B-212162.2, FEB 14, 1984
Highlights
DIGEST: ORIGINAL DECISION IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION PRESENTS INFORMATION WHICH WAS KNOWN TO PROTESTER AND COULD HAVE BEEN PRESENTED IN CONNECTION WITH ITS INITIAL PROTEST OR ARGUMENTS WHICH WERE PREVIOUSLY CONSIDERED AND REJECTED. THE SOLICITATION ALSO CONTAINED A SEPARATE CLAUSE REQUIRING BIDDERS TO CERTIFY THAT THE ITEM OFFERED WILL BE OBTAINED FROM ONLY THE APPROVED SOURCE IDENTIFIED ON THESE DRAWINGS. WE FOUND THAT B.K.'S FAILURE TO COMPLETE THE CERTIFICATION IS A MATERIAL DEVIATION REQUIRING THE ARMY'S REJECTION OF ITS BID AS NONRESPONSIVE. IN FACT THE ARSENAL WAS CLOSED AT THAT TIME. THEREFORE IT WAS OBLIGATED TO FURNISH THE SOURCE CONTROLLED ITEMS FROM THE FIRMS LISTED ON THE DRAWINGS.
B-212162.2, FEB 14, 1984
DIGEST: ORIGINAL DECISION IS AFFIRMED WHERE REQUEST FOR RECONSIDERATION PRESENTS INFORMATION WHICH WAS KNOWN TO PROTESTER AND COULD HAVE BEEN PRESENTED IN CONNECTION WITH ITS INITIAL PROTEST OR ARGUMENTS WHICH WERE PREVIOUSLY CONSIDERED AND REJECTED.
B.K. INSTRUMENT INC. - REQUEST FOR RECONSIDERATION:
B.K. INSTRUMENT, INC. REQUESTS RECONSIDERATION OF OUR DECISION B.K. INSTRUMENT, INC., B-212162, NOVEMBER 30, 1983, 83-2 CPD 627, DENYING ITS PROTEST WITH RESPECT TO THE ARMY'S REJECTION OF ITS BID AS NONRESPONSIVE TO THE SOURCE CONTROL CERTIFICATION REQUIREMENT OF INVITATION FOR BIDS NO. DAAA09-83-B-0149 ISSUED BY THE U.S. ARMY ARMAMENT, MUNITIONS, AND CHEMICAL COMMAND, ROCK ISLAND, ILLINOIS. WE DENY THE REQUEST FOR RECONSIDERATION.
IN OUR INITIAL DECISION, WE NOTED THAT THE SOLICITATION INCLUDED EIGHT SOURCE CONTROL DRAWINGS, EACH BEARING A LEGEND WHICH IDENTIFIED PREVIOUSLY APPROVED SOURCE CONTROLLED ITEMS AND PROVIDED THAT "A SUBSTITUTE ITEM SHALL NOT BE USED WITHOUT PRIOR APPROVAL BY FRANKFORD ARSENAL." THE SOLICITATION ALSO CONTAINED A SEPARATE CLAUSE REQUIRING BIDDERS TO CERTIFY THAT THE ITEM OFFERED WILL BE OBTAINED FROM ONLY THE APPROVED SOURCE IDENTIFIED ON THESE DRAWINGS. THUS, WHILE THE DRAWINGS DID NOT LIMIT THE BIDDER TO SOURCES APPROVED PRIOR TO BID OPENING, THE CERTIFICATION SERVED TO REQUIRE BIDDERS TO FURNISH ITEMS FROM THOSE SOURCES LISTED. CONSEQUENTLY, BECAUSE THE CERTIFICATION CLAUSE IMPOSES A DIFFERENT OBLIGATION THAN THAT SET FORTH ON THE INDIVIDUAL SOURCE CONTROL DRAWINGS, WE FOUND THAT B.K.'S FAILURE TO COMPLETE THE CERTIFICATION IS A MATERIAL DEVIATION REQUIRING THE ARMY'S REJECTION OF ITS BID AS NONRESPONSIVE. ALSO HELD THAT A BID THAT FAILS TO INCLUDE THE CERTIFICATION MAY NOT BE CORRECTED THROUGH MISTAKE-IN-BID PROCEDURES.
IN ITS REQUEST FOR RECONSIDERATION, B.K. CONTENDS THAT NO SUBSTITUTE ITEMS HAD BEEN TESTED AND APPROVED BY FRANKFORD ARSENAL AT THE TIME OF BID OPENING, AND IN FACT THE ARSENAL WAS CLOSED AT THAT TIME, AND THEREFORE IT WAS OBLIGATED TO FURNISH THE SOURCE CONTROLLED ITEMS FROM THE FIRMS LISTED ON THE DRAWINGS, NOTWITHSTANDING ITS FAILURE TO COMPLETE THE CERTIFICATION. IT ALSO ARGUES THAT THE SOLICITATION INCLUDED A PROVISION REQUIRING BIDDERS TO COMPLY WITH THE SOLICITATION'S DRAWINGS, AND SINCE ALL THE SOURCE CONTROLLED ITEMS ARE SET FORTH IN THE LEGENDS OF THOSE DRAWINGS, IT WAS BOUND BY ITS BID TO PROVIDE ITEMS FROM THE VENDORS LISTED ON THE DRAWINGS.
OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.9 (1983), REQUIRE THAT REQUESTS FOR RECONSIDERATION CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED. IN ADDITION, THE REQUEST MUST SPECIFY ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED BY OUR OFFICE. INFORMATION NOT PREVIOUSLY CONSIDERED REFERS TO THAT WHICH A PARTY BELIEVES MAY HAVE BEEN OVERLOOKED BY OUR OFFICE OR INFORMATION TO WHICH A PARTY DID NOT HAVE ACCESS DURING THE PENDENCY OF THE ORIGINAL PROTEST. SECURITY ASSISTANCE FORCES EQUIPMENT OHG - RECONSIDERATION, B-209555.2, MARCH 23, 1983, 83-1 CPD 300. ANY OTHER INTERPRETATION WOULD PERMIT A PROTESTER TO REMEDY THE DEFECTS IN ITS ORIGINAL PROTEST AND TO PRESENT ITS POSITION PIECEMEAL. SPACE AGE ENGINEERING, INC. - RECONSIDERATION, B-205594.3, SEPTEMBER 24, 1982, 82-2 CPD 269.
B.K. HAS NOT MET THE CRITERIA FOR RECONSIDERATION. B.K.'S ASSERTION THAT NO SUBSTITUTE ITEMS HAVE BEEN TESTED AND APPROVED BY FRANKFORD ARSENAL IS THE ONLY INFORMATION PRESENTED BY B.K. HERE THAT WAS NOT PRESENTED FOR OUR INITIAL CONSIDERATION; HOWEVER, THAT IS INFORMATION WHICH THE PROTESTER HAD KNOWLEDGE OF AT THE TIME OF ITS INITIAL PROTEST AND WHICH IT COULD HAVE PRESENTED AT THAT TIME. B.K. KNEW THAT ITS OBLIGATION TO COMPLY WITH THE DRAWINGS WAS THE CENTRAL ISSUE IN ITS PROTEST, YET IT FAILED TO PRESENT THIS INFORMATION AT THAT TIME AND THEREFORE WE WILL NOT CONSIDER THIS EVIDENCE ON RECONSIDERATION. SEE SAFE EXPORT CORPORATION - RECONSIDERATION, B-205501.2, JANUARY 17, 1983, 83-1 CPD 40. IN ANY EVENT, ASSUMING THIS INFORMATION IS TRUE, IT STILL DOES NOT FORECLOSE THE POSSIBILITY OF THE TESTING AND APPROVAL OF SUBSTITUTE ITEMS BY THE ARMY ACTIVITY TO WHICH THE ARSENAL'S ENGINEERING FUNCTIONS WERE REMOVED AFTER THE ARSENAL WAS CLOSED SOME TIME AFTER BIDS WERE OPENED. IT IS THE POSSIBILITY OF PROCURING SUCH ITEMS INSTEAD OF ITEMS FROM THE SOURCES LISTED THAT THE CERTIFICATION IS AIMED AT PREVENTING. THUS, EVEN WHEN THIS INFORMATION IS TAKEN INTO ACCOUNT, THE FAILURE TO COMPLETE THE CERTIFICATION IS A MATERIAL DEVIATION.
WITH REGARD TO B.K.'S CONTENTION CONCERNING THE REDUNDANCY OF THE CERTIFICATION, B.K. HAS MERELY REITERATED AN ARGUMENT RAISED AND CONSIDERED IN OUR ORIGINAL DECISION. IT HAS NOT SHOWN THAT WE MISUNDERSTOOD THE FACTS THEN KNOWN OR MISAPPLIED THEM TO THE APPLICABLE PROVISIONS OF LAW. SEE NORFOLK DREDGING COMPANY - REQUEST FOR RECONSIDERATION, B-212514.2, SEPTEMBER 19, 1983, 83-2 CPD 345. THUS, B. K.'S CONTENTIONS DO NOT INCLUDE ANY INFORMATION OR ARGUMENTS WHICH WERE NOT, OR COULD NOT, HAVE BEEN PRESENTED IN CONNECTION WITH ITS INITIAL PROTEST.
THE REQUEST FOR RECONSIDERATION IS DENIED.