B-213452.3, FEB 20, 1985, 85-1 CPD 213

B-213452.3, FEB 20, 1985, 85-1 CPD 213

CONTRACTS - PROTESTS - BURDEN OF PROOF - ON PROTESTER DIGEST: BURDEN IS UPON PROTESTER TO PROVE CONDUCT OF PROCUREMENT WAS DEFICIENT, AND DECISION IS AFFIRMED WHERE PROTESTER HAS NOT MET IS BURDEN OF PROOF.

ADAMS-KELEHER, INC.-- REQUEST FOR RECONSIDERATION:

IN ADAMS-KELEHER, INC.-- REQUEST FOR RECONSIDERATION, B-213452.2, APRIL 18, 1984, 84-1 CPD PARA. 442, WE AFFIRMED OUR DECISION IN ADAMS- KELEHER, INC., B-213452, MARCH 6, 1984, 84-1 CPD PARA. 273, IN WHICH WE HAD HELD THAT ADAMS-KELEHER, INC. (AKI), HAD FAILED TO PROVE THE ALLEGATION THAT IT HAD NEVER BEEN REQUESTED TO SUBMIT A PRICE QUOTATION ON ENVIRONMENTAL PROTECTION AGENCY (EPA) ORAL SOLICITATION NO. WA-83-D965. IN THE RECONSIDERATION, AKI CONTENDED FOR THE FIRST TIME THAT EPA INCORRECTLY USED $4,631.96 AS THE COST OF A BUY-OUT OF THE AKI LEASE FOR BID EVALUATION PURPOSES. SINCE THIS NEW PROTEST BASIS WAS EVIDENT FROM THE ORIGINAL AGENCY PROTEST REPORT AND WAS NOT RAISED UNTIL THE REQUEST FOR RECONSIDERATION, THIS BASIS OF PROTEST WAS CONSIDERED TO BE TIMELY AND NOT FOR RECONSIDERATION.

AKI REQUEST RECONSIDERATION, CONTENDING THAT, NOTWITHSTANDING THAT THE $4,631.96 FIGURE WAS IN THE ORIGINAL AGENCY PROTEST REPORT AND AKI FAILED TO CONTEST ITS VALIDITY, OUR OFFICE SHOULD HAVE RECOGNIZED THE INCORRECTNESS OF THE FIGURE AND SHOULD HAVE RAISED AND RESOLVED THE ISSUE.

WE NOTE THAT ON THE BASIS OF THE AGENCY REPORT, THERE APPEARED NO REASON TO QUESTION THE $4,631.96 FIGURE. ADDITIONAL CREDENCE WAS GIVEN TO THE FIGURE BY AKI'S FAILURE TO QUESTION ITS CORRECTNESS. IN ANY EVENT, THE BURDEN OF PROVING THE VALIDITY OF A PROTEST LIES WITH THE PROTESTER, SEE SPERRY RAND CORPORATION, 56 COMP.GEN. 312 (1977), 77-1 CPD PARA. 77; EARTH ENVIRONMENTAL CONSULTANTS, INC., B-204866, JANUARY 19, 1982, 82-1 CPD PARA. 43.

ACCORDINGLY, THE ORIGINAL DECISION IS AGAIN AFFIRMED.