B-219239.2, OCT 2, 1985, 85-2 CPD 372

B-219239.2: Oct 2, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: DETAILED FACTUAL STATEMENT OF BASIS OF PROTEST FILED ON RECONSIDERATION REQUEST LATER THAN 10 WORKING DAYS AFTER PROTESTER KNEW OF BASIS IS UNTIMELY AND WILL NOT BE CONSIDERED. IT LEARNED AFTER THE AWARD TO ANOTHER FIRM THAT THE ITEM DID HAVE AN EXTENSIVE PROCUREMENT HISTORY. IT WOULD HAVE SUBMITTED A LOWER BID PRICE AND MIGHT HAVE RECEIVED THE AWARD. WE DISMISSED THE PROTEST BECAUSE PDI FAILED TO DETAIL ANY INFORMATION IN THE PROCUREMENT HISTORY TO SUPPORT ITS CLAIM OF PREJUDICE OR TO EXPLAIN HOW THAT INFORMATION WOULD HAVE LED IT TO BID DIFFERENTLY. WE ALSO NOTED THAT THERE IS NO LAW OR REGULATION THAT GENERALLY REQUIRES THE DISCLOSURE OF THE PROCUREMENT HISTORY OF ITEMS BEING PURCHASED.

B-219239.2, OCT 2, 1985, 85-2 CPD 372

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: DETAILED FACTUAL STATEMENT OF BASIS OF PROTEST FILED ON RECONSIDERATION REQUEST LATER THAN 10 WORKING DAYS AFTER PROTESTER KNEW OF BASIS IS UNTIMELY AND WILL NOT BE CONSIDERED.

PLASTICS DESIGN, INC.-- REQUEST FOR RECONSIDERATION:

PLASTICS DESIGN, INC.(PDI) REQUESTS RECONSIDERATION OF OUR DECISION PLASTICS DESIGN, INC., B-219239, JULY 26, 1985, 85-2 CPD PARA. ---. PDI STATED IN ITS ORIGINAL PROTEST THAT, TO HELP IT IN THE PREPARATION OF ITS BID PRICE, IT ASKED THE CONTRACTING OFFICER FOR THE PROCUREMENT HISTORY OF THE ITEM BEING PURCHASED, AND THAT THE CONTRACTING OFFICER INFORMED PDI THAT NO HISTORY EXISTED. ACCORDING TO PDI, IT LEARNED AFTER THE AWARD TO ANOTHER FIRM THAT THE ITEM DID HAVE AN EXTENSIVE PROCUREMENT HISTORY. PDI ASSERTED THAT HAD IT KNOWN THE HISTORY AT THE TIME IT PREPARED ITS BID, IT WOULD HAVE SUBMITTED A LOWER BID PRICE AND MIGHT HAVE RECEIVED THE AWARD. WE DISMISSED THE PROTEST BECAUSE PDI FAILED TO DETAIL ANY INFORMATION IN THE PROCUREMENT HISTORY TO SUPPORT ITS CLAIM OF PREJUDICE OR TO EXPLAIN HOW THAT INFORMATION WOULD HAVE LED IT TO BID DIFFERENTLY. SEE, 4 C.F.R. SEC. 21.1(C)(4) (1985). WE ALSO NOTED THAT THERE IS NO LAW OR REGULATION THAT GENERALLY REQUIRES THE DISCLOSURE OF THE PROCUREMENT HISTORY OF ITEMS BEING PURCHASED.

IN ITS REQUEST FOR RECONSIDERATION, PDI EXPLAINS THAT A MAJOR COST FACTOR IN MANUFACTURING THE ITEM IS TOOLING. PDI STATES THAT HAD PDI KNOWN THE ITEM HAD BEEN PROCURED PREVIOUSLY, PDI-- PRESUMABLY AS A FIRST-TIME MANUFACTURER OF THE ITEM-- EITHER WOULD NOT HAVE BID, OR WOULD HAVE BID LOWER AND ABSORBED SOME OF THE TOOLING COSTS SO AS TO BE COMPETITIVE WITH PRIOR SUPPLIERS THAT HAD ALREADY RECOVERED THEIR TOOLING COSTS.

UNDER OUR BID PROTEST REGULATIONS, A PARTY REQUESTING RECONSIDERATION MUST SPECIFY THE "FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATIONS IS DEEMED WARRANTED. ..." 4 C.F.R. SEC. 21.12(A). PDI'S RECONSIDERATION REQUEST IS BASED ON ITS STATEMENT CONCERNING HOW IT MIGHT HAVE STRUCTURED ITS BID HAD IT KNOWN THAT ANOTHER COMPANY PREVIOUSLY HAD SUPPLIED THE ITEM BEING PROCURED. THAT STATEMENT, HOWEVER, COMES TOO LATE. OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST, INCLUDING A DETAILED STATEMENT OF THE BASIS FOR PROTEST, MUST BE FILED NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER, IS EARLIER. 4 C.F.R. SEC. 21.2(A)(2). AS NOTED IN PDI'S ORIGINAL PROTEST LETTER, PDI LEARNED OF THE EXISTENCE OF THE PROCUREMENT HISTORY ON JUNE 17, 1985, AND THEREFORE SHOULD HAVE PROVIDED A DETAILED STATEMENT OF ITS BASIS FOR PROTEST WITHIN 10 DAYS THEREAFTER. ITS ORIGINAL PROTEST CONTAINED NO SUCH STATEMENT; ONLY IN THE RECONSIDERATION REQUEST ON AUGUST 14, 1985, DOES PDI SET FORTH THE REASON FOR ITS PROTEST OF THE AGENCY'S FAILURE TO INFORM IT OF THE PRIOR PROCUREMENT HISTORY. THE STATEMENT FILED AT THIS LATE DATE OBVIOUSLY IS UNTIMELY.

OUR REGULATIONS DO NOT PERMIT PIECEMEAL PRESENTATIONS OF ARGUMENTS, LA BARGE PRODUCTS, B-219345.3, SEPT. 5, 1985, 85-2 CPD ---, AND WE HAVE SPECIFICALLY HELD THAT PARTIES FAILING TO PRESENT ALL CONTENTIONS FOR OUR INITIAL CONSIDERATION DO SO AT THEIR OWN PERIL. SECOND GROWTH FOREST MANAGEMENT, INC.-- RECONSIDERATION, B-218273.3, ET AL., JUNE 3, 1985, 85-1 CPD PARA. 632. ACCORDINGLY, WE WILL NOT CONSIDER THE STATEMENT AT THIS POINT AND THE REQUEST FOR RECONSIDERATION IS DENIED.