B-220032.2, JAN 2, 1986, 65 COMP.GEN. 184

B-220032.2, JAN 2, 1986, 65 COMP.GEN. 184

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - REQUEST FOR CONFERENCE - DENIED REQUEST FOR RECONSIDERATION BASED ON THE ALLEGATION THAT OUR OFFICE'S DENIAL OF A BID PROTEST CONFERENCE REQUEST RESULTED IN AN ERRONEOUS DECISION PREDICATED ON INADEQUATE FACTS IS DENIED WHERE THE REQUEST WAS SUBMITTED WITH THE PROTESTER'S COMMENTS ON THE AGENCY REPORT, MAKING THE SCHEDULING OF A CONFERENCE WITHIN 5 DAYS AFTER THE REPORT'S RECEIPT, IN ACCORDANCE WITH GENERAL ACCOUNTING OFFICE (GAO) BID PROTEST REGULATIONS, A PRACTICAL IMPOSSIBILITY, AND WHERE THE PROTESTER HAD FULL OPPORTUNITY TO PRESENT ITS POSITION IN WRITING. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED REQUEST FOR RECONSIDERATION OF THE BALANCE OF THE ORIGINAL PROTEST IS DENIED WHERE THE PROTESTER RAISES NO NEW FACTS OR LEGAL ARGUMENTS WHICH WERE NOT CONSIDERED DURING THE PENDENCY OF THE ORIGINAL PROTEST AND WHERE THE PROTESTER FAILS TO SHOW AN ERROR OF LAW OR FACT WITH REGARD TO THOSE ISSUES.

MATTER OF: H.L. CARPENTER COMPANY-- RECONSIDERATION, JAN. 2, 1986:

H.L. CARPENTER COMPANY (CARPENTER) REQUESTS RECONSIDERATION OF OUR DECISION IN H.L. CARPENTER CO., B-220032, NOV. 21, 1985, 85-2 CPD PARA. *** CARPENTER COMPLAINS THAT WE IMPROPERLY DENIED ITS REQUEST FOR A BID PROTEST CONFERENCE WHICH IT SUBMITTED IN ITS COMMENTS ON THE AGENCY REPORT, RESULTING IN THE EXCLUSION OF RELEVANT FACTS FROM CONSIDERATION IN OUR INITIAL DECISION. FURTHER, CARPENTER STATES THAT WE FAILED TO CONSIDER APPLICABLE FACTS AND LAW ON THE BALANCE OF ISSUES IN ITS PROTEST, RESULTING IN OUR DISMISSAL OF ONE OF ITS ISSUES AND OUR DENIAL OF THE REMAINDER. WE DENY THE REQUEST.

CARPENTER'S ORIGINAL PROTEST CONTAINED MANY ALLEGATIONS THAT THE ESTIMATED QUANTITIES, WORKLOAD REQUIREMENTS AND OTHER PROVISIONS OF A SOLICITATION, ISSUED BY THE DEPARTMENT OF THE ARMY FOR THE OPERATION OF FURNITURE REPAIR FACILITIES AT FORT BRAGG, NORTH CAROLINA, WERE VAGUE, AMBIGUOUS AND/OR MISLEADING. CARPENTER ALSO COMPLAINED THAT JOB DESCRIPTIONS IN THE SOLICITATION BORE LITTLE RESEMBLANCE TO THE CLASSIFICATION OF EMPLOYEES IN THE DEPARTMENT OF LABOR RATE WAGE DETERMINATION. AFTER A REVIEW OF THE ARMY'S REPORT AND CARPENTER'S COMMENTS, WE CONCLUDED THAT THE ARMY'S ASSESSMENT OF ITS MINIMUM NEEDS WAS REASONABLE AND THAT THE ARMY'S ESTIMATED WORKLOAD REQUIREMENTS WERE BASED ON THE BEST INFORMATION AVAILABLE AT THE TIME OF THE ISSUANCE OF THE SOLICITATION. WE ALSO STATED THAT OUR OFFICE DOES NOT REVIEW WAGE RATE DETERMINATIONS.

BY LETTER OF DECEMBER 12, 1985, CARPENTER COMPLAINS THAT WE VIOLATED OUR REGULATIONS BY DENYING AS UNTIMELY CARPENTER'S REQUEST FOR A BID PROTEST CONFERENCE, WHICH THE FIRM SUBMITTED WITH ITS COMMENTS ON THE ARMY'S REPORT. THE EFFECT OF THIS DENIAL, CARPENTER STATES, WAS TO EXCLUDE RELEVANT FACTS, WHICH RESULTED IN AN ERRONEOUS DECISION. CARPENTER ARGUES THAT BECAUSE IT SUBMITTED THE REQUEST WITHIN WHAT IT CONSIDERED 5 WORKING DAYS AFTER RECEIPT OF THE AGENCY REPORT, THE REQUEST FOR A CONFERENCE WAS TIMELY.

WE FIND NO MERIT IN CARPENTER'S POSITION, WHICH EVIDENCES CONFUSION AS TO THE DIFFERENCE BETWEEN OUR TIME LIMIT FOR SCHEDULING A CONFERENCE AND THE TIME FOR PROTESTERS TO REQUEST A CONFERENCE. AS WE ADVISED CARPENTER IN OUR OCTOBER 16 DENIAL OF ITS CONFERENCE REQUEST, CONFERENCES ARE HELD WITHIN 5 WORKING DAYS OF THE DATE THAT AGENCY REPORTS ARE RECEIVED. BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.5(B) (1985). THOUGH THE EXACT TIME FOR REQUESTING A CONFERENCE IS NOT STATED EXPRESSLY IN OUR REGULATIONS, OUR REGULATIONS DO STATE THAT CONFERENCE REQUESTS "SHOULD BE MADE AT THE EARLIEST POSSIBLE TIME IN THE PROTEST PROCEEDING." 4 C.F.R. SEC. 21.5(A). THIS LANGUAGE, WHEN READ IN CONJUNCTION WITH THE OTHER LANGUAGE IN THE SUBSECTION ON CONFERENCES, INDICATES THAT, AS A PRACTICAL MATTER, CONFERENCE REQUESTS MUST BE FILED PRIOR TO THE SUBMISSION OF COMMENTS ON THE AGENCY REPORT. REQUESTS FILED WITH COMMENTS, LIKE CARPENTER'S REQUEST, WOULD MAKE SCHEDULING CONFERENCES WITHIN THE REGULATION'S TIMEFRAME IMPOSSIBLE, DELAY THE RESOLUTION OF THE PROTEST, AND RUN AFOUL OF 4 C.F.R. SEC. 21.5(C), WHICH STATES THAT COMMENTS ON THE AGENCY REPORT WILL NOT BE CONSIDERED IF A CONFERENCE IS HELD.

IN ANY CASE, BID PROTESTS TO OUR OFFICE ULTIMATELY ARE DECIDED ON THE BASIS OF THE WRITTEN RECORD. SEE 4 C.F.R. SEC. 21.3. A CONFERENCE ONLY PROVIDES A FORUM FOR AN ORAL INTERCHANGE BETWEEN PARTIES, AND THIS INTERCHANGE DOES NOT BECOME PART OF THE RECORD UNLESS SUBMITTED IN WRITING WITHIN 5 DAYS OF THE CONFERENCE. SEE 4 C.F.R.SEC. 21.5(C), (E). CARPENTER HAD A CLEAR OPPORTUNITY TO SUBMIT ANY FACTS IT HAD REGARDING THIS SOLICITATION IN ITS PROTEST AND COMMENTS ON THE AGENCY REPORT. THUS, ANY OMISSION OF FACTS KNOWN AT THE TIME OF THE PROTEST WAS DUE TO CARPENTER'S FAILURE TO MAKE FULL USE OF THIS OPPORTUNITY, AND NOT FROM THE ABSENCE OF A CONFERENCE.

WITH REGARD TO THE BALANCE OF CARPENTER'S REQUEST, OUR REGULATIONS REQUIRE THAT A REQUEST FOR RECONSIDERATION CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS WARRANTED AND THAT IT SPECIFY ERRORS OF LAW MADE OR INFORMATION NOT CONSIDERED PREVIOUSLY. 4 C.F.R. SEC. 21.12(A). INFORMATION NOT CONSIDERED PREVIOUSLY REFERS TO INFORMATION THAT WAS OVERLOOKED BY OUR OFFICE OR INFORMATION TO WHICH THE PROTESTER DID NOT HAVE ACCESS WHEN THE INITIAL PROTEST WAS PENDING. TRITAN CORP.-- RECONSIDERATION, B-216994.2, FEB. 4, 1985, 85-1 CPD PARA. 136.

CARPENTER'S REQUEST MERELY RESTATES THE GROUNDS OF ITS INITIAL PROTEST, WHICH WE ADDRESSED IN OUR DECISION. FOR INSTANCE, CARPENTER SEEKS TO HAVE US CONSIDER ITS SAME ARGUMENTS WITH REGARD TO WORKLOAD REQUIREMENTS AND THE IDENTIFICATION OF SERVICE ITEMS AND ORDERING OFFICES. OUR OFFICE, HOWEVER, WILL NOT RECONSIDER A DECISION, BASED ON THE PROTESTER'S REITERATION OF ARGUMENTS ALREADY ADDRESSED. SEE TRITAN CORP.-- RECONSIDERATION, B-216994.2, SUPRA; GINTER WELDING INC.-- RECONSIDERATION, B-218894.2, JULY 16, 1985, 85-2 CPD PARA. 54.

THE REQUEST FOR RECONSIDERATION IS DENIED.