B-209446.3, JUN 30, 1983

B-209446.3, JUN 30, 1983

DIGEST: PRIOR DECISION IS AFFIRMED WHERE RECONSIDERATION REQUEST MERELY REFLECTS PROTESTER'S DISAGREEMENT WITH PRIOR DECISION AND DOES NOT PROVIDE ANY EVIDENCE THAT PRIOR DECISION WAS ERRONEOUS.

ATLAS CONTRACTORS, INC. - REQUEST FOR RECONSIDERATION:

ATLAS CONTRACTORS, INC. REQUESTS THAT WE RECONSIDER OUR DECISION IN HANCON ASSOCIATES - REQUEST FOR RECONSIDERATION, B-209446.2, APRIL 29, 1983, 83-1 CPD , IN WHICH WE REVERSED OUR DECISION IN ATLAS CONTRACTORS, INC., B-209446, MARCH 24, 1983, 83-1 CPD 303. IN ATLAS, WE HELD THAT THE BID OF HANCON ASSOCIATES FOR THE CONSTRUCTION OF A COMMISSARY AT CARSWELL AIR FORCE BASE, FORT WORTH, TEXAS SHOULD BE REJECTED AS NONRESPONSIVE BECAUSE THE ACCOMPANYING BID BOND WAS MATERIALLY DEFECTIVE IN THAT IT LISTED LUMBERMENS MUTUAL CASUALTY COMPANY IN THE PLACE AT THE TOP OF THE BOND RESERVED FOR THE DESIGNATION OF SURETIES, BUT ALSO LISTED THE UNITED STATES FIDELITY AND GUARANTY COMPANY (USF&G) AS SURETY AT THE BOTTOM OF THE BOND. WE FOUND THAT THIS DISCREPANCY CREATED AN AMBIGUITY AS TO THE INTENDED SURETY. IN HANCON, WE REVERSED THAT DECISION BECAUSE UPON FURTHER REFLECTION WE WERE PERSUADED THAT OUR DECISION GAVE TOO MUCH WEIGHT TO A TECHNICAL DEFICIENCY IN THE BOND AND THAT THE CONTINGENCY ABOUT WHICH WE WERE CONCERNED - THE ABILITY OF THE SURETY TO AVOID ANY OBLIGATION UNDER THE BOND - WAS TOO REMOTE TO WARRANT REJECTION OF THE BOND.

IN ITS REQUEST FOR RECONSIDERATION, ATLAS INITIALLY REITERATES ITS ARGUMENT THAT HANCON'S BID BOND WAS AMBIGUOUS. ESSENTIALLY, ATLAS DISAGREES WITH OUR DECISION IN HANCON. ITS ARGUMENT WAS EXPRESSLY REJECTED IN THAT DECISION, HOWEVER, AND WHILE ATLAS DISAGREES WITH OUR DISPOSITION OF THAT QUESTION, IT HAS NOT PROVIDED ANY NEW ARGUMENTS OR FACTS. MERE DISAGREEMENT WITH OUR PRIOR DECISION DOES NOT PROVIDE A BASIS TO REVERSE THAT DECISION. SOLENERGY CORPORATION - RECONSIDERATION, B-208111.3, MARCH 22, 1983, 83-1 CPD 280.

ATLAS NEXT CONTENDS THAT HANCON'S ARGUMENT MADE IN ITS REQUEST FOR RECONSIDERATION - THAT THE ATTORNEY WHO EXECUTED THE BOND DID NOT HAVE AUTHORITY TO BIND USF&G - WAS NOT ESTABLISHED IN THE RECORD, IS PROBABLY INACCURATE, AND "RAISES FURTHER AMBIGUITY AS TO THE LAW TO BE APPLIED."

WE CONSIDERED THIS ARGUMENT PRIOR TO REACHING OUR DECISION IN HANCON, BUT DID NOT SPECIFICALLY ADDRESS IT BECAUSE IT WAS NOT CONTROLLING. THE SIGNIFICANT QUESTION WAS NOT WHETHER THE ATTORNEY HAD AUTHORITY TO BIND BOTH SURETIES, BUT WHETHER SHE ACTED WITH THE INTENTION TO BIND LUMBERMENS. IN HANCON WE CONCLUDED, BY EXAMINING THE BOND, THE LUMBERMENS CORPORATE SEAL AND POWER OF ATTORNEY ATTACHED TO THE BOND, THAT THE ATTORNEY INTENDED TO BIND LUMBERMENS. HER AUTHORITY TO BIND USF&G WAS OF NO CONSEQUENCE.

OUR DECISION IN HANCON ASSOCIATES - REQUEST FOR RECONSIDERATION, SUPRA, IS AFFIRMED.