B-238251.3, May 6, 1991, 91-1 CPD 435

B-238251.3, May 6, 1991, 91-1 CPD 435

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: A party requesting reconsideration must show that prior decision contains either errors of fact or law or that the protester has information not previously considered that warrants reversal or modification of the decision. Repetition of arguments made during the original protest does not meet this standard.

Attorneys

Stocker Yale, Inc.-- Reconsideration:

Stocker Yale, Inc. requests reconsideration of our decision Stocker Yale, Inc., B-239251.2, Dec. 6, 1990, 90-2 CPD Para. 461, in which we denied Stocker's protest of a contract awarded to Marathon Watch Co., Ltd. by the General Services Administration (GSA) under request for proposals (RFP) No. FCGA-N3-N-126-9-13-89 for wrist watches.

We deny the request for reconsideration.

Our decision addressed Stocker's second protest of the award to Marathon; in an earlier protest, Stocker had argued that Marathon should not have received the award because it did not have the Nuclear Regulatory Commission (NRC) licenses required by the solicitation. We sustained Stocker's protest and recommended that GSA determine whether Marathon, on its own, or through its suppliers, possesses licenses that meet the RFP requirements. Stocker Yale, Inc., B-238251, May 16, 1990, 90-1 CPD Para. 475. Following GSA's determination that Marathon met the license requirements, Stocker filed its second protest, arguing that Marathon did not have the required licenses either currently or at the time of award.

In response to Stocker's second protest, we concluded that as of the time the decision was issued Marathon had the required license. Further we stated that we could not conclude that Marathon was in compliance with the license requirements at the time of award-- as required by the solicitation-- we nonetheless denied the protest since GSA complied with the recommendation in our initial decision and the contract was substantially performed. We noted that it appeared that GSA was misled by the recommendation in our decision, which used the present tense to instruct GSA to determine whether Marathon "possesses" the required licenses rather than the past tense-- whether it "possessed" the licenses at the time of award. We also explained that because the agency allowed performance of the contact to continue, which it was permitted to do by our recommendation, which was unchallenged by the protester, the contract was substantially performed. Under these circumstances, and since the awardee was performing in accordance with the license requirements, we denied the protest.

In its reconsideration request, Stocker principally argues that by focusing on the word "possesses" in the first decision, our decision on Stocker's second protest ignored the recommendation of our first decision that the awardee was to possess "licences that meet the RFP requirements," which included the mandate that the licenses be possessed at the time of award. Stocker notes that our second decision stated that GSA had not shown that Marathon possessed the licenses at the time of award. According to Stocker, Marathon did not obtain such licenses, if at all, until 8 months after award and GSA failed to follow our initial recommendation since it did not determine that Marathon had the licenses at the time of award.

We see no reason to change our conclusion.

We still believe that GSA was confused by the language in our initial decision and that in the absence of any request that the matter be clarified, we think that our decision was correct.

In this regard, we also note that at the time of the award to Marathon, Stocker was not itself eligible for award as it was not listed on the qualified products lists as the RFP required and it is not at all clear that the protester possessed the necessary license itself at that time.

Stocker also argues that, contrary to our decision, there was no evidence that the contract had been substantially performed. Although our second decision stated that GSA had placed orders for over 17,000 watches under Marathon's contract, Stocker says that GSA's report indicated that far fewer than that had been ordered. Stocker also argues that, in any event, there was no indication of the number of watches actually delivered under the contract, of the costs Marathon had incurred performing the contract or any assessment of the difficulty of obtaining replacement watches. Under these circumstances, Stocker argues that there was no evidence of any potential for forfeiture or economic waste to justify allowing the award to stand.

In responding to Stocker's second protest, in October 1990, GSA reported that it had received substantial back-orders for the watches, which were being used in Operation Desert Shield, and its monthly demand forecast for the watches rose from 912 in June to 1,610 in October. GSA also explained that "significant lead time is necessary to produce these watches, and termination of the present contract would prevent GSA from meeting the needs of Operation Desert Shield and other customers." On December 4, in response to our request, GSA informed our Office that it had placed orders for over 17,000 watches under Marathon's contract. Under the circumstances, we concluded that, because of the need for the watches and the lead time necessary to produce them, it was impracticable to terminate the contract. We see no basis to disturb that determination.

Finally, Stocker argues that pursuant to 4 C.F.R. Sec. 21.6(d) (1991), we should have awarded it the cost of filing and pursuing the protest, including attorneys' fees, since in our second decision, as in the first decision, we concluded that GSA had failed to determine that Marathon met the RFP license requirements. Also, according to Stocker, it should be awarded attorneys' fees because it was unreasonably excluded from the competition and other remedies are inadequate.

Since we denied Stocker's second protest, we did not award it the costs of filing and pursuing its protest. We see no basis to reverse that decision. See EGG Washington Analytical Servs. Center, Inc., 233141, Feb. 21, 1989, 89-1 CPD Para. 176.