BNUMBER: B-265638.2; B-265639.2
DATE: February 22, 1996
TITLE: Intercomp Company--Reconsideration
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Matter of:Intercomp Company--Reconsideration
File: B-265638.2; B-265639.2
Date: February 22, 1996
Charles D. Ablard, Esq., Jeff H. Eckland, Esq., and William L.
Roberts, Esq., Faegre & Benson, for the protester.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Requests for reconsideration of dismissal of protests based upon
contract information discovered by protester more than 2 years after
award are denied where protests essentially concern a matter of
contract administration and are otherwise untimely.
DECISION
Intercomp Company requests reconsideration of our August 30, 1995,
dismissal of its protests of the award of contracts to General
Electrodynamics Corporation under request for proposals (RFP) Nos.
F41608-92-R-20110 and F41608-92-R-20215, issued by the Department of
the Air Force for aircraft weighing systems.
We deny the requests for reconsideration.
We dismissed the protests because of the lengthy period of inaction
(i.e., 2 years) by the protester during which time the protester
failed to pursue any information to reveal possible bases of protest.
The protests were only filed after Intercomp discovered publicly
available contract information 2 years after award that contract
performance was assertedly not in accordance with the terms of the
awardee's proposal. Intercomp states that it first learned its basis
of protest when it received the agency's response to a Freedom of
Information Act (FOIA) request that the firm had filed in pursuit of
information about an unrelated matter concerning a possible leak of
the firm's proprietary information by the agency. Based upon the
information it received, Intercomp challenged that the agency
improperly accepted after award the awardee's analog system, which is
different from the digital system described in the awardee's proposal.
The protester argues that its protest is not a matter of contract
administration, but rather that the agency's acceptance of a
nonconforming product constitutes a contract modification outside the
scope of the original contract which is subject to this office's
review. See Ion Track Instruments, Inc., B-238893, July 13, 1990,
90-2 CPD para. 31. Despite Intercomp's characterization of its protests,
in our view, the protester's challenge that the awardee delivered a
nonconforming product during contract performance, and that the agency
has apparently allowed this practice, essentially involves a matter of
contract administration that we do not review. See section 21.5(a),
60 Fed. Reg. 40,737, 40,742 (Aug. 10, 1995) (to be codified at 4
C.F.R. sec. 21.5(a); see Louisville Cooler Mfg. Co., B-243546, June 13,
1991, 91-1 CPD para. 568. In any event, as we stated in our prior
dismissal decision, to the extent Intercomp's challenge reaches the
propriety of the initial award, the protests are untimely filed.
Intercomp generally reiterates the arguments it made in its initial
protests regarding timeliness; the request also provides that:
"Intercomp had no reason to suspect it should affirmatively
pursue and investigate the facts forming the basis for this
protest at the time of contract award. This protest is based on
the fact that the awardee supplied a different product than the
product it had offered in its bid and a different product from
what the Air Force had advertised to buy. That fact only came to
light when the Air Force responded to a [FOIA] request made for a
reason not related to possible protest." (Emphasis in original.)
As we stated in our dismissal decision, the policy goal underlying our
timeliness rules is the expeditious consideration of procurement
actions without unduly disrupting the government's procurement
process. Air Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129.
Here, the protester states that it did not pursue any information
regarding the procurement for more than 19 months after award; during
this period, Intercomp failed to show any continued interest in the
procurement. Although our timeliness rules are not stated in terms of
a maximum time period available for filing a protest of an award
action, we cannot permit the timing of the protest process to be
governed by the protester's own discretionary act of inquiring about
contract award and performance at a time of its own choosing. This is
especially apparent here where a substantial period of time has passed
since award and contract performance is substantially accomplished, if
not completed. To allow the filing of the protests based upon
information discovered by chance by the protester 2 years after notice
of award, where no interest in the procurement has been shown during
that time period, would contravene our longstanding practice of
allowing only a reasonable limit on the length of time within which
protests must be filed after notice of award. See Technology
Management & Analysis Corp., B-256313.3; B-256313.5, May 9, 1994, 94-1
CPD para. 299. In measuring timeliness and allowing a reasonable time for
the filing of protests, we require that protesters diligently pursue
information that may reveal any possible bases of protest. See Adrian
Supply Co.--Recon., B-242819.4; B-242819.5, Oct. 9, 1991, 91-2 CPD para.
321.
Although the protester here contends that it had no reason to seek
information at the time of award that would have given rise to its
current protest bases since the agency's acceptance of different
equipment than proposed occurred after award, we believe our diligent
pursuit rule applies to certain discernable points in time after award
where the protester could have timely shown its continued interest in
the procurement. For instance, a request by the protester within a
reasonable time after award for publicly available information
concerning the results of first article testing or delivery orders
under the contract would have resulted in the protester's having at a
much earlier point in time the information it is now contending gives
rise to a valid protest. In light of our interests in minimizing the
disruption to the procurement process while giving protesters a
reasonable opportunity to present their cases, the protest process
cannot be governed by the protester's fortuitous discovery of
information after it has failed to show interest in the procurement
for an extended period of time.
The requests for reconsideration are denied.
Comptroller General
of the United States