Matter of: Ford Contracting Company-- Reconsideration File: B-248007.3, B-248007.4 Date: February 2, 1993

B-248007.3,B-248007.4: Feb 2, 1993

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PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration is denied where the request is based on information that was available to. PROCUREMENT Bid Protests GAO decisions Recommendations Modification Request that recommendation not to allow bid correction be modified to exempt work already performed is denied where requester explicitly offered to begin performance with the understanding that such a decision would apply to the work being performed and now merely expresses disagreement with recommendation of our Office. Was responsible for the lack of clear and convincing evidence in the record regarding certain components of the intended bid. Ford states that Ford's and its subcontractor's workpapers are clear and unambiguous.

Matter of: Ford Contracting Company-- Reconsideration File: B-248007.3, B-248007.4 Date: February 2, 1993

PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration is denied where the request is based on information that was available to, but not proffered by, the requester during consideration of the initial protest. PROCUREMENT Bid Protests GAO decisions Recommendations Modification Request that recommendation not to allow bid correction be modified to exempt work already performed is denied where requester explicitly offered to begin performance with the understanding that such a decision would apply to the work being performed and now merely expresses disagreement with recommendation of our Office, which took into account that offer.

Attorneys

DECISION Ford Contracting Company requests reconsideration of our decision in Great Lakes Dredge & Dock Co., B-248007.2, Sept. 3, 1992, 92-2 CPD Para. 151, in which we sustained Great Lakes's protest against the decision by the Department of the Army to permit Ford to correct two alleged mistakes in its bid under invitation for bids (IFB) No. DACW21-92- B-0007, issued by the U.S. Army Corps of Engineers. The IFB calls for the construction of a pumped storage tailwater conveyance channel at the Richard B. Russell Dam and Lake in Georgia and South Carolina. We sustained Great Lakes's protest because of the lack of clear and convincing evidence that the corrections allowed by the agency represented the bidder's intent.

We deny the requests for reconsideration.

In its initial request for reconsideration, Ford contends that the agency, not Ford or its subcontractor, was responsible for the lack of clear and convincing evidence in the record regarding certain components of the intended bid. Ford states that Ford's and its subcontractor's workpapers are clear and unambiguous. Ford states that the agency erred in parts of its analysis, and argues that Ford should not be penalized because of the agency's errors. In a similar vein, Ford argues that, if the copy of the workpapers provided to our Office was illegible, that is the agency's responsibility, because the original and Ford's copies are legible.

Ford also contends that most of the apparent inconsistencies in its subcontractor's workpapers can be explained, and that the remaining ones involve negligible discrepancies attributable to the inexact nature of estimates. Ford argues that some of the apparent discrepancies were caused by its computer software's printing a rounded number while continuing to use the nonrounded number in further calculations.

In addition, Ford asserts that our decision was reached on the basis of the protester's comments on the agency report without Ford being given the opportunity to respond to the arguments in the protester's comments and that, if it had had that opportunity, Ford could have refuted those arguments.

In a separate submission, Ford requests that our Office "clarify" the relief recommended in our decision by excluding from the scope of the recommendation work performed before the decision was issued. Ford contends that, notwithstanding the decision's finding that the bid correction was improper, the agency must pay the higher, corrected price for contract line item (CLIN) 0021, whose performance was apparently completed prior to issuance of our decision, because the agency agreed to Ford's request for bid correction and then directed Ford to proceed with performance.

Under our Bid Protest Regulations, a request for reconsideration must specify alleged errors of law made or information not previously considered by our Office. 4 C.F.R. Sec. 21.12(a) (1992). In order to provide a basis for reconsideration, information not previously considered must have been unavailable to the party seeking reconsideration when the initial protest was being considered. Norfolk Dredging Co.--Recon., B-236259.2, Oct. 31, 1989, 89-2 CPD Para. 405. A party's failure to make all arguments or submit all information available during the course of the initial protest undermines the goal of our bid protest forum--to produce fair and equitable decisions based on consideration of the parties' arguments on a fully developed record--and cannot justify reconsideration of our prior decision. Department of the Army--Recon., B-237742.2, June 11, 1990, 90-1 CPD Para. 546.

Ford's substantive arguments are based on information available to Ford earlier but not presented or argued during our consideration of the initial protest. Thus, Ford was apparently aware of errors made by the agency, but has chosen only now to identify those errors. Ford was similarly able earlier to provide an explanation of the apparent discrepancies in the numbers appearing in its computer printout, but failed to do so until now. Further-more, the partial illegibility of the worksheets that Ford submitted appears to derive, not from the quality of the copy, but rather from the nature of the drafter's handwriting--the "better" copy Ford submitted with its request for reconsideration, while admittedly clearer, is, in several places, no less ambiguous. Nonetheless, Ford made no effort to assist in deciphering the handwriting in the worksheets during the protest process.

Ford's explanation for its earlier silence is inadequate as a basis for a request for reconsideration. Whatever the reason for its prior reluctance to clarify matters that it now claims were confused by the agency's errors, it cannot do so for the first time in a request for reconsideration.

With respect to the issues raised in the protester's comments on the agency report, Ford's contention that it had no opportunity to respond earlier is unfounded. There was nothing improper in the protester's raising its specific challenges to Ford's workpapers for the first time in its comments. Indeed, since the protester had not been permitted to see the workpapers earlier, it could not have raised its specific challenges before it received the agency report. Ford was, however, not precluded from responding to the protester's comments on the agency report. Our regulations provide that additional statements may be submitted, if the party concerned requests permission to do so. 4 C.F.R. Sec. 21.3(l). If Ford wished to reply to the points raised in the protester's comments, it was free to request leave to respond. Ford failed to make such a request.

As to the relief recommended in our initial decision, Ford argues that our recommendation should not apply to CLIN 0021, which was apparently fully performed prior to issuance of our decision. Ford is essentially contending that such application would be unfair because Ford began performance of CLIN 0021, thus effectively foreclosing Ford's option of withdrawing its bid, before a final decision was reached concerning the appropriate price for that contract line item.

This contention does not state a valid basis for reconsideration, because it fails to present any information not previously considered or to demonstrate any error of fact or law in our decision. Our recommendation expressly took into account the fact that Ford had already begun to perform as well as the fact that Ford had agreed, in the event our Office found the mistake correction improper, to perform at the amount originally bid. By concluding that the work already performed was not excluded from the scope of its corrective action, the agency appropriately implemented our recommendation. Ford's request for reconsideration simply disagrees with the recommendation, without presenting new facts or demonstrating any error of fact or law. Mere disagreement with our decision does not constitute a valid basis for a request for reconsideration. R.E. Scherrer, Inc.--Recon., B-231101.3, Sept. 21, 1988, 88-2 CPD Para. 274. Moreover, in view of Ford's May 11 letter offering to begin performance notwithstanding the uncertainty concerning the final contract price and its explicit recognition in that letter that it would be paid only in accordance with the original bid price if our Office found that bid correction was improper, Ford has no credible basis to challenge the agency's implementation of our recommendation.

The requests for reconsideration are denied.