Link: GAO Opinion
Agency: Department of the Navy
Disposition: Request denied.
Request for reconsideration is denied where the request is based on information that was available to, but not proffered by, the requester during consideration of the initial protest.
General Counsel P.C. Highlight:
The Navy contends that GAO should have left to the agency’s discretion whether corrective action is unlawful under the circumstances of this case. The Navy suggests that the statutory restriction may not bar corrective action in connection with the cost study here. In support of its position, the Navy submits, for the first time, three Department of Defense (DOD) memoranda addressing the method for calculating the end date of a cost study. GAO states that under its Bid Protest Regulations, a request for reconsideration must contain a detailed statement of the factual and legal grounds upon which reversal or modifications of the initial decision is deemed warranted, specifying any errors of law made or information not previously considered by GAO. In order to provide a basis for reconsideration, additional information not previously considered must have been unavailable to the requesting party when the initial protest was being considered. Failure to make all arguments or submit all information available during the course of the initial protest undermines the goals of GAO’s bid protest forum–to produce fair and equitable decisions based on consideration of all parties’ arguments on a fully developed record–and cannot justify reconsideration of our prior decision.
The DOD memoranda now submitted by the Navy clearly were available during our consideration of the original protest. During our consideration of the protest, the protester twice raised the argument that the competition could not be reopened because it had exceeded the 30-month limitation. Moreover, GAO specifically asked the parties to address the issue of possible remedies in the event the protest was sustained. Despite this invitation, the agency did not raise the arguments it now proffers, and did not submit the DOD memoranda upon which it now relies. Whatever the reason for the Navy’s failure to mention the DOD memoranda during the protest, it cannot now proffer this information and the associated arguments for the first time on reconsideration. Since the agency was clearly on notice about this issue from the ATO’s very first protest filing, it could have introduced this information at any point during the initial protest, but did not. GAO will not consider it now. The request for reconsideration is denied.