PROTESTER'S REQUEST FOR SUSPENSION OF PROCUREMENT AUTHORITY DENIED: December 23, 1993 GSBCA 12709-P TECHNOLOGY ADVANCEMENT GROUP, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent. 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. Before Board Judges DANIELS (Chairman), DEVINE, and NEILL. DANIELS, Board Judge. Technology Advancement Group, Inc. (TAG), which has protested the award of a contract by the Department of the Navy (Navy) to Dulles Networking Associates, Inc. (DNA), asks the Board to suspend the Navy's authority to proceed with contract performance while the protest is pending. We deny the request. With this denial, the protest allegation that the Navy acted in violation of statute and regulation by failing to notify TAG promptly of the award becomes moot. Background TAG asserts the following facts. The Navy does not contest them, and we accept them as true for purposes of this decision. The contract in question, for the supply of computers designed to run high-end software, was awarded on November 23, 1993. The Navy's contracting officer wrote to TAG, an unsuccessful offeror, informing it that the contract had gone to DNA. This letter was dated November 23, but it was not postmarked until November 29. TAG did not receive the letter until December 7. The protest was filed on December 17. Discussion The Board faced a situation similar to the one presented here in LAGO Systems, Inc., GSBCA 11536-P, et al., 92-1 BCA 24,551, 1991 BPD 285. Our decision in that case explains the law relevant to Board-ordered suspensions of procurement authority. All authority to acquire automatic data processing equipment for federal agencies is vested in the Administrator of General Services. 40 U.S.C. 759(a)(1), (b)(1) (1988). The Administrator may delegate this authority to other agencies. Id. at 759(b)(2), (3). Statute empowers this Board to suspend delegated authority to order contract performance under two different circumstances. First, if a protest is filed within ten calendar days of award and a suspension order is timely requested, unless the agency involved establishes an urgent and compelling need for performance, we "shall suspend the . . . Administrator's delegation of procurement authority to acquire any goods or services under the contract which are not previously delivered," and the suspension shall last until the protest is decided. Id. at 759(f)(3). Second, if we "determine[] that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority," we "may suspend" the delegated procurement authority as a means of providing appropriate relief. Id. at 759(f)(5)(B). Id. at 122,509, 1991 BPD 285 at 3. As in LAGO, we plainly have no right to issue a suspension order here under the first statutory provision cited. We may exercise this power only if a protest is filed within ten calendar days of contract award. TAG's protest was filed twenty- four calendar days after award. The only real issue in this case is whether a suspension is appropriate under the second authority cited. To resolve this issue in favor of TAG, we must decide two questions in the affirmative: First, was the delay in TAG's receiving notification of the award a violation of statute or regulation or the condition of any delegation of procurement authority? Second, if it was, is suspension of the Navy's authority to proceed with contract performance an appropriate form of relief? Statute requires that after awarding a contract, an 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 48 CFR 15.1001(a), (c) (1992). Where we have found non- compliance with this requirement, we have provided a remedy by exercising our authority to suspend the agency's procurement authority for the duration of the protest. Locom Corp., GSBCA 8951-P, 87-2 BCA 19,940, 1987 BPD 111; American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517, 1985 BPD 115. Our justification for taking this action is as follows: When the contracting officer's failure to provide the requisite prompt notice to unsuccessful bidders renders the exercise of this right [to request a suspension of the procurement by filing within ten calendar days of award] impracticable, then we believe the . . . violation to be a significant one. . . . [I]t is less than realistic to assume that a protest within ten calendar days of award is practicable when notice of award is not provided until the ninth day after award. Locom Corp., 87-2 BCA at 100,915, 1987 BPD 111 at 6. The delay in TAG's receipt of the contracting officer's letter can be divided into two parts -- the time between the making of the award and the postmarking of the letter (six days) and the time between the postmarking and the receipt of the letter (eight days). We have already decided that the United States Postal Service's failure to provide prompt delivery, although a violation of statute, is not an error of the contracting officer and thus is not reviewable by us. LAGO, 92-1 BCA at 122,510, 1991 BPD 285 at 5. Whether a six-day delay in mailing the letter constitutes a violation of the statutory requirement for prompt notification of award is a question we need not decide in this case. The reason is that even if it does, TAG failed to mitigate the problem by filing its protest promptly upon receipt of the letter. We will not employ our equitable powers to order a suspension where the protester's own actions are a principal cause of the tardiness of the request for such an order. Even where the Government delays proceedings as well, we expect a protester to file promptly in order to be eligible for a suspension order under 40 U.S.C. 759(f)(5)(B). See LAGO, 92-1 BCA at 122,510, 1991 BPD 285 at 5. TAG's delay in filing is particularly vexing because the complaint was not made until the tenth calendar day after TAG got the contracting officer's letter. Had circumstances been ideal from TAG's viewpoint, the letter would have been written and postmarked on the date of award, and delivered the next day. TAG's protest, being filed ten days after receipt of the letter, would then have come on the eleventh calendar day after award -- too late to invoke our suspension authority under 40 U.S.C. 759(f)(3). TAG thus, by itself, delayed proceedings beyond the point at which a suspension could ordinarily be had. TAG asserts that during the ten days between the day on which it learned of the award and the day on which it filed its protest, it was not sitting on its rights; rather, says TAG, it was making attempts to resolve its dispute with the Navy by means short of a formal complaint. Specifically, TAG claims that it sought relevant information from the contracting officer and sought relief from the Administrator of General Services. These statements, even if true, do not toll the time for initiating a request for suspension of the Navy's procurement authority. The filing deadlines contained in statute and Board rules are drawn to balance the needs of Government agencies to receive goods and services for which they have contracted against the benefit to the procurement system of permitting formal challenges to improper and inequitable actions. Our decisions must preserve this balance. Cf. KSK Enterprises, Inc., 90-1 BCA 22,329, 1989 BPD 295 (dealing with the timeliness of a protest complaint). Decision We DENY TAG's request that we suspend the Navy's delegated authority to proceed with contract performance while the protest is pending. TAG's protest includes a count which complains that the Navy violated statutory and regulatory requirements by not promptly notifying the firm of the contract award. The only prejudice that TAG has contended might have resulted from this alleged violation is an inability to secure a suspension order. The relief TAG seeks is consequently the issuance of such an order. Because we have declined the invitation to impose this relief, no purpose would be served by deciding whether the count has merit. We therefore also DISMISS the allegation AS MOOT. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE EDWIN B. NEILL Board Judge Board Judge