Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest dismissed.
Protest alleging violation of procurement integrity is dismissed where the protester did not report the alleged procurement integrity violation to the contracting agency within 14 days after the protester received the evidence that it believed showed a possible violation, because timely reporting is required as a condition precedent by the statutory procurement integrity provisions and GAO’s Bid Protest Regulations.
General Counsel P.C. Highlight:
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. The procurement integrity provisions provide that, “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.” This limitation is also incorporated in both the Federal Acquisition Regulation (FAR) and GAO’s Bid Protest Regulations.
As required by the statutory language quoted above, GAO has 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. The ATO’s 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 Ginn’s proposed costs. Since the ATO’s 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 GAO dismiss the protest. Receipt of the CD-ROM by the ATO’s counsel started the applicable time period for applying the statute’s reporting requirement. This conclusion is consistent with GAO’s treatment of private-sector protesters in analogous situations. In particular, GAO has held that receipt of information requiring action by a protester is effective when that information is received by the protester’s counsel. 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 GAO’s consideration of the protest. The protest is dismissed.