B-222437.2, AUG 5, 1986, 86-2 CPD 148

B-222437.2: Aug 5, 1986

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: WHERE A PARTY SUBMITS IN ITS REQUEST FOR RECONSIDERATION ARGUMENTS THAT IT COULD HAVE PRESENTED AT THE TIME OF ITS INITIAL PROTEST BUT DID NOT. IN THAT DECISION WE HELD THAT RAUB'S BID WAS RESPONSIVE. NOTWITHSTANDING THE PROTESTER'S ALLEGATION THAT RAUB ACCOMPANIED ITS BID WITH SAMPLES THAT ACTUALLY WERE WEBB'S. BECAUSE THE CONTRACTING OFFICER HAD NO BASIS FOR FINDING THAT THE SAMPLES SUBMITTED BY RAUB WERE WEBB'S. WEBB ARGUES THAT WE ERRED IN CONCLUDING THAT RAUB'S BID WAS RESPONSIVE BECAUSE. THE CONTRACTING OFFICER KNEW AT THE TIME OF BID OPENING THAT RAUB WAS OFFERING SAMPLES OF THE WOVEN BLIND WHICH WERE PROPRIETARY TO WEBB.

B-222437.2, AUG 5, 1986, 86-2 CPD 148

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DIGEST: WHERE A PARTY SUBMITS IN ITS REQUEST FOR RECONSIDERATION ARGUMENTS THAT IT COULD HAVE PRESENTED AT THE TIME OF ITS INITIAL PROTEST BUT DID NOT, THE ARGUMENTS DO NOT PROVIDE A BASIS FOR RECONSIDERATION.

WEBB DESIGNS, INC.-- RECONSIDERATION:

WEBB DESIGNS, INC., REQUESTS RECONSIDERATION OF OUR DECISION IN WEBB DESIGNS, INC., B-222437, JULY 1, 1986, 86-2 CPD PARA. ***, DENYING WEBB'S PROTEST THAT THE VETERANS ADMINISTRATION (VA) HAD IMPROPERLY AWARDED A CONTRACT TO GARY RAUB AND ASSOCIATES FOR A WOVEN BLIND AUTOMATIC LEVELING SYSTEM. IN THAT DECISION WE HELD THAT RAUB'S BID WAS RESPONSIVE, NOTWITHSTANDING THE PROTESTER'S ALLEGATION THAT RAUB ACCOMPANIED ITS BID WITH SAMPLES THAT ACTUALLY WERE WEBB'S, BECAUSE THE CONTRACTING OFFICER HAD NO BASIS FOR FINDING THAT THE SAMPLES SUBMITTED BY RAUB WERE WEBB'S.

IN ITS REQUEST FOR RECONSIDERATION, WEBB ARGUES THAT WE ERRED IN CONCLUDING THAT RAUB'S BID WAS RESPONSIVE BECAUSE, ACCORDING TO WEBB, THE CONTRACTING OFFICER KNEW AT THE TIME OF BID OPENING THAT RAUB WAS OFFERING SAMPLES OF THE WOVEN BLIND WHICH WERE PROPRIETARY TO WEBB. IN SUPPORT OF THIS, WEBB CITES A "DEPOSITION" ALLEGEDLY MADE BY MR. RAUB ON APRIL 28, 1986, WHICH ACCORDING TO THE PROTESTER, IMPLIES THAT TWO AGENTS OF THE CONTRACTING OFFICER HAD ACTUALLY SUPPLIED WEBB'S PROPRIETARY SAMPLES TO RAUB, ON A MARCH 17 MEMO PREPARED BY WEBB REGARDING A "DEBRIEFING" HELD BY VA.

WE FAIL TO SEE HOW THE "EVIDENCE" SUBMITTED BY WEBB SHOWS THAT A VA REPRESENTATIVE SUPPLIED THE WEBB SAMPLE TO RAUB. IN ANY EVENT, THE "DEPOSITION" OF APRIL 28, AND THE MARCH 17 MEMO ON WHICH RAUB RELIES WERE AVAILABLE TO WEBB DURING OUR CONSIDERATION OF THE ORIGINAL PROTEST. /1/ THUS, THE ARGUMENT COULD HAVE BEEN RAISED DURING WEBB'S INITIAL PROTEST, BUT WAS NOT. THE ARGUMENT THEREFORE DOES NOT PROVIDE A BASIS FOR RECONSIDERATION. SEE JOSEPH L. DECLERK AND ASSOCS., INC.-- RECONSIDERATION, B-221723.2, FEB. 26, 1986, 86-1 CPD PARA. 200.

WEBB ALSO CONTENDS FOR THE FIRST TIME IN ITS RECONSIDERATION REQUEST THAT RAUB'S BID WAS NONRESPONSIVE BECAUSE RAUB REPRESENTED IN ITS BID THAT IT IS A MANUFACTURER WHEN IN FACT IT IS NOT AND THAT RAUB REPRESENTED THAT IT WOULD FURNISH SUPPLIES MADE BY A DOMESTIC SMALL BUSINESS WHILE ITS DESCRIPTIVE LITERATURE SHOWS THAT SOME OF THE ITEMS BID WILL BE SUPPLIED BY EITHER A LARGE BUSINESS OR A FOREIGN SUPPLIER.

SINCE ALL THE INFORMATION RELIED ON BY THE PROTESTER IN RAISING THESE ARGUMENTS WAS AVAILABLE TO IT DURING THE CONSIDERATION OF THE ORIGINAL PROTEST (PUBLIC BID OPENING WAS HELD ON FEB. 24; "DEPOSITION" WAS DATED APRIL 28), THESE MATTERS ALSO COULD AND SHOULD HAVE BEEN RAISED EARLIER AND DO NOT PROVIDE A BASIS FOR RECONSIDERATION. JOSEPH L. DECLERK AND ASSOCS., INC.-- RECONSIDERATION, SUPRA.

WE DENY THE REQUEST FOR RECONSIDERATION.