B-213059.2, JUL 9, 1984, 84-2 CPD 21

B-213059.2, JUL 9, 1984, 84-2 CPD 21

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE THE PROTESTER HAS NOT SHOWN ANY ERROR OF FACT OR LAW WHICH WOULD WARRANT REVERSAL OF THE DECISION.

INTERCOMP COMPANY-- RECONSIDERATION:

INTERCOMP COMPANY REQUESTS RECONSIDERATION OF OUR DECISION, INTERCOMP COMPANY, B-213059, MAY 22, 1984, 84-1 CPD PARA. 540, DENYING ITS PROTEST AGAINST THE DEPARTMENT OF THE NAVY'S CANCELLATION OF A SOLICITATION FOR PORTABLE AIRCRAFT WEIGHING SCALES. WE HELD THAT, EVEN THOUGH THE SMALL BUSINESS ADMINISTRATION HAD ISSUED INTERCOMP A CERTIFICATE OF COMPETENCY TO PERFORM THE CONTRACT, THE CONTRACTING AGENCY PROPERLY CANCELED THE SOLICITATION BECAUSE THE SPECIFICATIONS DID NOT ADEQUATELY DESCRIBE THE AGENCY'S NEEDS.

IN REQUESTING RECONSIDERATION, THE PROTESTER, WHO SUBMITTED THE LOWEST PRICE IN RESPONSE TO THE SOLICITATION, BASICALLY REPEATS ITS ORIGINAL CONTENTION THAT THE DEFECTS IN THE SPECIFICATIONS WERE MINOR AND DID NOT PROVIDE A PROPER BASIS FOR CANCELLATION. INTERCOMP ALSO POSES TWO ADDITIONAL BASES FOR RECONSIDERATION. THE FIRST IS THAT THE NAVY, IN RESPONDING TO THE PROTESTER'S SUBMISSIONS, FAILED TO FILE ITS COMMENTS WITHIN THE TIME LIMITATIONS PRESCRIBED BY OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 21 (1984). THE SECOND BASIS IS THAT IN FINDING REASONABLE THE NAVY'S POSITION THAT THE SOLICITATION'S SPECIFICATIONS WERE MATERIALLY DEFECTIVE, WE FAILED TO ADDRESS THE AGENCY'S ALLEGED WILLINGNESS TO MAKE AWARD TO ANOTHER BIDDER UNDER THE ORIGINAL SOLICITATION ANYWAY.

WE AFFIRM OUR PRIOR DECISION.

OUR OFFICE WILL NOT REVERSE OR MODIFY A DECISION UNLESS A PROTESTER'S REQUEST FOR RECONSIDERATION SPECIFIES INFORMATION NOT PREVIOUSLY CONSIDERED OR SHOWS THAT ERRORS OF LAW EXIST IN THE DECISION. 4 C.F.R. SEC. 21.9(A). INTERCOMP'S REARGUMENT OF THE SAME POINTS WE CONSIDERED IN CONNECTION WITH THE ORIGINAL PROTEST DOES NOT MEET THIS BURDEN. SEE CULP/WESNER/CULP-- RECONSIDERATION, B-212318.2, MARCH 26, 1984, 84-1 CPD PARA. 346.

REGARDING THE TIMELINESS OF THE NAVY'S COMMENTS, WE HAVE HELD THAT UNDER OUR CURRENT PROCEDURES THE LATE RECEIPT OF A CONTRACTING AGENCY'S COMMENTS OR SUPPLEMENTAL SUBMISSIONS DOES NOT PROVIDE A BASIS TO DISREGARD THE SUBSTANTIVE INFORMATION THEREIN, SYSTEMS CONSULTANTS, INC., B-187745, AUG. 29, 1977, 77-2 CPD PARA. 153, OR TO SUSTAIN A PROTEST ON THE BASIS OF AN INADEQUATE RECORD. SEE C. R. HIPP, INC., B-212093, OCT. 4, 1983, 83-2 CPD PARA. 418.

AS TO INTERCOMP'S FINAL BASIS FOR RECONSIDERATION, WE POINTED OUT IN OUR DECISION THAT THE NAVY'S PROJECT ENGINEER ADVOCATED MAKING AN AWARD TO THE THIRD LOW BIDDER NOTWITHSTANDING THE DEFICIENT SPECIFICATIONS, BASED ON THAT FIRM'S PREVIOUSLY HAVING SUPPLIED ACCEPTABLE SCALES. THE PROJECT ENGINEER EXPLAINED HIS POSITION IN A LETTER TO THE PURCHASING ACTIVITY DATED SEPTEMBER 29, 1983, AS FOLLOWS:

"THE SUBJECT WEIGHING SYSTEMS WERE ... URGENTLY NEEDED BECAUSE OF THE RAPIDLY DECLINING CONDITION OF EXISTING SCALES, PLUS A RECENT MAJOR INCREASE IN THE REQUIRED NUMBER OF AIRCRAFT WEIGHINGS. ... AWARE OF THE URGENT NEED FOR DELIVERY AND KNOWING THAT NEGATIVE PREAWARDS HAD BEEN RECOMMENDED I DID NOT RECOMMEND CANCELING THE SOLICITATION ON THE NAIVE ASSUMPTION OF A TECHNICAL EVALUATOR THAT AWARD WOULD BE MADE TO THE THIRD LOW BIDDER AND THIS WOULD BE THE LEAST TIME-CONSUMING WAY TO PROCEED. KNEW THERE WERE SEVERAL EXISTING WEIGHING SYSTEMS, INCLUDING SOME IN OUR PRESENT INVENTORY, AND BID BY THE THIRD LOW BIDDER WHICH COULD MEET OUR REQUIREMENTS.

... HAD WE KNOWN AT THE TIME THAT A NEGATIVE ... PREAWARD SURVEY MAY NOT PRECLUDE AWARD, WE WOULD HAVE RECOMMENDED CANCELLATION AT THAT TIME."

THUS, BY THE PROJECT ENGINEER'S OWN ADMISSION, HIS BELIEF THAT AN AWARD COULD BE MADE UNDER THE ORIGINAL SOLICITATION TO THE THIRD LOW BIDDER BECAUSE THAT FIRM PRESUMABLY WAS OFFERING ACCEPTABLE SCALES ANYWAY, WAS "NAIVE." WE ALSO NOTE THE PROJECT ENGINEER ONLY SERVED AS A TECHNICAL REPRESENTATIVE ON THE PREAWARD SURVEY TEAM. THE PROJECT ENGINEER'S INITIAL OPINION SIMPLY DOES NOT ESTABLISH THAT AWARD TO INTERCOMP BASED ON A BID RESPONSE TO DEFECTIVE SPECIFICATIONS WOULD HAVE BEEN PROPER. /1/

THE PRIOR DECISION IS AFFIRMED.

/1/ WE DID CRITICIZE THE PROCUREMENT OFFICIALS, HOWEVER, FOR NOT CANCELING THE SOLICITATION PROMPTLY, AND INSTEAD INDUCING INTERCOMP TO GO THROUGH THE CERTIFICATE OF COMPETENCY PROCESS ONLY TO HAVE ITS BID REJECTED AFTER BEING CERTIFIED RESPONSIBLE.