B-226277.2, MAR 4, 1987, 87-1 CPD 251
Highlights
THE GENERAL ACCOUNTING OFFICE WILL NOT RECONSIDER A PROTEST THAT WAS PROPERLY DISMISSED AS UNTIMELY ON THE BASIS OF FACTS PRESENTED IN THE ORIGINAL PROTEST. SINCE THE FACTS UPON WHICH THE PROTESTER RELIES IN ITS REQUEST FOR RECONSIDERATION WERE READILY AVAILABLE AT THE TIME OF THE ORIGINAL FILING. NOTICE FROM AN AGENCY THAT A BID WILL NOT BE CONSIDERED BECAUSE OF THE LACK OF A SIGNATURE PROVIDES A BASIS FOR PROTESTING THE REJECTION OF THE BID WITHOUT THE NEED FOR ADDITIONAL DETAILS SUCH AS A NOTICE OF AWARD TO ANOTHER FIRM. DISMISSED THE PROTEST BECAUSE THE PROTEST WAS NOT FILED WITHIN 10 DAYS OF THE TIME THE BASIS FOR PROTEST WAS KNOWN. THE PROTESTER NOW ASSERTS THAT THE DISMISSAL WAS ERRONEOUS BECAUSE ITS ORIGINAL PROTEST WAS FILED WITHIN 4 DAYS OF NOTICE OF ITS BASIS FOR PROTEST.
B-226277.2, MAR 4, 1987, 87-1 CPD 251
PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION - ADDITIONAL INFORMATION DIGEST: 1. THE GENERAL ACCOUNTING OFFICE WILL NOT RECONSIDER A PROTEST THAT WAS PROPERLY DISMISSED AS UNTIMELY ON THE BASIS OF FACTS PRESENTED IN THE ORIGINAL PROTEST, WHERE THE FACTS PRESENTED IN THE REQUEST FOR RECONSIDERATION VARY FROM THOSE IN THE ORIGINAL PROTEST, SINCE THE FACTS UPON WHICH THE PROTESTER RELIES IN ITS REQUEST FOR RECONSIDERATION WERE READILY AVAILABLE AT THE TIME OF THE ORIGINAL FILING. PROCUREMENT - BID PROTESTS - GAO PROCEDURES - PROTEST TIMELINESS - 10-DAY RULE - EFFECTIVE DATES 2. NOTICE FROM AN AGENCY THAT A BID WILL NOT BE CONSIDERED BECAUSE OF THE LACK OF A SIGNATURE PROVIDES A BASIS FOR PROTESTING THE REJECTION OF THE BID WITHOUT THE NEED FOR ADDITIONAL DETAILS SUCH AS A NOTICE OF AWARD TO ANOTHER FIRM. FOR THAT REASON, THE 10 DAY PERIOD FOR FILING A PROTEST COMMENCES ON THE DAY OF RECEIPT OF THE ORIGINAL NOTICE.
COMSPACE CORPORATION:
COMSPACE CORPORATION REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS ORIGINAL PROTEST UNDER DLA SOLICITATION NO. DLA400-86-B-A516. DISMISSED THE PROTEST BECAUSE THE PROTEST WAS NOT FILED WITHIN 10 DAYS OF THE TIME THE BASIS FOR PROTEST WAS KNOWN. THE PROTESTER NOW ASSERTS THAT THE DISMISSAL WAS ERRONEOUS BECAUSE ITS ORIGINAL PROTEST WAS FILED WITHIN 4 DAYS OF NOTICE OF ITS BASIS FOR PROTEST. WE AFFIRM THE DISMISSAL.
ON FEBRUARY 10, 1987, COMSPACE FILED A PROTEST BY TWX, PROTESTING THE AWARD TO ANY OTHER BIDDER BECAUSE IT ALLEGED THAT IT WAS THE LOW, RESPONSIVE, RESPONSIBLE BIDDER UNDER THE SOLICITATION. NO OTHER DETAILS WERE INCLUDED IN THE PROTEST. ON FEBRUARY 18, 1987, THE PROTESTER FILED ADDITIONAL DETAILS BY TWX, CLAIMING THAT "ON JANUARY 21, 1987, WE RECEIVED A LETTER FROM THE C.O. (CONTRACTING OFFICER) THAT THEY COULD NOT CONSIDER OUR BID BECAUSE WE NEGLECTED TO SIGN THE SOLICITATION." SINCE BOTH FEBRUARY 10 AND FEBRUARY 18 WERE FAR BEYOND THE 10 DAY PERIOD CALCULATED FROM JANUARY 21, WE DISMISSED THE PROTEST AS UNTIMELY.
IN ITS REQUEST FOR RECONSIDERATION, THE PROTESTER ASSERTS THAT IT RECEIVED "NOTICE" FROM THE AGENCY ON FEBRUARY 6, 1987. THE PROTESTER HAS NOT EXPLAINED THE DETAILS OF THE "NOTICE" RECEIVED ON FEBRUARY 6. EFFECT THEN, THE PROTESTER IS EITHER ARGUING THAT ITS INITIAL PROTEST, AS AMPLIFIED, WAS FACTUALLY IN ERROR, OR THAT ITS BASIS FOR PROTEST AROSE ON FEBRUARY 6, WHEN IT RECEIVED SOME ADDITIONAL UNSPECIFIED INFORMATION, SUCH AS NOTICE OF AWARD TO ANOTHER FIRM.
TO SUPPORT A REQUEST FOR RECONSIDERATION, OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.12(A) (1986), REQUIRE A PROTESTER TO FILE A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION OF OUR DECISION IS WARRANTED, SPECIFYING ERRORS OR LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED. INFORMATION NOT PREVIOUSLY CONSIDERED MEANS INFORMATION THAT WAS NOT PREVIOUSLY AVAILABLE TO THE PROTESTER. TO HOLD OTHERWISE WOULD PERMIT A PROTESTER TO PRESENT INFORMATION IN A PIECEMEAL FASHION AND POSSIBLY DISRUPT THE PROCUREMENT OF GOODS AND SERVICES INDEFINITELY. IN ADDITION, IN VIEW OF THE REQUIREMENT OF THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C. SEC. 3554(A)(1) (SUPP. III 1985) (CICA), FOR THE EXPEDITIOUS RESOLUTION OF BID PROTESTS, OUR RECONSIDERATION OF A PROTEST ON THE BASIS OF INFORMATION THAT WAS READILY AVAILABLE TO THE PROTESTER, IN THE ABSENCE OF GOOD CAUSE SHOWN FOR FAILURE TO TIMELY PRESENT THE INFORMATION, WOULD BE INCONSISTENT WITH THE STATUTORY MANDATE. SER-JOBS FOR PROGRESS, INC.-- REQUEST FOR RECONSIDERATION, B-222469.2, JUNE 6, 1986, 86-1 CPD PARA. 532.
WE WILL NOT NOW CONSIDER THE PROTESTER'S ASSERTION THAT IT RECEIVED NOTICE OF ITS BASIS FOR PROTEST ON FEBRUARY 6, IF IT IS CLAIMING THE JANUARY 21 DATE WAS INCORRECT. IN OUR VIEW, WE PROPERLY DISMISSED THE ORIGINAL PROTEST AS UNTIMELY BASED ON THE FACTS PRESENTED TO US BY THE PROTESTER. TO NOW CONSIDER THE PROTEST TO BE TIMELY FILED BECAUSE OF THE ASSERTION THAT THE FACTUAL BASIS INITIALLY PRESENTED WAS APPARENTLY IN ERROR WOULD BE INCONSISTENT WITH CICA'S MANDATE FOR EXPEDITIOUS RESOLUTION OF BID PROTESTS. SEE SER-JOBS FOR PROGRESS, INC.-- REQUEST FOR RECONSIDERATION, SUPRA. ON THE OTHER HAND, IF THE PROTESTER IS NOT INTENDING TO ASSERT A FACTUAL ERROR IN ITS ORIGINAL MESSAGE TO US, IT IS CLEAR THAT ITS BASIS FOR PROTEST-- THE REJECTION OF ITS BID BECAUSE OF THE LACK OF A SIGNATURE-- AROSE ON JANUARY 21, WHEN IT FIRST RECEIVED NOTICE OF THAT FACT, AND THE FEBRUARY 6 NOTICE IS IRRELEVANT.
THE DISMISSAL IS AFFIRMED.