B-187606, JUNE 7, 1977
Highlights
REQUEST FOR RECONSIDERATION FILED MORE THAN 10 DAYS AFTER THE GROUNDS FOR THE REQUEST SHOULD HAVE BEEN APPARENT IS UNTIMELY UNDER SECTION 20.9(B) OF GAO'S BID PROTEST PROCEDURES. PRIOR DECISION IS CLARIFIED. 2. DISMISSAL OF PROTEST IS AFFIRMED. DATA CLAIMS THE DISMISSAL OF ITS PROTEST WAS IN ERROR BECAUSE OF ITS BELIEF THAT APPROPRIATED FUNDS WERE USED IN THIS PROCUREMENT OF COMMISSARY EQUIPMENT. REQUESTS FOR RECONSIDERATION MUST BE "FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR RECONSIDERATION IS KNOWN OR SHOULD HAVE BEEN KNOWN. WHICHEVER IS EARLIER.". DATA SHOULD HAVE KNOWN THE GROUNDS FOR ITS REQUEST FOR RECONSIDERATION UPON ITS RECEIPT OF OUR FEBRUARY 2. IN THE NORMAL COURSE OF THE MAILS WE WOULD ANTICIPATE THAT DATA WOULD HAVE RECEIVED OUR DECISION NO LATER THAN FEBRUARY 7.
B-187606, JUNE 7, 1977
1. REQUEST FOR RECONSIDERATION FILED MORE THAN 10 DAYS AFTER THE GROUNDS FOR THE REQUEST SHOULD HAVE BEEN APPARENT IS UNTIMELY UNDER SECTION 20.9(B) OF GAO'S BID PROTEST PROCEDURES. HOWEVER, PRIOR DECISION IS CLARIFIED. 2. COMMISSARY'S TEMPORARY USE OF ARMY APPROPRIATIONS PENDING REIMBURSEMENT DOES NOT ALTER THE ESSENTIALLY NONAPPROPRIATED NATURE OF COMMISSARY PROCUREMENT. DISMISSAL OF PROTEST IS AFFIRMED.
DATA TERMINAL SYSTEMS-- REQUEST FOR RECONSIDERATION:
BY LETTER DATED APRIL 22, 1977, DATA TERMINAL SYSTEMS (DATA), REQUESTS RECONSIDERATION OF OUR DECISION DATA TERMINAL SYSTEMS, B-187606, FEBRUARY 2, 1977, 77-1 CPD 85, IN WHICH WE DECLINED TO RENDER A DECISION ON DATA'S PROTEST BECAUSE OF OUR LACK OF SETTLEMENT AUTHORITY OVER NONAPPROPRIATED FUND ACTIVITIES. DATA CLAIMS THE DISMISSAL OF ITS PROTEST WAS IN ERROR BECAUSE OF ITS BELIEF THAT APPROPRIATED FUNDS WERE USED IN THIS PROCUREMENT OF COMMISSARY EQUIPMENT.
UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.9(B) (1976), REQUESTS FOR RECONSIDERATION MUST BE "FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR RECONSIDERATION IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." DATA SHOULD HAVE KNOWN THE GROUNDS FOR ITS REQUEST FOR RECONSIDERATION UPON ITS RECEIPT OF OUR FEBRUARY 2, 1977 DECISION. IN THE NORMAL COURSE OF THE MAILS WE WOULD ANTICIPATE THAT DATA WOULD HAVE RECEIVED OUR DECISION NO LATER THAN FEBRUARY 7, 1977. SINCE DATA'S REQUEST FOR RECONSIDERATION WAS NOT FILED UNTIL APRIL 25, 1977, IT IS UNTIMELY. NEVERTHELESS, WE BELIEVE A CLARIFICATION OF OUR PRIOR DECISION IS IN ORDER.
IN OUR EARLIER DECISION, WE REFERRED TO THE COMMISSARY AS A "NONAPPROPRIATED APPROPRIATED FUNDS, THE OMA APPROPRIATIONS ACCOUNT FROM WHICH THE FUNDS WERE EXPENDED WAS SUBSEQUENTLY REIMBURSED FROM THE TRUST REVOLVING FUND ACCOUNT WHICH IS MADE UP OF COMMISSARY SURCHARGE FUNDS PAID BY COMMISSARY PATRONS. THE SURCHARGE CONSISTS OF A PERCENTAGE OF THE SALES PRICE OF GOODS AND SERVICES SOLD IN COMMISSARY STORE FACILITIES. HAVE BEEN ADVISED BY THE ARMY THAT THE APPROPRIATED FUNDS WERE USUALLY REIMBURSED APPROXIMATELY THIRTY DAYS AFTER DELIVERY OF THE ITEMS OR SERVICES PROCURED.
IT IS OUR OPINION THAT THE TEMPORARY USE OF ARMY APPROPRIATIONS PENDING REIMBURSEMENT DOES NOT ALTER THE ESSENTIALLY NONAPPROPRIATED NATURE OF THE FUNDS USED TO FINANCE THE CONTRACT. CONSOLIDATED DIESEL ELECTRIC COMPANY, B-177450, JANUARY 6, 1977, 77-1 CPD 7.
ACCORDINGLY, THE PRIOR DISMISSAL OF THE PROTEST IS AFFIRMED.