, cancel
the RFQ, and resolicit this requirement.  This protest to our Office
followed.

   DCSR requests that we dismiss as untimely Supreme's protest to our Office
because, although Supreme admitted receiving a copy of the agency's
decision on Saturday, December 11, it did not file its protest with our
Office until December 23, more than 10 days after receipt of the
agency-level protest decision.  The protester responds that it is not open
on weekends, and that although a clerk received the envelope containing
the agency-level protest decision on Saturday, December 11, the envelope
was not opened by the protester until Monday, December 13.

   Our Bid Protest Regulations provide that where, as here, a protester
timely files an agency-level protest, any subsequent protest to our Office
must be filed within 10A days of actual or constructive knowledge of
initial adverse agency action.  4 C.F.R SA 21.2(a)(3) (2004).  In an
analogous case, we found that a protester's receipt on Saturday (a
non-business day) by electronic mail of the agency's notification that the
firm had been excluded from the competitive range should be considered as
received by the protester on the next business day for the purposes of
determining whether a request for a required debriefing was timely.  See
International Res. Group, B-286663, Jan. 31, 2001, 2001 CPD P 35 at 5.

   The agency argues that our decision in International Res. Group is
inapplicable here because that decision did not concern the computation of
time required to file a protest with our Office but only concerned when a
protester was deemed to have received notice of its competitive range
exclusion for the purposes of requesting a required debriefing.  We do not
agree that this difference distinguishes the rule stated in International
Res. Group.  In either situation, the time period for requesting a
required debriefing or filing a protest with our Office commences with a
protester's actual or constructive knowledge of initial adverse agency
action.  As we found in International Res. Group, the mechanical receipt
of notice on a non-business day, where the notice is not actually read,
does not constitute actual or constructive knowledge.  With respect to
receipt outside the protester's ordinary business hours (for example, a
weekend), we find no practical difference between by e-mail or by the
protester's clerical or security personnel for purposes of determining
whether a protester has received constructive or actual notice of initial
adverse agency action.[1]

   Thus, we find that receipt of the agency's decision on Saturday by a clerk
employed by Supreme, where Saturday was not an ordinary business day for
the protester and where the decision was in fact not opened or reviewed,
does not constitute constructive knowledge of initial adverse agency
action.  Rather, we conclude that Supreme had actual or constructive
knowledge of the agency's protest decision on Monday, December 13, the
next business day.  Accordingly, Supreme's protest, which was filed within
10 calendar days of that date, is timely. 

   Supreme challenges the cancellation of the solicitation, complaining that
"Form, Fit or Function does not seem to vary between" the various
revisions levels of the light plates and that "[s]urely, this means we had
our name removed from the source approval list based upon a false premise
which DSCR surely knew about and complied with."[2]  Protester's Comments
at 1.  Supreme contends that its removal from the source approval list and
award to Derco was as a result of "collusion between the parties
involved."  Protest at 2.

   A contracting agency need only establish a reasonable basis to support a
decision to cancel an RFQ.  So long as there is a reasonable basis, an
agency may cancel a solicitation no matter when the information
precipitating the cancellation first arises, even if it is not until
quotations have been submitted and evaluated.  SKJ & Assocs., Inc.,
B-294219, Aug. 13, 2004, 2004 CPD P 154 at 2-3. 

   Here, we find that the cancellation of the RFQ was entirely appropriate. 
It is undisputed that the drawings upon which Supreme would rely in
producing the light plates is at a lower revision level--level "AK"--than
the level currently specified for this item.[3]  Although Supreme argues
that the difference in revision level does not affect "fit, form or
function," DCSR states that it does not know the impact, if any, of the
difference in revision levels.  In this regard, there is no information in
the record regarding the difference between the two revision levels. 
Also, the RFQ failed to include the required DLA clause that instructs
vendors offering alternate products to provide information and/or data to
show that its product is interchangeable with the exact item specified in
the solicitation.  Under these circumstances, we find the agency
reasonably cancelled the solicitation.  Cancellation of the solicitation
provides Supreme with an opportunity to determine whether it can offer the
exact part sought by the agency--that is, a part manufactured to revision
level "AL"--or to qualify an alternate part.

   With regard to Supreme's contention that its removal from the source
approval list and award to Derco was as a result of "collusion between the
parties involved," we will not attribute bias or bad faith to an agency on
the basis of inference and supposition.  Chenega Mgmt., LLC, B-290598,
Aug. 8, 2002, 2002 CPD P 143 at 4.  The record here simply contains no
evidence--beyond the protester's speculation--that the removal of Supreme
from the source approval list, the award to Derco (which has been
terminated) or the cancellation of the solicitation was as a result of
bias or bad faith.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] In contrast, actual knowledge of adverse agency action, even when
received on a non-business day, commences the time for filing a protest
with our Office.  See Atkinson Dredging Co., B-218030.2, July 3, 1985,
85-2 CPD P 22. 

   [2] Supreme also requests that DCSR exercise an option under an
indefinite-quantity contract that it had with DCSR for the light plate. 
DCSR states, however, that although the agency had ordered 189 light
plates from Supreme under contract No.A SP0470-03-D-1383, this contract
expired in September 2004 when the agency did not exercise the first
contract option period.  Contracting Officer's Statement at 2.

   [3] Supreme also argues that it was removed from the source approved list
because of an allegation that Supreme did not have the right to use the
drawings it received from Draegerwerk.  DCSR denies this and stated in its
decision on the agency-level protest that it "generally does not make a
determination as to whether a company is in lawful possession of data" and
that this "is an issue between the two companies."  AR, Tab R,
Agencya**Level Protest Decision, at 1-2.