B-216438.2, NOV 6, 1984, 84-2 CPD 506

B-216438.2, NOV 6, 1984, 84-2 CPD 506

CONTRACTS - PROTESTS - GENERAL ACCOUNTING - OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: REQUEST FOR RECONSIDERATION THAT BASICALLY ONLY REITERATES PREVIOUSLY- REJECTED ARGUMENTS DOES NOT WARRANT REVERSAL OR MODIFICATION OF THE PRIOR DECISION.

AT&T INFORMATION SYSTEMS, INC.-- RECONSIDERATION:

AT&T INFORMATION SYSTEMS, INC. REQUESTS RECONSIDERATION OF OUR DECISION DISMISSING AS UNTIMELY ITS PROTEST UNDER THE DEPARTMENT OF THE NAVY'S SOLICITATION NO. N62474-84-B-4539. AT&T INFORMATION SYSTEMS, INC., B-216438, SEPT. 24, 1984, 84-2 CPD PARA. 347.

AT&T HAD PROTESTED THE NAVY'S USE OF FORMAL ADVERTISING INSTEAD OF NEGOTIATED PROCUREMENT PROCEDURES. WE FOUND THE PROTEST UNTIMELY BECAUSE IT WAS FILED AFTER BID OPENING WHEREAS OUR BID PROTEST PROCEDURES REQUIRE THAT A PROTEST BASED ON AN ALLEGED SOLICITATION IMPROPRIETY APPARENT PRIOR TO THE BID OPENING DATE BE FILED BEFORE THAT DATE. 4 C.F.R. SEC. 21.2(B)(1) (1984). THE PROTESTER URGED THAT WE NEVERTHELESS CONSIDER THE MATTER UNDER THE EXCEPTION TO OUR TIMELINESS RULES SIGNIFICANT ISSUES, SEE 4 C.F.R. SEC. 21.2(C), PRINCIPALLY BECAUSE THE PROTESTER ANTICIPATED THE RECURRENCE OF THIS ISSUE IN SIMILAR PROCUREMENTS.

WE AFFIRM OUR PRIOR DECISION.

OUR PRIOR DECISION EXPLAINED THAT WE WILL REVIEW AN UNTIMELY PROTEST UNDER THE SIGNIFICANT ISSUE EXCEPTION ONLY WHERE IT INVOLVES AN ISSUE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY THAT WE HAD NOT ALREADY CONSIDERED. WE EXPRESSED OUR VIEW THAT THE PROTEST DID NOT INVOLVE SUCH AN ISSUE, AND THAT AT&T, WHICH HAD ACQUIESCED IN THE PROCUREMENT METHOD AND PROTESTED ONLY AFTER FINDING IT WAS NOT GOING TO WIN THE COMPETITION, SHOULD NOT BE ABLE TO INVOKE THIS EXCEPTION SIMPLY BECAUSE IT EXPECTED TO RAISE THE SAME ISSUE IN OTHER PROCUREMENTS.

AT&T'S RECONSIDERATION REQUEST REPEATS THE PROTESTER'S PREVIOUS ARGUMENTS FOR OUR INVOKING THE SIGNIFICANT ISSUE EXCEPTION, ALTHOUGH THIS TIME AT&T DESCRIBES THE SPECIFICATIONS IT BELIEVES ARE OBSTACLES TO AN ADVERTISED PROCUREMENT. THE FIRM FURTHER ASSERTS THAT THE ORIGINAL PROTEST DID NOT CONCERN THE METHOD OF PROCUREMENT, BUT WHETHER THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO ASSURE BOTH COMPETITION ON A COMMON BASIS AND THAT ACCEPTANCE OF THE LOW BID WILL MEET THE GOVERNMENT'S MINIMUM NEEDS.

TO THE EXTENT THAT AT&T'S RECONSIDERATION REQUEST REITERATES, ALBEIT IN MORE DETAIL, ARGUMENTS PREVIOUSLY REJECTED IN OUR PRIOR DECISION, WE ALREADY HAVE REVIEWED THOSE ARGUMENTS AND FOUND THAT THEY DID NOT WARRANT INVOKING THE SIGNIFICANT ISSUE EXCEPTION IN THESE CIRCUMSTANCES, AND WE SEE NO BASIS TO CHANGE OUR VIEW NOW. THE REITERATION OF A PREVIOUSLY- REJECTED POSITION DOES NOT WARRANT THE REVERSAL OR MODIFICATION OF A PRIOR DECISION. SEE 4 C.F.R. SEC. 21.9; ADAMS-KEHELER, INC.-- REQUEST FOR RECONSIDERATION, B-213452.2, APR. 18, 1984, 84-1 CPD PARA. 442.

MOREOVER, THERE IS LITTLE PRACTICAL DIFFERENCE BETWEEN AT&T'S INITIAL POSITION THAT THE GOVERNMENT'S SPECIFICATIONS WERE TOO INDEFINITE FOR AN ADVERTISED PROCUREMENT AND AT&T'S RECHARACTERIZATION OF THE ISSUE AS WHETHER THERE EXISTED A COMMON BASIS FOR PRICE COMPETITION AND WHETHER THE NAVY'S MINIMUM NEEDS WILL BE MET. CLEARLY, THE ISSUE AS NOW DEFINED IS RAISED INHERENTLY IN A PROTEST THAT THE GOVERNMENT'S SPECIFICATIONS ARE INADEQUATE FOR FORMAL ADVERTISING. AT&T'S CURRENT APPROACH THUS PROVIDES NO BASIS FOR ALTERING OUR VIEW.

THE PRIOR DECISION IS AFFIRMED.