B-225210.3, MAR 6, 1987, 87-1 CPD 259
Highlights
PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION DIGEST: REQUEST FOR RECONSIDERATION OF PRIOR DECISION IS DENIED WHERE THE REQUEST CONTAINS NO STATEMENT OF THE FACTS OR LEGAL GROUNDS WARRANTING REVERSAL OR MODIFICATION BUT MERELY RESTATES ARGUMENTS MADE BY THE PROTESTER AND CONSIDERED PREVIOUSLY BY THE GENERAL ACCOUNTING OFFICE. WE DENIED THE PROTEST AGAINST THE CONTRACTING OFFICER'S NEGATIVE RESPONSIBILITY DETERMINATION WHERE THE DETERMINATION WAS BASED ON A NEGATIVE EVALUATION OF PREAWARD SAMPLES AND THE RECORD CONTAINED DOCUMENTATION THAT PROVIDED A REASONABLE BASIS FOR THE EVALUATION FINDINGS AND THE CONTRACTING OFFICER'S DETERMINATION. WE HELD THAT THE FACT THAT ASI MAY HAVE BEEN FOUND RESPONSIBLE BY OTHER CONTRACTING OFFICERS DID NOT SHOW THAT THE CONTRACTING OFFICER HAD ACTED IN BAD FAITH BECAUSE NONRESPONSIBILITY DETERMINATIONS ARE INHERENTLY JUDGMENTAL AND BASED UPON THE CIRCUMSTANCES OF EACH PROCUREMENT.
B-225210.3, MAR 6, 1987, 87-1 CPD 259
PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION DIGEST: REQUEST FOR RECONSIDERATION OF PRIOR DECISION IS DENIED WHERE THE REQUEST CONTAINS NO STATEMENT OF THE FACTS OR LEGAL GROUNDS WARRANTING REVERSAL OR MODIFICATION BUT MERELY RESTATES ARGUMENTS MADE BY THE PROTESTER AND CONSIDERED PREVIOUSLY BY THE GENERAL ACCOUNTING OFFICE.
ALAN SCOTT DIVISION-- REQUEST FOR RECONSIDERATION:
ALAN SCOTT INDUSTRIES REQUESTS THAT WE RECONSIDER OUR DECISION IN ALAN SCOTT INDUSTRIES, B-225210.2, FEB. 12, 1987, 87-1 CPD PARA. ***, IN WHICH WE DENIED IN PART AND DISMISSED IN PART ITS PROTEST AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) NO. DLA120-85 B-2394, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) FOR RETRACTORS. ASI HAD CONTENDED THAT DPSC IMPROPERLY DETERMINED ASI TO BE NONRESPONSIBLE BECAUSE OF DEFECTS IN ITS PREAWARD SAMPLES.
WE DENIED THE PROTEST AGAINST THE CONTRACTING OFFICER'S NEGATIVE RESPONSIBILITY DETERMINATION WHERE THE DETERMINATION WAS BASED ON A NEGATIVE EVALUATION OF PREAWARD SAMPLES AND THE RECORD CONTAINED DOCUMENTATION THAT PROVIDED A REASONABLE BASIS FOR THE EVALUATION FINDINGS AND THE CONTRACTING OFFICER'S DETERMINATION. WE HELD THAT THE FACT THAT ASI MAY HAVE BEEN FOUND RESPONSIBLE BY OTHER CONTRACTING OFFICERS DID NOT SHOW THAT THE CONTRACTING OFFICER HAD ACTED IN BAD FAITH BECAUSE NONRESPONSIBILITY DETERMINATIONS ARE INHERENTLY JUDGMENTAL AND BASED UPON THE CIRCUMSTANCES OF EACH PROCUREMENT. IN RESPONSE TO ASI'S COMPLAINTS THAT IT HAD NOT BEEN GIVEN THE OPPORTUNITY TO EXAMINE THE SAMPLES TO DETERMINE THE VALIDITY OF DEFECTS FOUND BY DPSC, NOR BEEN GIVEN ACCESS TO INSTRUMENTS WHICH ASI BELIEVED DPSC USED TO TEST ITS SAMPLES, WE NOTED THAT THE PREAWARD SAMPLES WERE AVAILABLE AT DPSC FOR BIDDER EXAMINATION, AND THAT DPSC HAD STATED THAT THE DEFECTS IN ASI'S SAMPLES WERE FOUND WITHOUT THE AID OF SUCH INSTRUMENTS.
WE DENY THE REQUEST FOR RECONSIDERATION.
UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.12(A) (1986), A REQUEST FOR RECONSIDERATION MUST CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS WARRANTED AND MUST SPECIFY ANY ERRORS OF LAW MADE IN THE DECISION OR INFORMATION NOT PREVIOUSLY CONSIDERED. INFORMATION NOT PREVIOUSLY CONSIDERED REFERS TO INFORMATION WHICH WAS OVERLOOKED BY OUR OFFICE OR INFORMATION TO WHICH THE PROTESTER DID NOT HAVE ACCESS WHEN THE INITIAL PROTEST WAS PENDING. FLIGHT RESOURCES, INC.-- RECONSIDERATION, B-220680.4, JULY 15, 1986, 86-2 CPD PARA. 66.
ASI PRESENTS NO NEW FACTS OR ARGUMENTS TO INDICATE ERROR IN OUR PREVIOUS DECISION. THE REQUEST MERELY RESTATES ARGUMENTS MADE BY ASI AND PREVIOUSLY CONSIDERED BY OUR OFFICE, AND ASSERTS THAT OUR OFFICE WAS REMISS FOR NOT CONDUCTING AN INDEPENDENT INVESTIGATION. HOWEVER, AS WE HAVE PREVIOUSLY HELD, THE PROTESTER HAS THE BURDEN OF PROVING ITS CASE; WE WILL NOT CONDUCT INVESTIGATIONS FOR THE PURPOSE OF ESTABLISHING WHETHER A PROTESTER MAY HAVE A VALID BASIS FOR PROTEST. NICKUM & SPAULDING ASSOCIATES, INC., B-222468, JUNE 10, 1986, 86-1 CPD PARA. 542. THUS, WHILE THE REQUEST FOR RECONSIDERATION CLEARLY REFLECTS ASI'S DISAGREEMENT WITH OUR DECISION, IT DOES NOT MEET THE REQUIREMENT FOR A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS WARRANTING REVERSAL OR MODIFICATION, NOR PROVIDE US WITH ANY OTHER BASIS TO RECONSIDER THE PROTEST.