B-194673, B-194225, JUN 18, 1979
Highlights
DIGEST: PREVIOUS DECISION DENYING PROTEST IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION FAILS TO DEMONSTRATE ERRORS OF FACT OR LAW IN PRIOR DECISION OR TO PROVIDE NEW INFORMATION NOT PREVIOUSLY CONSIDERED. USDC IS A SUPPLIER OF UNDERGROUND HEAT DISTRIBUTION CONDUIT (PIPING). THE BASIS FOR THE PROTEST WAS THE GOVERNMENT'S REFUSAL TO ISSUE A LETTER OF ACCEPTABILITY TO USDC. THE LETTERS WERE DENIED BECAUSE USDC'S PIPING DID NOT MEET THE DESIGN REQUIREMENTS OF THE SPECIFICATIONS. THUS BELIEVED IT WAS ENTITLED TO THE LETTER OF ACCEPTABILITY. USDC ALSO ASSERTED THAT PRESENT SUPPLIERS OF THE PIPING HOLDING LETTERS OF ACCEPTABILITY WERE FALSELY CERTIFYING THAT THEIR MATERIALS MET THE SPECIFICATION REQUIREMENTS.
B-194673, B-194225, JUN 18, 1979
DIGEST: PREVIOUS DECISION DENYING PROTEST IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION FAILS TO DEMONSTRATE ERRORS OF FACT OR LAW IN PRIOR DECISION OR TO PROVIDE NEW INFORMATION NOT PREVIOUSLY CONSIDERED.
U. S. DURACON CORPORATION (RECONSIDERATION):
U. S. DURACON CORPORATION (USDC) REQUESTS RECONSIDERATION OF OUR DECISION OF MAY 15, 1979, WHICH DENIED ITS PROTEST OF INVITATIONS FOR BIDS (IFB) N62472-79-B-0098 AND N62472-79-13-2319 ISSUED BY THE DEPARTMENT OF THE NAVY.
USDC IS A SUPPLIER OF UNDERGROUND HEAT DISTRIBUTION CONDUIT (PIPING). THE BASIS FOR THE PROTEST WAS THE GOVERNMENT'S REFUSAL TO ISSUE A LETTER OF ACCEPTABILITY TO USDC, A PREREQUISITE TO SUPPLYING THE PIPING FOR INSTALLATION AT THE CONSTRUCTION PROJECTS INVOLVED UNDER THE IFBS. THE LETTERS WERE DENIED BECAUSE USDC'S PIPING DID NOT MEET THE DESIGN REQUIREMENTS OF THE SPECIFICATIONS. NONETHELESS, USDC CLAIMED THAT ITS PIPING PASSED ALL OF THE REQUISITE LABORATORY PERFORMANCE TESTS FOR QUALIFICATION, AND THUS BELIEVED IT WAS ENTITLED TO THE LETTER OF ACCEPTABILITY. USDC ALSO ASSERTED THAT PRESENT SUPPLIERS OF THE PIPING HOLDING LETTERS OF ACCEPTABILITY WERE FALSELY CERTIFYING THAT THEIR MATERIALS MET THE SPECIFICATION REQUIREMENTS.
OUR DECISION HELD THAT USDC'S INTERPRETATION OF THE SPECIFICATIONS WAS NOT REASONABLE SINCE THE ISSUANCE OF A LETTER OF ACCEPTABILITY FOR USDC'S UNDERGROUND HEAT DISTRIBUTION CONDUIT BASED SOLELY UPON SUCCESSFUL COMPLETION OF LABORATORY PERFORMANCE TESTS WOULD IN EFFECT CONVERT A CLEARLY DELINEATED DESIGN SPECIFICATION TO A PERFORMANCE SPECIFICATION. WE ALSO FOUND THAT USDC HAD FAILED TO SUSTAIN ITS BURDEN OF PROVING ITS ALLEGATION THAT OTHER SUPPLIERS WERE FURNISHING FALSE CERTIFICATIONS UNDER EXISTING LETTERS OF ACCEPTABILITY SINCE USDC PROVIDED ONLY UNSUPPORTED ALLEGATIONS THAT THESE CERTIFICATIONS WERE FALSELY MADE. USDC NOW RAISES THE SAME ISSUES IN ITS REQUEST FOR RECONSIDERATION YET ADVANCES NO ADDITIONAL FACTS OR LEGAL ARGUMENTS WHICH SHOW THAT OUR EARLIER DECISION WAS ERRONEOUS. IT MERELY REQUESTS THE NAVY FURNISH COPIES OF ANY APPROVED CHANGES IN THE PIPING MATERIAL FURNISHED BY OTHER SUPPLIERS TO PROVE ITS ALLEGATION OF FRAUD BECAUSE IT SUSPECTS "NO SUCH APPROVAL WAS EVER GRANTED."
SECTION 20.9 OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.9 (1977), PROVIDES THAT REQUESTS FOR RECONSIDERATION " CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED, SPECIFYING ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED." USDC'S REQUEST FOR RECONSIDERATION MERELY REITERATES THE ARGUMENTS MADE IN ITS ORIGINAL PROTEST AND DISAGREES WITH OUR DECISION. SINCE THE PROTESTER HAS MADE NO SHOWING THAT OUR PRIOR CONCLUSION IS ERRONEOUS, WE SEE NO REASON TO CONSIDER THESE ARGUMENTS FURTHER. VIRGINIA- MARYLAND ASSOCIATES, INC. RECONSIDERATION, B-191252, JULY 7, 1978, 78-2 CPD 19.
THE DECISION IS AFFIRMED.