B-218780.3, JUN 18, 1985, 85-1 CPD 697

B-218780.3, JUN 18, 1985, 85-1 CPD 697

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF LAW OR FACT - NOT ESTABLISHED DIGEST: 1. PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTEST HAS NOT SHOWN ANY ERROR OF LAW OR FACT WHICH WOULD WARRANT REVERSAL OF THAT DECISION. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - PIECEMEAL DEVELOPMENT OF ISSUES BY PROTESTER 2. PROTESTER MAY NOT SUCCESSFULLY ADVANCE A NEW ARGUMENT IN A REQUEST FOR RECONSIDERATION THAT IT COULD AND SHOULD HAVE ADVANCED IN ITS ORIGINAL PROTEST, AS GAO'S BID PROTEST REGULATIONS DO NOT CONTEMPLATE THE UNWARRANTED PIECEMEAL DEVELOPMENT OF PROTEST ISSUES.

CONNECTOR TECHNOLOGY CORPORATION-- REQUEST FOR RECONSIDERATION:

CONNECTOR TECHNOLOGY CORPORATION (CTC) REQUESTS RECONSIDERATION OF OUR MAY 8, 1985, DISMISSAL OF ITS PROTEST, B-218780.2, CONCERNING THE DEFENSE LOGISTICS AGENCY'S (DLA) INVITATION FOR BIDS (IFB) NO. DLA400 85-B-5352. THE PROTEST, FILED AFTER BID OPENING, ALLEGED THAT THE INCLUSION OF A CLAUSE IN THE IFB THAT ALLOWED AN EXCEPTION TO THE APPLICATION OF A LABOR SURPLUS AREA (LSA) EVALUATION FACTOR FOR ITEMS AND FIRMS ON A QUALIFIED PRODUCTS LIST WAS PREJUDICIAL TO CTC AND OTHER LSA BUSINESSES. DISMISSED THE PROTEST AS UNTIMELY BECAUSE IT CONCERNED ALLEGED IMPROPRIETIES APPARENT IN THE SOLICITATION AND, THEREFORE, HAD TO BE FILED WITH THE AGENCY OR THIS OFFICE BEFORE BID OPENING, PURSUANT TO OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(1) (1985). WE AFFIRM OUR DISMISSAL.

GAO BID PROTEST REGULATIONS REQUIRE THAT A REQUEST FOR RECONSIDERATION CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH A REVERSAL OR MODIFICATION OF THE INITIAL DECISION IS WARRANTED. 4 C.F.R. SEC. 21.12(A). THE REQUEST MUST SPECIFY ERRORS OF LAW OR INFORMATION AVAILABLE TO GAO AT THE TIME OF THE ORIGINAL DECISION THAT WAS NOT CONSIDERED. SEE SISKA CONSTRUCTION CO., INC.-- REQUEST FOR RECONSIDERATION, B-218208.2, MAR. 21, 1985, 64 COMP.GEN. - - (1985), 85-1 CPD PARA. 331. IN ITS REQUEST FOR RECONSIDERATION, CTC FAILS TO POINT OUT ANY LEGAL ERROR OR MISUNDERSTANDING OF THE FACTS IN OUR DISMISSAL OF ITS PROTEST. CTC ASSERTS THAT IT DISCUSSED WITH THE CONTRACTING OFFICER BEFORE BID OPENING THE MATTER OF THE EXCLUSION FROM THE IFB OF THE PREFERENCE FOR LABOR SURPLUS AREA CONCERN CLAUSE, IN WHICH IT WOULD INDICATE THAT IT IS LSA CONCERN. THIS ARGUMENT IS A NEW GROUND OF PROTEST BECAUSE IT IS DISTINCT FROM ORIGINAL BASIS FOR PROTEST, WHICH CONCERNED ANOTHER IFB CLAUSE. AS SUCH, IT PRESENTS US WITH NO VALID BASIS WHICH TO RECONSIDER OUR EARLIER DISMISSAL. SEE SOVEREIGN ELECTRIC CO.-- REQUEST FOR RECONSIDERATION, B-214699.2, FEB. 12, 1985, 85-1 CPD PARA. 183.

FURTHER, A PROTESTER MAY NOT SUCCESSFULLY INTRODUCE A NEW ARGUMENT IN A RECONSIDERATION REQUEST THAT IT COULD AND SHOULD HAVE MADE IN ITS ORIGINAL PROTEST, AS OUR BID PROTEST REGULATIONS DO NOT CONTEMPLATE THE UNWARRANTED PIECEMEAL DEVELOPMENT OF PROTEST ISSUES. SPECTRUM LEASING CORP.-- REQUEST FOR RECONSIDERATION, B-218267.2, MAR. 25, 1985, 85-1 CPD PARA. 350. THE LACK OF THE PREFERENCE CLAUSE IS, LIKE THE ORIGINAL GROUND OF PROTEST, APPARENT ON THE FACE OF SOLICITATION AND, THEREFORE, SHOULD HAVE BEEN PROTESTED PRIOR TO BID OPENING.

HOWEVER, EVEN OF WE WERE TO VIEW CTC'S PREBID OPENING DISCUSSIONS AS A VALID AND UNTIMELY ORAL PROTEST TO THE AGENCY, /1/ THE SUBSEQUENT PROTEST WAS TIMELY FILED WITH OUR OFFICE. OUR BID PROTEST REGULATIONS REQUIRE THAT IF A TIMELY PROTEST HAS BEEN MADE INITIALLY TO THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THIS OFFICE MUST BE FILED WITHIN 10 DAYS OF ACTUAL OR CONSECUTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. 4 C.F.R. SEC. 21.2(A)(3). INITIAL ADVERSE AGENCY ACTION ON THE PROTEST OCCURED WHEN BIDS WERE OPENED ON MARCH 26, 1985, WITHOUT ANY CORRECTIVE ACTION BEING TAKEN. LOWE BROTHERS ELECTRIC CO., B-217583, JAN. 29, 1985, 85-1 CPD PARA. 119. CTC'S PROTEST TO THIS OFFICE WAS FILED (RECEIVED) ON MAY 7 AND ITS REQUEST FOR RECONSIDERATION WAS FILED ON MAY 21, BOTH WELL BEYOND THE 10-DAY LIMIT.

THE PRIOR DISMISSAL IS AFFIRMED.