B-218196.4, AUG 19, 1985, 85-2 CPD 190
Highlights
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: GENERAL STATEMENT THAT TIMELINESS OF PROTEST SHOULD BE MEASURED FROM A DATE OTHER THAN THE DATE UPON WHICH DISMISSAL OF PROTEST WAS BASED. IS AN INSUFFICIENT GROUND FOR RECONSIDERING THE DISMISSAL. WHOSE PRICE WAS VERY CLOSE TO UNISERV'S ORIGINAL OFFER. IT WOULD HAVE RECEIVED THE AWARD. OUR BID PROTEST REGULATIONS GENERALLY REQUIRE PROTESTS TO BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR THE PROTEST. 4 C.F.R. WE CONCLUDED THAT UNISERV'S PROTEST WAS UNTIMELY SINCE IT DID NOT PROTEST THE ISSUE UNTIL MORE THAN 6 WEEKS AFTER IT WAS NOTIFIED OF THE AWARD TO SEA MOBILITY AND OF THAT FIRM'S ESTIMATED CONTRACT PRICE.
B-218196.4, AUG 19, 1985, 85-2 CPD 190
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: GENERAL STATEMENT THAT TIMELINESS OF PROTEST SHOULD BE MEASURED FROM A DATE OTHER THAN THE DATE UPON WHICH DISMISSAL OF PROTEST WAS BASED, WHERE PROTESTER DOES NOT SPECIFY THE ALLEGED PROPER DATE OR PROVIDE OTHER FACTUAL DETAILS, IS AN INSUFFICIENT GROUND FOR RECONSIDERING THE DISMISSAL.
UNISERV INC.-- REQUEST FOR RECONSIDERATION:
UNISERV INC. REQUESTS RECONSIDERATION OF OUR DECISION DISMISSING AS UNTIMELY THE FIRM'S PROTEST FILED ON MARCH 15, 1985. SEE UNISERV INC., ET AL., B-218196, ET AL., JUNE 19, 1985, 85-1 CPD PARA. 699.
WE DISMISS THE REQUEST.
IN ITS PROTEST, UNISERV ALLEGED THAT THE MILITARY SEALIFT COMMAND, DEPARTMENT OF THE NAVY, IMPROPERLY TOLD UNISERV TO INCREASE ITS PROPOSED PRICE IN A PROCUREMENT FOR SHIP OPERATION AND MAINTENANCE SERVICES. AFTER UNISERV INCREASED ITS PRICE AS A RESULT OF DISCUSSIONS WITH THE NAVY, THE AGENCY AWARDED A CONTRACT TO SEA MOBILITY, INC., WHOSE PRICE WAS VERY CLOSE TO UNISERV'S ORIGINAL OFFER. UNISERV BELIEVES THAT ABSENT "DIRECTION" FROM THE NAVY TO INCREASE ITS PROPOSED PRICE, IT WOULD HAVE RECEIVED THE AWARD.
OUR BID PROTEST REGULATIONS GENERALLY REQUIRE PROTESTS TO BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR THE PROTEST. 4 C.F.R. SEC. 21.2(A)(2) (1985). IN OUR INITIAL DECISION, WE CONCLUDED THAT UNISERV'S PROTEST WAS UNTIMELY SINCE IT DID NOT PROTEST THE ISSUE UNTIL MORE THAN 6 WEEKS AFTER IT WAS NOTIFIED OF THE AWARD TO SEA MOBILITY AND OF THAT FIRM'S ESTIMATED CONTRACT PRICE. NOW, UNISERV CONTENDS THAT THE BASIS FOR ITS PROTEST WAS NOT THAT THE NAVY ACCEPTED AN OFFER AT A TOTAL PRICE THAT UNISERV HAD BEEN LED TO BELIEVE WAS TOO LOW, BUT THAT THE SEA MOBILITY PROPOSAL INCLUDED NO PRICE FOR THOSE SPECIFIC ITEMS, SUCH AS CREW OVERTIME AND MATERIAL HANDLING, THAT UNISERV HAD BEEN TOLD IT PRICED TOO LOW. THE FIRM MAINTAINS THAT IT WAS ONLY UPON LEARNING THE DETAILS OF SEA MOBILITY'S PROPOSED PRICE, NOT THE TOTAL PRICE OFFERED BY THE AWARDEE, THAT IT KNEW OF THE BASIS FOR ITS PROTEST.
REQUESTS FOR RECONSIDERATION MUST 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. 4 C.F.R. SEC. 21.12(A). WHILE UNISERV ARGUES THAT IT DID NOT RAISE THE ISSUE IT NOW RAISES BECAUSE IT WAS NOT UNTIL "SUBSEQUENT DISCUSSIONS" THAT IT LEARNED THIS BASIS FOR PROTEST, UNISERV DOES NOT STATE WHEN OR HOW IT GAINED THAT KNOWLEDGE. IF WE ARE TO RECONSIDER OUR DECISION THAT THE PROTEST WAS NOT TIMELY FILED, AN ESSENTIAL FACT WE MUST KNOW IS THE DATE ON WHICH UNISERV ALLEGEDLY LEARNED OF THIS PROTEST BASIS AND THUS FROM WHICH THE PROTESTER BELIEVES TIMELINESS SHOULD BE MEASURED. UNISERV'S GENERAL STATEMENT THAT THE DATE WAS AFTER THE DATE OF ITS INITIAL PROTEST SIMPLY PROVIDES NO BASIS FOR OUR RECONSIDERING THE DECISION.
UNISERV'S REQUEST FOR RECONSIDERATION IS THEREFORE DENIED.