B-218273.3, B-218273.4, JUN 3, 1985, 85-1 CPD 632

B-218273.3,B-218273.4: Jun 3, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: REQUEST FOR RECONSIDERATION IS DENIED WHERE THE PROTESTER'S REQUEST IS BASED UPON A NEW ARGUMENT WHICH IT COULD HAVE PRESENTED FOR OUR INITIAL CONSIDERATION. WE DENIED SECOND GROWTH'S CONTENTION THAT A CLAUSE INCORPORATED INTO TWO INVITATIONS FOR BIDS TO COMPENSATE CONTRACTORS FOR THE EXTRA COST OF PLANTING SEEDLINGS WITH ROOTS LONGER THAN SPECIFIED IN THE PLANTING DATA SHEETS IS UNDULY RESTRICTIVE OF COMPETITION BECAUSE IT ELIMINATES THE BIDDERS' ABILITY TO ACCURATELY ASSESS RISK AND COST. WE STATED THAT IT IS A BIDDER'S RESPONSIBILITY TO PROJECT COSTS AND INCLUDE IN THE BASIC BID PRICE A FACTOR COVERING ANY OTHERWISE UNCOMPENSATED COST INCREASES.

B-218273.3, B-218273.4, JUN 3, 1985, 85-1 CPD 632

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: REQUEST FOR RECONSIDERATION IS DENIED WHERE THE PROTESTER'S REQUEST IS BASED UPON A NEW ARGUMENT WHICH IT COULD HAVE PRESENTED FOR OUR INITIAL CONSIDERATION, BUT FAILED TO DO SO.

SECOND GROWTH FOREST MANAGEMENT, INC.-- RECONSIDERATION:

SECOND GROWTH FOREST MANAGEMENT, INC. (SECOND GROWTH), REQUESTS RECONSIDERATION OF OUR DECISION IN SECOND GROWTH FOREST MANAGEMENT, INC., B-218273, ET AL., APR. 10, 1985, 85-1 CPD PARA. 410.

WE DENY SECOND GROWTH'S REQUEST.

IN THAT DECISION, WE DENIED SECOND GROWTH'S CONTENTION THAT A CLAUSE INCORPORATED INTO TWO INVITATIONS FOR BIDS TO COMPENSATE CONTRACTORS FOR THE EXTRA COST OF PLANTING SEEDLINGS WITH ROOTS LONGER THAN SPECIFIED IN THE PLANTING DATA SHEETS IS UNDULY RESTRICTIVE OF COMPETITION BECAUSE IT ELIMINATES THE BIDDERS' ABILITY TO ACCURATELY ASSESS RISK AND COST. CONCLUDED THAT THE PROVISION COMPLAINED OF AFFECTED ALL BIDDERS EQUALLY AND DID NOT PREVENT THE AGENCY FROM RECEIVING ADEQUATE COMPETITION AT FAIR PRICES. MOREOVER, WE STATED THAT IT IS A BIDDER'S RESPONSIBILITY TO PROJECT COSTS AND INCLUDE IN THE BASIC BID PRICE A FACTOR COVERING ANY OTHERWISE UNCOMPENSATED COST INCREASES, AND THAT IT IS WITHIN THE AMBIT OF ADMINISTRATIVE DISCRETION TO OFFER TO COMPETITION A PROPOSED CONTRACT IMPOSING MAXIMUM RISKS UPON THE CONTRACTOR AND MINIMUM ADMINISTRATIVE BURDENS ON THE AGENCY. AMERICAN TRANSPARENTS PLASTIC CORP., B-210898, NOV. 8, 1983, 83-2 CPD PARA. 539.

SECOND GROWTH'S REQUEST FOR RECONSIDERATION RAISES FOR THE FIRST TIME THE ARGUMENT THAT THE PROVISION COMPLAINED OF "VIOLATES THE PRINCIPLE OF QUANTUM MERUIT, BY ALLOWING THE GOVERNMENT TO RECEIVE A BENEFIT WITHOUT COMPENSATING THE CONTRACTOR FOR PROVIDING THE BENEFIT." WE WILL NOT CONSIDER THIS NEWLY PRESENTED ARGUMENT. OUR REGULATIONS DO NOT PERMIT PIECEMEAL PRESENTATION OF ARGUMENTS TO OUR OFFICE AND WE HAVE HELD THAT PARTIES THAT FAIL TO PRESENT ALL CONTENTIONS FOR OUR INITIAL CONSIDERATION DO SO AT THEIR OWN PERIL. GRIFFIN-SPACE SERVICES-- RECONSIDERATION, 64 COMP.GEN. 64 (1984), 84-2 CPD PARA. 528.

WE POINT OUT THAT THE PRINCIPLE OF QUANTUM MERUIT IS USED TO ALLOW PAYMENT IN APPROPRIATE CIRCUMSTANCES WHERE WORK IS PERFORMED FOR THE GOVERNMENT IN THE ABSENCE OF A FORMALLY EXECUTED AND PROPER CONTRACT; THEREFORE, SECOND GROWTH'S ARGUMENT WOULD NOT BE APPLICABLE UNDER THE CIRCUMSTANCES HERE. SEE, E.G., HONEYWELL, INC., B-209173, JAN. 17, 1983, 83-1 CPD PARA. 47.

THE REQUEST FOR RECONSIDERATION IS DENIED.