Protest alleging that the agency improperly eliminated the protester’s quotation from consideration is dismissed as untimely, where the protester failed to file its protest within 10 days of learning its basis for protest, and where the protester’s withdrawal of its agency-level protest was not an adverse action by the agency.

Aurora Storage Products Inc. protested the General Services Administration’s award of a task order for file storage systems to Tennsco Corp., arguing that the agency improperly eliminated its quotation from consideration for award, failed to timely notify Aurora of the award decision, and failed to adequately respond to Aurora’s agency-level protest.

GSA issued the solicitation on behalf of the Department of Justice. According to Aurora, Mid-Atlantic Filing Distributors submitted a quotation on Aurora’s behalf, acting as Aurora’s authorized GSA dealer. However, the agency determined that Mid-Atlantic was not eligible for award, because it does not hold a GSA Federal Supply Schedule contract.

After being notified of the award decision, Aurora filed a timely agency-level protest with the contracting officer. Before the contracting officer issued a response to the protest, Aurora stating its intention to protest through the Department of Justice Office of Inspector General. The contracting officer explained that the OIG would handle an allegation of misconduct differently than the procurement office would handle a protest and asked Aurora if it wanted to withdraw its agency-level protest. Aurora did not withdraw its agency-level protest, and later filed another protest with GAO making the same allegations.

The agency argued that the protest is untimely, because Aurora withdrew its agency-level protest and did not file its protest with GAO until more than 10 days after notification of the award decision. Aurora argued that its protest was timely because it filed within 10 calendar days of learning of actual or constructive knowledge of initial adverse agency action. In support, Aurora asserted that the CO provided an inadequate response to its protest, which it considered adverse agency action.

GAO disagreed, finding that the CO’s communication did not constitute adverse action. The CO did not convey what view the OIG would take in response to Aurora’s allegation, but neutrally described how the process would differ. Further, an allegation raised to the OIG is not a protest as the term is understood for GAO’s jurisdiction. While the CO stated she considered the agency-level protest to be withdrawn, GAO also did not find this to be an adverse action. Although Aurora stated that it did not wish to withdraw its agency-level protest, it also repeatedly told the CO that it was not seeking a decision from her and instead wanted the OIG to review its allegations. According to GAO, these statements clearly indicated that Aurora did not wish the agency to decide its protest in accordance with FAR procedures. Because Aurora’s agency level protest was not the subject of adverse agency action, GAO found its current protest to be untimely.

Aurora Storage Products Inc. is represented by Patrick J. Reeks. The Department of Justice is represented by John R. Caterini and Kristen Bucher Hahn. GAO attorneys Alexander O. Levine and Jennifer D. Westfall-McGrail participated in the preparation of the decision.