B-221347.4, AUG 18, 1986, 86-2 CPD 194

B-221347.4: Aug 18, 1986

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AN ARGUMENT THAT A PROTEST WAS UNTIMELY MAY NOT BE ASSERTED FOR THE FIRST TIME IN A RECONSIDERATION REQUEST WHERE THE AGENCY COULD HAVE. PRIOR DECISION IS AFFIRMED WHERE THE PARTY REQUESTING RECONSIDERATION HAS ESTABLISHED NO MISTAKE OF LAW OR FACT IN HOLDING THAT A FIRM. DID NOT OFFER AN ITEM IT OTHERWISE WOULD HAVE OFFERED. GEC ORIGINALLY CONTENDED THAT THE AIR FORCE HAD ESTABLISHED A REQUIREMENT FOR A COMMERCIAL-TYPE PRODUCT BY AMENDING THE RFP (IN RESPONSE TO GEC'S QUESTIONS) TO STATE THAT THE PRODUCT WAS TO BE CONSIDERED A "COMMERCIAL- TYPE PRODUCT.". GEC ASSERTED THAT BECAUSE HARDY'S OFFERED ELECTRONIC SCALE DID NOT SATISFY THAT REQUIREMENT IT WAS IMPROPER TO MAKE AWARD TO HARDY WITHOUT GIVING GEC THE OPPORTUNITY TO SUBMIT AN OFFER ON ITS LOWER PRICED NONCOMMERCIAL-TYPE SCALE.

B-221347.4, AUG 18, 1986, 86-2 CPD 194

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: 1. AN ARGUMENT THAT A PROTEST WAS UNTIMELY MAY NOT BE ASSERTED FOR THE FIRST TIME IN A RECONSIDERATION REQUEST WHERE THE AGENCY COULD HAVE, BUT DID NOT, CHALLENGE TIMELINESS IN ITS REPORT ON THE PROTEST. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED 2. PRIOR DECISION IS AFFIRMED WHERE THE PARTY REQUESTING RECONSIDERATION HAS ESTABLISHED NO MISTAKE OF LAW OR FACT IN HOLDING THAT A FIRM, RELYING ON SOLICITATION AMENDMENT MISSTATING AGENCY'S REQUIREMENT, DID NOT OFFER AN ITEM IT OTHERWISE WOULD HAVE OFFERED.

HARDY INSTRUMENTS, INC.-- REQUEST FOR RECONSIDERATION:

HARDY INSTRUMENTS, INC., REQUESTS RECONSIDERATION OF OUR DECISION IN GENERAL ELECTRODYNAMICS CORP., B-221347.2, B-221347.3, MAY 13, 1986, 86 1 CPD PARA. 454, IN WHICH WE SUSTAINED GENERAL ELECTRODYNAMICS' (GEC) PROTEST AGAINST THE PROPOSED AWARD OF A CONTRACT TO HARDY UNDER REQUEST FOR PROPOSALS (RFP) NO. F41608-85-R-3781, ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR PORTABLE DEVICES TO WEIGH MILITARY VEHICLES AND CARGO IN REMOTE AREAS. WE AFFIRM OUR DECISION.

GEC ORIGINALLY CONTENDED THAT THE AIR FORCE HAD ESTABLISHED A REQUIREMENT FOR A COMMERCIAL-TYPE PRODUCT BY AMENDING THE RFP (IN RESPONSE TO GEC'S QUESTIONS) TO STATE THAT THE PRODUCT WAS TO BE CONSIDERED A "COMMERCIAL- TYPE PRODUCT." GEC ASSERTED THAT BECAUSE HARDY'S OFFERED ELECTRONIC SCALE DID NOT SATISFY THAT REQUIREMENT IT WAS IMPROPER TO MAKE AWARD TO HARDY WITHOUT GIVING GEC THE OPPORTUNITY TO SUBMIT AN OFFER ON ITS LOWER PRICED NONCOMMERCIAL-TYPE SCALE. THE AIR FORCE, IN RESPONSE, EXPLAINED THAT IT STATED THAT THE DEVICE WOULD BE CONSIDERED A COMMERCIAL-TYPE PRODUCT SOLELY TO CONVEY THE IDEA THAT THE PRODUCT DID NOT HAVE TO BE MANUFACTURED IN ACCORDANCE WITH A MILITARY SPECIFICATION BUT ONLY HAD TO MEET THE RFP'S PURCHASE DESCRIPTION. WE HELD THAT WHILE THAT MAY HAVE BEEN THE AIR FORCE'S INTENT IN ANSWERING GEC'S QUESTION, THIS WAS NOT CLEARLY COMMUNICATED TO GEC AND, AS A RESULT, GEC REASONABLY WAS MISLED BY THE RESPONSE. WE NOTE IN THIS REGARD THAT THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 11.001 (1985), DEFINED "COMMERCIAL-TYPE PRODUCT" THE WAY GEC INTERPRETED THE RFP REQUIREMENT, NOT THE WAY THE AIR FORCE INTENDED IT. CONSEQUENTLY, WE RECOMMENDED THAT THE AIR FORCE CLARIFY THE RFP AND REOPEN NEGOTIATIONS TO AFFORD ALL OFFERORS AN OPPORTUNITY TO OFFER NONCOMMERCIAL-TYPE PRODUCTS.

AS A PRELIMINARY MATTER, HARDY ARGUES THAT GEC'S PROTEST SHOULD HAVE BEEN DISMISSED AS UNTIMELY FILED UNDER OUR BID PROTEST REGULATIONS. IN OUR PRIOR DECISION, WE NOTED THAT GEC INITIALLY PROTESTED IN WRITING TO THE AIR FORCE THE FACT THAT HARDY NEVER HAD MADE A COMMERCIALLY AVAILABLE PORTABLE ELECTRONIC SCALE. WE FURTHER NOTED THAT THE AIR FORCE DENIED THIS PROTEST BY LETTER DATED DECEMBER 4, AND THAT GEC THEN FILED A PROTEST WITH OUR OFFICE ON DECEMBER 27. WE HAD DISMISSED THE PROTEST AT THAT POINT AS UNTIMELY BECAUSE IT APPEARED TO HAVE BEEN FILED WITH OUR OFFICE MORE THAN 10 WORKING DAYS AFTER GEC HAD KNOWLEDGE OF THE AIR FORCE'S ADVERSE DECISION. SEE BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(3) (1986). UPON GEC'S REQUEST FOR RECONSIDERATION OF THE DISMISSAL, WE REINSTATED THE PROTEST BECAUSE A COPY OF THE AIR FORCE'S DENIAL LETTER, FURNISHED BY GEC, CONTAINED A DATE STAMP SHOWING THAT GEC DID NOT RECEIVE THE DENIAL LETTER UNTIL DECEMBER 16.

ALONG WITH THE REQUEST FOR RECONSIDERATION HARDY SUBMITTED A COPY OF A DECEMBER 10 MEMO FOR RECORD PREPARED BY THE CONTRACTING OFFICER WHICH STATED THAT GEC HAD MADE A TELEPHONE CALL TO THE AIR FORCE REGARDING THE DENIAL OF ITS AGENCY PROTEST. SHORTLY THEREAFTER, THE AIR FORCE ALSO FURNISHED US WITH A COPY OF THE SAME DOCUMENT. THE AIR FORCE AND HARDY TAKE THE POSITION THAT GEC WAS AWARE OF THE DENIAL OF THE AGENCY PROTEST NO LATER THAN DECEMBER 10, RATHER THAN DECEMBER 16 AS CLAIMED BY GEC AND, THUS, GEC'S DECEMBER 27 PROTEST TO US WAS, IN FACT, UNTIMELY. GEC CATEGORICALLY DENIES THAT IT MADE THE TELEPHONE CALL DESCRIBED BY THE CONTRACTING OFFICER IN THE MEMO FOR RECORD AND REITERATES THAT IT DID NOT RECEIVE NOTIFICATION UNTIL DECEMBER 16 THAT ITS PROTEST TO THE AIR FORCE HAD BEEN DENIED.

OUR DECISION TO REINSTATE GEC'S PROTEST WAS BASED ON THE INFORMATION AVAILABLE TO US AT THE TIME. THE AIR FORCE FURNISHED US WITH NO INFORMATION BEARING ON THE QUESTION OF TIMELINESS AND, IN ITS REPORT ON THE PROTEST, MADE NO ARGUMENT THAT GEC WAS UNTIMELY. SINCE THE ALLEGED UNTIMELINESS OF GEC'S PROTEST IS BASED ON A DOCUMENT-- THE DECEMBER 10 MEMO FOR RECORD-- WHICH WAS AVAILABLE TO THE AIR FORCE DURING OUR CONSIDERATION OF THE PROTEST, WE WILL NOT NOW CONSIDER THIS ARGUMENT. GRIFFIN-SPACE SERVICES CO.-- RECONSIDERATION, 64 COMP.GEN. 64 (1984), 84-2 CPD PARA. 528.

TURNING TO THE MERITS OF HARDY'S REQUEST FOR RECONSIDERATION, THE COMPANY ARGUES THAT THE AIR FORCE CLEARLY COMMUNICATED ITS INTENT TO ALLOW OFFERS OF NONCOMMERCIAL-TYPE ELECTRONIC SCALES. ACCORDING TO HARDY, THE AIR FORCE'S RESPONSES TO OTHER TECHNICAL QUESTIONS GEC SUBMITTED SHOW THAT OFFERS ON AN UNPROVEN OR PROTOTYPE SCALE COULD BE SUBMITTED AS LONG AS SUCH SCALES MET THE FIRST ARTICLE TESTING REQUIREMENTS DESCRIBED IN THE RFP. HARDY ALSO ARGUES THAT SINCE NEITHER GEC'S QUESTION WHETHER THE DEVICE WAS A COMMERCIAL OR COMMERCIAL-TYPE PRODUCT NOT THE AIR FORCE'S RESPONSE TO THAT QUESTION REFERENCED THE FAR DEFINITION OF THE TERM "COMMERCIAL-TYPE PRODUCT," THE AIR FORCE WAS MERELY COMMUNICATING THAT THE PRODUCT WAS COMMERCIAL IN NATURE RATHER THAN ONE PECULIAR TO THE MILITARY. HARDY ALSO ALLEGES THAT SINCE GEC AND HARDY HAD A SHORT-TERM BUSINESS RELATIONSHIP PRIOR TO THE ISSUANCE OF THE RFP, GEC MUST HAVE KNOWN THAT THE ELECTRONIC DEVICE HARDY OFFERED IN RESPONSE TO THE RFP WAS, IN FACT, A PROTOTYPE. HARDY FINALLY CLAIMS THAT GEC MANUFACTURES ONLY MECHANICAL AND HYDRAULIC SCALES AND, THUS, DOES NOT HAVE A PROTOTYPE ELECTRONIC SCALE TO OFFER, AND THAT GEC COULD HAVE SUBMITTED AN ALTERNATE OFFER ON ANY PROTOTYPE ELECTRONIC SCALE IT HAD WITHOUT ADVERSELY AFFECTING ITS ORIGINAL OFFER.

WE FIND NOTHING IN HARDY'S ARGUMENTS THAT CALLS INTO QUESTION THE CONCLUSIONS REACHED IN OUR PRIOR DECISION. IT REMAINS OUR VIEW THAT, WHETHER OR NOT IT WAS THE AIR FORCE'S INTENT TO ESTABLISH A COMMERCIAL TYPE PRODUCT REQUIREMENT WHEN IT RESPONDED TO GEC'S TECHNICAL QUESTIONS, ITS STATEMENT THAT THE WEIGHING DEVICE "SHALL BE CONSIDERED A COMMERCIAL- TYPE PRODUCT" CLEARLY AND UNEQUIVOCALLY ADVISED OFFERORS THAT THERE WAS JUST SUCH A REQUIREMENT. AS WE POINTED OUT IN OUR PRIOR DECISION, UNEVIDENCED AGENCY INTENT WILL NOT OVERCOME THE PLAIN, UNEQUIVOCAL LANGUAGE IN AN AGENCY'S RESPONSE TO AN OFFEROR THAT SHOWS A CONTRARY INTENT.

SINCE THERE WAS NO EVIDENCE THAT GEC WAS AWARE OF THE AIR FORCE'S ACTUAL UNEXPRESSED INTENT WHEN IT CHARACTERIZED THE REQUIRED WEIGHING DEVICE AS A COMMERCIAL-TYPE PRODUCT, OR THAT GEC OTHERWISE WAS OR SHOULD HAVE BEEN ON NOTICE THAT A COMMERCIAL-TYPE PRODUCT WAS NOT REQUIRED, WE REITERATE THAT IT WAS REASONABLE FOR GEC NOT TO OFFER ITS NONCOMMERCIAL SCALES IN RESPONSE TO THE RFP. THE FACT THAT THE AIR FORCE MADE NO REFERENCE TO THE FAR DEFINITION OF THE TERM "COMMERCIAL TYPE" PRODUCT IN ITS RESPONSE TO GEC DOES NOT CHANGE OUR CONCLUSION; IN THE ABSENCE OF ANY INDICATION OF WHAT THE AIR FORCE INTENDED, IT WAS REASONABLE FOR GEC TO ASSUME THAT THE AIR FORCE INTENDED THE FAR MEANING OF THE TERM.

WE DO NOT AGREE THAT THE AIR FORCE'S RESPONSES TO OTHER TECHNICAL QUESTIONS WERE SUFFICIENT TO INDICATE THAT OFFERS ON PROTOTYPE SCALES COULD BE SUBMITTED. GEC'S ONLY OTHER RELEVANT TECHNICAL QUESTION IN THIS REGARD WAS: "WILL THE AIR FORCE ACCEPT AN UNPROVEN OR PROTOTYPE DEVICE IN LIEU OF A PROVEN, FIELD-TESTED DEVICE?" THE AIR FORCE'S RESPONSE WAS: "AS FOR AN UNPROVEN DEVICE, ITEM SHALL BE SUBJECT TO ALL TESTS AS STATED IN (THE RFP) AS WOULD ANY SCALE DEVICES." WE DO NOT BELIEVE THE AIR FORCE'S RESPONSE TO THIS QUESTION WAS INCONSISTENT WITH THE COMMERCIAL-TYPE REQUIREMENT. RATHER, WE THINK THE AIR FORCE'S FAILURE TO SPECIFY IN ITS RESPONSE THAT A PROTOTYPE WAS ACCEPTABLE COULD REASONABLY INDICATE THAT PROTOTYPE DEVICES WERE NOT ACCEPTABLE. UNDER THIS INTERPRETATION, THE RESPONSE OVERALL WOULD HAVE BEEN INTENDED TO FURTHER ADVISE BIDDERS THAT COMMERCIAL-TYPE DEVICES THAT HAD NOT BEEN FIELD-TESTED FOR THE CONDITIONS UNDER THIS PROCUREMENT-- BUT NOT PROTOTYPES-- WOULD BE ACCEPTABLE, AND THEN ONLY IF THEY MET ALL RFP TESTS. IN LIGHT OF OUR CONCLUSION THAT THE AIR FORCE DID CLEARLY ESTABLISH A COMMERCIAL-TYPE PRODUCT REQUIREMENT, WE BELIEVE IT WAS REASONABLE FOR GEC TO INTERPRET THE AIR FORCE'S RESPONSE CONSISTENTLY WITH THAT REQUIREMENT.

WE SEE NO SIGNIFICANCE IN HARDY'S ASSERTION THAT GEC KNEW FROM A PRIOR BUSINESS RELATIONSHIP THAT HARDY'S ELECTRONIC WEIGHING DEVICE WAS A PROTOTYPE. EVEN ASSUMING GEC DID HAVE SUCH KNOWLEDGE, WE BELIEVE THAT IT WOULD HAVE BEEN REASONABLE FOR GEC TO CONCLUDE AT THE TIME IT SUBMITTED ITS BEST AND FINAL OFFER THAT HARDY'S PROTOTYPE SCALE WOULD NOT BE ACCEPTABLE GIVEN THE PLAIN LANGUAGE OF THE AIR FORCE'S STATEMENT THAT A COMMERCIAL-TYPE PRODUCT WAS REQUIRED. INDEED, WHEN GEC DISCOVERED THAT HARDY'S ELECTRONIC SCALE WAS, IN FACT, ACCEPTABLE TO THE AGENCY, THE COMPANY PROTESTED THE IMPROPRIETY OF MAKING AN AWARD TO HARDY WITHOUT GIVING GEC THE OPPORTUNITY TO SUBMIT AN OFFER ON ITS LOWER PRICED NONCOMMERCIAL-TYPE SCALE.

AS TO HARDY'S ALLEGATION THAT GEC DOES NOT HAVE A PROTOTYPE ELECTRONIC SCALE TO OFFER, GEC SPECIFICALLY STATES IN ITS COMMENTS ON HARDY'S REQUEST FOR RECONSIDERATION THAT IT HAS BEEN DEVELOPING AN ELECTRONIC WEIGHING DEVICE SINCE 1981, BUT HAS NOT, AS YET, MARKETED IT. IN ADDITION, GEC STATES THAT HARDY'S EXPERIENCE WITH GEC WAS LIMITED AND THAT HARDY HAS NO ACTUAL KNOWLEDGE OF GEC'S RESEARCH AND DEVELOPMENT EFFORTS. THE FACT THAT GEC DID NOT SUBMIT AN ALTERNATIVE OFFER PROVIDES NO INDICATION, IN OUR VIEW, THAT GEC DID NOT HAVE AN ELECTRONIC SCALE TO OFFER SINCE, AS STATED ABOVE, GEC HAD NO REASON TO BELIEVE THAT A NONCOMMERCIAL-TYPE ELECTRONIC SCALE WOULD BE ACCEPTABLE.

SINCE HARDY HAS NOT ESTABLISHED THAT OUR PRIOR DECISION WAS LEGALLY OR FACTUALLY WRONG, THE DECISION IS AFFIRMED.