B-215959.3, OCT 30, 1984, 84-2 CPD 481

B-215959.3, OCT 30, 1984, 84-2 CPD 481

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: 1. WHERE RECONSIDERATION FAILS TO ESTABLISH ERROR OF FACT OR LAW IN PRIOR DECISIONS THAT WOULD WARRANT THE REVERSAL OR MODIFICATION OF THE DECISION, THE DECISIONS ARE AFFIRMED. CONTRACTS - PROFITS - ANTICIPATED 2. NO LEGAL BASIS EXISTS FOR AN UNSUCCESSFUL OFFEROR TO RECOVER ANTICIPATED PROFITS OR SIMILAR MONETARY DAMAGES. CONTRACTS - REQUESTS FOR QUOTATION - PREPARATION OF QUOTATION - COSTS - RECOVERY 3. CLAIM FOR QUOTATION PREPARATION COSTS WILL NOT BE CONSIDERED IN CONNECTION WITH UNTIMELY FILED PROTEST.

RAY SERVICE COMPANY -- REQUEST FOR RECONSIDERATION:

RAY SERVICE COMPANY (RSC) HAS FILED A CLAIM FOR $184,654.25 IN CONNECTION WITH OUR PRIOR DISMISSAL OF ITS PROTEST. IN OUR INITIAL DECISION IN THE MATTER OF RAY SERVICE COMPANY, B-215959, AUG. 14, 1984, 84-2 CPD PARA. 181, WE DISMISSED RSC'S PROTESTS AGAINST REQUESTS FOR QUOTATIONS (RFQ) NOS. F08620-84-Q0849 AND F08620-84-Q0829A, ISSUED BY THE DEPARTMENT OF THE AIR FORCE (AIR FORCE). THE AIR FORCE CANCELED RFQ NO. F0862-84-Q0849 AND ISSUED REVISED RFQ NO. F08620-84-Q0849A. RSC PROTESTED IMPROPRIETIES CONTAINED IN BOTH RFQ'S.

WE AFFIRM OUR PRIOR DECISIONS AND DENY RSC'S CLAIM.

IN OUR DECISION, WE CONCLUDED THAT THE CANCELLATION OF THE INITIAL RFQ RENDERED THE PROTEST CONCERNING THAT RFQ ACADEMIC. WE FOUND RSC'S PROTEST AGAINST THE REVISED RFQ UNTIMELY. THE RECORD SHOWED THAT THE AIR FORCE HAD PROCEEDED WITH THE CLOSING WITHOUT TAKING CORRECTIVE ACTION ON RSC'S PROTEST TO THE AGENCY. THE AIR FORCE ACTION CONSTITUTED INITIAL ADVERSE AGENCY ACTION UNDER OUR BID PROTEST PROCEDURES AND RSC FAILED TO FILE A PROTEST WITH OUR OFFICE WITHIN 10 WORKING DAYS OF THE CLOSING DATE, THE INITIAL ADVERSE AGENCY ACTION, AS REQUIRED UNDER SECTION 21.2(A) OF OUR BID PROTEST PROCEDURES. 4 C.F.R. PART 21 (1984). WE ALSO NOTED THAT THE FACT THAT THE AIR FORCE LATER FORMALLY DENIED THE PROTEST DID NOT ALTER THE FIRM'S RESPONSIBILITY TO CONFORM TO THE FILING REQUIREMENT OF SEC. 21.2(A) IN PROTESTING TO OUR OFFICE.

RSC REQUESTED RECONSIDERATION OF OUR DECISION AND, IN RAY SERVICE COMPANY - REQUEST FOR RECONSIDERATION, B-215959.2, SEPT. 11, 1984, 84-2 CPD PARA. 284, WE AFFIRMED OUR DECISION. WE FOUND THAT RSC'S RECONSIDERATION REQUEST CONTAINED NO FACTUAL OR LEGAL GROUNDS UPON WHICH OUR DECISION THAT RSC'S PROTEST WAS FILED UNTIMELY WITH GAO SHOULD HAVE BEEN REVERSED OR MODIFIED. WE ALSO REJECTED RSC'S PROTEST OF PROCEDURAL IRREGULARITIES INITIALLY RAISED ON RECONSIDERATION BECAUSE RSC HAD NOT SHOWN IT WAS PREJUDICED BY THESE IRREGULARITIES AND BECAUSE THESE PROCEDURAL DEFICIENCIES APPARENTLY DID NOT AFFECT THE VALIDITY OF THE AWARD.

BY ITS CLAIM, RSC, IN ESSENCE, REITERATES THE ARGUMENTS PRESENTED IN ITS INITIAL PROTEST AND IN ITS RECONSIDERATION REQUEST. RSC HAS NOT PROVIDED ANY NEW ARGUMENTS OR FACTS IN ITS CLAIM, BUT MERELY DISAGREES WITH OUR DECISION NOT TO CONSIDER ITS PROTEST ON THE MERITS. REITERATION OF ARGUMENTS FULLY CONSIDERED AND DISAGREEMENT WITH OUR DECISION DO NOT PROVIDE A BASIS TO REVERSE THAT DECISION. SEE GLOBAL ASSOCIATES - RECONSIDERATION, B-212820.2, AUG. 21, 1984, 84-2 CPD PARA. 203.

ALSO, TO THE EXTENT RSC IS CLAIMING QUOTATION PREPARATION COSTS, LOST PROFITS AND DAMAGES, THERE IS NOT LEGAL BASIS FOR ALLOWING AN UNSUCCESSFUL OFFEROR TO RECOVER ANTICIPATED PROFITS OR SIMILAR MONETARY DAMAGES, EVEN IF THE CLAIMANT IS WRONGFULLY DENIED A CONTRACT. POWER SYSTEMS - CLAIM FOR COSTS, B-210032.2, MAR. 26, 1984, 84-1 CPD PARA. 344. FURTHER, IN VIEW OF OUR DETERMINATION THAT RSC'S PROTEST WAS UNTIMELY, WE NEED NOT ADDRESS THE CLAIM FOR QUOTATION PREPARATION COSTS SINCE WE ONLY CONSIDER SUCH A CLAIM IN CONNECTION WITH A TIMELY PROTEST. JT SYSTEM, INC., B-213999, APR. 9, 1984, 84-1 CPD PARA. 399.