MOTION TO DISMISS AS UNTIMELY FILED DENIED: January 10, 1994 GSBCA 12709-P TECHNOLOGY ADVANCEMENT GROUP, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and DULLES NETWORKING ASSOCIATES, INC., Intervenor. John A. McEwan, President of Technology Advancement Group, Inc., Chantilly, VA, appearing for Protester. Donald S. Safford, Office of General Counsel, Naval Regional Contracting Center Detachment, Long Beach, CA; and Anita M. LeBlanc, Office of General Counsel, Naval Supply Systems Command, Arlington, VA, counsel for Respondent. B. David Whitehead, Vice President of Dulles Networking Associates, Inc., Sterling, VA, appearing for Intervenor. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. DANIELS, Board Judge. The Department of the Navy (Navy), respondent, has moved to dismiss as untimely filed a protest by Technology Advancement Group, Inc. (TAG) against the Navy's award of a contract to Dulles Networking Associates, Inc. (DNA). The Navy maintains that because the protest was filed more than ten working days after publication of a notice of the award in the Department of Commerce's Commerce Business Daily (CBD), the complaint is untimely. That the filing occurred within ten working days of the date on which TAG received notification of the award directly from the agency is considered irrelevant by the movant. DNA supports the agency position. We agree with TAG that the protest was timely filed, and consequently deny the motion. Findings of Fact The contract in question, for the supply of three Pentium processor computer systems, was awarded on November 23, 1993. Protest File, Exhibit 22. This contract and the solicitation which spawned it do not reference the Trade Agreements Act of 1979. Id., Exhibits 1, 2, 22. Nor do they indicate any expectation that the contractor will enter into subcontracts for contract performance. Id. The Government's original estimate of the cost of the contract was $96,855, and the contract price is $96,870. Id., Exhibits 5 at 6th unnumbered page, 22 at 1. Notification of the award of this contract appeared in the December 2 edition of the Commerce Business Daily. Motion to Dismiss, Exhibit 1; Notice of Intervention, Exhibit C. TAG personnel did not see this publication until December 23, when Navy counsel sent it to them as an attachment to the motion to dismiss. Affidavit of John A. McEwan (Jan. 6, 1994). The Navy's contracting officer wrote to TAG, informing it that the contract had gone to DNA. His letter was dated November 23, but TAG did not receive it until December 7. Protest File, Exhibit 21; Affidavit of John A. McEwan (Jan. 6, 1994). This protest was filed on December 17. Discussion Statute and regulation contain two separate requirements for announcement to persons other than the successful offerors of awards of contracts resulting from negotiated procurements. One requirement is for notification to unsuccessful offerors. Title 10 of the United States Code mandates that when a contract is awarded, "[t]he head of the [procuring] agency . . . shall promptly notify all other offerors of the rejection of their proposals." 10 U.S.C.A. 2305(b)(4)(B) (West Supp. 1993); see also 41 U.S.C. 253b(d)(4) (1988) (same requirement). This command is restated in the Federal Acquisition Regulation (FAR), which states that "[t]he contracting officer shall promptly notify each offeror whose proposal is determined to be unacceptable or whose offer is not selected for award, unless disclosure might prejudice the Government's interest." 48 CFR 15.1001(a) (1993) (FAR 15.1001(a)). The other requirement regarding announcement of awards is for publication in the CBD. The Small Business Act and the Office of Federal Procurement Policy Act both state (in identical language) that with exceptions not relevant here, "an executive agency awarding a contract for property or services for a price exceeding the small purchase threshold . . . shall furnish for publication by the Secretary of Commerce [in the Commerce Business Daily] a notice announcing the award . . . if there is likely to be any subcontract under such contract." 15 U.S.C.A. 637(e)(1)(C) (West Supp. 1993); see also id. 637(e)(2)); 41 U.S.C.A. 416(a)(1)(C) (West Supp. 1993); see also 41 U.S.C. 416(a)(2) (1988). The FAR expands on this requirement by providing that with the same exceptions mentioned in statute, "contracting officers shall synopsize in the Commerce Business Daily awards exceeding $25,000 that (1) are subject to the Trade Agreements Act [of 1979] . . . , or (2) are likely to result in the award of any subcontracts." FAR 5.301(a). The first type of requirement -- notification to unsuccessful offerors -- is part of Congress' effort to make the federal procurement process fully "open to all capable contractors who want to do business with the Government." H.R. Rep. No. 861, 98th Cong., 2d Sess. 1422, 1429 (1984), reprinted in 1984 U.S.C.C.A.N. 2110, 2110, 2117. The notice directive is intended to help make the procurement protest system an effective mechanism for enforcing the mandate for full and open competition. Id. at 1435, reprinted in 1984 U.S.C.C.A.N. 2123. The second type of requirement described above -- publication in the CBD -- is designed to "improve the usefulness of the Commerce Business Daily to small business concerns interested in expanding their sales in the Federal procurement marketplace" by advising those firms of subcontracting opportunities. S. Rep. No. 523, 98th Cong., 2d Sess. 30 (1984), reprinted in 1984 U.S.C.C.A.N. 5347, 5364; see also FAR 5.201(c). The Navy suggests that publication in the CBD serves as constructive notice to all offerors in a procurement that the competition is over and that all but the awardee have lost. In support of its position, the agency refers us to a decision of the General Accounting Office (GAO), East Carolina Builders, B-243926, 91-1 CPD 559 (June 10, 1991). The ruling in that case relies on Herndon & Thompson, B-240748, 90-2 CPD 327 (Oct. 24, 1990), a GAO decision that publication of elements of a solicitation in the CBD constituted constructive notice of those elements. In our view, GAO has unreasonably applied the rule expressed in Herndon & Thompson to a situation which is not analogous to the one at issue in both East Carolina and the instant case. In so doing, it has failed to consider the nature of and difference between the two distinct types of informational requirements regarding contract awards. Where a person does not have actual notice of an occurrence, implied or constructive notice may be found in one of two ways. First, a statute may expressly provide that the occurrence constitutes notice. Burck v. Taylor, 152 U.S. 634, 654, 14 S.Ct. 696, 703 (1894). The Navy has not shown us a statute which declares that publication of award information in the CBD constitutes constructive notice of an award, and we have been unable to find such a law. Even if such a statute exists, however, it would be ineffective to establish that the CBD publication gave TAG notice of the award because "when the statute itself or regulations promulgated pursuant to the statute require [actual] notice to be given" to a person, the general rule does not apply. United States v. Markgraf, 736 F.2d 1179, 1185-86 (7th Cir. 1984), cert. dismissed, 469 U.S. 1199 (1985). The statutory and regulatory requirement for actual notice of award to unsuccessful offerors would thus render without effect any statement elsewhere in statute that the CBD publication constitutes constructive notice to offerors. Notice may also be implied, or constructed, from the facts of a situation. Establishing such notice is difficult, however. The Supreme Court has defined constructive notice as "evidence . . . the presumption of which is so violent that the court will not even allow of its being controverted." Townsend v. Little, 109 U.S. 504, 511 (1883) (secret agreement between man and polygamous wife does not "affect with constructive notice persons who had no actual notice"). When considering whether someone should have known something, a tribunal should keep in mind that "[t]he doctrine of constructive notice, which creates a fiction and deals with hypothetical facts, is a harsh doctrine which should be resorted to reluctantly and construed strictly." Amoco Production Co. v. United States, 619 F.2d 1383, 1388 (10th Cir. 1980). The Supreme Court has explained that where actual notice has not been found, and notice could have been acquired only through inquiry, a person should not be "treated as if he had notice, unless the circumstances are such as enable the court to say, not only that he might have acquired, but also that he ought to have acquired it, but for his gross negligence in the conduct of the business in question." United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 333 (1905) (quoting Wilson v. Wall, 73 U.S. (6 Wall.) 83, 91 (1867)). A more recent formulation of the test is "whether facts are sufficient to put an ordinarily prudent man on inquiry, an inquiry which, if followed with reasonable diligence, would lead to the discovery" of the occurrence in question. Southwestern Petroleum Corp. v. Udall, 361 F.2d 650, 657 (10th Cir. 1966). Applying these precepts to the matter at hand, we cannot find that the publication of award information in the CBD places an offeror on notice of the award. A person who wishes to do business with the Government may be expected to read the CBD to learn of opportunities to contract; thus, construing a CBD notice of a solicitation to be constructive notice of that invitation may be reasonable. A person who wishes to act as a subcontractor to a Government contractor might also be expected to read the CBD to learn of new contract awards. Someone who has already submitted a proposal in response to a solicitation has no reason to scan the CBD for an award notification, however; he does not need to learn about the solicitation, for he is well aware of it, and he is unlikely to be interested in gaining a subcontract, since he has made an effort to win the contract itself. This person does have an expectation, however, that pursuant to statute and regulation, he will be given direct notification of the outcome of the procurement. The offeror is therefore entitled to have the timeliness of his complaint judged against his actual receipt of that notification. Even if this analysis were not valid as a general principle, we still could not find constructive notice in this particular case. Mandatory CBD publication of awards is limited to contracts that are either subject to the Trade Agreements Act of 1979 or likely to result in the award of subcontracts. The contract given by the Navy to DNA falls into neither of these categories. Contracts awarded during the time that this procurement took place were subject to the Trade Agreements Act only if they had a value of $176,000 or more; the value of the contract in question was less than $97,000. See 56 Fed. Reg. 66117 (Dec. 20, 1991); see also 59 Fed. Reg. 544 (Jan. 5, 1994) (threshold became $182,000 on January 1, 1994). The record contains no indication that the contract is likely to lead to the award of subcontracts, and given the subject of the procurement -- the supply of three computers -- the prospect of subcontracts appears remote. Thus, although the Navy may have acted lawfully in placing the notice of award in the CBD, FAR 5.301(a), there was no reason to expect anyone at all to look for such a notice in the publication. Consequently, we find that the date of the CBD notice is irrelevant to a determination of the timeliness of TAG's protest. The protest is timely because its filing, on December 17, was within ten working days of the date on which TAG actually learned of its basis, December 7. Rule 5(b)(3)(ii) (58 Fed. Reg. 69246, 69254 (Dec. 30, 1993)). Decision The Navy's motion to dismiss the protest as untimely filed is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge