BNUMBER:  B-271248.2
DATE:  October 16, 1996
TITLE:  Dr. Carole J. Barry--Reconsideration

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Matter of:Dr. Carole J. Barry--Reconsideration

File:     B-271248.2

Date:October 16, 1996

Dr. Carole J. Barry for the protester.
Richard Brown, Esq., and Michael Colvin, Department of Health and 
Human Services, for the agency.
Paul Lieberman, Esq., Office of the General Counsel, GAO, participated 
in the preparation of the decision.

DIGEST

1.  Request for reconsideration is denied where protester has not 
shown that prior decision contained errors of fact or law, nor has it 
presented information not previously considered.  

2.  Protester's exclusion from portion of a hearing at which witnesses 
testified concerning protected material does not provide a basis for 
reconsideration; protester was provided with a redacted copy of the 
full hearing transcript, and the  diminution in the protester's access 
to the protest record resulted from the protester's last-minute 
decision to discontinue the services of its attorney who had  been 
admitted to a protective order.  

DECISION

Dr. Carole J. Barry requests reconsideration of our decision, Dr. 
Carole J. Barry, 
B-271248, June 28, 1996, 96-1 CPD  para.  292, in which we denied her 
protest of the evaluation of proposals and the resulting award of a 
contract to Psychiatric Associates of New Mexico, Inc., under request 
for proposals (RFP) No. 96-01/LBB, issued by the Department of Health 
and Human Services, Albuquerque Area Indian Health Service.  In her 
request for reconsideration, Dr. Barry argues that our Office 
improperly denied her contentions that the proposals were improperly 
evaluated, and that our Office conducted a hearing in connection with 
her protest in an unfair manner.  

We deny the request for reconsideration.

The protester in essence repeats arguments that she made previously 
concerning the agency's evaluation of the proposals, and expresses 
disagreement with our decision.  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); see Richards Painting Co.-- 
Recon., B-232678.2, May 19, 1989, 89-1 CPD  para.  481.  Dr. Barry's 
repetition of arguments made during our consideration of its 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  para.  274.  

Dr. Barry also argues that a hearing held in connection with this  
protest was unfairly conducted.  Specifically, Dr. Barry objects that 
she was not allowed to be present during the testimony of the agency's 
witnesses, and was not afforded an opportunity to cross-examine the 
witnesses.  

Our Bid Protest Regulations provide that our Office may conduct a 
hearing in connection with a protest, 4 C.F.R.  sec.  21.7(a), and also 
that prior to the hearing we may conduct a pre-hearing conference to 
discuss and resolve matters such as the format of the hearing, the 
procedures to be followed, the issues to be considered, and the 
witnesses who will testify.  4 C.F.R.  sec.  21.7(b).

Our Office decided that this case was appropriate for a hearing, which 
we scheduled for Monday, April 29, 1996.  The decision was made to 
hold the hearing in Albuquerque, New Mexico, as requested by 
protester's counsel, because that was where the protester, her counsel 
(who had been admitted to a protective order issued by our Office in 
connection with the protest), and the agency's witnesses were 
situated.  The General Accounting Office hearing official held a 
pre-hearing conference by telephone on Thursday, April 25, with 
counsel for the protester and agency representatives.  One of the 
issues that arose during this conference was the protester's 
ambivalence concerning whether to continue to retain the assistance of 
counsel in pursuing the protest.  The hearing official explained that 
because a protective order had been issued and the hearing would cover 
protected material, the issue of whether or not the protester would 
proceed with counsel would affect the manner in which the hearing was 
conducted; therefore, this issue needed to be resolved immediately.  
The pre-hearing conference was interrupted and the protester's counsel 
was given time to confer with her client to resolve this matter.  When 
the pre-hearing conference resumed, the hearing official was advised 
that the protester had decided to continue to retain the assistance of 
counsel in her pursuit of the protest.  

On the day of the hearing, Dr. Barry and her spouse/representative 
appeared without counsel.  Because the protester elected, contrary to 
her prior assurances, to appear without counsel admitted to the 
protective order at a hearing at which agency witnesses were expected 
to testify with respect to protected information pertaining to the 
awardee's proposal, the hearing official decided to proceed with the 
hearing by questioning the agency's witnesses herself.  Dr. Barry and 
her representative were not allowed to be present during the testimony 
of the agency's witnesses.  Dr. Barry subsequently was given an 
opportunity to answer questions posed by the hearing official and the 
agency's counsel concerning her proposal, and to make a statement on 
the record during which she objected to the conduct of the hearing.  
Dr. Barry was later provided with a redacted transcript of the entire 
hearing, and submitted comments based on this transcript.  

The hearing official's approach was entirely fair and appropriate.  
The format of a hearing and the degree of participation in a hearing 
by a party to a protest may vary depending on the issues involved, 
whether or not the hearing is protected, and whether the protester is 
represented by counsel admitted to a protective order.  Here, during 
the pre-hearing conference the hearing official arranged a format, 
agreed to by all of the parties, in which the protester's counsel, 
admitted to the protective order, would be present for the direct 
testimony of the agency's witnesses, and then would have an 
opportunity for cross-examination.  The protester's own attendance at 
the hearing was to have been limited because of the fact that the 
hearing concerned protected material.  The protester's last-minute and 
previously undisclosed decision to appear at the hearing without 
counsel admitted to a protective order meant that the hearing format 
earlier agreed to no longer was appropriate.  The hearing official 
clearly acted reasonably in such circumstances in then deciding to 
restructure the hearing format to allow the pertinent issues to be 
covered in an expeditious manner, including questioning the agency's 
witnesses herself and later providing Dr. Barry a redacted transcript 
of the entire hearing.  In sum, any diminution in the protester's 
access to the hearing testimony was solely the result of the 
protester's decision to appear without representation by previously 
admitted counsel.  The protester's objection to the conduct of the 
hearing provides no basis for reconsideration.  See Department of 
State--Recon., B-243974.4, May 18, 1992, 92-1 CPD  para.  447.

The request for reconsideration is denied.

Comptroller General
of the United States