________________________________________________ Motions To Dismiss Granted: December 11, 1992 ________________________________________________ GSBCA 12190-P DIEZ MANAGEMENT SYSTEMS, Protester, v. DEPARTMENT OF JUSTICE, Respondent, and METRICA, INC., Intervenor. Edward J. Tolchin and Brian Taylor Goldstein of Fettmann & Tolchin, Fairfax, VA, counsel for Protester. Charles A. Walden and James E. Hicks, Office of Chief Counsel, Drug Enforcement Administration, Department of Justice, Washington, DC, counsel for Respondent. David R. Smith of Reed Smith Shaw & McClay, McLean, VA, counsel for Intervenor. Before Board Judges BORWICK, PARKER and HYATT BORWICK, Board Judge. Respondent, the Drug Enforcement Administration (DEA) and intervenor Metrica Incorporated move to dismiss the protest of Diez Management Systems (DMSI) for untimely filing. DMSI was excluded from the competitive range on October 7, filed an agency protest on October 19, and was formally notified of the award of the contract to Metrica on October 28. DMSI's protest was filed at this Board on November 25, 1992. DEA did not provide formal notification of the denial of the agency protest. The protest at this Board raised no new allegations regarding its exclusion from the competitive range that were not in its agency protest. We conclude that DEA's notification of award to Metrica was constructive notification to DMSI that it would not be restored to the competitive range. Thus, DMSI was required to file its protest no later than November 11, ten calendar days after October 28. Rule 5(b)(3)(iii). Accordingly, we grant the motions. Background By letter dated October 7, 1992, the contracting officer informed DMSI that "it has been determined that your proposal is technically deficient and does not have a reasonable chance for award. Accordingly, a revision of your proposal will not be requested or considered." Respondent's Exhibit 2. On October 19, 1992, DMSI filed an agency protest alleging that its elimination from the competitive range was improper and that "DEA could decide to exclude [DMSI's] proposal only if the agency based its evaluation on factors other than those stated in the RFP and only if DEA ignored cost or price." DMSI requested a suspension of the procurement pending a decision on the agency protest. Respondent's Exhibit 5. On October 21, the Deputy Assistant Administrator of DEA's Office of Procurement issued a determination, pursuant to Federal Acquisition Regulation (FAR) 33.103, that the services to be acquired under the contract were urgently required, and thus determined to proceed with award. Respondent's Exhibit 3. By letter of October 26 (received by DMSI on October 28), the contracting officer informed DMSI that award had been made to Metrica, Incorporated. On November 2, DMSI filed another agency- level protest incorporating the grounds of its earlier protest, complaining of the lack of a debriefing and alleging that Metrica had obtained DMSI's pricing data. Respondent acknowledged receipt of the protest and stated it would decide the protest no later than December 4. Protester's Exhibit to Opposition to Motion to Dismiss. On November 25, DMSI filed a protest at this Board alleging that its exclusion on October 7 from the competitive range was illegal because the evaluation of DMSI's proposal was based on factors not stated in the request for proposals, that DEA evaluated DMSI on the basis of DMSI's lack of knowledge of documents that DEA would not disclose to DMSI, and that DEA did not consider cost in excluding DMSI from the competitive range. In its protest at this Board, DMSI also complains about the award to Metrica. Discussion Metrica, with whom respondent joins, argues that DMSI's protest filed at this Board is untimely. These parties argue that the protest should have been filed no later than November 11, ten working days after October 28, when DMSI was informed that DEA had awarded the contract to Metrica. DMSI argues that its agency protests tolled the time for protesting at this Board, and that it was only at the DEA's debriefing on November 16 that it learned of its bases of protest. Therefore, DMSI asserts that it timely filed its protest on November 25, which was within earlier than ten working days from the debriefing of November 16. We conclude that Metrica and DEA have the better argument. The protest of DMSI's exclusion from the competitive range is untimely. Rule 5(b)(3)(iii) provides in pertinent part: If a protest has been filed initially with the agency, any subsequent protest to the Board filed within 10 days of formal notification of, or actual or constructive knowledge of, initial adverse agency action will be considered. . . . Ordinarily, the filing of an agency protest will toll the time for filing at this Board, as long as the Board protest is filed within ten working days after the formal denial of the agency protest. In this case there was no formal denial of the agency protest; DEA had issued an urgency determination to proceed with award. However, on October 28, DEA notified DMSI of its award of the contract to Metrica. Upon being advised of the award to Metrica, DMSI had constructive notice that its exclusion from the competitive range would not be reconsidered by the agency. Cf. Berkshire Computer Products, GSBCA 1159-3, 92-1 BCA 24,587, 1991 BPD 302 (notice of award also constructive notice that second competitive range determination would not be made). In this regard, it is significant that DMSI's protest to this Board raises the same alleged illegalities as its first agency protest of October 19, i.e. that the exclusion from the competitive range was based on the application of unstated evaluation criteria. DMSI learned no new bases for its challenge to its exclusion from the competitive range as a result of the debriefing on November 16. DMSI was obliged to act diligently and to protest its exclusion from the competitive range no later than November 11, ten calendar days after October 28, when it received constructive knowledge that its exclusion from the competitive range would not be reversed. Cf. Control Corporation, GSBCA 8524-P, 86-3 BCA 16,176, 1986 BPD 136 (due diligence in Rule 5(b)(3)(ii)). Having learned of the award, DMSI was not at liberty to sit back and await a debriefing or the formal denial of its agency protests, which for all it knew, might come late, if at all. DMSI relies on International Systems Marketing, Inc., GSBCA 7948- P-R, 85-3 BCA 18,457, at 92,716, 1985 BPD 83, at 5, for the contrary proposition. That was a restrictive specification case on a procurement for Hayes modems also involving an agency level protest. We concluded that bid opening was not constructive denial of the agency-level protest as the agency could always cancel the solicitation before award and issue a less restrictive solicitation. Id. Here, award has a finality with respect to a competitive range determination that was not present in International Systems Marketing. Here, there could be only one awardee, and after award, there was no possibility of restoration to the competitive range. The procurement was over. DMSI also alleges that the award to Metrica was improper. However, as DMSI did not file a timely protest of its exclusion from the competitive range, it is not an interested party to contest the award. Irvin Technologies Inc., GSBCA 11581-P, 92-1 BCA 24,586, 1991 BPD 317. Decision For the above reasons, DEA's and Metrica's motions to dismiss for untimely filing are GRANTED, and the protest is DISMISSED WITH PREJUDICE. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ ROBERT W. PARKER Board Judge _________________________ CATHERINE B. HYATT Board Judge