B-237676.2, Aug 3, 1990, 90-2 CPD 98

B-237676.2: Aug 3, 1990

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PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration is denied where protester restates arguments previously raised and considered and raises new arguments which do not warrant reversal or modification of that decision. In which we denied the firm's protest that it was improper for the Air Force to propose to use an indefinite quantity type contract for painting services because the services required were not of a commercial nature. The IFB stated that the contractor was guaranteed a minimum of $100. Each line item contained a single estimate of the amount of work to be done and specified that the quantities in the schedule were estimates only.

B-237676.2, Aug 3, 1990, 90-2 CPD 98

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration is denied where protester restates arguments previously raised and considered and raises new arguments which do not warrant reversal or modification of that decision.

Attorneys

Sletager, Inc.-- Reconsideration:

Sletager, Inc. requests reconsideration of our decision, Sletager, Inc., B-237676, Mar. 15, 1990, 90-1 CPD Para. 298, in which we denied the firm's protest that it was improper for the Air Force to propose to use an indefinite quantity type contract for painting services because the services required were not of a commercial nature, and that the omission of the Variation in Estimated Quantity clause (Variation clause) made the solicitation defective.

We deny the request for reconsideration.

The subject invitation for bids (IFB) No. F65503-90-B-001, requested bids on 25 line items representing different types of painting and surface preparation. The IFB stated that the contractor was guaranteed a minimum of $100,000 worth of work. It also indicated that no more than $1 million in services would be ordered. Each line item contained a single estimate of the amount of work to be done and specified that the quantities in the schedule were estimates only.

In our decision we concluded that the painting services solicited were in fact commercial in nature and therefore the agency's use of an indefinite quantity contract was proper. We further concluded that the Variation clause should have been included in the solicitation but that its omission did not prejudice the protester since that firm submitted the fourth low bid and did not argue that it would have been low but for the omission.

In its request for reconsideration, Sletager argues that we erred in misconstruing the nature of the work solicited. Sletager believes that indefinite quantity contracts can be used only with commercial services and, in its opinion, interior and exterior painting of the nature solicited here do not constitute commercial-type services. Additionally, the protester now argues that the $100,000 minimum set forth in the solicitation was improper because the regulations require that the minimum quantity be within 85 percent of the estimated quantities.

We have already answered the protester's argument that the paint services solicited were not commercial-type services. Further, the protester has provided us with no reason why it did not raise its argument concerning the minimum quantities in its initial protest. Since the protester has merely reiterated a previous argument and raised another which could and should have been raised in its initial protest it has not established a basis for reconsideration. Bid Protest Regulations, 4 C.F.R. Sec. 21.12(a) (1990); Brown Assocs. Management Servs., Inc.-- Request for Recon., B-235906.3, Mar. 16, 1990, 90-1 CPD Para. 299.

Finally, Sletager states that it is now the second low bidder and in fact may be low. The protester, however, does not argue that if it is not in fact low it would be low but for the omission of the Variation clause. Moreover, if in fact it has become the low bidder then it may well be entitled to award under the solicitation notwithstanding our denial of its protest. We simply do not see how the statement concerning the pro- tester's status impacts upon the legal validity of our decision.

The request for reconsideration is denied.