B-243808.2, Jul 3, 1991, 91-2 CPD ***

B-243808.2, Jul 3, 1991, 91-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration of decision dismissing as untimely protest of cancellation of solicitation is denied where initial, agency level protest challenging cancellation was filed more than 10 working days after protester received notice of cancellation.

Attorneys

WesternWorld Services, Inc. d/b/a The Video Tape Company-- Reconsideration:

WesternWorld Services, Inc. d/b/a The Video Tape Company (VTC), requests reconsideration of our decision, WesternWorld Servs., Inc. d/b/a The Video Tape Co., B-243808, May 14, 1991, 91-1 CPD Para. ***, in which we dismissed its protest of the cancellation of invitation for bids (IFB) No. MDA902-91-B-0001, issued by the Armed Forces Radio and Television Service for videotape duplication services.

We deny the request.

In its protest, VTC alleged that it submitted the low, responsive bid, but that the agency canceled the IFB on the basis that only one responsive bid was received and that the government's requirements had changed significantly. VTC learned of the agency's action by a solicitation amendment dated March 7, 1991. On April 3, VTC filed an agency-level protest against the cancellation; the agency denied that protest by letter dated April 12. On April 15, VTC received a copy of a revised IFB, which contains some requirements different from those stated in the canceled IFB. On April 26, VTC protested to our Office, arguing that the changes in the government's requirements were not significant enough to warrant cancellation of the former IFB after bid opening, and that the agency therefore should make award to VTC under the canceled IFB. VTC also suggested that the agency's actual reason for canceling and reissuing the IFB was to afford the incumbent contractor, whose late bid had been rejected, another opportunity for award.

We found that VTC's protest of the cancellation was untimely filed. Our Bid Protest Regulations provide that a matter initially protested to an agency will be considered only if the initial protest to the agency was filed within the time limits for filing a protest with our Office, i.e., not later than 10 working days after the basis of protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) and (3) (1991). Since the record did not indicate when VTC received the March 7 amendment canceling the IFB, we presumed that the amendment was mailed on March 7 and that it was received within 1 calendar week, that is, by March 14. See TLC Moving, Inc.-- Recon., B-234850.2, Apr. 11, 1989, 89-1 CPD Para. 372. As VTC did not protest the cancellation to the agency until April 3, more than 10 working days after it presumably received the amendment, we concluded that its subsequent protest to our Office was untimely under the above standard. See Tandy Constr., Inc., B-238619, Feb. 22, 1990, 90-1 CPD Para. 206.

In dismissing the protest, we rejected an argument by VTC that its protest to our Office was timely because it did not know until April 15, when it received the revised IFB, that the changes in the agency's requirements did not provide a proper basis for cancellation of the IFB after bid opening. Since VTC's agency-level protest, based on the March 7 amendment, contained essentially the same protest grounds as its protest to our Office, it was clear to us that VTC knew of its basis of protest when it received the March 7 notice.

In its reconsideration request, VTC contends that our decision mischaracterized its protest as a protest against the cancellation of the first IFB. VTC asserts that it actually was protesting the improper resolicitation of virtually identical requirements in the second IFB. VTC's protest clearly was against the cancellation. VTC alleged not that the new IFB itself was deficient in some way, but that the terms of the new IFB allegedly show that there was no reason to cancel the original IFB. VTC's attempt to characterize its protest in a manner that it apparently believes would render it timely does not change the essence of the protest.

VTC argues that its protest to our Office was timely since VTC could not have known until the new IFB was issued that the allegedly significant changes in the agency's requirements were not significant enough to warrant cancellation of the IFB. We note that VTC apparently did not consider the agency's original cancellation notice too speculative a basis for protest when it filed its April 3 agency-level protest challenging the cancellation. In any case, a protester is responsible for promptly pursuing the information which reveals the basis for protest. J&J Maintenance, Inc., B-223355.2, Aug. 24, 1987, 87-2 CPD Para. 197. It is our view that VTC, as the apparent successful bidder deprived of the award by the agency's decision to cancel the IFB, had an obligation under this rule to promptly seek information concerning the reasonableness of the cancellation. VTC made no attempt to ascertain the nature of the unspecified changes in the agency's requirements, despite the fact that the agency cited those changes as the basis for not proceeding with an award to VTC. Having failed to do so, its argument now that the changes the agency considered significant in fact are not is untimely.

In a similar vein, VTC asserts that any protest filed prior to the issuance of the new IFB would have been premature. VTC is incorrect. Had VTC timely sought the agency's more detailed basis for cancellation, and obtained that information, the fact that the agency had not yet incorporated its changed requirements in an IFB would not have precluded our consideration of whether those proposed changes constituted sufficient justification for the cancellation.

VTC cites our decision Groathouse Constr., B-235236; B-235250, July 13, 1989, 89-2 CPD Para. 44, in support of its position that its protest is timely. In Groathouse, the agency had canceled an IFB after bid opening on the basis that the prices received were unreasonably high; on resolicitation, the agency made award to a bidder whose price was only slightly lower than Groathouse's bid under the original IFB. Groathouse then challenged the cancellation of the first IFB, alleging that the award price under the second IFB established that Groathouse's bid price under the first IFB was not unreasonable. We held that the protest was timely filed within 10 days after bid opening because it was based on the results of the bidding, which did not exist before bids were opened. The rule in Groathouse does not apply here. Unlike the protest in that case, VTC's protest was not based on information that did not exist, and that the protester therefore could not obtain, before the new IFB was issued. Rather, VTC's protest was based on the agency's changed requirements, the significance of which could and, we have found, should have been determined by the protester at the time of the cancellation.

We conclude that VTC has neither established that our decision was based on an error of fact or law, nor presented new information warranting its reversal or modification. Therefore, the request for reconsideration is denied. 4 C.F.R. Sec. 21.12; R.E. Scherrer, Inc.-- Recon., B-231101.3, Sept. 21, 1988, 88-2 CPD Para. 274.