B-221245.2, JAN 17, 1986, 65 COMP.GEN. 212

B-221245.2, JAN 17, 1986, 65 COMP.GEN. 212

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ADDITIONAL EVIDENCE SUBMITTED - AVAILABLE BUT NOT PREVIOUSLY PROVIDED TO GAO DISMISSAL OF A PROTEST FOR FAILURE TO INCLUDE A DETAILED STATEMENT OF THE PROTEST GROUNDS IS AFFIRMED WHERE THE PROTESTER FURNISHED ITS DETAILS FOR THE FIRST TIME IN ITS RECONSIDERATION REQUEST FILED 1 MONTH AFTER THE ORIGINAL DEFICIENT PROTEST WAS FILED. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER A RECONSIDERATION REQUEST, FILED 1 MONTH AFTER THE ORIGINAL PROTEST, IS UNTIMELY IF VIEWED AS AN ENTIRELY NEW PROTEST WHERE IT SETS FORTH THE SAME GROUNDS ON WHICH THE ORIGINAL PROTEST WAS BASED, SINCE IT WAS NOT FILED IN GENERAL ACCOUNTING OFFICE (GAO) WITHIN 10 WORKING DAYS AFTER THE PROTEST GROUNDS WERE KNOWN.

MATTER OF: INTERNATIONAL DIAMOND PRODUCTS CORP.-- RECONSIDERATION, JAN. 17, 1986:

INTERNATIONAL DIAMOND PRODUCTS CORP. (IDP) REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST UNDER DEFENSE LOGISTICS AGENCY (DLA) REQUEST FOR PROPOSALS (RFP) NO. DLA400-85-R-9957. WE AFFIRM THE DISMISSAL.

IDP PROTESTED TO OUR OFFICE BY MAILGRAM RECEIVED DECEMBER 6, STATING THAT AN AWARD TO ANY OTHER OFFEROR WOULD BE IMPROPER AND IN BAD FAITH "BECAUSE IT WOULD BE BASED ON RESTRICTIVE BIDDING AND SOLE SOURCE PROCUREMENT." THE MAILGRAM ALSO STATED THAT A DETAILED EXPLANATION OF THE PROTEST BASES WOULD FOLLOW. NO DETAILS WERE RECEIVED BY OUR OFFICE, AND WE CONSIDERED IDP'S MAILGRAM INSUFFICIENT TO SATISFY THE REQUIREMENT OF OUR BID PROTEST REGULATIONS THAT A PROTEST INCLUDE A DETAILED STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST. 4 C.F.R. SEC. 21.1(C)(4) (1985). THEREFORE DISMISSED IDP'S PROTEST.

IN ITS JANUARY 6 LETTER (RECEIVED JANUARY 8) REQUESTING RECONSIDERATION, IDP FOR THE FIRST TIME PROVIDES DETAILS OF ITS DECEMBER 6 PROTEST AND ASKS THAT WE RECONSIDER THE PROTEST SINCE IT CONCERNS THE "SERIOUS ISSUE OF FREE AND OPEN COMPETITION BEING STIFLED" IN FAVOR OF A SOLE-SOURCE PROCUREMENT.

IDP DOES NOT EXPLAIN WHY IT DID NOT FURNISH DETAILS WITH ITS PROTEST, AND WE SEE NO REASON WHY THE DETAILS WOULD NOT HAVE BEEN AVAILABLE AT THAT TIME. WHERE A PROTESTER, WHEN FILING A COMPLAINT, HAS INFORMATION NECESSARY TO EXPLAIN THE BASIS FOR ITS PROTEST, WE WILL NOT EXCUSE THE FAILURE TO FURNISH THIS INFORMATION. WE THEREFORE WILL NOT RECONSIDER OUR DISMISSAL. SEE ELECTRO-METHODS, INC. RECONSIDERATION, B-218180.2, APR. 17, 1985, 85-1 CPD PARA. 438.

TO THE EXTENT IDP'S RECONSIDERATION REQUEST COULD BE VIEWED AS A NEW PROTEST, IT IS UNTIMELY. UNDER OUR REGULATIONS, A PROTEST MUST BE FILED NO LATER THAN 10 WORKING DAYS AFTER THE BASIS OF PROTEST FIRST WAS, OR SHOULD HAVE BEEN, KNOWN. 4 C.F.R. SEC. 21.2(A)(2). EVEN IF WE ASSUME IDP'S GROUNDS FOR PROTEST DID NOT ARISE UNTIL DECEMBER 6, THE DATE WE RECEIVED THE FIRM'S MAILGRAM, THE RECONSIDERATION REQUEST WAS NOT SUBMITTED WITHIN 10 WORKING DAYS THEREAFTER AND, THUS, COULD NOT BE CONSIDERED A TIMELY PROTEST.

OUR OFFICE WILL CONSIDER AN UNTIMELY PROTEST WHERE IT INVOLVES A MATTER OF WIDESPREAD INTEREST OR IMPORTANCE TO THE PROCUREMENT COMMUNITY THAT PREVIOUSLY HAS NOT BEEN CONSIDERED. GRIFFIN GALBRAITH, B-218933, SEPT. 19, 1985, 64 COMP.GEN. ***, 85-2 CPD PARA. 307. IDP'S PROTEST IS BASED ON DLA'S ALLEGED FAILURE TO ENABLE IDP TO GAIN GOVERNMENT APPROVAL OF ITS PRODUCT, LEADING TO A POSSIBLE IMPROPER SOLE SOURCE PROCUREMENT. ALTHOUGH THE RESOLUTION OF THIS ISSUE OBVIOUSLY WOULD BE OF INTEREST TO IDP, WE DO NOT BELIEVE THE PROCUREMENT COMMUNITY AS A WHOLE HAS A SIMILAR INTEREST IN THE MATTER. IN ANY EVENT, WE HAVE DECIDED PROTESTS CONCERNING THE GOVERNMENT'S FAILURE TO APPROVE OFFERED PRODUCTS, SEE E.G. S.H.E. CORP., B-205417.2, SEPT. 30, 1982, 82-2 CPD PARA. 298, AND ALLEGED IMPROPER SOLE-SOURCE PROCUREMENTS. SEE E.G. BARTLETT TECHNOLOGIES CORP. B-218786, AUG. 20, 1985, 85-2 CPD PARA. 198.

OUR DECISION IS AFFIRMED.