B-209555.2, MAR 23, 1983

B-209555.2, MAR 23, 1983

DIGEST: REQUEST FOR RECONSIDERATION THAT DOES NOT CHALLENGE THE INITIAL DECISION OR THE FACTS OR LAW UPON WHICH IT WAS BASED, BUT ONLY RAISES NEW ISSUES BASED ON FACTS AVAILABLE TO THE PROTESTER AT THE TIME OF THE ORIGINAL PROTEST, IS CONSIDERED A NEW PROTEST AND IS DISMISSED FOR FAILURE INDEPENDENTLY TO MEET THE TIMELINESS REQUIREMENTS FOR SUCH PROTESTS.

SECURITY ASSISTANCE FORCES & EQUIPMENT OHG - RECONSIDERATION:

SECURITY ASSISTANCE FORCES & EQUIPMENT OHG (SAFE) REQUESTS RECONSIDERATION OF OUR DECISION IN SECURITY ASSISTANCE FORCES & EQUIPMENT OHG, B-209555, NOVEMBER 16, 1982, 82-2 CPD 449. SAFE HAD PROTESTED THAT SEVERAL SOLICITATIONS FOR SMOKE ALARMS ISSUED BY THE UNITED STATES AIR FORCE'S CONTRACTING OFFICE IN THE FEDERAL REPUBLIC OF GERMANY WERE DEFECTIVE BECAUSE THEY DID NOT REQUIRE THAT THE SMOKE ALARMS MEET THE STANDARDS OF UNDERWRITERS LABORATORY. WE DISMISSED THE PROTEST BECAUSE SAFE'S CONTENTION THAT THE SPECIFICATION WAS TOO BROAD DID NOT RAISE AN ISSUE THAT WAS REVIEWABLE UNDER OUR BID PROTEST FUNCTION. SAFE NOW CONTENDS IT HAS SINCE LEARNED FROM AN AWARDEE OF ONE OF THE CONTRACTS THAT THE SOLICITATIONS INCLUDED PROVISIONS LIMITING THE COMPETITION FOR THE SMOKE ALARMS TO THE PHOTO-ELECTRIC TYPE, THEREBY PRECLUDING SUPPLIERS OF IONIZATION SMOKE DETECTORS. FOR THE REASONS DISCUSSED BELOW, WE CONSIDER SAFE'S REQUEST A NEW PROTEST, AND WE DISMISS IT AS UNTIMELY.

A REQUEST FOR RECONSIDERATION AS DESCRIBED IN SECTION 21.9 OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 21 (1982), REQUIRES A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED. A REQUEST MUST SPECIFY ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED. INFORMATION NOT PREVIOUSLY CONSIDERED REFERS TO THAT WHICH A PARTY BELIEVES MAY HAVE BEEN OVERLOOKED BY OUR OFFICE OR INFORMATION TO WHICH A PARTY DID NOT HAVE ACCESS DURING THE PENDENCY OF THE INITIAL PROTEST, SUCH AS ADDITIONAL FACTS OBTAINED UNDER A FREEDOM OF INFORMATION ACT REQUEST. SEE B&MMARINE REPARIS, INC. - REQUEST FOR RECONSIDERATION, B-202966.2, FEBRUARY 16, 1982, 82-1 CPD 131.

SAFE'S REQUEST DOES NOT CHALLENGE THE VALIDITY OF OUR INITIAL DECISION, OR THE FACTS OR LAW UPON WHICH IT IS BASED. INSTEAD, IT RAISES, UNDER THE GUISE OF A REQUEST FOR RECONSIDERATION, A NEW ISSUE BASED UPON AN ALLEGATION THAT WAS NOT PRESENTED IN CONNECTION WITH THE INITIAL DECISION. SAFE'S REQUEST FOR RECONSIDERATION THEREFORE IS ACTUALLY A NEW PROTEST, AND IT THUS MUST INDEPENDENTLY SATISFY THE TIMELINESS REQUIREMENTS OF OUR BID PROTEST PROCEDURES TO BE CONSIDERED ON THE MERITS.

IF THE RESTRICTIONS TO WHICH SAFE NOW OBJECTS ACTUALLY EXISTED, THEY MUST HAVE BEEN OBVIOUS ON THE FACE OF THE SOLICITATIONS. MOREOVER, WE HAVE NO BASIS TO ASSUME OTHER THAN THAT THE FIRM, WHICH CONSISTENTLY HAS EVIDENCED INTEREST IN PROCUREMENTS OF THIS TYPE, COULD NOT HAVE BEEN AWARE OF THE CONTENT OF THESE SOLICITATIONS THROUGH REASONABLE DILIGENCE. SEE SECURITY ASSISTANCE FORCES & EQUIPMENT OHG, B-201839, DECEMBER 31, 1981, 81-2 CPD 516. UNDER SECTION 21.2(B)(1) OF OUR PROCEDURES, ANY PROTEST OBJECTING TO THE SOLICITATION RESTRICTIONS SHOULD HAVE BEEN FILED BY SAFE PRIOR TO THE CLOSING DATES FOR RECEIPT OF INITIAL PROPOSALS.

WHILE SAFE DOES NOT IDENTIFY ANY PARTICULAR PROCUREMENT ACTIONS, IT NONETHELESS APPEARS FROM SAFE'S SUBMISSION THAT AWARDS HAD BEEN MADE UNDER ALL OF THEM BY THE TIME THIS PROTEST WAS FILED. THE PROTEST THUS IS UNTIMELY UNDER SECTION 21.2(B)(1) OF OUR PROCEDURES.

THE PROTEST IS DISMISSED.