Protest Denied

By Dan Dupont / December 23, 2011 at 7:39 PM

The Government Accountability Office has denied a protest filed by Hawker Beechcraft alleging that the Air Force violated procurement law by excluding the company from a contract competition that would procure 20 light attack aircraft for Afghanistan.

The protest -- and the final decision -- come down in large part to timing and a mailing address:

The Air Force argues that HBDC’s protest should be dismissed because the certified return receipt demonstrates that HBDC received notice of its exclusion from the competition on November 4, and because HBDC did not timely request a debriefing or file a timely protest. HBDC maintains that the timeliness of its debriefing request and protest should be measured from November 15, as opposed to November 4, since the Air Force sent the notice of exclusion to an allegedly “incorrect address.”

More specifically, HBDC asserts that the Air Force erred in sending the notice to HBDC’s physical government business address, rather than to HBDC’s designated mailing address, and due to this error the notice cannot be considered received by HBDC until the time the notice reached HBDC’s contracts manager on November 15. HBDC argues that its separate mailing address was identified on Standard Form (SF) 33 of its most recent proposal revision of September 14, and is accurately listed in HBDC’s Central Contracting Registry (CCR) Database profile, along with its physical government business address.

HBDC also argues that the Defense FAR Supplement (DFARS) and its associated Procedure, Guidance, and Information (PGI), require defense agencies to “use the CCR database as the primary source of contractor information for contract award and administration,” and “shall use the CCR database as the authoritative source” for certain information, including a contractor’s mailing address. DFARS PGI 204.1103. Finally, HBDC notes that the Air Force sent correspondence to HBDC’s “correct” mailing address earlier in the competition.

We fundamentally disagree with HBDC’s premise that the Air Force directed the notice of exclusion to an “incorrect” address. The Air Force notice correctly indicated--i.e., there were no typographical errors--an address HBDC provided to the Air Force throughout the competition--i.e., in its initial proposal, in its revised proposal, on the cover letter of its revised proposal signed by its contracts manager, and in the signature line of email correspondence sent by its contracts manager. AM, Tab 1, at 2; Tab 2, at 1, 2; Tab 5 at 2, 3. It is this address which HBDC now claims to be “incorrect” for the purpose of receiving the agency’s exclusion letter.

To the extent HBDC listed a different address on the SF 33 of its September 14 revised proposal submission, this address was not identified as a “mailing address” or HBDC’s “correct” address, and the record reflects that in various other places in this submission, HBDC identified its address as the address used by the agency to provide this notice.[1] HBDC Response, Tab 3, at 1. We also note that the DFAS PGI provisions that HBDC relies on for establishing its “correct” mailing address do not apply to agency communications during the course of a procurement--by their terms they apply to contract award and contract administration matters. The use of a firm’s CCR information has never been established as a requirement when providing adverse action notices.

More importantly, our timeliness rules do not turn on whether an agency has sent information to a particular designated address; rather, we look to whether the relevant information was in fact received by the offeror. In this regard, our Office has previously held that actual notification to a company’s designated point of contact is not required to constitute notice under our Bid Protest Regulations, where notice is otherwise received by the firm. For example, in Jarrell-Ash Div., Fisher Scientific Co.--Reconsideration, we held that notice of rejection of a proposal was effective on the date it was received at the company’s sales office address, even where the sales office address was not designated in the firm’s proposal, and was not the address of the individuals who prepared the proposal. Jarrell-Ash Div., Fisher Scientific Co.--Reconsideration, B-209236.3, Dec. 21, 1982, 82-2 CPD ¶ 562 at 3.

Here, it is beyond dispute that the Air Force sent the notice of exclusion, via certified mail, to HBDC’s designated contracts manager at an address set forth on numerous proposal documents submitted by HBDC--including a revised proposal cover letter signed by the contracts manager--and that receipt of the notice on November 4 is confirmed by an HBDC employee’s signature on the certified mail return receipt.

Accordingly, there is no basis for HBDC to claim that the Air Force caused the delay here. That it took HBDC 11 days to route the notice of exclusion to the appropriate person does not toll the filing deadline imposed by our regulations, or the statutory deadline to request a required debriefing.[2]

In this regard, Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on alleged improprieties in a solicitation must be filed prior to bid opening or the time established for receipt of proposals, 4 C.F.R. § 21.2(a)(1) (2010), and all other protests must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier. 4 C.F.R. § 21.2(a)(2). Where a protester timely requests a required debriefing,a protest filed within 10 days of the debriefing will be considered timely with respect to bases known before or as a result of the debriefing. Id. An offeror excluded from further consideration prior to contract award may request a preaward debriefing, but must submit a written request to the contracting officer within three days after receipt of the agency’s notice of exclusion. Federal Acquisition Regulation (FAR) § 15.505(a)(1). An offeror that fails to submit its request to the contracting officer within three days after receiving notice of exclusion is not entitled to either a preaward, or post-award, debriefing.[3] FAR § 15.505(a)(3).

Accordingly, HBDC was required to request a debriefing within three days of its receipt of the Air Force notice on November 4, or, absent a debriefing, was required to file its protest no later than 10 days after that date.[4] Where HBDC did not timely request a debriefing, and failed to file its protest until 17 days after it was notified that its proposal had been excluded from the competitive range, the protest is untimely and must be dismissed.