TITLE: B-298333.3, Raith Engineering and Manufacturing Company, W.L.L., January 9, 2007
BNUMBER: B-298333.3
DATE: January 9, 2007
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B-298333.3, Raith Engineering and Manufacturing Company, W.L.L., January 9, 2007

   Decision

   Matter of: Raith Engineering and Manufacturing Company, W.L.L.

   File: B-298333.3

   Date: January 9, 2007

   Ronald A. Schechter, Esq., and Chad E. Miller, Esq., Arnold & Porter, for
   the protester.

   Maj. Jayanth Jayaram, Department of the Army, for the agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest to the Government Accountability Office will not be considered
   where it is preceded by an initial agency-level protest that was untimely
   filed more than 10 days after the protester was given a debriefing.

   DECISION

   Raith Engineering and Manufacturing Company, W.L.L. protests the award of
   a contract by the Department of the Army to Kellogg Brown and Root
   Services, Inc. (KBR) pursuant to request for proposals (RFP) No.
   W912D1-06-R-0032, issued to procure fuel support operations at two sites
   in Kuwait. Raith argues that the Army's selection of KBR was based on an
   unreasonable evaluation of proposals.

   We dismiss the protest.

   On Thursday, November 16, 2006, the Army made award to KBR and provided
   Raith with an e-mail notification of the award decision. On Monday,
   November 20, Raith requested a debriefing; the debriefing was provided, in
   writing, on November 22.

   Three days after receipt of the debriefing, on November 25, Raith
   requested a meeting with the contracting officer (CO). This request for a
   meeting both advised that Raith was seeking additional information about
   the award decision, and that it was providing "notice of protest," which
   it described as "subject to sustainment or withdrawal dependent upon the
   outcome of the meeting." Agency Report (AR), Tab 5. The CO sought
   clarification from Raith about its request, asking, by e-mail, whether the
   request was a protest, which would trigger agency protest procedures, or
   was simply "notification that you may protest this award pending the
   results of the below requested meeting." Id., Tab 6. In response, Raith
   answered, "It is our intention in accordance with FAR [Federal Acquisition
   Regulation] regulations to have a meeting to discuss the issues raised
   before finalizing our decision to protest the awarding of the contract."
   Id., Tab 7.

   On November 29, Raith and the CO met to again discuss the debriefing
   materials, and on Monday, December 4, at 5:49 p.m., Raith filed by e-mail
   an agency-level protest challenging the award to KBR. On December 7, the
   Army dismissed the agency-level protest as untimely. On December 18, Raith
   protested to our Office. There is no dispute that the protester learned
   the information upon which the protest is based during its November 22
   debriefing.

   Our Bid Protest Regulations contain strict rules for the timely submission
   of protests. Under these rules, a protest based on alleged improprieties
   in a solicitation must be filed prior to bid opening or the time
   established for receipt of proposals, 4 C.F.R. sect. 21.2(a)(1) (2006),
   and all other protests generally must be filed no later than 10 calendar
   days after the protester knew, or should have known, of the basis for
   protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2). Further, our
   Regulations provide that a matter initially protested to the contracting
   agency will be considered only if the initial protest was filed within the
   time limits for filing a protest with our Office, unless the contracting
   agency imposes a more stringent time for filing, in which case the
   agency's time for filing will control. 4 C.F.R. sect. 21.2(a)(3).

   The Army raises three alternative challenges to the timeliness of Raith's
   agency-level protest, and hence to our ability to hear Raith's subsequent
   protest to our Office. Specifically, the Army contends that: (1) Raith
   failed to request a debriefing within 3 calendar days, thus the debriefing
   it received on November 22 was not a "required debriefing," and,
   regardless of what the protester learned as a result of the debriefing,
   its protest was due within 10 calendar days of the day it learned of the
   award, rather than within 10 days of the debriefing; (2) Raith's
   agency-level protest was untimely filed because the tenth calendar day
   after the debriefing fell on Saturday, December 2 and Raith did not file
   the protest until Monday, December 4; and (3) Raith's 5:49 p.m. filing
   with the agency on Monday, December 4 was after the 4:30 p.m. filing time
   deadline for agency-level protests established by FAR sect. 33.101, and
   therefore should be considered to have been filed on the next business
   day.

   We disagree with the Army's first two contentions, but agree that Raith
   missed the 4:30 p.m. deadline for filing its agency-level protest on
   Monday, December 4.

   On the first issue, the Army misconstrues the effect of a "required
   debriefing." FAR sect. 15.506(a)(1) provides that "[a]n offeror, upon its
   written request received by the agency within 3 days after the date [of
   notification of contract award] shall be debriefed and furnished the basis
   for the selection decision and contract award." In those cases where a
   debriefing is requested and required, a protest filed not later than 10
   days after the date of the debriefing will be timely. 4 C.F.R. sect.
   21.2(a)(2).

   The only effect a required debriefing has on our timeliness requirements
   is the tolling of the filing period in limited circumstances. See Trifax
   Corp., B-279561, June 29, 1998, 98-2 CPD para. 24 at 4-5. Even where a
   disappointed offeror does not secure a required debriefing, it continues
   to retain its right to file a protest within 10 calendar days after it
   learns, or should have learned, the basis for protest, provided it has
   diligently pursued the matter. See 4 C.F.R. sect. 21.2(a)(2). This
   includes the right to file a timely protest based on information obtained
   during a debriefing that was not required.[1] See Trifax Corp., supra
   (holding that a protest based on information first revealed in a
   non-required debriefing may be filed under the generally applicable
   regulations for filing timely protests).

   The Army's second contention is that the protester was required to file
   its agency-level protest within 10 calendar days of the debriefing, by
   Saturday, December 2. In the Army's view, since its offices in Kuwait are
   open on Saturdays, and since Raith is familiar with the hours of the
   contracting office there, it was required to file its agency-level protest
   on Saturday, rather than on the following Monday. We again disagree. We
   see no basis for concluding that the weekend hours worked by the Army's
   contracting office in Kuwait override the clear regulatory guidance
   applicable to all protests of federal government procurements, which
   provide that a protest filed on a Saturday, Sunday, or federal holiday is
   filed on the next business day. FAR sect. 33.101.

   We turn last to the Army's argument that Raith's agency-level protest was
   untimely because it was filed at 5:49 p.m. local time on Monday, December
   4, after the 4:30 p.m. filing time established in the FAR. In response,
   Raith argues that its filing should be considered timely because the
   contracting office routinely conducts business after 4:30 p.m.; Raith also
   points to the sending time of several of the agency e-mails in this record
   to buttress its claim.

   We disagree with Raith's response to this argument for the same reason we
   disagreed with the Army in the argument above. Simply put, we will not
   look to the workday customs of U.S. government offices operating in a
   foreign country--as the Army urges--or to the longer working hours of
   certain U.S. government offices, as the protester urges--for an overlay to
   the FAR's requirements for filing a timely bid protest. Such an approach
   would increase uncertainty for protesters and agencies, and would not
   serve the interests of the procurement system.[2] Since Raith filed its
   agency-level protest after the FAR deadline of 4:30 p.m. on the last
   available day for filing a protest based on its debriefing, its
   agency-level protest was untimely, and we will not consider its subsequent
   protest to our Office.[3] Orbit Advanced Techs., Inc., B-275046, Dec. 10,
   1996, 96-2 CPD para. 228 at 4.

   The protest is dismissed.

   Gary L. Kepplinger

   General Counsel

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

   [1] We also note that the Army's premise that the request for a debriefing
   here was not filed in time to generate a required debriefing misstates the
   applicable rules. The FAR protest regulations provide that the term "day"
   means a calendar day, and advise as follows:

     In the computation of any period--

     (1) The day of the act, event, or default from which the designated
     period of time begins to run is not included; and

     (2) The last day after the act, event, or default is included unless--

     (i) The last day is a Saturday, Sunday, or Federal holiday . . . .

   FAR sect. 33.101. Since the third calendar day after Raith received
   notification of the award decision was a Sunday, the FAR expressly
   anticipates that requests like these can be filed on Monday.

   [2] Raith also contends that, even if its protest was not timely filed, it
   should be considered under either the "good cause" or "significant issue"
   exceptions to our timeliness requirements, 4 C.F.R. sect. 21.2(c), because
   of certain alleged integrity issues surrounding an earlier iteration of
   this procurement. In response to those earlier allegations, Raith
   acknowledges that the Army cancelled the prior award and conducted a new
   competition, and Raith raises no allegation of any impropriety in the
   current procurement. Our good-cause exception is limited to circumstances
   where some compelling reason beyond the protester's control prevents the
   protester from filing a timely protest. Dontas Painting Co., B-226797, May
   6, 1987, 87-1 CPD para. 484 at 2. The significant-issue exception is
   limited to untimely protests that raise issues of widespread interest to
   the procurement community, and which have not been considered on the
   merits in a prior decision. Schleicher Cmty. Corrs. Ctr., Inc., B-270499.3
   et al., Apr. 18, 1996, 96-1 CPD para. 192 at 7. Neither exception applies
   in this case.

   [3] For the record, Raith does not argue that its November 22 e-mail
   constitutes an agency-level protest. Given Raith's answer to the CO's
   request for clarification, any such argument would not be viable in any
   event. See AR, Tab 7.