B-220282.3, APR 3, 1986, 86-1 CPD 317

B-220282.3, APR 3, 1986, 86-1 CPD 317

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION IS AFFIRMED WHERE THE PROTESTER HAS NOT CONVINCINGLY SHOWN ANY FACTUAL OR LEGAL GROUNDS WHICH WOULD WARRANT REVERSAL OF THE PRIOR DECISION.

TRIPLE A SHIPYARDS-- REQUEST FOR RECONSIDERATION:

TRIPLE A SHIPYARDS (TRIPLE A) HAS REQUESTED RECONSIDERATION OF OUR DECISION TRIPLE A SHIPYARDS, B-220282.2, FEB. 7, 1986, 86-1 CPD ***, IN WHICH WE DENIED IN PART AND DISMISSED IN PART TRIPLE A'S PROTEST UNDER INVITATION FOR BIDS (UFB) 8140-85-B-0042, ISSUED BY THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, FOR DRYDOCKING AND REPAIR OF THE BALCLUTHA, AN HISTORIC SQUARE RIGGED SAILING SHIP. WE AFFIRM OUR PRIOR DECISION.

IN ITS PROTEST, TRIPLE A ARGUED, IN PART, THAT THE AWARD TO PACIFIC DRY DOCK AND REPAIR COMPANY (PACIFIC) WAS DEFECTIVE BECAUSE IT OMITTED ITEM 14 -- "REPAIR, RENEWAL OF MAIN WEATHER DECK"-- WHICH WAS IDENTIFIED IN THE IFB AS A "BASE BID" ITEM. AS SET FORTH IN OUR FEBRUARY 7 DECISION, THE AGENCY HAD ADVISED THAT SINCE ITEMS 26A AND 27A-- RESPECTIVELY FOR REPAIR AND RENEWAL OF THE MAIN WEATHER DECK "STARBOARD" AND "PORT"-- HAD BEEN AWARDED TO PACIFIC, AWARD OF ITEM 14 WAS UNNECESSARY BECAUSE THE TWO OTHER ITEMS INCLUDED THE SAME WORK REQUIRED BY ITEM 14. TRIPLE A NOW REQUESTS THAT WE RECONSIDER THE FEBRUARY 7 DECISION ON THE BASIS THAT INFORMATION WHICH IT HAD PRESENTED IN ITS COMMENTS ON THE AGENCY REPORT SHOWED THAT THE WORK REQUIRED BY ITEM 14 WAS IN FACT DIFFERENT FROM THE WORK REQUIRED BY ITEMS 26A AND 27A.

TRIPLE A'S REQUEST FOR RECONSIDERATION INDICATES THAT IT BELIEVES THAT ITS DISAGREEMENT WITH THE AGENCY CONCERNING THE RELATIONSHIP BETWEEN THE WORK REQUIRED BY ITEM 14 AND ITEMS 26A AND 27A WAS DISMISSED BY OUR OFFICE AS UNTIMELY. THIS IS INCORRECT. WHILE A PART OF THE PROTESTER'S GROUNDS FOR PROTEST WAS DISMISSED AS UNTIMELY, OUR DISMISSAL DID NOT INVOLVE THE MATTER OF THE AGENCY'S FAILURE TO AWARD ITEM 14. IN OUR FEBRUARY 7 DECISION, WE STATED IN PART THAT WE DID NOT BELIEVE THAT BIDDERS COULD ANTICIPATE THAT ANY OF THE SOLICITATION'S "BASE BID ITEMS" SUCH AS ITEM 14 WOULD BE EXCLUDED FROM AWARD. HOWEVER, WE HELD THAT THE AGENCY'S FAILURE TO AWARD ITEM 14 DID NOT PREJUDICE TRIPLE A SINCE THE AGENCY DECIDED TO REPAIR AND RENEW THE MAIN WEATHER DECK USING TEAK MARGINS AND TRIPLE A HAD ONLY BID ON THE FIR MARGIN ALTERNATIVE FOR ITEMS 14, 26A, AND 27A. THUS, WE CONCLUDED THAT TRIPLE A WOULD NOT HAVE BEEN ELIGIBLE FOR AWARD EVEN OF ITEM 14 HAD BEEN AWARDED. SINCE TRIPLE A WAS NOT PREJUDICED BY THE AGENCY'S FAILURE TO AWARD ITEM 14, WE FOUND IT UNNECESSARY TO DETERMINE THE VALIDITY OF THE AGENCY'S REASON FOR OMITTING ITEM 14 FROM THE AWARD.

IN ORDER TO PREVAIL IN A REQUEST FOR RECONSIDERATION, THE REQUESTING PARTY MUST CONVINCINGLY SHOW EITHER ERRORS OF LAW OR FACT IN OUR PRIOR DECISION WHICH WOULD WARRENT ITS REVERSAL. SEE 4 C.F.R. SEC. 21.12(A) (1985). SINCE THE RELATIONSHIP BETWEEN THE WORK REQUIRED UNDER ITEM 14 AND ITEMS 26 A AND 27A WAS IMMATERIAL TO WHETHER TRIPLE A WAS PREJUDICED BY THE AGENCY'S FAILURE TO AWARD ITEM 14, TRIPLE A HAS NOT MADE SUCH A SHOWING. ACCORDINGLY, OUR PRIOR DECISION IS AFFIRMED.