B-248268.2, May 14, 1992

B-248268.2: May 14, 1992

Additional Materials:

Contact:

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

 

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

The agency could not have properly found it technically acceptable. Zimmerman acknowledges that its protest was "based on mere allegations. It is apparent that the protest was largely conjectural. Provided that the information was unavailable when the initial protest was filed. Expecting that we will draw inferences favorable to them. The information Zimmerman now offers to explain how it obtained knowledge of its protest grounds was clearly available when the protest was filed. Zimmerman should have presented the information at that time to clarify the doubts about its timeliness that the record obviously posed. /2/ which is a matter of contract administration generally not reviewable by our Office. 4 C.F.R.

B-248268.2, May 14, 1992

PRECIS-UNAVAILABLE

Zimmerman Associates, Inc.-- Reconsideration:

Zimmerman Associates, Inc. requests that we reconsider our dismissal of its protest against the award of a contract to TSM Corporation under request for proposals (RFP) No. N6l339-91-R-0004, issued by the Department of the Navy, for the procurement of engineering and technical support for the Trident Training Systems. We dismissed the protest as untimely because it did not evidence that Zimmerman had diligently pursued information related to its protest to explain its failure to file the protest within 10 working days of being apprised of the award, as required by our Bid Protest Regulations. 4 C.F.R. Sec. 21.2(a) (1) (1992).

We deny the request for reconsideration.

In its initial protest, Zimmerman alleged that TSM, in performing the contract, had departed from certain RFP provisions, including the applicable Department of Labor wage rate determination. In particular, Zimmerman claimed that the awardee had improperly lowered its wage rates by negotiating such lower rates with former employees of the incumbent, by hiring personnel without the necessary educational accreditation, and by charging certain indirect expenses directly to the contract to offset the wage reductions. Zimmerman surmised that TSM's proposal might include terms authorizing the allegedly improper practices and that, if the proposal did include such terms, the agency could not have properly found it technically acceptable.

In its reconsideration request, Zimmerman acknowledges that its protest was "based on mere allegations," specifically, the "bare allegations from former employees of American Systems Corporation the prior contractor," and that it elected to protest "based only on speculation." It is apparent that the protest was largely conjectural, especially as it hypothesized the content of TSM's proposal from rumors of alleged contract performance improprieties. A protest grounded upon mere speculation provides no basis for questioning the propriety of a procurement, so as to merit reconsideration of our prior dismissal. See Precision Echo, Inc., B-232532, Jan. 10, 1989, 89-I CPD Para. 22.

Zimmerman also explains its failure to pursue information relevant to its protest to account for the lapse of almost 2 months between the time it received notice of the TSM award and the time it filed its protest. Zimmerman asserts that it had no reason to protest until it heard of the "bare allegations" of the prior contractor's employees, so it had no earlier duty to diligently pursue information regarding the award. requesting party may obtain reconsideration by presenting information not previously considered that warrants reversal or modification, provided that the information was unavailable when the initial protest was filed. See 4 C.F.R. Sec. 21.12(a); Atrium Medical Corp.-- Recon., B-243408.2, Sept. 16, 1991, 91-2 CPD Para. 244. We base our decisions on the record before us, and parties who withhold or fail to submit all relevant evidence to our Office, expecting that we will draw inferences favorable to them, do so at their own risk. Id. The information Zimmerman now offers to explain how it obtained knowledge of its protest grounds was clearly available when the protest was filed. Zimmerman should have presented the information at that time to clarify the doubts about its timeliness that the record obviously posed. Thus, we decline to reconsider our dismissal of Zimmerman's protest on this basis. 4 C.F.R. Sec. 21.2(b).

We also decline to reconsider our prior dismissal because Zimmerman's protest primarily centers on TSM's performance under the contract, /2/ which is a matter of contract administration generally not reviewable by our Office. 4 C.F.R. Sec. 21.3(m) (1); Specialty Plastics Prods., Inc., B-237545, Feb. 26, 1990, 90-1 CPD Para. 228.

The request for reconsideration is denied.

/1/ Contrary to Zimmerman's assertion, its protest allegation regarding TSM's efforts to hire former employees of the incumbent at inadequate wages does not convey how it obtained information related to its protest.

/2/ We note, for example, Zimmerman's allegation that "TSM and subcontractors of TSM have made offers to former employees of the incumbent ... below the levels required by the wage determination."