BNUMBER:  B-270592.6
DATE:  October 15, 1996
TITLE:  Global Industries, Inc.--Reconsideration

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Matter of:Global Industries, Inc.--Reconsideration

File:     B-270592.6

Date:October 15, 1996

Richard S. Ewing, Esq., James A. Dobkin, Esq., John D. Roesser, Esq., 
Arnold & Porter, for the protester.
S. Gregg Kunzi, Esq., Thomas L. McGovern III, Esq., and David W. 
Burgett, Esq., Hogan & Hartson, L.L.P., for Nightingale, Inc., an 
intervenor.
C. Joseph Carroll, Esq., and Jonathan Cramer, Esq., Department of 
Justice, Federal Bureau of Prisons, for the agency. 
Katherine I. Riback, Esq., and Glenn Wolcott, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for reconsideration is denied where requesting party raises 
untimely arguments, seeks review of certain physical evidence in 
connection with an issue clearly lacking legal merit, and otherwise 
does not demonstrate that the decision contains errors of fact or law.  

DECISION

Global Industries, Inc. requests reconsideration of our decision, 
Global Indus., Inc., B-270592.2 et al., Mar. 29, 1996, 96-2 CPD  para.  85,  
sustaining its protest against the award of a contract for two lines 
of office chairs to Nightingale, Inc. under request for proposals 
(RFP) No. IPI-R-0315-95, issued by Federal Prison Industries, Inc. 
(UNICOR).  We sustained Global's protest because we found that it had 
not been afforded meaningful discussions by the agency.  In its 
request for reconsideration, Global argues that Nightingale's economy 
chairs did not provide lumbar support, as required by the 
solicitation.  Our decision did not address this argument because we 
determined that it was untimely.  Global also argues in its 
reconsideration request that our Office improperly denied its 
contention that the awardee's chairs failed to meet the RFP 
requirements regarding adjustable lumbar support.  

We deny the request for reconsideration.

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must show that our prior decision contains either 
errors of fact or law or present information not previously considered 
that warrants reversal or modification of our decision.  4 C.F.R.  sec.  
21.14(a) (1996); Richards Painting Co.--Recon., B-232678.2, May 19, 
1989, 89-1 CPD  para.  481.  

We sustained the protest because we found that during discussions, the 
agency failed to point out certain evaluated problems with the comfort 
of Global's medium range and economy chairs which were of serious 
concern to the agency evaluators and were considered to be 
correctable.  Eldyne, Inc., B-250158 et al., Jan. 14, 1993, 93-1 CPD  para.  
430, recon. denied, Department of the Navy--Recon., 72 Comp. Gen. 221 
(1993), 93-1 CPD  para.  422.  We recommended that the agency reopen 
negotiations with all competitive range offerors, conduct meaningful 
discussions, and request new best and final offers.   
  
In its reconsideration request, Global alleges that Nightingale's 
economy chairs did not provide lumbar support, as required by the 
solicitation; therefore, it reasons that Nightingale should be 
precluded from receiving the award, and award should be made to 
Global.[1]  To be timely, Global was required to raise this contention 
not later than 14 days after it knew, or should have known, the basis 
of protest.  4 C.F.R.  sec.  21.2(a)(2).  Global first raised this argument 
on March 13 in its hearing comments, which were filed in our Office 
after Global filed its comments on the initial and the supplemental 
agency report.  It is clear that Global should have been aware of the 
basis for its allegations that Nightingale's economy chairs do not 
provide the required lumbar support from its review of the agency 
report, which it received on January 18.  In this regard, Global 
itself states that Nightingale's literature on its economy chairs 
(contained in the agency report) made no claim that the Nightingale 
economy chairs provided lumbar support.  Since the record demonstrates 
that Global was aware of this argument by January 18, this aspect of 
the protest was untimely on March 13, and does not support a request 
for reconsideration now.[2]  ASI Personnel Servs., Inc.--Recon., 
B-258537.8, Oct. 31, 1995, 95-2 CPD  para.  198.  

Next, Global argues that our Office should now take certain additional 
measures to properly consider evidence which we had before us.  Global 
requests that we remove the fabric from the two medium range 
Nightingale stools that were presented at a hearing held in connection 
with the protest, and that we request from UNICOR the Nightingale 
U1860 (medium range) chairs in its possession, and also remove the 
fabric from these chairs.  According to Global, our Office can only 
determine which chair back was actually provided to UNICOR by 
Nightingale by removing the covering fabric.[3]  Global's request 
involves the issue of whether the Nightingale medium range chair 
provided sufficient adjustable lumbar support as specified in the RFP.  
This issue was specifically addressed in our prior decision in which 
we pointed out the solicitation did not set forth any particular 
minimum requirement for lumbar support.  As noted in our first 
decision, we conducted a hearing in this case in which all 
participants, including our hearing official, were afforded an 
opportunity to both visually inspect and sit in the chairs.  Based on 
this, we found that the Nightingale medium range chair did meet the 
requirement to have adjustable lumbar support, as set forth in the 
solicitation.  In essence, Global is seeking to have us further 
investigate the chair backs offered in order to determine the degree 
of adjustable lumbar support offered by the awardee's medium range 
chairs.  However, as we expressly concluded that no particular degree 
of support was specified, no purpose would be served by assessing the 
precise degree of support in the chairs offered.  Accordingly, there 
is simply no basis to now conclude that dissection of the Nightingale 
chairs is necessary to make this assessment.  Global's mere 
disagreement with our decision does not provide a basis for 
reconsideration.  R.E. Scherrer, Inc.--Recon., B-231101.3, Sept. 21, 
1988, 88-2 CPD  para.  274.[4]            

The request for reconsideration is denied.  

Comptroller General 
of the United States

1. Global previously argued that the chairs proposed by Nightingale 
for line items 0007L and 0009A did not provide "adjustable lumbar 
support," which is listed as an option for the medium range basic 
chair, the executive chair, and the medium range stool, respectively.  

2. We note that, unlike the medium range chair, adjustable lumbar 
support was not included in the line items of options that were to be 
incorporated into the economy chair.  Global appears to argue that the 
requirement for adjustable lumbar support is applicable to the economy 
chairs due to amendment No. 3, which states that "[b]oth chair lines 
(econo and medium) should emulate Human Factor Standard (HFS) 100."  
This Standard states that "support in the lumbar region shall be 
provided."  However, in our view, HFS 100 alone does not require that 
adjustable lumbar support be incorporated into the economy chairs, 
especially when it is not specifically listed as an option to be 
included in these chairs.  

3. During the course of these protests, Nightingale produced three 
chair back cutaways, cross-sections of chair backs, to demonstrate its 
lumbar support mechanism.  Each chair back provided differing amounts 
of lumbar support.

4. Although our original decision did not so specify, as is clear from 
this reconsideration request, Global's issues were clearly severable.  
Accordingly, our recommendation that Global should recover the 
reasonable costs of pursuing this protest should be limited to those 
costs associated with the issue on which Global prevailed--the 
agency's failure to conduct meaningful discussions with Global.  We  
limit the recovery of protest costs to the issue on which the 
protester prevailed where these issues are clearly severable from 
those in which the protester was unsuccessful.  Komatsu Dresser Co., 
71 Comp. Gen. 260 (1992), 92-1 CPD  para.  202;  Interface Flooring Sys., 
Inc.--Claim for Attorneys' Fees, 66 Comp. Gen. 597 (1987), 87-2 CPD  para.  
106.  In our view, limiting the recovery of costs to those issues on 
which the protester prevailed, where those issues are clearly 
severable from the remainder of the protest, is consistent with our 
statutory authority because it allows a protester to recover only 
those costs associated with its challenge to the portions of a 
solicitation, proposed award, or award that are determined violative 
of statute or regulation.  Interface Flooring Sys., Inc.--Claim for 
Costs, supra.