B-232059.3, Nov 15, 1988

B-232059.3, Nov 15, 1988

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Reconsideration request is denied where the protester has presented no evidence that prior decision was based on factual or legal errors.

DeHorn Corporation-- Second Request for Reconsideration:

DeHorn Corporation seeks a second reconsideration of our decision, DeHorn Corp., B-232059, Aug. 9, 1988, 88-2 CPD Para. 122, in which we dismissed DeHorn's protest of the award of a contract to Govern Service, Inc., the low bidder under invitation for bids (IFB) No. DAKF27-88-B-0014, issued by the United States Army, Fort Meade, Maryland, for laundry services. DeHorn Corporation-- Requested for Reconsideration, B-232059.2, Sept. 28, 1988, 88-2 CPD Para. 296, we denied the first request for reconsideration.

DeHorn, a small disadvantaged business (SDB), was the second low bidder in the procurement, which was set aside for small businesses. DeHorn protested that it should have received the award because it was entitled to the benefit of a 10 percent evaluation preference for SDBs. The preference was provided for in rules issued by the Department of Defense (DOD) to implement section 1207 of the National Defense Authorization Act for FY 1987, Pub. L. No. 99-661, 100 Stat. 3973, and section 806 of Pub. L. No. 100-180 (the DOD Authorization Act for FY's 1988 and 1989). See 53 Fed. Reg. 20630 (1988) (to be codified at 48 C.F.R. Sec. 219.7000).

We dismissed the protest without obtaining a report from the Army, because it was clear from material furnished by the protester that the protest was without legal merit. 4 C.F.R. Sec. 21.3(m) (1988). We noted that under a previously issued interim rule, 53 Fed. Reg. 5126 (1988), the evaluation preference applied to solicitations issued on or after March 21, 1988. We then pointed out that under the more recent rules referenced above, the evaluation preference does not apply to total small business set-asides. These rules were applicable to pending solicitations whose bid opening date was after June 6. Since the bid opening date of the protested total small business set-aside was June 22, we held the evaluation preference did not apply and the protester had no legal basis for claiming its benefits.

In its request for reconsideration, DeHorn stated that "it came to the attention" of its president that the IFB, issued March 22, 1988, did not contain a clause entitled "Notice of Evaluation Preference for Small Disadvantaged Business Concerns," required by the regulation in effect at the time the IFB was issued. DeHorn alleged that it brought the omission to the attention of agency officials during telephone conversations and meetings in March and April 1988, and was assured that the evaluation preference would apply even though the IFB did not contain the evaluation preference clause. DeHorn stated that it relied on these assurances in pricing its bid, and complained that it was never notified when the regulations changed, eliminating the evaluation preference for total small business set-asides. DeHorn asserted that it would have reduced its bid if it had been aware that the evaluation preference would not apply.

We denied the request for reconsideration, pointing out that publication of a regulatory provision in the Federal Register puts all parties, bidders and contracting activity, on at least constructive notice of its existence. We held that since the regulation which eliminated the evaluation preference for total small business set asides was published in the Federal Register on June 6, 1988, DeHorn could not successfully argue either that it had no knowledge of the elimination of the evaluation preference for total small business set asides, or that the agency could properly consider the evaluation preference.

In its second request for reconsideration, DeHorn notes that the regulation eliminating the evaluation preference provided that "pending solicitations shall be amended if the date for bid opening or date set for receipt of proposals is after June 6, 1988, unless the Chief of the Contracting Office determines that it is in the best interests of the government not to amend the solicitation." DeHorn argues that because the IFB was not amended to indicate the evaluation preference would not apply, the preference applied to the IFB when the bids were opened.

We note that the regulation in effect at the IFB's issuance provided that whenever the evaluation preference was to be used in a total small business set-aside, the contracting officer "shall insert a notice to that effect in the solicitation." 53 Fed. Reg. 5126 (1988). The regulation in effect at bid opening, which eliminated the evaluation preference for total small business set-asides, had an implementation provision applicable to pending solicitations. 53 Fed. Reg. 20630 (1988). It is clear that this provision, requiring that pending solicitations be amended, addressed the need to conform pending total small business set- asides with the more recent regulations by deleting the notice of evaluation preference which had been inserted in the set asides under the outdated regulations. Since the IFB here never contained the notice of evaluation preference, there was no need to amend the IFB to delete reference to the evaluation preference. As explained earlier, DeHorn and the rest of the contracting community were on constructive notice of the elimination of the evaluation preference from publication of the regulatory provision in the Federal Register.

Since DeHorn has not presented evidence that our original decision was based on legal or factual errors, the request for reconsideration is denied. 4 C.F.R. Sec. 21.12(a).