B-218365.2, MAY 9, 1985, 85-1 CPD 517

B-218365.2: May 9, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: RECONSIDERATION IS DENIED WHERE PRIOR DISMISSAL RESULTED FROM THE APPARENT UNTIMELINESS OF THE ORIGINAL PROTEST AND THE REQUEST FOR RECONSIDERATION DOES NOT ADDRESS IN DETAIL THE TIMELINESS OF THE PROTEST. WE DISMISSED DOUGLASS' PROTEST AFTER THE PROTESTER WAS ASKED TO SHOW THAT ITS PROTEST WAS TIMELY BUT FAILED TO DO SO. THE REQUEST FOR RECONSIDERATION IS DENIED. THE AIR FORCE REPORTED TO OUR OFFICE THAT THE AWARDS DOUGLASS APPEARED TO BE PROTESTING WERE MADE IN JUNE 1984. THE TIMELINESS OF DOUGLASS' PROTEST WAS QUESTIONED AND THE AIR FORCE CONFIRMED THAT THE ONLY AWARDS MADE UNDER THE RFP WERE MADE IN JUNE 1984.

B-218365.2, MAY 9, 1985, 85-1 CPD 517

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: RECONSIDERATION IS DENIED WHERE PRIOR DISMISSAL RESULTED FROM THE APPARENT UNTIMELINESS OF THE ORIGINAL PROTEST AND THE REQUEST FOR RECONSIDERATION DOES NOT ADDRESS IN DETAIL THE TIMELINESS OF THE PROTEST. A REQUEST FOR RECONSIDERATION MUST PROVIDE A DETAILED STATEMENT OF THE FACTUAL AND LEGAL BASIS WARRANTING REVERSAL OF A PRIOR DECISION.

DOUGLASS INDUSTRIES, INC.-- RECONSIDERATION:

DOUGLASS INDUSTRIES, INC. REQUESTS RECONSIDERATION OF OUR LETTER DATED APRIL 10, 1985, IN WHICH WE DISMISSED ITS PROTEST CONCERNING ALLEGEDLY IMPROPER AWARDS MADE BY THE AIR FORCE FOR CARPET UNDER REQUEST FOR PROPOSALS (RFP) NO. F61546-84-R-0183. WE DISMISSED DOUGLASS' PROTEST AFTER THE PROTESTER WAS ASKED TO SHOW THAT ITS PROTEST WAS TIMELY BUT FAILED TO DO SO. THE REQUEST FOR RECONSIDERATION IS DENIED.

DOUGLASS FILED ITS ORIGINAL PROTEST WITH OUR OFFICE ON MARCH 20, AT WHICH TIME DOUGLASS COMPLAINED OF VARIOUS ALLEGED DEFECTS IN THE AWARDEE'S OFFERS AND CARPET SAMPLES. BY LETTER OF MARCH 27, THE AIR FORCE REPORTED TO OUR OFFICE THAT THE AWARDS DOUGLASS APPEARED TO BE PROTESTING WERE MADE IN JUNE 1984. ON APRIL 1, WE ADVISED DOUGLASS THAT ITS PROTEST WOULD BE DISCUSSED AT THE APRIL 2 CONFERENCE THAT HAD BEEN PREVIOUSLY SCHEDULED IN CONNECTION WITH A RELATED PROTEST FILED BY HUGO AUCHTER GMBH (B-217400.1).

AT THAT CONFERENCE, THE TIMELINESS OF DOUGLASS' PROTEST WAS QUESTIONED AND THE AIR FORCE CONFIRMED THAT THE ONLY AWARDS MADE UNDER THE RFP WERE MADE IN JUNE 1984. DOUGLASS' DILIGENCE IN PURSUING INFORMATION IN SUPPORT OF ITS PROTEST WAS CHALLENGED AND DOUGLASS WAS ADVISED THAT ITS PROTEST WOULD BE DISMISSED UNLESS IT COULD SHOW WHY THE PROTEST WAS TIMELY. DOUGLASS AGREED TO ADVISE OUR OFFICE OF ITS POSITION BY APRIL 3.

ON THAT DATE, DOUGLASS INFORMED OUR OFFICE THAT IT WOULD PARTIALLY WITHDRAW ITS PROTEST AND WOULD PROVIDE FURTHER DETAILS IN A LETTER WHICH WE UNDERSTOOD WAS TO BE SENT ON APRIL 4. WE RECEIVED NO LETTER FROM DOUGLASS AND ON APRIL 10, WE DISMISSED THE PROTEST.

MUCH OF DOUGLASS' REQUEST FOR RECONSIDERATION DEALS WITH PROCEDURAL CONSIDERATIONS. ACCORDING TO DOUGLASS, ITS PROTEST SHOULD NOT HAVE BEEN DISMISSED WITHOUT FULL DEVELOPMENT. POINTING OUT THAT NO PARTY REQUESTED A CONFERENCE IN CONNECTION WITH ITS PROTEST, DOUGLASS SAYS THE TIMELINESS OF ITS PROTEST SHOULD NOT HAVE BEEN DECIDED ON THE BASIS OF STATEMENTS MADE AT THE CONFERENCE. DOUGLASS CONTENDS THAT THERE WAS A MISUNDERSTANDING CONCERNING ITS INTENTIONS AND THAT IT PLANNED TO FURTHER PURSUE ITS PROTEST ON APRIL 15, WHEN IT WAS REQUIRED TO SUBMIT COMMENTS ON THE CONFERENCE IN THE HUGO AUCHTER PROTEST.

DOUGLASS ADDRESSES THE TIMELINESS OF ITS PROTEST ONLY BRIEFLY. ACCORDING TO DOUGLASS, IT DID NOT KNOW OF THE DEFECTS IN OTHER FIRMS' PROPOSALS UNTIL IT HAPPENED TO SEE CARPET SAMPLES FROM THOSE FIRMS WHILE VISITING AN AIR FORCE FIELD ACTIVITY PRIOR TO FILING ITS PROTEST. DOUGLASS MAINTAINS THAT IT DID NOT KNOW AND COULD NOT HAVE KNOWN OF THE ALLEGEDLY IMPROPER AWARDS PRIOR TO THAT TIME. DOUGLASS DOES NOT EXPLAIN WHY THIS IS SO OR WHY, IN PARTICULAR, IT COULD NOT HAVE OBTAINED INFORMATION EARLIER HAD IT ATTEMPTED TO DO SO.

INITIALLY, WE NOTE THAT OUR OFFICE IS EXPRESSLY AUTHORIZED TO DISMISS PROTESTS THAT WE FIND FRIVOLOUS. COMPETITION IN CONTRACTING ACT OF 1984, PUB. L. NO 98-369, 98 STAT. 1175 (1984) ENACTING 31 U.S.C. SEC. 3554(A)(3).

FURTHER, THE REGULATIONS REQUIRE THAT A PARTY REQUESTING RECONSIDERATION PROVIDE A DETAILED STATEMENT CONCERNING A MATERIAL ERROR OF LAW, OR INFORMATION NOT PREVIOUSLY CONSIDERED, WHICH WARRANTS REVERSAL OF OUR PRIOR DECISION. 4 C.F.R. SEC. 21.12(A).

AS DOUGLASS WAS INFORMED AT THE CONFERENCE, OUR REGULATIONS ALSO REQUIRE THAT A PROTEST BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 C.F.R. SEC. 21.2(A)(2). WHILE THIS RULE DOES NOT REQUIRE A PROTEST TO BE FILED WITHIN 10 WORKING DAYS AFTER AWARD IF THE BASIS OF PROTEST IS NOT THEN KNOWN, IT IS INCUMBENT UPON THE POTENTIAL PROTESTER IN SUCH CIRCUMSTANCES TO DILIGENTLY SEEK WHATEVER INFORMATION IS NEEDED TO DETERMINE WHETHER A BASIS FOR PROTEST EXISTS. POLICY RESEARCH INC., B-200386, MAR. 5, 1981, 81-1 CPD PARA. 172. POTENTIAL PROTESTER MAY NOT SIT IDLY BY AND, AFTER ALLOWING SOME SIGNIFICANT PERIOD OF TIME TO PASS, BASE A PROTEST ON INFORMATION IT DISCOVERS WHEN THAT INFORMATION COULD HAVE BEEN OBTAINED EARLIER. PROTESTER'S FAILURE TO PURSUE THE MATTER DILIGENTLY BY SEEKING NECESSARY INFORMATION WITHIN A REASONABLE TIME WILL RESULT IN DISMISSAL OF THE PROTEST AS UNTIMELY. FOWLER'S REFRIGERATION AND APPLIANCE, INC., B-201389, MAR. 25, 1981, 81-1 CPD PARA. 223.

THE RECORD BEFORE US AT THE TIME OF OUR ORIGINAL DECISION CONTAINED NO EVIDENCE THAT DOUGLASS HAD MADE ANY EFFORT TO DETERMINE WHETHER THE JUNE 1984 AWARDS WERE PROPER. DOUGLASS' ASSERTION IN ITS REQUEST FOR RECONSIDERATION THAT IT COULD NOT HAVE KNOWN OF THE ALLEGEDLY IMPROPER AWARDS ADDS NOTHING TO THE RECORD IN THIS REGARD SINCE DOUGLASS HAS NOT EXPLAINED WHAT, IF ANYTHING, IT DID TO PURSUE ITS PROTEST FOR 8 MONTHS BY, FOR EXAMPLE, SEEKING INFORMATION ON THE MATTER THROUGH THE FREEDOM OF INFORMATION ACT. SEE, E.G., TRACOR JITCO INC., B-208476, JAN. 31, 1983, 83-1 CPD PARA. 98. SINCE DOUGLASS HAS NOT PROVIDED DETAILED INFORMATION INDICATING THAT ITS ORIGINAL PROTEST WAS TIMELY, IT HAS NOT STATED A BASIS FOR RECONSIDERATION.

THE REQUEST FOR RECONSIDERATION IS DENIED.