B-298333.3, Raith Engineering and Manufacturing Company, W.L.L., January 9, 2007

B-298333.3 Jan 09, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Raith Engineering and Manufacturing Company, W.L.L. protests the award of a contract by the Department of the Army to Kellogg Brown and Root Services, Inc. (KBR) pursuant to request for proposals (RFP) No. W912D1-06-R-0032, issued to procure fuel support operations at two sites in Kuwait. Raith argues that the Army's selection of KBR was based on an unreasonable evaluation of proposals. We dismiss the protest. View Decision B-298333.3, Raith Engineering and Manufacturing Company, W.L.L., January 9, 2007 Decision Matter of: Raith Engineering and Manufacturing Company, W.L.L. File: B-298333.3 Date: January 9, 2007 Ronald A. Schechter, Esq., and Chad E. Miller, Esq., Arnold & Porter, for the protester. Maj. Jayanth Jayaram, Department of the Army, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest to the Government Accountability Office will not be considered where it is preceded by an initial agency-level protest that was untimely filed more than 10 days after the protester was given a debriefing. DECISION Raith Engineering and Manufacturing Company, W.L.L. protests the award of a contract by the Department of the Army to Kellogg Brown and Root Services, Inc. (KBR) pursuant to request for proposals (RFP) No. W912D1-06-R-0032, issued to procure fuel support operations at two sites in Kuwait. Raith argues that the Army's selection of KBR was based on an unreasonable evaluation of proposals. We dismiss the protest. On Thursday, November 16, 2006, the Army made award to KBR and provided Raith with an e-mail notification of the award decision. On Monday, November 20, Raith requested a debriefing; the debriefing was provided, in writing, on November 22. Three days after receipt of the debriefing, on November 25, Raith requested a meeting with the contracting officer (CO). This request for a meeting both advised that Raith was seeking additional information about the award decision, and that it was providing –notice of protest,— which it described as –subject to sustainment or withdrawal dependent upon the outcome of the meeting.— Agency Report (AR), Tab 5. The CO sought clarification from Raith about its request, asking, by e-mail, whether the request was a protest, which would trigger agency protest procedures, or was simply –notification that you may protest this award pending the results of the below requested meeting.— Id., Tab 6. In response, Raith answered, –It is our intention in accordance with FAR [Federal Acquisition Regulation] regulations to have a meeting to discuss the issues raised before finalizing our decision to protest the awarding of the contract.— Id., Tab 7. On November 29, Raith and the CO met to again discuss the debriefing materials, and on Monday, December 4, at 5:49 p.m., Raith filed by e-mail an agency-level protest challenging the award to KBR. On December 7, the Army dismissed the agency-level protest as untimely. On December 18, Raith protested to our Office. There is no dispute that the protester learned the information upon which the protest is based during its November 22 debriefing. 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. sect. 21.2(a)(1) (2006), and all other protests generally 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. sect. 21.2(a)(2). Further, our Regulations provide that a matter initially protested to the contracting agency will be considered only if the initial protest was filed within the time limits for filing a protest with our Office, unless the contracting agency imposes a more stringent time for filing, in which case the agency's time for filing will control. 4 C.F.R. sect. 21.2(a)(3). The Army raises three alternative challenges to the timeliness of Raith's agency-level protest, and hence to our ability to hear Raith's subsequent protest to our Office. Specifically, the Army contends that: (1) Raith failed to request a debriefing within 3 calendar days, thus the debriefing it received on November 22 was not a –required debriefing,— and, regardless of what the protester learned as a result of the debriefing, its protest was due within 10 calendar days of the day it learned of the award, rather than within 10 days of the debriefing; (2) Raith's agency-level protest was untimely filed because the tenth calendar day after the debriefing fell on Saturday, December 2 and Raith did not file the protest until Monday, December 4; and (3) Raith's 5:49 p.m.