B-234367.2, Sep 26, 1989, 89-2 CPD ***

B-234367.2, Sep 26, 1989, 89-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration of decision sustaining protest is denied where contractor reiterates arguments raised initially and fails to show any error of fact or law that would warrant reversal or modification of prior decision.

Mark Dunning Industries, Inc.-- Request for Reconsideration:

Mark Dunning Industries, Inc. (MDI), requests reconsideration of our decision, Reliable Trash Service Co. of MD, Inc., B-234367, June 8, 1989, 68 Comp.Gen. ***, 89-1 CPD Para. 535, in which we sustained Reliable's protest of the award of a contract to MDI, under invitation for bids (IFB) No. DAKF24-89-B-0031, issued by the Army for refuse collection and disposal at Fort Polk, Louisiana. We deny the request.

The IFB contained two alternative schedules on which bids could be submitted: Schedule I, requiring on-post refuse disposal (for which Reliable submitted a bid), and Schedule II, requiring off-post disposal (for which MDI submitted a bid). We sustained Reliable's protest on the basis of our finding that the solicitation's evaluation scheme for on-post bidding under Schedule I required bid prices for corrective work at the on -post landfill that was not required of off-post bidders under Schedule II, despite the fact that the corrective work was not related to actual use of the on-post landfill and would have to be performed even if the contract were awarded for off-post disposal. We found that this scheme, under which we determined that bidders were not evaluated on a common basis, resulted in the apparent inflation of Reliable's total bid price compared to MDI's, and that the Army's award to the latter on the ground that its bid reflected the lowest overall cost to the government was improper. Instead, when we corrected the defect and considered only the prices bid for the same work, by disregarding the price bid by Reliable for the corrective work, we determined that the actual low bidder was Reliable. Accordingly, we recommended that the award to MDI for off-post disposal be terminated for convenience and that a contract be awarded to Reliable.

In its reconsideration request, MDI first reiterates an argument it raised initially that the protest was untimely filed and thus should not have been considered on its merits; according to MDI, since the IFB clearly set forth the evaluation scheme for both on-post and off-post bidding, the inclusion of the corrective work under the scheme for on post bidding should have been protested prior to bid opening in order to be timely. In our prior decision, however, we found it unnecessary to decide the timeliness issue; we found the case a proper one in which to invoke the significant issue exception to our timeliness rules at 4 C.F.R. Sec. 21.2(b) (1989). MDI argues that we improperly invoked the exception but, as we explained in our decision, where, as in this case, the record clearly indicates that there has been a violation of law, invoking the significant issue exception may be warranted. Moreover, invoking the significant issue exception is a matter entirely within our discretion. This MDI argument provides no basis for us to reconsider our prior decision.

MDI further asserts that we erred in disregarding the cost of corrective work for on-post bidders since, regardless of the reasons such corrective work was required, it was implicitly a cost of using the on-post landfill facility. Again, this is merely a reiteration of an argument raised in response to the original protest. We specifically found in our decision that the corrective work was not related to landfill use by a new contractor, but rather was required to be performed in any event because it was left uncompleted by a previous contractor. MDI raises no new matter of law or of fact that would lead us to alter this finding.

MDI also argues that, even under the revised evaluation scheme applied in our prior decision, MDI still is the low bidder and entitled to the award. MDI bases this assertion on its estimate of cost savings to the government that would result from the use of an off-post landfill, as opposed to the use of the on-post landfill incorporated in Reliable's bid. While the alleged off-post landfill savings properly may have been incorporated in the evaluation scheme, the Army apparently determined that all relevant circumstances did not warrant doing so. Any such alleged cost savings thus could not be considered in the evaluation.

Finally, MDI argues that, even if the protest is sustained, the remedial recommendation in our prior decision should be modified to provide for resolicitation rather than termination of MDI's contract and award to Reliable. MDI asserts that it was prejudiced by the defective evaluation scheme because, when it prepared its own bid, it calculated that its most competitive price was for disposing of refuse off-post according to the original evaluation scheme; had it known that the cost of the corrective work under the on-post schedule would be disregarded, MDI argues, its most competitive price might have been for on-post disposal and might have been lower than Reliable's under the revised evaluation scheme. It claims that, to allow Reliable's bid to be reevaluated based on the revised evaluation scheme, in effect, creates a situation where bidders were not bidding on an equal basis, since no bidder other than Reliable had the opportunity to submit an on post bid based on the revised evaluation scheme.

MDI has not established that it was prejudiced by the defective evaluation scheme. Specifically, under the circumstances here, we do not consider MDI's speculation that it might have bid the on-post option-- had it known the extraneous work would not be included-- to be sufficient to show prejudice. Although, following our prior decision, MDI had all of the solicitation information necessary to determine whether it could in fact reduce its bid by choosing the on-post landfill option, so as to displace Reliable, MDI has furnished no explanation that it would have done so; MDI has not attempted to explain why the on-post landfill would be expected to be a less costly option, or the specific business and cost considerations it would have factored into its decision in this regard. Absent such information, it remains our view that there is no basis to conclude that, given the opportunity, MDI would have bid differently; MDI thus was not prejudiced by the deficient evaluation scheme.

The request for reconsideration is denied.