B-193611, MAY 15, 1979
Highlights
DIGEST: PRIOR DECISION DISMISSING PROTEST AS UNTIMELY IS AFFIRMED WHERE PROTESTER HAS NOT SHOWN THAT PRIOR DECISION WAS BASED ON ERRORS OF FACT OR LAW. CDPR-D-00014-N ISSUED BY THE GENERAL SERVICES ADMINISTRATION BECAUSE THE PROTEST WAS NOT FILED WITH OUR OFFICE PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS DECEMBER 1. GSA RECEIVED A LETTER FROM CALCOMP EXPRESSING THE VIEW THAT SEVERAL AREAS OF THE RFP WERE STILL UNREASONABLE AND RESTRICTIVE. FIRST CALCOMP ARGUES THAT SINCE THE RFP WAS AMENDED AND A NEW CLOSING DATE WAS ESTABLISHED. WAS FILED HERE PRIOR TO THE AMENDED CLOSING DATE AND SHOULD BE CONSIDERED TIMELY FILED. THE ESSENCE OF CALCOMP'S RECONSIDERATION REQUEST IS FIRST THAT GSA'S AMENDMENT OF THE RFP TO ESTABLISH A NEW CLOSING DATE IN EFFECT REVIVED CALCOMP'S UNTIMELY PROTEST.
B-193611, MAY 15, 1979
DIGEST: PRIOR DECISION DISMISSING PROTEST AS UNTIMELY IS AFFIRMED WHERE PROTESTER HAS NOT SHOWN THAT PRIOR DECISION WAS BASED ON ERRORS OF FACT OR LAW.
CALIFORNIA COMPUTER PRODUCTS, INC. - RECONSIDERATION:
CALIFORNIA COMPUTER PRODUCTS, INC. (CALCOMP), REQUESTS RECONSIDERATION OF OUR DECISION IN THE MATTER OF CALIFORNIA COMPUTER PRODUCTS, INC., B-193611, MARCH 6, 1979, 79-1 CPD 150. THAT DECISION CONCLUDED THAT OUR OFFICE WOULD NOT CONSIDER THE MERITS OF CALCOMP'S PROTEST AGAINST CERTAIN SPECIFICATIONS IN REQUEST FOR PROPOSALS (RFP) NO. CDPR-D-00014-N ISSUED BY THE GENERAL SERVICES ADMINISTRATION BECAUSE THE PROTEST WAS NOT FILED WITH OUR OFFICE PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS, AS REQUIRED BY THE BID PROTEST PROCEDURES. 4 C.F.R. SEC. 20.2(B)(1) (1978).
THE ESSENTIAL FACTS FOLLOW. ON DECEMBER 4, 1978, WE RECEIVED CALCOMP'S PROTEST AGAINST CERTAIN MANDATORY SPECIFICATIONS AS BEING UNDULY RESTRICTIVE OF COMPETITION. THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS DECEMBER 1, 1978.
HOWEVER, ON JANUARY 18, 1979, GSA AMENDED THE RFP (1) TO RELAX THE SPECIFICATIONS IN A MANNER BENEFICIAL TO CALCOMP, AND (2) TO ESTABLISH A NEW CLOSING DATE OF JANUARY 29, 1979. PRIOR TO THE REVISED CLOSING DATE, GSA RECEIVED A LETTER FROM CALCOMP EXPRESSING THE VIEW THAT SEVERAL AREAS OF THE RFP WERE STILL UNREASONABLE AND RESTRICTIVE. CALCOMP (1) SPECIFICALLY OBJECTED TO THE SPECIFICATIONS RESULTING FROM THE AMENDMENT TO THE RFP, (2) REQUESTED THAT THEY BE CHANGED, AND (3) REQUESTED THAT THE CLOSING DATE BE EXTENDED. GSA DID NOT VIEW CALCOMP'S LETTER AS A PROTEST AND WENT AHEAD WITH THE CLOSING DATE AS SCHEDULED.
ON RECONSIDERATION, FIRST CALCOMP ARGUES THAT SINCE THE RFP WAS AMENDED AND A NEW CLOSING DATE WAS ESTABLISHED, ITS PROTEST, WHILE FILED AFTER THE INITIAL CLOSING DATE, WAS FILED HERE PRIOR TO THE AMENDED CLOSING DATE AND SHOULD BE CONSIDERED TIMELY FILED.
THE ESSENCE OF CALCOMP'S RECONSIDERATION REQUEST IS FIRST THAT GSA'S AMENDMENT OF THE RFP TO ESTABLISH A NEW CLOSING DATE IN EFFECT REVIVED CALCOMP'S UNTIMELY PROTEST. WE DISAGREE. PROCEDURALLY, A PROTEST AGAINST SPECIFICATIONS MUST BE FILED PRIOR TO THE INITIAL CLOSING DATE (4 C.F.R. SEC. 20.2(B)(1) (1978)); IF THE RFP IS SUBSEQUENTLY AMENDED TO ADD, DELETE, OR CHANGE CERTAIN SPECIFICATIONS, A PROTEST REGARDING THE AMENDMENT MUST BE FILED PRIOR TO THE AMENDED CLOSING DATE IN ORDER TO BE CONSIDERED TIMELY FILED UNDER OUR BID PROTEST PROCEDURES. ACCORDINGLY, AS STATED IN THE PRIOR DECISION, SINCE CALCOMP'S DECEMBER 4, 1978, PROTEST INVOLVED ALLEGED "APPARENT" SOLICITATION DEFECTS AND IT WAS NOT FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS, IT WILL NOT BE CONSIDERED.
SECONDLY, CALCOMP CONTENDS THAT ITS LETTER TO GSA PROTESTING THE AMENDED RFP SHOULD BE CONSIDERED TIMELY BECAUSE CALCOMP DELIVERED A COPY OF THAT LETTER TO OUR OFFICE. WE DO NOT CONSIDER A COPY OF A LETTER OF PROTEST ADDRESSED TO THE PROCURING AGENCY TO CONSTITUTE A PROTEST TO OUR OFFICE. SEE 4 C.F.R. SEC. 20.1 (1978), WHICH PROVIDES THAT PROTESTS TO GAO MUST BE ADDRESSED TO THE GENERAL COUNSEL AND MUST REQUEST A RULING BY THE COMPTROLLER GENERAL. CALCOMP'S LETTER TO GSA WITH A COPY TO OUR OFFICE DID NOT COMPLY WITH THESE REQUIREMENTS.
FURTHER, THE PRIOR DECISION - IN ANTICIPATION OF CALCOMP'S CURRENT CONTENTION - STATED THAT IF WE CONSIDERED CALCOMP'S LETTER TO GSA AN AGENCY PROTEST, THEN THE INITIAL ADVERSE AGENCY ACTION WAS GSA'S PROCEEDING WITH THE CLOSING, AS SCHEDULED, INSTEAD OF TAKING THE CORRECTIVE ACTION SUGGESTED BY CALCOMP. JAZCO CORPORATION, B-192407, AUGUST 31, 1978, 78-2 CPD 162. THE PRIOR DECISION NOTED THAT TO BE CONSIDERED TIMELY, CALCOMP WOULD HAVE HAD TO PROTEST HERE WITHIN 10 WORKING DAYS AFTER THE CLOSING DATE; SINCE CALCOMP DID NOT DO SO, ANY PROTEST AT THIS TIME WOULD BE UNTIMELY. SEE GENERAL LEASING CORPORATION - RECONSIDERATION, B-193527, MARCH 9, 1979, 79-1 CPD 170.
IN SUM, CALCOMP HAS PROVIDED NO FACTUAL OR LEGAL GROUNDS THAT WERE NOT PREVIOUSLY CONSIDERED AND CALCOMP HAS PROVIDED NO BASIS UPON WHICH REVERSAL OR MODIFICATION OF THE PRIOR DECISION IS DEEMED WARRANTED. ACCORDINGLY, THE PRIOR DECISION IS AFFIRMED.