B-233105.4, Jul 20, 1989, 89-2 CPD 64

B-233105.4: Jul 20, 1989

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Request for reconsideration of decision dismissing protest as untimely is denied where the initial protest was filed more than 10 days after the protester learned of its basis for protest. In our prior decision we dismissed Midwest CATV's protest on the basis that it was either an untimely filed initial protest. Which it was within VA's discretion to determine whether or not to release. The protester alleged that it should have been awarded the contract on the basis of the previous round of best and final offers because Midwest CATV had submitted the low priced. Midwest CATV is essentially contending that it did not have any basis to protest until January 12 when it received formal notice that negotiations had been reopened.

B-233105.4, Jul 20, 1989, 89-2 CPD 64

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Request for reconsideration of decision dismissing protest as untimely is denied where the initial protest was filed more than 10 days after the protester learned of its basis for protest.

Midwest CATV-- Request for Reconsideration:

Midwest CATV requests reconsideration of our decision in Midwest CATV, B-233105.3, Apr. 4, 1989, 89-1 CPD Para. 351, in which we dismissed Midwest CATV's protest against any award under request for proposals (RFP) No. 101 -29-88, issued by the Veterans Administration (VA). We deny the request for reconsideration.

In our prior decision we dismissed Midwest CATV's protest on the basis that it was either an untimely filed initial protest, or an untimely request for reconsideration of our dismissal of a protest under the same RFP which had been filed by United Satellite Systems. We had dismissed United's protest as academic on November 16, 1988, because, in response to United's allegation that its proposal had been misevaluated, the VA determined that it would reopen negotiations with all qualified offerors and conduct another round of best and final offers because it had failed to conduct meaningful discussions. That determination had rendered United's protest academic.

VA had sent a report explaining this determination to our Office and to all interested parties, including Midwest CATV, on November 15, 1988. Midwest CATV did not request reconsideration or protest in response to this notice. By letter dated November 22, Midwest CATV advised our Office of its general accord with the VA's report, but requested certain documents in order to be able to file a protest. Since the requested documents consisted of material from the proposals, which it was within VA's discretion to determine whether or not to release, our Office did not reopen the file.

On January 12, 1989, VA reopened discussions with the interested parties in the competitive range, whereupon Midwest CATV protested to our Office by letter dated January 17. In essence, the protester alleged that it should have been awarded the contract on the basis of the previous round of best and final offers because Midwest CATV had submitted the low priced, technically compliant proposal. As indicated above, our Office dismissed this protest by decision dated April 4, 1989.

In its request for reconsideration, Midwest CATV is essentially contending that it did not have any basis to protest until January 12 when it received formal notice that negotiations had been reopened. However, this is to ignore the VA's action prior to that date. Midwest CATV knew, upon receipt of the VA's letter of November 15, 1988, at the latest, on November 22, 1988, that VA had determined to conduct further discussions and request new best and final offers. Midwest CATV's grounds of protest all result from that determination. The fact that Midwest CATV apparently chose to attempt to convince the agency not to proceed with another round of best and final offers before filing its protest with our Office does not toll our timeliness requirements. Once informed of initial adverse agency action, a protester may not delay filing a protest with our Office while it continues to discuss the mater with the agency. Rocky Mountain Helicopters, Inc.-- Request for Reconsideration, B-231898.2, Aug. 22, 1988, 88-2 CPD Para. 169.

Midwest has not presented any evidence which shows that our dismissal was based on any error of fact or law or any information not previously considered which is the standard upon which we grant reconsideration; therefore, there is no basis for reconsidering our dismissal. See 4 C.F.R. Para. 21.12(a) (1988); Hi-Tech Communications, Inc.-- Request for Reconsideration, B-233664.2, Dec. 21, 1989, 88-2 CPD Para. 616. Midwest CATV's mere disagreement with our prior decision presents no basis for reversing the decision. William B. Jolley-- Request for Reconsideration, B-233789.2, May 24, 1989, 89-1 CPD Para. 498.

The request for reconsideration is denied.