B-192588, JANUARY 25, 1979

B-192588, JANUARY 25, 1979

DIGEST: REQUEST FOR RECONSIDERATION IS UNTIMELY WHERE INITIAL FILING LACKS DETAILED STATEMENT OF FACTUAL AND LEGAL GROUNDS FOR REVERSAL OR MODIFICATION OF ORIGINAL DECISION AND SUPPLEMENTAL STATEMENT CONTAINING DETAILS ARE FILED AFTER EXPIRATION OF PERIOD PROVIDED FOR REQUESTING RECONSIDERATION.

AMDAHL CORPORATION-- RECONSIDERATION:

AMDAHL CORPORATION (AMDAHL) REQUESTS RECONSIDERATION OF OUR DECISION B-192588, DECEMBER 15, 1978, 78-2 CPD 417. IN THAT DECISION, WE DENIED AMDAHL'S PROTEST THAT PROVISIONS IN A DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSAL (RFP) GAVE THE INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) AN UNFAIR COMPETITIVE ADVANTAGE.

THE RFP ALLOWED THE AIR FORCE TO EVALUATE PURCHASE OPTION CREDITS AVAILABLE UNDER A LEASE PREVIOUSLY AWARDED TO IBM ON A SOLE SOURCE BASIS AND TO EVALUATE "SPECIAL PURCHASE OPTION CREDITS" ACCRUED UNDER THE GENERAL SERVICES ADMINISTRATION FY78 AUTOMATIC DATA PROCESSING SCHEDULE CONTRACT NEGOTIATED WITH IBM. THE DECISION CONCLUDED THAT CONSIDERATION OF THE PURCHASE OPTION CREDITS DID NOT CONFER AN UNFAIR COMPETITIVE ADVANTAGE ON IBM AND THAT EVALUATION OF THE SPECIAL PURCHASE OPTION CREDITS ALLOCATED TO THE AIR FORCE FOR THE SPECIFIC PROCUREMENT INVOLVED TO DETERMINE THE LOWEST COST SOURCE WAS NOT IMPROPER IN THE ABSENCE OF ALLEGATIONS AND EVIDENCE OF ANY ACTUAL ABUSE.

AMDAHL FILED ITS REQUEST FOR RECONSIDERATION 0N JANUARY 4, 1979. THE REQUEST STATED GENERALLY THAT FOUR OF THE CONCLUSIONS REACHED IN OUR EARLIER DECISION WERE BASED ON MISTAKES OF LAW AND FACT. AMDAHL'S REQUEST CONTAINED NO STATEMENTS OF FACT OR LAW IN SUPPORT OF ITS CONTENTIONS THAT MODIFICATION OF OUR EARLIER DECISION WAS WARRANTED; HOWEVER IT INDICATED THAT SUPPLEMENTAL COMMENTS WITH RESPECT TO ITS REQUEST FOR RECONSIDERATION WOULD BE FILED "WITHIN (5) DAYS." AMDAHL'S SUPPLEMENTAL COMMENTS WERE FILED IN OUR OFFICE ON JANUARY 12, 1979.

OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.9 (1978), PROVIDE THAT:

"(A) RECONSIDERATION OF A DECISION OF THE COMPTROLLER GENERAL MAY BE REQUESTED BY THE PROTESTER, ANY INTERESTED PARTY WHO SUBMITTED COMMENTS DURING CONSIDERATION OF THE PROTEST, AND ANY AGENCY INVOLVED IN THE PROTEST. THE REQUEST FOR RECONSIDERATION SHALL CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED, SPECIFYING ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED.

"(B) REQUEST FOR RECONSIDERATION OF A DECISION OF THE COMPTROLLER GENERAL SHALL BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR RECONSIDERATION IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER * * * ."

WE RECENTLY CONSIDERED A SIMILAR REQUEST FOR RECONSIDERATION WHICH CONTAINED NO STATEMENT OF THE FACTUAL OR LEGAL GROUNDS RELIED UPON AS THE BASIS FOR THE REQUEST. IN THAT CASE, DEPARTMENT OF COMMERCE, ET AL., 57 COMP.GEN.615 (1978), 78-2 CPD 84, WE STATED:

"PROTESTS AGAINST THE AWARD OF A GOVERNMENT CONTRACT ARE VERY SERIOUS MATTERS, WHICH DESERVE THE IMMEDIATE AND TIMELY ATTENTION OF THE (PARTIES) * * * . OUR BID PROTEST PROCEDURES ESTABLISH AN ORDERLY PROCESS TO INSURE EQUITABLE AND PROMPT RESOLUTION OF PROTESTS. * * * (TIMELINESS STANDARDS FOR THE FILING OF REQUESTS FOR RECONSIDERATION ARE PURPOSEFULLY MORE INFLEXIBLE THAN THOSE FOR FILING PROTESTS OR MEETING INTERMEDIATE CASE DEVELOPMENT OR PROCESSING DEADLINES AND, UNDER OUR PROCEDURES, THERE IS NO PROVISION FOR WAIVING THE TIME REQUIREMENTS APPLICABLE TO REQUESTS FOR RECONSIDERATION. * * *

"OBVIOUSLY, THE REQUIREMENT FOR A 'DETAILED STATEMENT' OF THE FACTUAL AND LEGAL GROUNDS FOR THE REVERSAL OR MODIFICATION IS THE SUM AND SUBSTANCE OF A REQUEST FOR RECONSIDERATION. * * *

"WHEN A PROTESTER, AN INTERESTED PARTY, OR A CONTRACTING AGENCY TIMELY FILES A SHORT NOTE INDICATING GENERAL DISAGREEMENT WITH AN EARLIER DECISION AND SUBSEQUENTLY PROVIDES THE REQUIRED DETAILED STATEMENT AFTER EXPIRATION OF THE RECONSIDERATION PERIOD, AN ATTEMPT TO EXTEND THE TIME FOR FILING THE RECONSIDERATION REQUEST IS EVIDENT. WE CANNOT CONDONE SUCH ACTION BECAUSE TO DO SO WOULD OPEN THE DOOR TO POTENTIAL PROTRACTED DELAYS

AMDAHL DOES NOT DISPUTE EITHER THAT ITS INITIAL REQUEST FOR RECONSIDERATION LACKED THE ESSENTIAL DETAILS REQUIRED BY OUR PROCEDURES OR THAT ITS SUPPLEMENTAL STATEMENT WAS FILED AFTER THE EXPIRATION OF THE PERIOD PROVIDED FOR PROPERLY REQUESTING RECONSIDERATION. UNDER THESE CIRCUMSTANCES, WE DECLINE TO RECONSIDER OUR EARLIER DECISION.