filing beyond a protestor's control-or on the basis a significant issue of procurement practices or procedures was raised, because a protest challenging the responsibility of a bidder involves neither exception to the timely filing of a protest.

To the Panoramic Studios, July 13, 1972:

Reference is made to your letter of May 12, 1972, which responded to our letter B-175779, May 10, 1972, wherein we advised you that under our "Interim Bid Protest Procedures and Standards" we would regard as untimely your protest under RFP DAAK01-71-R-6301, issued by the Army Mobility Equipment Command.

You state that section 20.2(a) of the "Interim Bid Protest Procedures and Standards" is contradictory and misleading in that it urges protestors to initially seek resolution of their complaints with the contracting agency and yet imposes relatively short time limits for filing protests with our Office. You suggest that this permits contracting agencies to "spin out" discussions of protests "secure in the knowledge that the General Accounting Office will then say that no 'timely' protest was ever submitted." You allege that this has occurred in your protest, which has not received the "objective, independent and impartial" handling our bid protest procedures are intended to provide. Section 20.2 (a) of the "Interim Bid Protest Procedures and Standards" states:

Protestors are urged to seek resolution of their complaints initially with the contracting agency. Protests based upon alleged improprieties in any type of solicitation which are apparent prior to bid opening or the closing date for receipt of proposals shall be filed prior to bid opening or the closing date for receipt of proposals. In other cases, bid protests shall be filed not later than 5 days after the basis for protest is known or should have been known, whichever is earlier. If a protest has been filed initially with the contracting agency, any subsequent protest to the General Accounting Office filed within 5 days of notification of adverse agency action will be considered provided the initial protest to the agency was made timely. The term "filed" as used in this section means receipt in the contracting agency or in the General Accounting Office as the case may be and protestors are, therefore, cautioned that protests should be transmitted or delivered in that manner which will assure earliest receipt.

The limited factual information contained in your letter of April 14, 1972, indicates that the basis of your protest to the procuring agency was that the successful offeror was not a responsible contractor. Since your protest did not involve an impropriety apparent prior to the closing date for receipt of proposals, the second sentence of section 20.2 (a) is inapplicable to your protest.

The next sentence of section 20.2 (a) provides that in other cases (such as yours), bid protests shall be filed not later than 5 days after the basis for the protest is known or should have been known, whichever is earlier. A protest which alleges that the successful offeror is not responsible could not have been made until you were aware of the identity of that offeror. In the instant case, award was made on June 16, 1971, and we have been informally advised by the Depart

ment of the Army that your protest letter of June 21, 1971, was received by the contracting officer on June 23, 1971. Since your protest was received by the contracting agency 5 working days after the award, which was when the basis of your protest would first have been known to you, your protest to the contracting agency was timely.

The next sentence of section 20.2 (a) states that when a timely protest has been filed initially with the contracting agency, subsequent protests to our Office must be filed "within 5 days of notification of adverse agency action" in order to be considered. We are advised by the Army that it denied your protest by letter of June 25, 1971, which you subsequently told the Army was too brief. In response to your complaint, a fuller explanation was made by the Army on July 7, 1971. Thus, the "notification of adverse agency action" occurred upon your receipt of the Army's letter of June 25, 1971. As we observed in our letter of May 10, 1972, you did not file a protest under this procurement with our Office until April 25, 1972, 10 months after you had been notified of adverse agency action concerning your protest. Therefore, your protest is untimely under the provisions of the fourth sentence of section 20.2 (a). Furthermore, it does not appear that any remedial action of benefit to your firm is now available from this Office, even if we should conclude that the contract was illegally awarded, since the supplies thereunder have been delivered and payment has been made.

We do not regard the provisions of section 20.2 (a) to be conflicting and misleading. We urge protestors to initially seek resolution of their complaints with the contracting agency, within certain time limits, in order that protests may be expeditiously resolved at a stage in the procurement when some effective remedial action may be taken on meritorious protests. We think it inappropriate, for example, for a bidder to first allege that there is an impropriety in an invitation for bids after bids have been opened and his competitors' prices exposed. In the instant case, you met the requirement that a protest must be timely filed with the contracting agency.

Our bid protest regulations then provide that following "adverse agency action" upon a protest, the protestor seeking a decision of our Office must file his protest in a timely manner. The intent of this provision also is to secure the resolution of the matter when some meaningful relief may be afforded, not- -as in this case- after the contract is completely performed.

"Adverse agency action" may consist of a procurement action (such as the award of a contract despite the pendency of a protest) or, as in the instant case, a decision on the merits of the protest. We realize that a protestor may consider an agency's initial adverse action to be ill-founded or inadequately explained, leading the protestor to engage

in further correspondence with the agency. As you observe in your letter of May 12, it then becomes difficult to identify the "final" adverse agency action. For this reason, we regard it as obligatory upon a protestor to file his protest with our Office within 5 days of notification of initial adverse agency action, if it is to be considered timely. It appears that the "adverse agency action" in this case occurred no later than June 25, 1971. Additionally, there is no evidence of record that the Army acted to "spin out the discussion *** for weeks or months as you allege may be possible under our regulations. You further state in your letter of May 12, 1972:

We note also in Section 20.2(b) that a protest not timely can be considered if it raises a "significant" issue. Does "significant" mean a large sum of money, or a glaringly obvious flaw, or is there a question of principle? What is "good cause?"

The subsection to which you refer provides:

The Comptroller General, for good cause shown, or where he determines that a protest raises issues significant to procurement practices or procedures, may consider any protest which is not filed timely.

"Good cause" varies with the circumstances of each protest, although it generally refers to some compelling reason, beyond the protestor's control, which has prevented him from filing a timely protest. There is no indication of record that any supervening circumstance delayed the filing of your protest before this Office. "Issues significant to procurement practices or procedures" refers not to the sum of money involved, but to the presence of a principle of widespread interest. We are not inclined to view a protest challenging the responsibility of a particular bidder as coming within this provision.

For the foregoing reasons, we remain of the opinion that your protest is inappropriate for consideration by our Office.

[B-175190]

Military Personnel-Missing, Interned, Etc., Persons-Quarters and Subsistence-Entitlement

Enlisted members of the uniformed services, whether with or without dependents, who prior to being carried in a missing status (37 U.S.C. 551-558) were quartered and subsisted by the United States Government under the concept of "changed conditions" may be credited with quarters and subsistence allowances from the beginning of a missing status. The statutory provisions involved in 23 Comp. Gen. 207 and 895, which were the basis for denying allowances to members entering a "missing status," have been superseded by sections 301 and 302 of the Career Compensation Act of 1949 (37 U.S.C. 403) to provide that a member on active duty is entitled at all times to subsistence and quarters in kind or allowances in lieu thereof and, therefore, members determined to be in a missing status are entitled to a monetary allowance in lieu of subsistence and quarters in kind from the beginning of the missing status, subject to 31 U.S.C. 71a.

To the Secretary of Defense, July 17, 1972:

Further reference is made to letter dated February 10, 1972, from the Assistant Secretary of Defense (Comptroller), in which decision is requested on questions relating to the payment of quarters and subsistence allowances to members without dependents who are carried in a missing status pursuant to 37 U.S. Code 551–558.

It is indicated in the letter that entitlement to these allowances has been denied over the years to members entering a "missing status" on the basis of our decision of September 20, 1943, 23 Comp. Gen. 207, wherein it was held that an enlisted member of the Navy who was absent from his ship in a missing status (under the Missing Persons Act of March 7, 1942, 56 Stat. 143) was not entitled to quarters and subsistence allowances authorized by section 10 of the Pay Readjustment Act of 1942, 56 Stat. 363.

The Assistant Secretary points out that the law currently in effect relating to the payment of pay and allowances to missing members is similar to that in effect in 1943 (section 2 of the Missing Persons Act of March 7, 1942, 56 Stat. 144).

It is also noted that under the provisions of 37 U.S.C. 403 a member of a uniformed service who is entitled to basic pay is entitled to a basic allowance for quarters, with the exception of a member who is assigned to "quarters of the United States" and a member who is on "field duty" unless his commanding officer certifies that the member was necessarily required to procure quarters at his expense, or while he is on sea duty.

The Assistant Secretary states that the decision in 23 Comp. Gen. 207 is based on the premise that the purpose of the statute is to provide for the payment of quarters and subsistence allowances when the duty assignment of the member makes impractical the furnishing of quarters and subsistence normally furnished. In contrast, it is pointed out that 37 U.S.C. 403 expressly provides that "except as otherwise provided by law, a member *** who is entitled to basic pay is entitled to a basic allowance for quarters," and, he says, the question of duty assignment is not mentioned in the statute.

***

It is also stated that under 37 U.S.C. 402 a member who is entitled to basic pay is entitled to a basic allowance for subsistence "when rations in kind are not available." It is indicated in the letter that an enlisted member has been consistently considered to be entitled to be subsisted in kind by the U.S. Government or to be paid an appropriate monetary allowance in lieu thereof when not so subsisted. The Assistant Secretary notes that "Regular Military Compensation" has been defined to include quarters and subsistence in kind or an allowance substitute (H.R. Report No. 92-82, March 25, 1971, p. 24).

In the discussion in the Assistant Secretary's letter relating to the

Missing Persons Act it is indicated that under the provisions of 37 U.S.C. 552 a member who is in a missing status is entitled to the same pay and allowances to which he was entitled at the time of entering a missing status or to which he may thereafter become entitled. It is pointed out that the fact that a member was not actually entitled to a monetary allowance for quarters and subsistence at the beginning of the missing status (because he was furnished such by the U.S. Government) would not appear to be determinative of his entitlement to such monetary allowances after he entered a missing status in view of the intent of Public Law 90-207 approved December 16, 1967, and the "changed conditions" under which entitlement to these allowances should "thereafter become" effective, as stated in 23 Comp. Gen. 895 (1943) at page 897:

it is not to be presumed that the statute contemplates that the pay status of a missing person is to be computed differently from that of any other officer on active duty, not in a missing status, whose pay and allowances obviously are affected upon the happening of changed conditions. Cf. 23 Comp. Gen. 21. An officer not in a missing status would not be entitled to a continuation of rental allowance for a wife following her death or upon cessation of the marital relationship; and the same rule is to be applied in the case of a missing officer. Similarly, the same rule would be for application, insofar as rental allowance for dependents is concerned, when the dependents occupy public quarters, whether (1) such occupation of quarters be an incident to their relationship to the officer, that is, the assignment to him of quarters for his dependents, or (2) because of the dependent's status as a member of the armed forces by reason of which she is furnished quarters in kind or paid a cash allowance in lieu thereof.

The Assistant Secretary continues by stating that, while the member was being quartered and subsisted by the U.S. Government immediately prior to entering a missing status, due to "changed conditions" the U.S. Government can no longer quarter or subsist the member and under normal circumstances he would then become entitled to receive a monetary allowance for quarters and subsistence. It is emphasized that in 23 Comp. Gen. 207 it was held that, had the member at the time he entered the missing status been serving under conditions which entitled him to these allowances, he would have continued to receive the allowances while in a missing status. It is indicated that it appears somewhat inconsistent to have entitlement to these allowances based solely upon the happenstance of the conditions under which a member is serving at the time of entering a missing or prisoner of war status in view of the provisions of Public Law 90-207. In light of the foregoing, decision is requested on the following questions:

1. Is a member, without dependents, who was not entitled to basic allowance for quarters at the beginning of a period of "missing status," entitled to credit for such allowance when he enters a missing status?

2. Is a member who was not entitled to a basic allowance for subsistence at the beginning of a period of "missing status," entitled to credit for such allowance when he enters a missing status? If so, at what rate?