B-237408.2, May 18, 1990, 90-1 CPD ***, Office of General Counsel

B-237408.2, May 18, 1990, 90-1 CPD ***, Office of General Counsel

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Letter responding to reconsideration request explains that request does not include statement of factual or legal grounds warranting reversal or modification of decision as required by Bid Protest Regulations but only raises a number of procedural matters which did not prejudice the protester. Letter also explains that General Accounting Office nonetheless carefully reexamined the record and concluded that decision was correct.

Ms. Claudia Montuori

General Manager

Dunrite Tool & Die Corp.:

We refer to your letter of March 1, 1990, concerning our decision Dunrite Tool & Die Corp., B-237408, Feb. 23, 1990, 90-1 CPD Para. ***, in which we denied your firm's protest against the award of a contract to Lockley Manufacturing Co., Inc., under request for proposals (RFP) No. F41608-89-R -0912, issued by the Department of the Air Force for practice bombs. your letter you request reconsideration of the decision by a different attorney and that you "be permitted to present the facts in person."

Your original protest argued that amendment No. 0005 to the RFP deleted line items for option quantities and that the Air Force improperly evaluated proposals as if those quantities were still in the solicitation, with the result that Lockley's proposal was improperly determined to be low. In denying the protest we stated that a reading of the amendment and the solicitation as a whole indicated no intent to delete the options. Although your firm's president submitted a sworn affidavit stating that the contract negotiator orally agreed with Dunrite's position, we pointed out that the contract negotiator, also in a sworn affidavit, stated that he had no recollection of such a conversation. Also, we stated that if Dunrite had any doubts about the terms of the RFP, it was obligated to seek written confirmation concerning amendment No. 0005. We have assigned a different attorney to consider the matter. Based on our review of the record in the content of your letter, we conclude that our original decision correctly denied your protest.

You stated in your letter that our decision merely adopted the Air Force's position on the protest. Our decision was based on careful consideration of the entire record before our Office, including the solicitation and amendments along with the submissions filed by your firm and the Air Force. We did not simply adopt the Air Force's position. decided that your firm's reading of the solicitation amendment was not correct and, for the reasons set out in our original decision, we still think so.

You also maintain that we "ignored" facts presented under oath. Your firm's only submission under oath was a sworn affidavit in which Dunrite's president described a June 8 conversation he had with an Air Force contract negotiator regarding the contents of amendment No. 0005. We did not ignore the affidavit; we described the alleged conversation and pointed out that the contract negotiator, also in a sworn affidavit, stated that he had no recollection of such a conversation. More important, we also explained that, under the RFP, Dunrite was obligated to seek written confirmation concerning the meaning of the amendment if it had any doubts. Thus, any reliance by Dunrite on the alleged oral advice from the contract negotiator was at its own risk.

You are also concerned that we asked the Air Force to submit a supplemental response to the protest after conference comment had been filed by both parties. The record indicates that Dunrite's December 12 comments on the conference argued for the first time that the Air Force should have verified the prices Dunrite submitted in response to amendment No. 0005. Since the Air Force had not had an opportunity to respond to this contention, we asked them to provide a response. This procedure is consisted with our regulations which permit the submission of additional statements which are necessary for the fair resolution of the protest. See Bid Protest Regulations, 4 C.F.R. Sec. 21.3(1) (1989).

The Air Force responded by letter of February 6, essentially arguing that it had no indication that Dunrite had made a mistake in its proposal and therefore, it had no obligation to verify the firm's offer. We gave your firm an opportunity to comment on the Air Force's February 6 submission and Dunrite filed a response which we considered. Under the circumstances, since your firm raised the issue and was given the last opportunity to comment, we fail to see how it was prejudiced by our handling of the matter.

In accordance with our regulations, we will only consider a request for reconsideration which contains a detailed statement of the factual and legal grounds upon which reversal or modification of our decision is warranted specifying any errors of law made or information not previously considered. See 4 C.F.R. Sec. 21.12(a). Your letter does not include any statement of factual or legal grounds warranting reversal or modification of our decision, but only raises the procedural matters discussed above. We have nevertheless carefully reexamined the matter and we think that our decision was correct. Finally, since a conference was held on the original protest, we see no point in holding another a conference at this time.