B-218626.4, AUG 16, 1985, 85-2 CPD 182

B-218626.4: Aug 16, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES RECONSIDERATION REQUESTS - TIMELINESS DIGESTS: RECONSIDERATION REQUEST IS DISMISSED AS UNTIMELY WHERE NOT FILED UNTIL ALMOST 3 MONTHS AFTER DISMISSAL OF THE ORIGINAL PROTEST. THE REQUEST IS BASED ON EVENTS WHICH OCCURRED MORE THAN 10 WORKING DAYS PRIOR TO GAO'S RECEIPT OF THE REQUEST. THAT THE NAVY SHOULD NOT HAVE SET THIS CONTRACT ASIDE FOR AWARD UNDER THE SMALL BUSINESS ADMINISTRATION'S (SBA) 8(A) PROGRAM. THIS PROVISION STATES THAT SINCE THE DECISION WHETHER TO LET CONTRACTS UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AND SBA. WE WILL NOT REVIEW SUCH DECISIONS ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH OR THAT APPLICABLE REGULATIONS MAY HAVE BEEN VIOLATED.

B-218626.4, AUG 16, 1985, 85-2 CPD 182

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES RECONSIDERATION REQUESTS - TIMELINESS DIGESTS: RECONSIDERATION REQUEST IS DISMISSED AS UNTIMELY WHERE NOT FILED UNTIL ALMOST 3 MONTHS AFTER DISMISSAL OF THE ORIGINAL PROTEST, AND THE REQUEST IS BASED ON EVENTS WHICH OCCURRED MORE THAN 10 WORKING DAYS PRIOR TO GAO'S RECEIPT OF THE REQUEST.

GRAPHICS UNLIMITED, INC.-- RECONSIDERATION:

GRAPHICS UNLIMITED, INC. (GUI) REQUESTS RECONSIDERATION OF OUR MAY 16, 1985 DISMISSAL OF ITS PROTEST UNDER REQUEST FOR PROPOSALS (RFP) NO. 850698, ISSUED BY THE DEPARTMENT OF THE NAVY FOR AUDIO-VISUAL SERVICES. WE DISMISS THE REQUEST.

GUI ALLEGED IN ITS PROTEST, RECEIVED IN OUR OFFICE MAY 16, THAT THE NAVY SHOULD NOT HAVE SET THIS CONTRACT ASIDE FOR AWARD UNDER THE SMALL BUSINESS ADMINISTRATION'S (SBA) 8(A) PROGRAM. WE DISMISSED THE PROTEST CITING OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F) (1985). THIS PROVISION STATES THAT SINCE THE DECISION WHETHER TO LET CONTRACTS UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AND SBA, WE WILL NOT REVIEW SUCH DECISIONS ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH OR THAT APPLICABLE REGULATIONS MAY HAVE BEEN VIOLATED. GUI MADE NO SUCH SHOWING.

GUI NOW ATTEMPTS TO INVOKE GAO REVIEW BY ALLEGING THAT OTHER NAVY ACTIONS EVIDENCE AN IMPROPER EFFORT TO AVOID CONTRACTING WITH GUI, AND SUGGESTING THAT SETTING THIS CONTRACT ASIDE FOR 8(A) FIRMS IS A CONTINUATION OF THIS EFFORT. SPECIFICALLY, GUI STATES THAT IT WAS NOT GIVEN ANY WORK UNDER A MARCH 1985 NAVY CONTRACT UNTIL AFTER MEETINGS WITH A NAVY OFFICIAL AND THAT IT WAS MISADVISED BY THE NAVY AS TO THE REASONS FOR CANCELING ANOTHER MARCH 1985 SOLICITATION.

OUR REGULATIONS REQUIRE THAT REQUESTS FOR RECONSIDERATION BE FILED WITH OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR RECONSIDERATION IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 C.F.R. SEC. 21.12(B). THE EVENTS ON WHICH GUI'S ARGUMENTS ARE BASED OCCURRED IN MARCH AND APRIL, BUT GUI DID NOT BRING THEM TO GAO'S ATTENTION IN ITS MAY 16 PROTEST AND DID NOT FILE THIS RECONSIDERATION REQUEST UNTIL AUGUST 6, ALMOST 3 MONTHS AFTER WE DISMISSED THE PROTEST. THE REQUEST FOR RECONSIDERATION THUS IS UNTIMELY. UNICO, INC., B-218065.2, MAR. 11, 1985, 85-1 CPD PARA. 297.

IN ANY CASE, FOR THE PROTESTER'S INFORMATION, THE MERE EXISTENCE OF ALLEGED PAST AGENCY PROCUREMENT IMPROPRIETIES IS NOT SUFFICIENT TO SATISFY THE PROTESTER'S BURDEN OF PROVING FRAUD, BAD FAITH OR VIOLATION OF PROCUREMENT REGULATIONS IN DECIDING WHETHER TO CONTRACT UNDER THE 8(A) PROGRAM. SEE NUCLEAR ASSURANCE CORP., B-216076, JAN. 24, 1985, 85 1 CPD PARA. 94.

THE RECONSIDERATION REQUEST IS DISMISSED.