B-219417.2, OCT 30, 1985, 85-2 CPD 489

B-219417.2, OCT 30, 1985, 85-2 CPD 489

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: INFORMATION AVAILABLE TO SHOW A PROTEST IS TIMELY MUST BE SUBMITTED AT THE TIME OF THE INITIAL PROTEST AND NOT WITH A REQUEST FOR RECONSIDERATION OF THE DISMISSAL OF THE INITIAL PROTEST.

ALLIANCE PROPERTIES, INC.:

ALLIANCE PROPERTIES, INC. REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST CONCERNING A DETERMINATION BY THE DEPARTMENT OF THE NAVY TO PERFORM OPERATION AND MAINTENANCE SERVICES AT THE NAVAL CONSTRUCTION BATTALION CENTER, DAVISVILLE, RHODE ISLAND, IN-HOUSE RATHER THAN TO CONTRACT OUT UNDER SOLICITATION NO. N62472-84-B-0870. THIS DETERMINATION WAS MADE AS A RESULT OF A COST COMPARISON WHICH WAS CONDUCTED UNDER THE GUIDANCE OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-76. DISMISSED THE PROTEST AS UNTIMELY UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(2) (1985), BECAUSE ALLIANCE'S INITIAL FILING INDICATED THAT THE FIRM HAD NOT PROTESTED WITHIN 10 WORKING DAYS AFTER BEING APPRISED OF ITS BASIS FOR PROTEST. IN ITS REQUEST FOR RECONSIDERATION, ALLIANCE EXPLAINED AND ENCLOSED DOCUMENTS SHOWING THAT IT HAD INITIALLY PROTESTED THE MATTER TO THE NAVY, AND THAT IT FILED ITS PROTEST WITH OUR OFFICE WITHIN 10 WORKING DAYS AFTER RECEIVING NOTICE OF THE AGENCY'S DENIAL OF ITS PROTEST. WE HAD NOT BEEN INFORMED OF ALLIANCE'S AGENCY PROTEST WHEN WE INITIALLY DISMISSED ALLIANCE'S PROTEST.

AS A PRELIMINARY MATTER, THE NAVY ARGUES THAT A PROTEST CONCERNING AN AGENCY'S FAILURE TO AWARD A CONTRACT DOES NOT FALL WITHIN THE STATUTORY DEFINITION OF "PROTEST" CONTAINED IN THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C.A. SECS. 3551-3556 (WEST SUPP. 1985), AND THAT THEREFORE ANY OBJECTION TO A CANCELLATION OF A SOLICITATION, INCLUDING THOSE ISSUED IN CONNECTION WITH AN OMB CIRCULAR A-76 COST COMPARISON, IS NO LONGER WITHIN OUR JURISDICTION. WE MERELY NOTE THAT WE HAVE RECENTLY REJECTED THIS SAME ARGUMENT BY THE NAVY AND THAT WE WILL CONTINUE TO REVIEW ALLEGATIONS OF FAULTY OR MISLEADING COST COMPARISONS WHICH MATERIALLY AFFECT AN AWARD DECISION UNDER THE PROVISIONS OF OMB CIRCULAR A -76. SEE CONTRACT SERVICES COMPANY, INC., B-219430, OCT. 28, 1985, 85-2 CPD PARA. ---.

AS TO ALLIANCE'S REQUEST FOR RECONSIDERATION, WE RECOGNIZE THAT PRIOR TO THE ENACTMENT OF CICA, WE DID ON OCCASION RECONSIDER PROTESTS PREVIOUSLY DISMISSED AS UNTIMELY UPON THE PROTESTER'S TIMELY SUBMISSION OF ADDITIONAL INFORMATION SHOWING THAT ITS INITIAL PROTEST WAS, IN FACT, TIMELY FILED. SEE, E.G., PENNEY'S GEMSTONES-- RECONSIDERATION, B-218007.3, MAR. 8, 1985, 85-1 CPD PARA. 288. HOWEVER, IN VIEW OF THE REQUIREMENTS OF CICA (31 U.S.C.A. SEC. 3554(A)(1)) FOR THE EXPEDITIOUS RESOLUTION OF BID PROTESTS, WE HAVE DECIDED THAT OUR RECONSIDERATION OF A PROTEST ON THE BASIS OF INFORMATION THAT WAS READILY AVAILABLE TO THE PROTESTER WHEN THE PROTEST WAS INITIALLY FILED WOULD BE, IN THE ABSENCE OF A SHOWING OF GOOD CAUSE FOR FAILURE TO TIMELY PRESENT THE INFORMATION, INCONSISTENT WITH THE STATUTORY MANDATE. SEE GLOBAL CRANE INSTITUTE-- REQUEST FOR RECONSIDERATION, B-218120.2, MAY 28, 1985, CPD PARA. 606.

ALLIANCE KNEW OF ITS AGENCY-LEVEL PROTEST AND THE RESULTS THEREOF WHEN IT INITIALLY PROTESTED TO OUR OFFICE AND HAS NOT EXPLAINED WHY IT FAILED TO FULLY ACCOUNT FOR ALL RELEVANT FACTS AT THAT TIME. THEREFORE, WE AFFIRM OUR PRIOR DISMISSAL.