B-222037.4, AUG 29, 1986

B-222037.4, AUG 29, 1986

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: SECOND REQUEST FOR RECONSIDERATION IS DENIED WHERE THE PARTY REQUESTING RECONSIDERATION MERELY REITERATES ARGUMENTS MADE IN ITS FIRST REQUEST FOR RECONSIDERATION.

NCR CORPORATION-- REQUEST FOR RECONSIDERATION:

NCR CORPORATION FOR THE SECOND TIME, REQUEST RECONSIDERATION OF OUR DECISION IN CPT TEXT-COMPUTER GMBH, B-222037.2, JULY 3, 1986, 86-2 CPD PARA. ***, AFF'D ON RECONSIDERATION, B-222037.3, JULY 30, 1986, 86-2 CDP PARA. ***. IN THE ORIGINAL DECISION, WE SUSTAINED THE CPT TEXT COMPUTER GMBH (CPT) PROTEST OF THE ARMY'S DECISION TO ALLOW EXTENSIONS OF DATES FOR OPERATIONAL DEMONSTRATIONS TO ONLY SOME OFFERORS IN CONNECTION WITH REQUEST FOR PROPOSALS (RFP) NO. PAENO-84-R-0004. WE DENY THE REQUEST FOR RECONSIDERATION.

THE RFP, ISSUED BY THE ARMY ON AUGUST 20, 1984, CALLED FOR THE ACQUISITION OF MICROCOMPUTER SYSTEMS CONSISTING OF AUTOMATIC DATA PROCESSING (ADP) EQUIPMENT AND SOFTWARE. THE SYSTEMS ARE TO BE USED BY THE ARMY'S CENTRAL ACCOUNTING DIVISION, A NONAPPROPRIATED FUND ACTIVITY WHICH PROVIDES ACCOUNTING SUPPORT TO OTHER NONAPPROPRIATED FUND ACTIVITIES IN VARIOUS MILITARY COMMUNITIES IN EUROPE. EIGHT OFFERORS, INCLUDING THE PROTESTER, SUBMITTED INITIAL PROPOSALS.

THE ARMY REQUIRED OFFERORS TO PERFORM OPERATIONAL DEMONSTRATIONS OF THE ADP HARDWARE AND SOFTWARE PROPOSED. WHEN THE ARMY ADVISED THE OFFERORS OF THE SCHEDULE FOR DEMONSTRATIONS, FOUR OF THE EIGHT OFFERORS REQUESTED EXTENSIONS OF THE DEMONSTRATION DATES BECAUSE OF CONFLICTING COMMITMENTS OF PERSONNEL AND EQUIPMENT TO THE HANNOVER TRADE FAIR, A MAJOR EXHIBITION OF OFFICE AUTOMATION EQUIPMENT HELD ANNUALLY IN EUROPE. THE ARMY INITIALLY DENIED ALL FOUR REQUESTS. THREE OF THE FOUR OFFERORS (NOT INCLUDING THE PROTESTER) THEN RENEWED THEIR REQUESTS FOR EXTENSIONS. BASED ON THEIR RENEWED REQUESTS, THE ARMY SUBSEQUENTLY REVERSED ITS INITIAL DENIAL AND GRANTED EXTENSIONS TO THESE THREE OFFERORS. THE ARMY'S DECISION TO GRANT AN EXTENSION TO ONE OF THE THREE OFFERORS WAS MADE BEFORE THE PROTESTER'S DEMONSTRATION TOOK PLACE.

IN OUR ORIGINAL DECISION, WE FOUND THAT THE ARMY HAD NO REASONABLE BASIS UPON WHICH TO DISTINGUISH AMONG THE FOUR OFFERORS WHEN CONSIDERING WHETHER TO GRANT EXTENSIONS, SINCE ALL FOUR RELIED ON THE SAME RATIONALE TO SUPPORT THEIR REQUESTS, THAT IS, BY CITING THE HARDSHIP IMPOSED BY REQUIRING DEMONSTRATIONS TO PROCEED SHORTLY AFTER THE HANNOVER TRADE FAIR. WE ALSO FOUND THAT CPT WAS PREJUDICED BY THE ARMY'S DENIAL OF ITS REQUEST FOR AN EXTENSION, SINCE, UNLIKE THE OTHER OFFERORS, THE PROTESTER WAS REQUIRED TO GO FORWARD WITH ITS DEMONSTRATION IMMEDIATELY FOLLOWING THE TRADE FAIR.

IN ITS FIRST REQUEST FOR RECONSIDERATION, NCR, AN OFFEROR UNDER THE RFP, ARGUED THAT THE ARMY WAS NOT REQUIRED TO GRANT AN EXTENSION TO THE PROTESTER SINCE, UNLIKE THE OTHER THREE OFFERORS, CPT DID NOT RENEW ITS REQUEST AFTER THE ARMY'S INITIAL DENIAL. NCR ALSO ARGUED THAT CPT WAS NOT PREJUDICED BY BEING DENIED AN EXTENSION SINCE THE PRODUCT IT OFFERED DID NOT MEET THE REQUIREMENTS OF THE RFP. WE DENIED THE REQUEST FOR RECONSIDERATION BASED ON OUR FINDING THAT NCR FAILED TO RAISE THE ISSUE DURING OUR INITIAL CONSIDERATION OF THE PROTEST. WE WILL NOT CONSIDER AN ARGUMENT ON RECONSIDERATION THAT COULD HAVE BEEN RAISED INITIALLY. ALSO NOTED THAT EVEN IF THE ARGUMENT WERE PROPERLY RAISED IT WAS WITHOUT MERIT. CONTRARY TO NCR'S ASSERTION, CPT'S FAILURE TO RENEW ITS REQUEST FOR AN EXTENSION IS NOT SIGNIFICANT. ONCE THE ARMY DECIDED TO GRANT AN EXTENSION TO ONE OF THE FOUR OFFERORS, THE ARMY WAS REQUIRED, AS PART OF ITS DUTY TO TREAT OFFERORS EQUALLY, TO OFFER EXTENSIONS TO THE OTHER THREE OFFERORS WHOSE REQUESTS WERE BASED ON THE SAME RATIONALE. WITH REGARD TO ITS SECOND ARGUMENT-- THAT THE PROTESTER'S PRODUCT DID NOT MEET THE RFP REQUIREMENTS-- NCR OFFERED NO SUPPORT FOR ITS CONTENTION. /1/

IN ITS SECOND REQUEST FOR RECONSIDERATION, NCR MERELY REITERATES THE ARGUMENTS RAISED IN ITS FIRST REQUEST FOR RECONSIDERATION. ACCORDINGLY, NCR ONCE AGAIN HAS FAILED TO SHOW THAT OUR INITIAL DECISION WAS IN ERROR.

WE DENY THE REQUEST FOR RECONSIDERATION.

/1/ WE ALSO NOTED THAT NCR FAILED TO RAISE THIS ISSUE DURING INITIAL CONSIDERATION OF THE PROTEST. NCR NOW STATES THAT THE ISSUE WAS RAISED IN ORAL COMMENTS BY ITS REPRESENTATIVE AT THE CONFERENCE HELD AT OUR OFFICE ON THE INITIAL PROTEST. OUR BID PROTEST DECISIONS ARE BASED ON THE WRITTEN RECORD AND ANY COMMENTS PARTIES WISH TO HAVE CONSIDERED MUST BE SUBMITTED IN WRITING. SEE BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.5(C) (1986). NCR HAD THE OPPORTUNITY TO SUBMIT WRITTEN COMMENTS AFTER THE CONFERENCE AND IN FACT DID SO REGARDING THE OTHER MAJOR ISSUE IN THE PROTEST. NCR'S COMMENTS DID NOT ADDRESS THE ACCEPTABILITY OF THE PROTESTER'S PRODUCT, HOWEVER, AND ITS VIEWS ON THAT ISSUE THUS ARE NOT PART OF THE RECORD IN THIS CASE.