B-225579.2, JUN 11, 1987, 87-1 CPD 584

B-225579.2, JUN 11, 1987, 87-1 CPD 584

PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION - ADDITIONAL INFORMATION DIGEST: GENERAL ACCOUNTING OFFICE BID PROTEST REGULATIONS DO NOT PERMIT A PIECEMEAL PRESENTATION OF EVIDENCE, INFORMATION OR ANALYSIS. THUS, WHERE PROTESTER PRESENTS NO EVIDENCE THAT THE INFORMATION ON WHICH IT BASES ITS RECONSIDERATION REQUEST COULD NOT HAVE BEEN PRESENTED PRIOR TO THE CLOSING OF THE ORIGINAL PROTEST RECORD, THE REQUEST FOR RECONSIDERATION WILL NOT BE CONSIDERED.

AWD MEHLE GMBH-- REQUEST FOR RECONSIDERATION:

AWD MEHLE GMBH REQUESTS RECONSIDERATION OF OUR DECISION, AWD MEHLE GMBH, B-225579, APR. 16, 1987, 87-1 CPD PARA. 416, IN WHICH WE DENIED MEHLE'S PROTEST OF THE AIR FORCE'S CANCELLATION OF REQUEST FOR PROPOSALS (RFP) NO. F61521-86-R-2334 FOR REPLACEMENT OF WINDOWS AND BUILDING REPAIRS ON RAMSTEIN AIR BASE. WE HELD THAT CANCELLATION OF THE RFP WAS PROPER, DESPITE THE INADVERTENT DISCLOSURE OF THE LOW OFFEROR'S PRICE, BECAUSE THE AGENCY CONCLUDED THAT THE SOLICITATION CONTAINED DEFECTIVE ESTIMATES AND BECAUSE THE SOLICITATION REQUESTED LUMP-SUM PRICES ON ESTIMATED QUANTITIES OF WORK, BUT ALSO PROVIDED THAT THE CONTRACTOR WOULD BE RESPONSIBLE FOR PERFORMING ALL REQUIRED WORK EVEN IF THE WORKLOAD EXCEEDED THE RFP ESTIMATES. WE WERE CONCERNED THAT THIS METHOD OF DEFINING THE AGENCY'S NEEDS WAS NOT SUFFICIENTLY PRECISE AND ENCOURAGED OFFERORS TO INCLUDE IN THEIR PRICES CONTINGENCIES TO COVER THE POSSIBILITY THAT THEY MIGHT BE EXPECTED TO PERFORM WORK IN EXCESS OF THE ESTIMATED WORK-LOAD. RECOMMEND THAT THE REQUIREMENT BE RESOLICITED WITH A REVISED PRICING FORMAT.

ON APRIL 10, 1987, A MONTH AND A HALF AFTER THE PROTESTER FILED ITS COMMENTS ON THE AGENCY REPORT, MEHLE SUBMITTED FOR OUR CONSIDERATION AN ADDITIONAL AFFIDAVIT SIGNED BY ITS OWNER, MRS. LEOPOLDINA MEHLE. NOTIFIED MEHLE'S LOCAL COUNSEL THAT BECAUSE THE RECORD WAS CLOSED, WE WOULD BE UNABLE TO CONSIDER THE SUBMISSION. MEHLE HAS NOW RESUBMITTED THE AFFIDAVIT AND REQUESTS THAT WE TAKE IT INTO ACCOUNT IN OUR RECONSIDERATION.

MRS. MEHLE STATES IN HER AFFIDAVIT THAT THE CONTRACTING OFFICER TOLD HER THAT SHE HAD DECIDED TO AWARD THE CONTRACT TO MEHLE, HAD CONTACTED THE AREA ENGINEERS' OFFICE TO OBTAIN THEIR APPROVAL OF THE MATERIALS MEHLE INTENDED TO INSTALL, AND HAD THEN DELIVERED THE CONTRACT PACKAGE TO THE COGNIZANT LEGAL OFFICER. MRS. MEHLE FURTHER ATTESTS THAT SHE WAS TOLD "BY PERSONS DIRECTLY CONCERNED" THAT THE LEGAL OFFICER, AFTER OBSERVING THAT MEHLE HAD INCREASED ITS PRICE IN ITS BEST AND FINAL OFFER, HAD STATED THAT "IF SHE'S GOING TO RAISE HER PRICE, SHE'S NOT GOING TO GET THIS CONTRACT." THE AIR FORCE HAS SUBMITTED AFFIDAVIT FROM THE CONTRACTING OFFICER AND LEGAL OFFICER DENYING THESE ALLEGATIONS.

MRS. MEHLE'S AFFIDAVIT DOES NOT ESTABLISH THE DATE ON WHICH SHE LEARNED THE INFORMATION CONTAINED IN THE AFFIDAVIT, AND WE THEREFORE HAVE NO BASIS UPON WHICH TO CONCLUDE THAT THIS INFORMATION COULD NOT HAVE BEEN TIMELY PRESENTED WITH THE PROTESTER'S COMMENTS ON THE AGENCY REPORT DURING OUR CONSIDERATION OF THE INITIAL PROTEST. OUR BID PROTEST REGULATIONS REQUIRE THAT A REQUEST FOR RECONSIDERATION CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION OF A DECISION IS DEEMED WARRANTED, AND THAT IT SPECIFY ANY ERRORS OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED. 4 C.F.R. SEC. 21.12(A) (1986). OUR REGULATIONS DO NOT PERMIT A PIECEMEAL PRESENTATION OF EVIDENCE, INFORMATION OR ANALYSIS. WHERE, AS HERE, A PARTY SUBMITS IN ITS REQUEST FOR RECONSIDERATION INFORMATION THAT COULD HAVE BEEN TIMELY PRESENTED DURING OUR CONSIDERATION OF THE PROTEST, THAT INFORMATION DOES NOT PROVIDE A BASIS FOR RECONSIDERATION. JOSEPH L. DE CLERK AND ASSOCIATES, INC.-- REQUEST FOR RECONSIDERATION, B-221723.2, FEB. 26, 1986, 86-1 CPD PARA. 200.

MOREOVER, EVEN ASSUMING THAT THE INFORMATION RELATED TO MRS. MEHLE IS ACCURATE, WE CONTINUE TO BE OF THE VIEW THAT CANCELLATION OF THE RFP WAS PROPER, GIVEN THE SOLICITATION'S DEFICIENCIES. CANCELLATION MAY BE JUSTIFIED ON GROUNDS NOT ADVANCED BY THE AGENCY SO LONG AS THEY WOULD HAVE SUPPORTED CANCELLATION IF THEY HAD BEEN STATED ORIGINALLY. SEE JOHN C. KOHLER CO., B-218133, APR. 22, 1985, 85-1 CPD PARA. 460. IN OTHER WORDS, EVEN IF THE PROTESTER WERE ABLE TO ESTABLISH THAT THE AIR FORCE ORIGINALLY DETERMINED TO CANCEL THE RFP BECAUSE MEHLE HAD RAISED ITS PRICE, WE WOULD STILL CONSIDER AS JUSTIFICATION FOR THE CANCELLATION THE SOLICITATION'S FAILURE TO EXPRESS WITH PRECISION THE AGENCY'S ACTUAL NEEDS AND THE INAPPROPRIATE PRICING FORMAT.

THE REQUEST FOR RECONSIDERATION IS DENIED.