_______________________________________________ MOTION TO DISMISS GRANTED: January 7, 1993 _______________________________________________ GSBCA 12205-P JAMES W. COLLINS & ASSOCIATES, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent. Von L. White, I, President of Exact Data Services Division, James W. Collins & Associates, Inc., Washington, DC, appearing for Protester. Jerry A. Walz and Kenneth A. Lechter, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. HYATT, Board Judge. On December 3, 1992, James W. Collins & Associates, Inc. (JWC) protested respondent's actions with respect to the procurement of certain maintenance services for Government-owned automatic data processing equipment (ADPE). Specifically, JWC challenged respondent's decision to exclude it from further consideration for award of the contract and, alternatively, requested recovery of the costs of preparing its proposal and pursuing this protest. Respondent has moved to dismiss on the basis that the protest was not timely filed. For the reasons stated, we grant the motion and dismiss the protest as untimely filed. Background In February 1992, the Office of Computer Services (OCS) of the Department of Commerce (DOC) identified a need to procure preventive maintenance services for its ADPE. Protest File, Exhibit 4. A requisition, including a statement of work (SOW), was sent to the applicable procurement office within the Department of Commerce, which forwarded the request to DOC's Office of Small and Disadvantaged Business Utilization (OSDBU) and to its Office of Information Resources Management (OIRM) for review on March 30, 1992. The requisition was returned to the procurement office on May 5, 1992, with all required approvals. OSDBU recommended that the award be set aside under section 8(a) of the Small Business Act, 15 U.S.C. 637(a) (1988). Protest File, Exhibit 1. The technical activity recommended a particular 8(a) firm for award.[foot #] 1 A letter from the contracting officer, requesting that this firm be nominated to provide the services, was sent to the Small Business Administration (SBA) on May 11, 1992. Protest File, Exhibit 4. By letter dated June 9, 1992, the SBA accepted this offer and nominated the recommended contractor for award. Id., Exhibit 5. During the agency's contract review process, the contract specialist learned that, prior to completion of the processing of the requisition by the procurement office, an OSDBU employee had released the statement of work to several small businesses. Three small businesses that received the statement of work, including JWC, had responded to it, providing technical and cost proposals. The contract specialist also ascertained that the contracting officer's technical representative (COTR) for the procurement had already met with the prospective contractor and other small businesses that had received the SOW. Protest File, Exhibits 1, 6, 7. Upon learning of the unauthorized, premature release of the statement of work, the procurement office contacted the agency's Office of Inspector General (OIG), expressing concern that the Procurement Integrity Act had been violated and requesting an investigation. In addition, the procurement office decided to suspend further action on the procurement pending completion of an investigation.[foot #] 2 Protest File, Exhibits 6, 7. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The value of the procurement is estimated to be approximately $635,000, inclusive of all options. Protest File, Exhibit 6. Accordingly, under the Federal Acquisition Regulation (FAR), Part 19,the procurement is not required to be competed. [foot #] 2 On November 11, 1992, the Department's OIG informed the procurement office that it could proceed with the procurement. The contracting officer concluded that under the circumstances it would be improper to select any of the firms that had received advance copies of the statement of work and instead commenced a review of other 8(a) firms that would be eligible for the award. Protest File, Exhibit 1. These efforts (continued...) ----------- FOOTNOTE ENDS ----------- On October 26, 1992, protester wrote a letter to the contracting officer expressing concern that it had been unable, despite numerous inquiries, to determine the status of the procurement. Protester requested that the agency proceed to award or, alternatively, reimburse JWC for costs incurred in preparing its proposal. Protest File, Exhibit 8. Subsequently, on November 17, 1992, protester was informed, in a telephone conversation with the contracting officer, that the "proposal" it had submitted was not in response to a valid solicitation and that the agency was concerned that the Procurement Integrity Act had been breached. In addition, JWC was told that, had the proper procedures been followed in the first instance, it would not have been selected for the set aside award and that it would not now be considered for award because of the possible violation of the Procurement Integrity Act. JWC was also told that all small businesses that had received the detailed statement of work were similarly disqualified from further "participation" in the procurement. Protest at 5. JWC filed its protest on December 3. The record reflects that on December 1, 1992, a letter from the contracting officer was sent, by telefacsimile, to JWC. That letter indicated that JWC's letter dated October 26 did not reference a valid solicitation, that no competition for the referenced requirement had been conducted by the contracting office, and, therefore, that the request for action could not be granted. Protest File, Exhibit 11. Discussion The protest was filed on December 3, 1992, which is eleven working days after November 17, 1992, the date on which JWC, in the protest it filed, concedes it was informed by the Department of Commerce that it was not regarded as eligible for award and would be considered no further. The Department of Commerce contends that this protest should thus be dismissed as untimely filed. ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) were halted upon the issuance of the Board's order granting protester's request for a suspension of respondent's delegation of procurement authority. James W. Collins & Associates, Inc. v. ______________________________________ Department of Commerce, GSBCA 12205-P (Dec. 10, 1992). ______________________ ----------- FOOTNOTE ENDS ----------- Both protester and respondent apparently deem JWC's letter dated October 26 to be an agency protest.[foot #] 3 The Board's Rule 5(b)(3)(iii) provides that 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 . . . . Although a formal response to JWC's letter was not made until December 1, 1992, it is respondent's position that the "only possible interpretation of the conversation [held on November 17] as related in paragraph 9 of the Protest would lead any reasonably prudent corporate officer to believe that his company's protest had been denied." Respondent's Motion to Dismiss at 1 n.1. We agree with respondent. Protester knew on November 17 that the agency did not deem it to be eligible for the award of the subject contract. This is the central issue raised in its protest. Once it was aware of this key information, it was incumbent on JWC to file its protest in a timely fashion. See Diez Management Systems v. Department of Justice, GSBCA 12190-P (Dec. 11, 1992); Trimble Navigation, Ltd. v. Department of Transportation, GSBCA 11692-P, 1992 BPD 62 (Feb. 26, 1992); Control Corp., GSBCA 8524-P, 86-3 BCA 19,269, 1986 BPD 136. To permit JWC to wait until it received the letter formally notifying it that the agency would not grant the request made on October 26 would render meaningless the reference to "actual or constructive knowledge" in the rule and would elevate form over substance. Notably, the letter sent to JWC by the contracting officer on December 1 provided JWC with no new information. See KSK Enterprises, Inc., GSBCA 10269-P, 90-1 BCA 22,329, 1989 BPD 295. In the interest of minimizing expenses incurred by Government agencies and prospective contractors, as well as creating a degree of certainty as to when protests may or may not be brought, the Board has, on more than one occasion, warned that its timeliness rules will be enforced strictly. E.g., Integrated Systems Group, Inc., GSBCA 11075-P, 91-2 BCA 23,790, 1991 BPD 42; Teradata Corp., GSBCA 10677-P-R, 90-3 BCA 23,278; 1990 ----------- FOOTNOTE BEGINS --------- [foot #] 3 Rule 5(b)(3)(iii) requires that the agency protest also be timely filed. Since respondent has not objected that the letter it received from JWC was untimely filed under Rule 5(b)(3)(ii), we adopt the Board's approach in another recent decision and assume that this letter, which at least voiced "protester's displeasure," was an adequate agency protest which was timely filed with the agency. See Spread Information ___ ___________________ Sciences, Inc. v. Department of the Army, GSBCA 11997-P, 1992 BPD ________________________________________ 244, at 2 n.1 (Sept. 11, 1992). ----------- FOOTNOTE ENDS ----------- BPD 250. Since protester was possessed of actual knowledge of the agency's position on this matter on November 17, 1992, its protest was filed out of time. Decision The motion to dismiss is GRANTED. The protest is dismissed without prejudice, but may not be reinstated at this Board. The suspension of respondent's delegation of procurement authority lapses by its terms. _____________________________ CATHERINE B. HYATT Board Judge We concur: _______________________________ ______________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge