B-223052, JUL 22, 1986, 86-2 CPD 95

B-223052, JUL 22, 1986, 86-2 CPD 95

CONTRACTS - PROTESTS - CONFLICT IN STATEMENTS OF PROTESTER AND CONTRACTING AGENCY DIGEST: GAO CANNOT CONCLUDE THAT PROTESTER WAS UNFAIRLY EXCLUDED FROM BIDDING WHERE THE ONLY EVIDENCE REGARDING ALLEGED ERRONEOUS ORAL ADVICE THAT BID OPENING HAD BEEN POSTPONED CONSISTS OF CONFLICTING STATEMENTS BY THE PROTESTER AND THE CONTRACTING AGENCY.

SERGENT MECHANICAL SYSTEMS:

SERGENT MECHANICAL SYSTEMS PROTESTS THAT IT WAS UNFAIRLY EXCLUDED FROM BIDDING UNDER INVITATION FOR BIDS (IFB) NO. N62474-86-B-1048 FOR THE SERVICING AND MAINTENANCE OF THE JET ENGINE AIRSTART SYSTEMS AT THE NAVAL AIR STATION, POINT MUGU, CALIFORNIA.

WE DENY THE PROTEST.

SERGENT STATES THAT ON MAY 2, 1986, THE NAVY TELEPHONED SERGENT AND ADVISED IT THAT THE BID OPENING, SCHEDULED FOR MAY 6, WAS POSTPONED UNTIL FURTHER NOTICE. AS A RESULT, SERGENT DID NOT SUBMIT A BID, AND SUBSEQUENTLY LEARNED THAT BID OPENING OCCURRED AS ORIGINALLY SCHEDULED. THE AGENCY, HOWEVER, EXPLAINS THAT IT MAILED SERGENT TWO DIFFERENT SOLICITATIONS WITH OPENING DATES OF MAY 6: THE SUBJECT IFB, AND IFB NO. N62474-86-B-1028 FOR THE INSTALLATION OF A SAFETY EXIT DOOR. ACCORDING TO THE NAVY, ITS REPRESENTATIVE ADVISED SERGENT THAT THE LATTER SOLICITATION, WHICH THE REPRESENTATIVE ALLEGEDLY IDENTIFIED BY ITS NUMBER, HAD BEEN POSTPONED. THE NAVY ASSERTS THAT THE IFB FOR THE JET ENGINE AIRSTART SYSTEMS WAS NOT MENTIONED DURING THE CONVERSATION.

THE PROTESTER HAS THE BURDEN OF PROVING ITS VERSION OF THE FACTS, AND FAILS TO MEET THAT BURDEN WHERE THE ONLY EVIDENCE CONSISTS OF CONFLICTING STATEMENTS BY THE PROTESTER AND THE AGENCY. SEE SHAW FOOD SVCS. CO., B-219415.2, SEPT. 23, 1985, 85-2 CPD PARA. 320. SINCE SUCH CONFLICTING STATEMENTS COMPROMISE THE ONLY EVIDENCE OF WHAT THE NAVY TOLD SERGENT, WE CANNOT CONCLUDE THAT SERGENT WAS MISADVISED ABOUT THE POSTPONEMENT OF BID OPENING.

THE PROTESTER'S CONTENTION THAT IT WAS EXCLUDED UNFAIRLY FROM BIDDING THEREFORE IS DENIED.