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B-208111.3, MAR 22, 1983

B-208111.3 Mar 22, 1983
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GAO AFFIRMS PRIOR DECISION WHERE RECONSIDERATION REQUEST MERELY REFLECTS PROTESTER'S DISAGREEMENT WITH DECISION AND DOES NOT PROVIDE ANY EVIDENCE THAT THE DECISION WAS ERRONEOUS. 2. POSSIBILITY THAT GOVERNMENT MIGHT REALIZE MONETARY SAVINGS IN A PARTICULAR PROCUREMENT IF A MATERIAL BID DEFICIENCY IS WAIVED IS OUTWEIGHED BY IMPORTANCE OF MAINTAINING INTEGRITY OF COMPETITIVE BIDDING SYSTEM. WE HELD THAT SOLENERGY'S BID WAS PROPERLY REJECTED AS NONRESPONSIVE BECAUSE THE BID WAS AMBIGUOUS AND COULD REASONABLY HAVE BEEN INTERPRETED TO MEAN THAT SOLENERGY DID NOT INTEND TO PERFORM CERTAIN REQUIRED TESTS. THESE TESTS AFTER THE COAST GUARD HAD DECIDED THAT THE CONTRACTOR WOULD DEFINITELY HAVE TO PERFORM THE TESTS.

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B-208111.3, MAR 22, 1983

DIGEST: 1. GAO AFFIRMS PRIOR DECISION WHERE RECONSIDERATION REQUEST MERELY REFLECTS PROTESTER'S DISAGREEMENT WITH DECISION AND DOES NOT PROVIDE ANY EVIDENCE THAT THE DECISION WAS ERRONEOUS. 2. POSSIBILITY THAT GOVERNMENT MIGHT REALIZE MONETARY SAVINGS IN A PARTICULAR PROCUREMENT IF A MATERIAL BID DEFICIENCY IS WAIVED IS OUTWEIGHED BY IMPORTANCE OF MAINTAINING INTEGRITY OF COMPETITIVE BIDDING SYSTEM.

SOLENERGY CORPORATION - RECONSIDERATION:

SOLENERGY CORPORATION (SOLENERGY) REQUESTS RECONSIDERATION OF OUR DECISION IN SOLENERGY CORPORATION, B-208111.2, OCTOBER 8, 1982, 82-2 CPD 318, DENYING ITS PROTEST OF THE COAST GUARD'S REJECTION OF ITS BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) NO. DTG23-82-B-20019 FOR PHOTOVOLTAIC MODULES.

WE AFFIRM OUR DECISION OF OCTOBER 8, 1982.

IN THAT DECISION, WE HELD THAT SOLENERGY'S BID WAS PROPERLY REJECTED AS NONRESPONSIVE BECAUSE THE BID WAS AMBIGUOUS AND COULD REASONABLY HAVE BEEN INTERPRETED TO MEAN THAT SOLENERGY DID NOT INTEND TO PERFORM CERTAIN REQUIRED TESTS. SOLENERGY HAD ARGUED THAT THE COAST GUARD CREATED AN AMBIGUITY BY IMPROPERLY FAILING TO DELETE OR AMEND TWO PARAGRAPHS IN THE IFB WHICH REFERRED TO THE GOVERNMENT'S POSSIBLE PAYMENT FOR, OR PERFORMANCE OF, THESE TESTS AFTER THE COAST GUARD HAD DECIDED THAT THE CONTRACTOR WOULD DEFINITELY HAVE TO PERFORM THE TESTS. SOLENERGY CONTENDED THAT SUCH AN AMENDMENT WOULD HAVE ELIMINATED THE PROBLEM-CAUSING BID NOTE WHICH RENDERED ITS BID NONRESPONSIVE. WE FOUND THAT THE COAST GUARD WAS NOT OBLIGATED TO AMEND THE IFB AND THAT THE LANGUAGE OF THE IFB WAS NOT THE REASON THAT SOLENERGY'S BID WAS DECLARED NONRESPONSIVE; SOLENERGY'S NOTE REGARDING THE TESTS CAUSED THE PROBLEM THAT RESULTED IN THE PROPER NONRESPONSIVENESS DETERMINATION.

OUR BID PROTEST PROCEDURES REQUIRE THAT A REQUEST FOR RECONSIDERATION SPECIFY ANY ERROR OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED IN THE PROTEST. 4 C.F.R. SEC. 21.9(A) (1982). HERE, SOLENERGY HAS MERELY INDICATED THAT OUR DECISION LEAVES IT "STILL CONFUSED" REGARDING THE ALLEGED DISCREPANCY IN THE UNAMENDED IFB AND THE ALLEGED SPECIFICATION AMBIGUITY CREATED THEREBY. IN VIEW OF OUR HOLDING THAT THE COAST GUARD HAD NO OBLIGATION TO AMEND THE IFB AND THAT IT WAS SOLENERGY'S NOTE, NOT THE IFB LANGUAGE, THAT CAUSED THE PROBLEM, SOLENERGY IS IN ESSENCE MERELY TAKING EXCEPTION TO OUR LEGAL CONCLUSION WITHOUT PROVIDING ANY NEW ARGUMENTS OR FACTS. MERE DISAGREEMENT WITH OUR PRIOR DECISION DOES NOT PROVIDE A BASIS TO REVERSE OUR DECISION. SPACE AGE ENGINEERING, INC. - RECONSIDERATION, B-205594.3, SEPTEMBER 24, 1982, 82-2 CPD 269.

SOLENERGY ALSO POINTS OUT THAT ACCEPTANCE OF ITS BID WOULD HAVE RESULTED IN SIGNIFICANT COST SAVINGS TO THE GOVERNMENT. HOWEVER, WE HAVE HELD THAT THE POSSIBILITY THAT THE GOVERNMENT MIGHT REALIZE MONETARY SAVINGS IF A MATERIAL DEFICIENCY IS ALLOWED TO BE CORRECTED OR WAIVED IS OUTWEIGHED BY THE IMPORTANCE OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. UNION METAL MANUFACTURING COMPANY, ELECTROLINE DIVISION, B-209161, NOVEMBER 2, 1982, 82-2 CPD 402.

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