B-218414.2, MAY 14, 1985, 85-1 CPD 542

B-218414.2: May 14, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DISMISSAL OF A PROTEST FOR FAILURE TO STATE A VALID BASIS FOR A PROTEST IS AFFIRMED ON RECONSIDERATION WHERE THE INITIAL PROTEST CONTAINED FACTUAL ALLEGATIONS. EITHER FAILED TO RELATE THE FACTS TO A PROTESTABLE ISSUE OR DREW CONCLUSIONS FROM THE FACTS THAT WERE PURELY SPECULATIVE AND NOT EVEN MENTIONED IN THE REQUEST FOR RECONSIDERATION. THE PROTESTER MADE REFERENCE TO A 1982 ACQUISITION IN WHICH TORRINGTON'S PRICE WAS CONSIDERABLY HIGHER THAN THE PROTESTER'S. OTHER THAN TO SUGGEST THAT THE AGENCY POSSIBLY MAY HAVE ALLOWED TORRINGTON "TO ENTER A VERY LATE.

B-218414.2, MAY 14, 1985, 85-1 CPD 542

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DISMISSAL OF A PROTEST FOR FAILURE TO STATE A VALID BASIS FOR A PROTEST IS AFFIRMED ON RECONSIDERATION WHERE THE INITIAL PROTEST CONTAINED FACTUAL ALLEGATIONS, BUT EITHER FAILED TO RELATE THE FACTS TO A PROTESTABLE ISSUE OR DREW CONCLUSIONS FROM THE FACTS THAT WERE PURELY SPECULATIVE AND NOT EVEN MENTIONED IN THE REQUEST FOR RECONSIDERATION.

ROLLER BEARING COMPANY OF AMERICA:

ROLLER BEARING COMPANY OF AMERICA REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST CONCERNING THE AWARD OF A CONTRACT FOR BEARINGS TO THE TORRINGTON COMPANY UNDER SOLICITATION NO. DAAJ09-84-R B281, ISSUED BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND. WE AFFIRM THE DISMISSAL.

IN ITS INITIAL SUBMISSION, THE PROTESTER OBJECTED TO THE AGENCY'S AWARD OF THE CONTRACT TO TORRINGTON ON THE BASIS THAT IT TOOK THE AGENCY ALMOST 6 MONTHS TO MAKE THE AWARD. THE PROTESTER ALSO CITED A NUMBER OF CONTACTS IT HAD WITH AGENCY PERSONNEL PRIOR TO THE AWARD WHICH THE PROTESTER SAID LED IT TO BELIEVE THAT IT WOULD RECEIVE THE CONTRACT. FINALLY, THE PROTESTER MADE REFERENCE TO A 1982 ACQUISITION IN WHICH TORRINGTON'S PRICE WAS CONSIDERABLY HIGHER THAN THE PROTESTER'S. THE PROTESTER DID NOT EXPLAIN HOW ANY OF THESE FACTS FORMED THE BASIS FOR A PROTEST, HOWEVER, OTHER THAN TO SUGGEST THAT THE AGENCY POSSIBLY MAY HAVE ALLOWED TORRINGTON "TO ENTER A VERY LATE, REVISED BID." WE DISMISSED THE PROTEST UNDER SECTION 21.1(F) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985), BECAUSE THE PROTESTER'S SUBMISSION FAILED TO STATE A VALID BASIS FOR PROTEST.

IN REQUESTING RECONSIDERATION, THE PROTESTER EXPLAINS THAT THE NEARLY 6- MONTH DELAY IN AWARDING THE CONTRACT IS SIGNIFICANT BECAUSE IT INDICATES THAT THE AGENCY GAVE TORRINGTON PREFERENTIAL TREATMENT IN THIS ACQUISITION. IN THIS REGARD, THE PROTESTER NOW CITES A POST-AWARD ADMISSION BY THE AGENCY THAT THE REASON FOR THE DELAY WAS TO ASSIST TORRINGTON IN DEVELOPING AN ACCEPTABLE SUBCONTRACTING PLAN. THE PROTESTER SAYS THIS ASSISTANCE AMOUNTED TO IMPROPER DISCUSSIONS. THE PROTESTER ADDS THAT TORRINGTON'S HIGH PRICE IN THE 1982 ACQUISITION SHOWS THAT ITS MUCH LOWER PRICE IN THE CURRENT ACQUISITION IS A BUY-IN. FINALLY, THE PROTESTER SAYS THAT AN INVESTIGATION WOULD HAVE REVEALED THAT TORRINGTON IS NOT QUALIFIED TO CONDUCT REQUIRED TESTING ON THE BEARINGS. THE PROTESTER URGES US NOT TO ADOPT A RIGID APPROACH BY FOCUSING MORE ON THE FORM OF ITS PROTEST THAN ON ITS SUBSTANCE AND TO INVESTIGATE FULLY THE ALLEGATIONS THAT IT HAS MADE.

WE ACKNOWLEDGE THAT UNDER OUR REGULATIONS NO FORMAL BRIEFS OR OTHER TECHNICAL FORMS OF PLEADING ARE REQUIRED. 4 C.F.R. SEC. 21.1(E). NEVERTHELESS, PROTEST SUBMISSIONS MUST CLEARLY STATE LEGALLY SUFFICIENT GROUNDS OF PROTEST, ID., AND FAILURE TO DO SO MAY RESULT IN DISMISSAL OF THE PROTEST. 4 C.F.R. SEC. 21.1(F). IN THIS CASE, NONE OF THE FACTUAL ALLEGATIONS MADE IN THE PROTESTER'S INITIAL SUBMISSION CONSTITUTED A LEGALLY SUFFICIENT BASIS FOR A PROTEST. MOREOVER, THE ISSUES FULLY EXPLAINED FOR THE FIRST TIME IN THE REQUEST FOR RECONSIDERATION DO NOT CONSTITUTE A VALID BASIS FOR PROTEST AND ARE DISMISSED PURSUANT TO 4 C.F.R. SEC. 21.3(F).

SPECIFICALLY, A VALID BASIS FOR PROTEST DOES NOT ARISE MERELY BECAUSE AWARD IS NOT MADE WITHIN THE ACCEPTANCE PERIOD STATED IN THE SOLICITATION, MEMM GENERAL, INC., B-210939, MAY 31, 1983, 83-1 CPD PARA. 579, OR IN ACCORDANCE WITH PROCUREMENT MILESTONES. SEE COMSEC SYSTEMS CORPORATION-- RECONSIDERATION, B-216596.3, DEC. 11, 1984, 84-2 CPD PARA. 652. ALTHOUGH THE SIGNIFICANCE OF THE DELAY IN THIS CASE APPARENTLY IS THAT IT MAY BE EVIDENCE OF POSSIBLE IMPROPER DISCUSSIONS, THE PROTESTER'S INITIAL SUBMISSION MAKES NO REFERENCE AT ALL TO THAT POTENTIAL ISSUE, AND WE DO NOT ALLOW PIECEMEAL PRESENTATION OF PROTESTS. TO BE TIMELY UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(2), THIS BASIS OF PROTEST WAS REQUIRED TO HAVE BEEN SPECIFICALLY RAISED IN ROLLER BEARING'S INITIAL SUBMISSION.

WITH REGARD TO THE PROTESTER'S CONTENTION THAT THE AGENCY LED IT TO BELIEVE THAT IT WAS IN LINE FOR AWARD, EVEN IF WE ACCEPT ALL OF THE PROTESTER'S FACTUAL ASSERTIONS AS TRUE, WE FAIL TO SEE HOW THE AGENCY'S ARGUABLY MISLEADING REPRESENTATIONS TO THE PROTESTER HAD ANY BEARING ON THE PROPRIETY OF THE AWARD TO TORRINGTON. MOREOVER, THE ONLY CONNECTION THAT THE PROTESTER ATTEMPTED TO ESTABLISH IN THIS REGARD WAS TO SUGGEST THE POSSIBILITY THAT TORRINGTON WAS IMPROPERLY ALLOWED TO LOWER ITS PRICE. WE REGARD THIS SUGGESTION AS PURE SPECULATION, PARTICULARLY SINCE THE PROTESTER HAS NOT EVEN MENTIONED THIS POSSIBILITY IN ITS REQUEST FOR RECONSIDERATION.

THE PROTESTER ALSO HAS NOT STATED A VALID BASIS FOR PROTEST BY SUGGESTING THAT TORRINGTON'S PRICE REPRESENTS A BUY-IN AND THAT THE FIRM IS NOT QUALIFIED TO PERFORM REQUIRED TESTING. AN AGENCY'S ACCEPTANCE OF A BUY-IN OR BELOW-COST OFFER IS NOT LEGALLY OBJECTIONABLE AND DOES NOT PROVIDE A BASIS UPON WHICH A CONTRACT AWARD MAY BE CHALLENGED. DECOM SYSTEMS, INC., B-215167, SEPT. 24, 1984, 84-2 CPD PARA. 333. RATHER, WHETHER AN OFFEROR'S PRICE IS BELOW ITS COST IS A MATTER FOR THE CONTRACTING OFFICER TO CONSIDER IN DETERMINING WHETHER THE OFFEROR IS RESPONSIBLE. WEAVER SHIPYARD & DRYDOCK, INC., B-210652, FEB. 9, 1983, 83-1 CPD PARA. 146. THE ABILITY TO PERFORM REQUIRED TESTING IS ANOTHER SUCH FACTOR. THE AWARD OF A CONTRACT TO TORRINGTON REPRESENTS THE AGENCY'S AFFIRMATIVE DETERMINATION THAT THE FIRM IS RESPONSIBLE. B.H. AIRCRAFT COMPANY, INC., B-210798, APR. 1, 1983, 83-1 CPD PARA. 344. THIS OFFICE DOES NOT REVIEW AN AFFIRMATIVE RESPONSIBILITY DETERMINATION ABSENT A SHOWING THAT THE DETERMINATION WAS MADE FRAUDULENTLY OR IN BAD FAITH OR THAT SPECIFIC STANDARDS OF RESPONSIBILITY STATED IN THE SOLICITATION WERE NOT MET. 4 C.F.R. SEC. 21.3(F)(5). THERE HAS BEEN NO SUCH SHOWING HERE.

FINALLY, THIS OFFICE DOES NOT CONDUCT INVESTIGATIONS IN CONNECTION WITH ITS BID PROTEST FUNCTION FOR THE PURPOSE OF ESTABLISHING THE VALIDITY OF A PROTESTER'S ALLEGATIONS. E.J. MURRAY COMPANY, INC., B-212107.3, DEC. 18, 1984, 84-2 CPD PARA. 680.

WE AFFIRM OUR PRIOR DECISION.