B-229484.2, Feb 10, 1988

B-229484.2, Feb 10, 1988

DIGEST: 1. Prior dismissal of protest as untimely is affirmed where protest was filed more than 10 working days after the basis of protest was known. 2. Decision is affirmed where reconsideration request shows that protester disagrees with prior decision but contains no statement of the facts or legal grounds showing that it is erroneous.

Amray Inc.-- Request for Reconsideration:

Amray Inc. requests reconsideration of our decision, Amray, Inc., B-229484, Nov. 13, 1987, 87-2 CPD Para. 485, dismissing as untimely Amray's protest against the award of a contract for an electron microscope to Carl Zeiss, Inc. under invitation for bids (IFB) No. DAAK6O-87-B-0038, issued by the Department of the Army.

We affirm the decision.

Amray's protest filed on October 26, 1987, complained about the Army's determination that its bid was not responsive and argued that the September 30 award to Zeiss was improper because that firm was a foreign manufacturer whose product was not covered by a General Services Administration Federal Supply Schedule (FSS) contract.

We found in our decision that Amray's October 26 protest was filed beyond the 10-day requirement set forth in our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(2) (1987), because the record showed that Amray had been advised of the rejection of its bid in a meeting held shortly after the August 28 bid opening and because the record contained an October 6 letter from Amray which specifically stated that Amray knew at that time that award had been made to Zeiss and that Zeiss was a foreign manufacturer.

Amray argues that its protest was timely and should have been considered. It states that despite contrary language in its October 6 letter, it did not know the basis for its protest until October 13, when it received formal notification of award to Zeiss from the agency. this regard, the protester states that its protest was filed on October 23. We see no reason to disturb our initial decision.

Amray's explanation of its October 6 letter is simply unconvincing. That letter clearly shows that the writer knew of the award and Zeiss' status. The protester's position that the letter was sent merely to "verify" if an award had been made to Zeiss and to request additional information concerning that potential award is inconsistent with the language of the letter which stated: "Amray, Inc. requests specific information concerning the award made to Carl Zeiss, Inc. under solicitation No. DAAK6O-87-B- 0038." Further, our records show that Amray's protest was received in our Office on October 26, not on October 23 as the protester states. Amray's protest would be untimely on either date, however, as it would have had to have been filed on October 21 to be timely. Further, since the solicitation was issued on a brand name or equal basis with the Zeiss model listed as the brand name item, Amray could have easily raised its objection to an award to Zeiss because of the firm's status as a foreign manufacturer prior to the bid opening.

Finally, Amray has submitted a copy of an offer allegedly made by Zeiss to the State of Vermont for an electron microscope and related accessory items at a price lower than that paid by the Army under the protested award. Amray argues this information demonstrates that the Army paid too much for the Zeiss microscope.

It is not clear from the record that the equipment required by the State of Vermont and that purchased by the Army under the protested solicitation are comparable. We do not believe that this information provides a sufficient basis upon which to question the Army's acceptance of Zeiss' offer.

While Amray's request for reconsideration clearly reflects its disagreement with our decision, it does not show that our prior decision is erroneous.

Our prior decision is therefore affirmed.