B-222037.3, JUL 30, 1986, 86-2 CPD 126

B-222037.3, JUL 30, 1986, 86-2 CPD 126

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: REQUEST FOR RECONSIDERATION BY AN INTERESTED PARTY THAT PARTICIPATED IN THE PROTEST IS DISMISSED WHERE THE ARGUMENTS ON WHICH THE REQUEST IS BASED COULD HAVE BEEN, BUT WERE NOT, RAISED DURING INITIAL CONSIDERATION OF THE PROTEST. IN ANY EVENT, THE ARGUMENTS OFFERED DO NOT SHOW ANY ERROR OF LAW OR FACT IN PRIOR DECISION HOLDING THAT CONTRACTING AGENCY ACTED IMPROPERLY BY GRANTING EXTENSIONS OF DATES FOR OPERATIONAL DEMONSTRATIONS WHILE DENYING THE PROTESTER'S REQUEST FOR EXTENSION, WHERE ALL FOUR OFFERORS ASSERTED THE SAME REASON FOR REQUESTING EXTENSIONS.

NCR CORPORATION-- REQUEST FOR RECONSIDERATION:

NCR CORPORATION REQUESTS RECONSIDERATION OF OUR DECISION IN CPT TEXT COMPUTER GMBH, B-222037.2, JULY 3, 1986, 86-2 CPD PARA. ***, SUSTAINING THE PROTEST OF THE ARMY'S DECISION TO ALLOW EXTENSIONS OF DATES FOR OPERATIONAL DEMONSTRATIONS TO ONLY SOME OFFERORS IN CONNECTION WITH REQUESTS FOR PROPOSALS (RFP) NO. PAENAO-84-R-0004 FOR MICROCOMPUTER SYSTEMS. WE DENY THE REQUEST FOR RECONSIDERATION.

THE RFP, ISSUED BY THE ARMY ON AUGUST 20, 1984, CALLED FOR THE ACQUISITION OF MICROCOMPUTER SYSTEMS CONSISTING OF AUTOMATIC DATA PROCESSING (ADP) EQUIPMENT AND SOFTWARE. THE SYSTEMS ARE TO BE USED BY THE ARMY'S CENTRAL ACCOUNTING DIVISION, A NONAPPROPRIATED FUND ACTIVITY WHICH PROVIDES ACCOUNTING SUPPORT TO OTHER NONAPPROPRIATED FUND ACTIVITIES IN VARIOUS MILITARY COMMUNITIES IN EUROPE. EIGHT OFFERORS, INCLUDING THE PROTESTER, SUBMITTED INITIAL PROPOSALS.

THE ARMY REQUIRED OFFERORS TO PERFORM OPERATIONAL DEMONSTRATION OF THE ADP HARDWARE AND SOFTWARE PROPOSED. WHEN THE ARMY ADVISED THE OFFERORS OF THE SCHEDULE FOR DEMONSTRATIONS, FOUR OF THE EIGHT OFFERORS REQUESTED EXTENSIONS OF THE DEMONSTRATION DATES BECAUSE OF CONFLICTING COMMITMENTS OF PERSONNEL AND EQUIPMENT TO THE HANNOVER TRADE FAIR, A MAJOR EXHIBITION OF OFFICE AUTOMATION EQUIPMENT HELD ANNUALLY IN EUROPE, WHICH WAS SCHEDULED TO BE HELD THE WEEK BEFORE DEMONSTRATIONS UNDER THE RFP WERE TO BEGIN. THE ARMY INITIALLY DENIED ALL FOUR REQUESTS. THREE OF THE FOUR OFFERORS (NOT INCLUDING THE PROTESTER) THEN RENEWED THEIR REQUESTS FOR EXTENSIONS. BASED ON THEIR RENEWED REQUESTS, THE ARMY SUBSEQUENTLY REVERSED ITS INITIAL DENIAL AND GRANTED EXTENSIONS TO THESE THREE OFFERORS. THE ARMY'S DECISION TO GRANT AN EXTENSION TO ONE OF THE THREE OFFERORS WAS MADE BEFORE THE PROTESTER'S DEMONSTRATION TOOK PLACE.

WE FOUND THAT THE ARMY HAD NO REASONABLE BASIS UPON WHICH TO DISTINGUISH AMONG THE FOUR OFFERORS WHEN CONSIDERING WHETHER TO GRANT EXTENSIONS, SINCE ALL FOUR RELIED ON THE SAME RATIONALE TO SUPPORT THEIR REQUESTS, THE HARDSHIP IMPOSED BY REQUIRING DEMONSTRATIONS TO PROCEED SHORTLY AFTER THE HANNOVER TRADE FAIR. WE ALSO FOUND THAT THE PROTESTER WAS PREJUDICED BY THE ARMY'S DENIAL OF ITS REQUEST FOR AN EXTENSION, SINCE, UNLIKE THE OTHER OFFERORS, THE PROTESTER WAS REQUIRED TO GO FORWARD WITH ITS DEMONSTRATION DIRECTLY AFTER CONCLUSION OF THE TRADE FAIR.

NCR, AN OFFEROR UNDER THE RFP, NOW CHALLENGES OUR FINDINGS, ARGUING THAT THE ARMY WAS NOT REQUIRED TO GRANT AN EXTENSION TO THE PROTESTER SINCE, UNLIKE THE OTHER THREE OFFERORS, THE PROTESTER DID NOT RENEW ITS REQUEST AFTER THE ARMY'S INITIAL DENIAL. NCR ALSO ARGUES THAT THE PROTESTER WAS NOT PREJUDICED BY BEING DENIED AN EXTENSION SINCE THE PRODUCT IT OFFERED DID NOT MEET THE REQUIREMENTS OF THE RFP. NCR CHOSE NOT TO COMMENT ON THESE ISSUES DURING OUR INITIAL CONSIDERATION OF THE PROTEST, EVEN THOUGH, AS AN INTERESTED PARTY, NCR HAD THE OPPORTUNITY TO DO SO. /1/ WHERE, AS HERE, A PARTY SUBMITS IN ITS REQUEST FOR RECONSIDERATION AN ARGUMENT THAT IT COULD HAVE PRESENTED INITIALLY, THIS ARGUMENT DOES NOT PROVIDE A BASIS FOR RECONSIDERATION. SOVEREIGN ELECTRIC CO.-- REQUEST FOR RECONSIDERATION, B-214699.2, FEB. 12, 1985, 85-1 CPD PARA. 183.

IN ANY EVENT, NCR HAS NOT SHOWN THAT OUR DECISION IS IN ERROR. CONTRARY TO NCR'S ASSERTION, THE PROTESTER'S FAILURE TO RENEW ITS REQUEST FOR AN EXTENSION IS NOT SUFFICIENT. ONCE THE ARMY DECIDED TO GRANT AN EXTENSION TO ONE OF THE FOUR OFFERORS, THE ARMY WAS REQUIRED, AS PART OF ITS DUTY TO TREAT OFFERORS EQUALLY, TO OFFER EXTENSIONS TO THE OTHER THREE OFFERORS WHOSE REQUESTS WERE BASED ON THE SAME RATIONALE. WITH REGARD TO ITS SECOND ARGUMENT-- THAT THE PROTESTER'S PRODUCT DID NOT MEET THE RFP REQUIREMENTS-- NCR OFFERS NO SUPPORT FOR ITS CONTENTION.

WE DENY THE REQUEST.

/1/ NCR DID COMMENT ON THE OTHER MAJOR ISSUE IN THE PROTEST CONCERNING ISSUANCE OF A DELEGATION OF PROCUREMENT AUTHORITY UNDER THE BROOKS ACT.