B-221390.2, MAY 27, 1986, 86-1 CPD 488

B-221390.2, MAY 27, 1986, 86-1 CPD 488

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION DENYING PROTEST IS AFFIRMED WHERE PROTESTER HAS NOT SHOWN ANY ERROR OF FACT OR LAW WHICH WARRANTS REVERSAL.

SUNSET REALTY SALES ASSOCIATES-- REQUEST FOR RECONSIDERATION:

SUNSET REALTY SALES ASSOCIATES (SUNSET) REQUESTS THAT WE RECONSIDER OUR DECISION IN SUNSET REALTY SALES ASSOCIATES, B-221390, MAR. 31, 1986, 86-1 CPD PARA. 303, IN WHICH WE DENIED IN PART AND DISMISSED IN PART SUNSET'S PROTEST AGAINST THE AWARD OF A CONTRACT BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO ELMWOOD DEVELOPMENT COMPANY, UNDER SOLICITATION FOR OFFERS (SFO) NO. R7-17N-85, FOR LEASED OFFICE SPACE.

SUNSET PROTESTED THE REJECTION OF ITS BEST AND FINAL OFFER AS LATE AND CONTENDED IT WAS ENTITLED TO THE AWARD AS THE LOW OFFEROR. WE HELD THAT SUNSET'S OFFER, RECEIVED 1 DAY AFTER THE DATE SPECIFIED FOR RECEIPT OF BEST AND FINAL OFFERS, WAS PROPERLY REJECTED WHERE NONE OF THE EXCEPTIONS OUTLINED IN THE SOLICITATION PERMITTING CONSIDERATION OF A LATE OFFER APPLIED. SUNSET'S CONTENTION THAT GSA SHOULD HAVE EXTENDED THE DEADLINE FOR RECEIPT OF BEST AND FINAL OFFERS WAS DISMISSED AS UNTIMELY BECAUSE IT WAS NOT RAISED UNTIL WELL AFTER THE CLOSING DATE FOR RECEIPT OF BEST AND FINAL OFFERS. WE DENIED SUNSET'S CONTENTION THAT THE CONTRACTING OFFICER HAD GRANTED IT AN ORAL EXTENSION OF THE CLOSING DATE DURING A TELEPHONE CONVERSATION THE DAY BEST AND FINAL OFFERS WERE DUE, NOTING THAT THE CONTRACTING OFFICER'S CONTEMPORANEOUS RECORD OF THE TELEPHONE CONVERSATION SHOWED THAT AN EXTENSION HAD NOT BEEN GRANTED. WE CONCLUDED THAT GSA'S FAILURE TO PROMPTLY NOTIFY SUNSET THAT ITS LATE BEST AND FINAL OFFER WOULD NOT BE CONSIDERED WAS A PROCEDURAL DEFICIENCY THAT DID NOT AFFECT THE VALIDITY OF THE CONTRACT AWARD.

IN ITS REQUEST FOR RECONSIDERATION, SUNSET QUESTIONS OUR HOLDING THAT ITS PROTEST REGARDING AN EXTENSION OF THE TIME PERIOD FOR THE SUBMISSION OF BEST AND FINAL OFFERS SHOULD HAVE BEEN FILED WITH THE CONTRACTING AGENCY OR OUR OFFICE BY THE TIME SET FOR RECEIPT OF OFFERS. ACCORDING TO SUNSET, IT WAS NOT AWARE OF GSA'S REFUSAL TO EXTEND THE DEADLINE FOR RECEIPT OF OFFERS UNTIL AFTER THE DEADLINE FOR RECEIPT OF OFFERS HAD PASSED, WHEN IT RECEIVED THE AGENCY REPORT STATING GSA'S POSITION THAT IT REJECTED SUNSET'S OFFER BECAUSE IT WAS LATE. SUNSET ASSERTS THAT STATEMENTS MADE BY THE CONTRACTING OFFICER DURING THEIR TELEPHONE CONVERSATION CANNOT BE INTERPRETED AS NOTICE THAT THE DEADLINE FOR RECEIPT OF OFFERS WOULD NOT BE EXTENDED. SUNSET CONCLUDES THAT ITS PROTEST, FILED WITHIN 10 DAYS OF ITS ACTUAL NOTICE THAT AN EXTENSION OF THE DEADLINE FOR RECEIPT OF OFFERS WAS NOT EXTENDED, WAS TIMELY.

UNDER OUR BID PROTEST REGULATIONS, A REQUEST FOR RECONSIDERATION MUST CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION OF A DECISION IS DEEMED WARRANTED AND MUST SPECIFY ANY ERRORS OF LAW MADE IN THE DECISION OR INFORMATION NOT PREVIOUSLY CONSIDERED. 4 C.F.R. SEC. 21.12(A) (1985). INFORMATION NOT PREVIOUSLY CONSIDERED REFERS TO INFORMATION WHICH WAS OVERLOOKED BY OUR OFFICE OR INFORMATION TO WHICH THE PROTESTER DID NOT HAVE ACCESS WHEN THE INITIAL PROTEST WAS PENDING. TRITAN CORPORATION-- RECONSIDERATION, B-216994.2, FEB. 4, 1985, 85-1 CPD PARA. 136. SUNSET DOES NOT PRESENT ANY NEW FACTS WHICH WERE NOT PREVIOUSLY CONSIDERED BY OUR OFFICE. REVIEWED THE CONTRACTING OFFICER'S MEMORANDUM OF THE TELEPHONE CONVERSATION WITH SUNSET AND NOTED IN OUR DECISION THAT THE MEMORANDUM SHOWED AN EXTENSION HAD NOT BEEN GRANTED. MERE DISAGREEMENT WITH OUR PRIOR DECISION PROVIDES NO BASIS FOR REVERSING THE DECISION. TCA RESERVATION, INC.-- RECONSIDERATION, B-218615.2, OCT. 8, 1985, 85-2 CPD PARA. 389.

SUNSET ALSO OBJECTS TO OUR STATEMENT THAT IT WAS NOT PREJUDICED BY GSA'S FAILURE TO NOTIFY IT PROMPTLY THAT ITS JULY 31 BEST AND FINAL OFFER HAD NOT BEEN CONSIDERED. SUNSET ARGUES THAT SINCE IT WAS THE LOW OFFEROR AT THE TIME ITS JULY 31 OFFER WAS SUBMITTED BASED ON ITS PREVIOUSLY SUBMITTED MAY 15 INITIAL PROPOSAL, GSA COULD HAVE ACCEPTED ITS LATE MODIFICATION AS THAT OF AN OTHERWISE SUCCESSFUL OFFEROR, AND GSA'S FAILURE TO DO SO PREJUDICED SUNSET'S POSITION. OUR PRIOR DECISION, HOWEVER, EXPLAINED THAT SUNSET WAS NOT AN OTHERWISE SUCCESSFUL OFFEROR BECAUSE IT WAS NOT ALREADY IN LINE FOR AWARD; WE CITED THE NUMEROUS REASONS GIVEN BY GSA FOR NOT AWARDING A CONTRACT TO SUNSET BASED ON ITS MAY 15 OFFER.

SINCE SUNSET HAS NOT SHOWN ANY ERROR OF FACT OR LAW IN OUR PRIOR DECISION, IT IS AFFIRMED.