B-226186.2, MAR 17, 1987, 87-1 CPD 298

B-226186.2, MAR 17, 1987, 87-1 CPD 298

PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION DIGEST: DISMISSAL IS AFFIRMED ON RECONSIDERATION WHERE IT IS NOT SHOWN TO BE LEGALLY OR FACTUALLY ERRONEOUS.

VALUE ENGINEERING CONSULTANTS-- REQUEST FOR RECONSIDERATION:

VALUE ENGINEERING CONSULTANTS (VEC) REQUESTS RECONSIDERATION OF OUR DECISION IN VALUE ENGINEERING CONSULTANTS, B-226186, FEB. 25, 1987, 87 1 CPD PARA. ***. IN THAT DECISION, WE DISMISSED VEC'S PROTEST OF AN AWARD OF A CONTRACT FOR VALUE ENGINEERING SERVICES BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, TO CONSULTING VALUE SPECIALISTS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. DACW07-86-R-0039. WE AFFIRM THE DISMISSAL.

VEC ORIGINALLY PROTESTED TO OUR OFFICE ON FEBRUARY 3, 1987, BUT THE FIRM HAD NOT PROVIDED THE CONTRACTING OFFICER WITH A COPY OF ITS PROTEST AS OF FEBRUARY 19. SINCE OUR BID PROTEST REGULATIONS REQUIRE THAT THE PROTESTER FURNISH A COPY OF ITS PROTEST TO THE CONTRACTING OFFICER WITHIN 1 DAY AFTER THE PROTEST IS FILED AT OUR OFFICE, WE DISMISSED VEC'S PROTEST. C.F.R. SECS. 21.1(D) AND (F) (1986).

VEC NOW CONTENDS THAT OUR DISMISSAL CONFLICTS WITH THE ACKNOWLEDGMENT OF PROTEST NOTICE WE INITIALLY SENT OUT ON FEBRUARY 5 WHICH STATED THAT WE WERE DEVELOPING THE PROTEST AND THAT THE AGENCY REPORT DUE DATE WAS MARCH 11. THUS, THE PROTESTER NOW QUESTIONS WHETHER WE KNEW OF THE ARMY'S ASSERTED GROUNDS FOR DISMISSAL AT THAT TIME, AND IF WE DID NOT, WHY NOT.

VEC HAS MISCONSTRUED THE EFFECT OF THE ACKNOWLEDGMENT NOTICE INDICATING THE REPORT DUE DATE. AT THE TIME THE INITIAL PROTEST WAS FILED AND WE ADVISED THE AGENCY HEADQUARTERS OF THE DATE A REPORT WAS DUE, WE WERE UNAWARE OF ANY DEFECTS IN THE FILING OF A COPY OF THE PROTEST WITH THE CONTRACTING OFFICER WHICH WOULD PROVIDE A BASIS FOR DISMISSAL. FURTHER, AS WE SAID IN OUR PRIOR DECISION, WE WERE INFORMED OF VEC'S FAILURE TO SERVE THE CONTRACTING OFFICER WITH A COPY OF ITS PROTEST 11 DAYS AFTER THE PROTEST WAS FILED. OUR REGULATIONS SPECIFICALLY STATE THAT FAILURE TO PROVIDE THE CONTRACTING OFFICER WITH A COPY OF THE PROTEST WITHIN 1 DAY OF FILING AT OUR OFFICE MAY BE GROUNDS FOR DISMISSAL AND WE MAY DISMISS THE PROTEST AT ANY TIME INFORMATION WARRANTING DISMISSAL BECOMES KNOWN TO US. SEE 4 C.F.R. SECS. 21.1(F), 21.3(F). CONSEQUENTLY, WE ARE NOT PRECLUDED FROM DISMISSING PROTESTS EVEN WHERE AN ACKNOWLEDGMENT NOTICE WAS INITIALLY SENT TO THE PROTESTER.

VEC ACKNOWLEDGES THAT IT PROBABLY DID NOT SEND THE CONTRACTING OFFICER A COPY OF THE PROTEST COVER LETTER DATED JANUARY 29 WHICH WAS ADDRESSED TO OUR OFFICE. HOWEVER, THE PROTESTER ALLEGES THAT IT DID SEND AN ACCOMPANYING LETTER ADDRESSED TO THE CONTRACTING OFFICER, ALSO DATED JANUARY 29, DIRECTLY TO THAT INDIVIDUAL, AND THAT THIS LETTER CONTAINED THE ACTUAL GROUNDS FOR PROTEST AND A STATEMENT THAT VEC WAS FORWARDING A COPY OF THAT LETTER TO OUR OFFICE. VEC ARGUES THAT THE CONTRACTING OFFICER'S RECEIPT OF THIS LETTER SHOULD HAVE SATISFIED OUR FILING REQUIREMENTS. OUR RECORDS INDICATE, HOWEVER, THAT THE AGENCY DID NOT RECEIVE ANY LETTERS FROM THE PROTESTER DATED JANUARY 29.

IN ORDER TO PREVAIL ON A REQUEST FOR RECONSIDERATION, THE REQUESTER MUST CONVINCINGLY SHOW EITHER ERRORS OF FACT OR LAW IN OUR EARLIER DECISION. C.F.R. SEC. 21.12. HERE, VEC'S ARGUMENTS DO NOT DEMONSTRATE SUCH A LEGAL OR FACTUAL ERROR, AND OUR PRIOR DISMISSAL IS AFFIRMED.