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4 CFR 21.5 (d): Procurement Integrity ó Timeliness

Comptroller General - Key Excerpts

Frank A. Bloomer, Agency Tender Official (ATO), protests the Department of the Armyís award of a contract to The Ginn Group, Inc. (Ginn) to perform directorate of public works (DPW) functions at the United States Army Garrison at West Point, New York, following a public-private competition conducted under Office of Management and Budget (OMB) Circular A-76. The ATO alleges that Ginn obtained confidential information about the public tender from a private consultant who had assisted the ATO in preparing the most efficient organization (MEO), in violation of statutory procurement integrity provisions.

(sections deleted)

This protest alleges a violation of the procurement integrity provisions of the Office of Federal Procurement Policy Act, which restrict the disclosure of contractor bid or proposal information while the procurement is underway. 41 U.S.C. sect. 423(a)-(b) (2006 & Supp. I 2007). However, the procurement integrity provisions also provide thus:

No person may file a protest against the award or proposed award of a Federal agency procurement contract alleging a violation of subsection (a), (b), (c), or (d) of this section, nor may the Comptroller General of the United States consider such an allegation in deciding a protest, unless that person reported to the Federal agency responsible for the procurement, no later than 14 days after the person first discovered the possible violation, the information that the person believed constitutes evidence of the offense.

41 U.S.C. sect. 423(g). In substance, this limitation is also incorporated in both the Federal Acquisition Regulation (FAR) and our Officeís Bid Protest Regulations. FAR sect. 33.102(f); 4 C.F.R. sect. 21.5(d) (2009).

The Army requests that we dismiss the protest because the ATO did not report his concerns that there had been a violation of procurement integrity within 14 days of learning the underlying facts. Ginn joined the Armyís request for dismissal.

Both the Army and Ginn argue that the ATO should have reported its concerns about a potential violation of procurement integrity within 14 days after being informed, in January, of the golf outings between the CFM consultant and the Ginn employee. In the alternative, they argue that on April 7 counsel for the ATO received the CD‑ROM that contained cost information about Ginn. The Army argues that the ATOís protest to the contacting officer, which was the first time that the ATO had alleged a violation of procurement integrity, was filed on April 22, which was more than 14 days after the ATO (through his legal counsel) had received the CD-ROM with Ginnís cost information.

The ATO responds that his report of a procurement integrity violation was timely because he was first advised by his consultants on April 13 that the CD‑ROM showed that Ginn had lowered its proposed cost. It was then that the ATO checked the Ginn website, and decided that, in his view, a possible procurement integrity violation had occurred. Accordingly, he argues that his notice to the contracting officer, in the form of an agency-level protest 9 days later, on April 22, was therefore timely.

As required by the statutory language quoted above, we have dismissed allegations of a breach of procurement integrity where a protester failed to present its allegation to the contracting agency within 14 days of discovering the information on which the allegation is based. Honeywell Tech. Solutions, Inc., B‑400771, B‑400771.2, Jan. 27, 2009, 2009 CPD para. 49 at 9 (declining to consider procurement integrity allegation that was not presented to contracting agency within 14 days). The ATOís protest fails for the same reason here. Specifically, the ATO was on notice of the evidence that he used to support his allegation of a breach of procurement integrity, at the latest, when his counsel received the CD‑ROM on April 7, which documented the changes in Ginnís proposed costs. Since the ATOís allegation of a procurement integrity violation was first made to the contracting agency on April 22, which is 15 days later, the statute requires that we dismiss the protest. 41 U.S.C. sect. 423(g).

Receipt of the CD-ROM by the ATOís counsel started the applicable time period for applying the statuteís reporting requirement. This conclusion is consistent with our treatment of private-sector protesters in analogous situations. In particular, we have held that receipt of information requiring action by a protester is effective when that information is received by the protesterís counsel. Columbia Research Corp., B‑247073.4, Sept. 17, 1992, 92-2 CPD para. 184 at 4 (timeliness of supplemental protest is based on receipt of information by protesterís counsel, not by later receipt of that information by protester); see also SWR, Inc.‑‑Protest & Costs, B-294266.2 et al., Apr. 22, 2005, 2005 CPD para. 94 at 7-8 (timeliness is based on receipt of information by counsel to the protester, not by protester itself). In our view, the information that the ATO used to support its allegation of a procurement integrity violation was available to the ATO more than 14 days before he notified the agency, and therefore 41 U.S.C. sect. 423(g) bars our consideration of the protest.  (Frank A. Bloomer--Agency Tender Official, B-401482, July 20, 2009) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Frank A. Bloomer--Agency Tender Official, B-401482, July 20, 2009 (pdf)  

U. S. Court of Federal Claims - Key Excerpts

 
U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
   
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