B-214578.3, OCT 29, 1984, OFFICE OF GENERAL COUNSEL

B-214578.3, OCT 29, 1984, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - COURT INTEREST EXCEPTION DIGEST: GAO WILL RECONSIDER BID PROTEST DECISION, ISSUED AT THE REQUEST OF A COURT UPON THE COURT'S REQUEST THAT IT DO SO WITHOUT REGARD TO THE 10 DAY PERIOD ALLOWED FOR REQUESTING RECONSIDERATION IN SECTION 21.9 OF GAO'S BID PROTEST PROCEDURES.

ROBERT W. HUTCHINSON, P.C. SUITE 1115, WRITERS' FIVE 1873 SOUTH BELLAIRE STREET DENVER, COLORADO 80222

DEAR MR. HUTCHINSON:

I HAVE YOUR LETTER OF AUGUST 27, 1984, CONCERNING OUR DECISION B-214578.2, AUG. 24, 1984, IN WHICH WE DISMISSED YOUR REQUEST ON BEHALF OF INVENTIVE PACKAGING CORPORATION THAT WE RECONSIDER OUR PRIOR DECISION RENDERED IN RESPONSE TO AN EXPRESSION OF INTEREST BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO.

YOU FIRST SUGGEST THAT IN DECLINING TO RECONSIDER OUR INITIAL DECISION, WE IGNORED THE COURT'S EXPRESSION OF INTEREST. AS YOU KNOW, IT IS OUR POLICY NOT TO DECIDE MATTERS WHERE THE ISSUES ARE BEFORE A COURT OF COMPETENT JURISDICTION UNLESS THE COURT EXPRESSES AN INTEREST IN OUR OFFICE'S DECISION. 4 C.F.R. SEC. 21.10 (1984). YOU REFERRED TO THIS POLICY IN YOUR PLEADINGS BEFORE THE COURT, AND IT WAS UPON THE BASIS OF THE COURT'S REQUEST THAT WE ISSUED A DECISION ON THE MERITS. ONCE WE FURNISHED THAT DECISION TO THE COURT OUR INVOLVEMENT IN THE MATTER WAS OVER UNLESS THE COURT REQUESTED THAT WE RECONSIDER THE DECISION. ALTHOUGH WE RECEIVED YOUR REQUEST THAT WE DO SO, WE DID NOT RECEIVE A REQUEST FOR RECONSIDERATION FROM THE COURT.

YOU STATE THAT UNDER OUR BID PROTEST PROCEDURES THE COURT WAS PERMITTED AN "ABSURDLY" SHORT TIME TO REQUEST RECONSIDERATION. SECTION 21.9 OF OUR BID PROTEST PROCEDURES REQUIRES REQUESTS FOR RECONSIDERATION TO BE FILED WITH OUR OFFICE WITHIN 10 WORKING DAYS - APPROXIMATELY 14 CALENDAR DAYS - OF WHEN THE REQUESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR RECONSIDERATION. THESE PROCEDURES DO NOT RESTRICT WHAT WE WILL DO IN RESPONSE TO A REQUEST FROM A COURT OF COMPETENT JURISDICTION. JUST AS WE WILL HONOR A COURT'S REQUEST FOR A DECISION REGARDLESS OF WHETHER THE TIMELINESS RULES OF 4 C.F.R. SEC. 21.2 HAVE BEEN MET, SEE, E.G., CONTROL DATA CORP., 55 COMP.GEN. 1019 (1976), 76-1 CPD PARA. 276, SO WOULD WE HONOR A RECONSIDERATION REQUEST FROM A COURT REGARDLESS OF WHETHER THE 10- DAY PERIOD DESCRIBED IN SECTION 21.9 IS MET.

WE NOTE THAT MORE THAN TWO MONTHS HAVE ELAPSED SINCE OUR INITIAL DECISION WAS RENDERED AND WE HAVE YET TO RECEIVE ANY COMMUNICATION FROM THE COURT. MOREOVER, WE UNDERSTAND THAT THE COURT HAS DISSOLVED THE TEMPORARY RESTRAINING ORDER (PERMITTING THE VETERANS ADMINISTRATION TO PROCEED WITH THE PROCUREMENT), HAS TAKEN EVIDENCE AT A HEARING AND HAS SCHEDULED A PRE- TRIAL CONFERENCE FOR MID-DECEMBER. FROM THIS, WE WOULD GATHER THAT THE COURT HAS DECIDED TO RESOLVE THE CASE WITHOUT ANY ADDITIONAL INVOLVEMENT BY OUR OFFICE.

I AM PROVIDING TO THE VETERANS ADMINISTRATION A COPY OF YOUR LETTER OF AUGUST 27, AND OF THIS RESPONSE.