BNUMBER:  B-261226.2
DATE:  November 30, 1995
TITLE:  Social Security Administration--Reconsideration

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Matter of:Social Security Administration--Reconsideration

File:     B-261226.2

Date:     November 30, 1995

Joel S. Rubinstein, Esq., Bell, Boyd & Lloyd, for the protester.
Lyman Goon, Esq., Social Security Administration, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

For purposes of resolving a bid protest regarding the content of 
discussions, the post-award negotiation memorandum prepared by the 
contracting officer stating that a matter had been discussed with the 
protester is not controlling where it is contradicted by other 
evidence in the record, including audit reports that were used as a 
basis for the discussions, the letter confirming the discussions, the 
protester's proposal and best and final offer, and the hearing 
testimony.

DECISION

The Social Security Administration (SSA) requests that we reconsider 
our decision,  Integrity Int'l Sec. Servs., Inc., B-261226, Sept. 1, 
1995, 95-2 CPD  98, in which we sustained the protest of Integrity 
International Security Services, Inc. against an award to Areawide 
Services, Ltd. under request for proposals (RFP) No. SSA-RFP-95-1747, 
issued by SSA for armed guard services at two sites in Baltimore, 
Maryland.  We sustained the protest on the basis that the agency had 
not conducted meaningful discussions with the protester--for failing 
to discuss a deficiency in its proposed labor rates--and recommended 
that the agency reopen discussions and correct its error.  SSA 
requests reconsideration of our decision with regard to both our 
alleged failure to consider certain evidence in the record, and the 
timeliness of the protest.

We deny the request for reconsideration.

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must show that our prior decision may contain errors 
of fact or law, or present information not previously considered that 
warrants reversal or modification of our decision.  4 C.F.R.  
21.12(a) (1995).  Repetition of arguments made during consideration of 
the original protest and mere disagreement with our decision do

 not meet this standard.  R.E. Scherrer, Inc.--Recon., B-231101.3, 
Sept. 21, 1988,
 88-2 CPD  274.

SSA alleges that our decision erroneously disregarded a negotiation 
memorandum, prepared by the contracting officer, which indicated that 
the agency had in fact apprised the protester of the labor rates 
deficiency during the final round of discussions.

As discussed in our prior decision, we reviewed the entire record in 
reaching our decision, including the content of the negotiation 
memorandum.  As noted in our decision, the contracting officer did not 
keep notes of any of his conversations with Integrity or any of the 
numerous offerors; the negotiation memorandum is an account of his 
recollection of events prepared several weeks after the oral 
discussions occurred.  The agency alleges that there was no other 
evidence in the record, other than the conflicting statements of the 
parties, from which to draw a conclusion, and that our Office thus 
should have deferred to the position reflected in the negotiation 
memorandum.[1]  However, our decision clearly found that there was 
other relevant evidence in the record--including the agency's audit 
reports of proposals and best and final offers (BAFO), the letter 
requesting final BAFOs, Integrity's proposal and BAFO, and the hearing 
testimony--and that this evidence did not support, and indeed 
contradicted, the contracting officer's recollection of the final 
round of discussions, and corroborated the protester's credible 
account that the labor hour deficiency had not been addressed.[2]  To 
the extent that the agency argues that we should have relied upon this 
negotiation memorandum above all other evidence in the 
record--evidence which we discussed extensively in our decision and 
which the agency largely ignores in its request for 
reconsideration[3]--it essentially is expressing disagreement with our 
decision; this provides no basis for reconsideration.

On reconsideration, the agency also alleges that the protest was 
untimely and should have been dismissed because Integrity failed to 
protest the discussions issue within 10 days after the post-BAFO 
conversation between the contracting officer and Integrity's 
representative; at this time the contracting officer allegedly stated 
to Integrity's representative that he had held discussions with 
another representative from Integrity.  In timeliness disputes, we 
will resolve any reasonable doubt in favor of the protester.  Eastern 
Trans-Waste of Maryland, Inc., B-250991, Mar. 2, 1993, 93-1 CPD  192.  
As stated in our decision, the protester originally asserted that the 
agency had solicited proposal revisions during this post-BAFO 
conversation, including correction of the labor hour deficiency, and 
protested on the basis that the agency did not properly consider these 
requested revisions.  In its report on the protest, SSA denied for the 
first time that it had requested post-BAFO revisions, and essentially 
asserted, also for the first time, that the pre-BAFO discussions on 
this issue had been meaningful.[4]  Since it was the agency report 
that first established the agency's position, and Integrity protested 
the adequacy of the pre-BAFO discussions within 10 days after 
receiving the report, its protest on this issue was timely.  4 C.F.R.  
21.2(a)(2).

The request for reconsideration is denied.

Comptroller General
of the United States

1. Cases upon which the agency relies in support of its position were 
decided prior to the codification of our Office's authority to conduct 
hearings.  See 56 Fed. Reg. 3759 (1991); 4 C.F.R.  21.5.  A primary 
purpose of a hearing is to orally examine the testimony of relevant 
witnesses, permitting our Office to assess witness credibility and, 
ultimately, to resolve factual disputes such as the one here.  See 
Town Dev. Inc., B-257585, Oct. 21, 1994, 94-2 CPD  155.

2. As stated in our decision, the contracting officer may have been 
confusing the content of a post-BAFO conversation with the pre-BAFO 
discussions, as both occurred weeks prior to his preparing the 
negotiation memorandum and he had no notes memorializing any of his 
many oral conversations with offerors during the procurement.

3. For example, while the contracting officer stated that he also 
discussed a problem regarding a wage rate effective date during the 
final round of discussions, the record shows that this problem 
actually only became apparent in Integrity's final BAFO and could not 
have been discerned from Integrity's proposal as of the time the final 
discussions were conducted.  In its reconsideration request, SSA does 
not dispute our determinations regarding this evidence, which 
contradicts the contracting officer's version of the final round of 
discussions.

4. SSA now also alleges that Integrity should have been aware of the 
agency's position from a post-award debriefing.  This was information 
which SSA could have, but did not, present during the protest, and the 
agency may not now use it as a basis for reconsideration.  CB 
Commercial Gov't. Servs. Group--Recon., B-259014.2, Apr. 3, 1995, 95-1 
CPD  176.