_____________________________________________________ MOTION FOR RECONSIDERATION DENIED: August 16, 1993 _____________________________________________________ GSBCA 12205-P-R JAMES W. COLLINS & ASSOCIATES, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent. Von L. White, I, President of Exact Data Services Division, James W. Collins & Associates, Inc., Washington, DC, appearing for Protester. Jerry A. Walz and Kenneth A. Lechter, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. HYATT, Board Judge. Protester, James W. Collins & Associates, Inc. (JWC), has moved for reconsideration of the Board's decision dismissing for lack of timeliness its protest of respondent's actions with respect to the procurement of certain maintenance services for Government-owned automatic data processing equipment (ADPE). JWC's protest challenged respondent's decision to exclude it from further consideration for award of the contract and, alternatively, requested recovery of the costs of preparing its proposal and pursuing this protest. For the reasons stated, we deny protester's motion. Background This protest concerned a proposed small business set-aside procurement for computer maintenance services required by the Office of Computer Services of the Commerce Department. Certain irregularities occurred during the procurement process, which are described in the Board's decision dismissing JWC's protest as untimely filed. James W. Collins & Associates, Inc. v. Department of Commerce, 1993 BPD 22 (Jan. 7, 1993). As a result of these irregularities, the contracting officer excluded from further consideration for award several small businesses, including JWC. JWC protested. In its complaint, filed on December 3, 1992, JWC stated that a telephone conversation had been held with the contracting officer concerning this matter "on or about November 17, 1992." In a declaration signed and certified to by the contracting officer, she confirmed that a conversation had occurred on this date, and that she had initiated the call in response to a telephone call she had received on November 16. The fact that she received a call from protester on November 16 is verified by an electronic mail message to that effect. A copy of this message was proffered by respondent in its opposition to the motion to reconsider. Her records indicate that she returned the call. In responding to the initial motion to dismiss, protester asserted that the telephone call that it initially had conceded occurred on or about November 17 actually did not occur until later in November. This assertion was made in an unsworn statement which was not accompanied by any substantiating documentation. The Board noted that protester had made this claim but did not address it in the decision dismissing the protest because it deemed that the weight of the evidence supported the conclusion that a telephone conversation apprising JWC of its status in the procurement had in fact taken place on November 17. James W. Collins & Associates, Inc. In its motion for reconsideration, protester essentially objects that the Board's finding that the telephone call took place on November 17 is erroneous, and adds, again simply in the form of an unsworn pleading, that it has searched its own records and has located no record of such a call. Protester offers to supply copies of its records but never supplied them in the first instance. Based on its records, protester maintains that the call must not have taken place on November 17 after all, and thus contends that its protest should not have been deemed untimely. Discussion It is the protester's burden to establish the timeliness of its protest. Rule 7(b)(2)(vi)[foot #] 1; Rotating Memory Services, GSBCA 10851-P, 91-1 BCA 23,408, at 117,446, 1990 BPD 311, at 3; Electronic Systems Associates, Inc., GSBCA 10177-P, 90-1 BCA 22,438, at 112,679, 1989 BPD 336, at 13. As we stated in the initial decision, in the interest of ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101 (1992). ----------- FOOTNOTE ENDS ----------- minimizing expenses incurred by Government agencies and prospective contractors, as well as creating a degree of certainty as to when protests may or may not be brought, the Board has, on more than one occasion, warned that its timeliness rules will be enforced strictly. James W. Collins & Associates, slip op. at 4 (citing Integrated Systems Group, Inc., GSBCA 11075-P, 91-2 BCA 23,790, 1991 BPD 42; Teradata Corp., GSBCA 10677-P-R, 90-3 BCA 23,278; 1990 BPD 250). Protester's complaint, as initially filed, averred that a telephone conversation took place between it and the contracting officer on or about November 17. Records supplied by respondent have established that a call was placed by protester to the contracting officer on November 16. In her declaration, the contracting officer indicated that she routinely returns calls as promptly as possible and that, to the best of her recollection, she in fact returned protester's call on November 17 and apprised protester of the status of the procurement. The protest was filed on December 3, 1992. Based on protester's concession and the contracting officer's declaration that the information needed to apprise protester of its basis for protest was conveyed in the telephone conversation that occurred on November 17, the Board dismissed the protest as untimely filed. Although not explicitly stated, the Board simply could not give as much credence to protester's conflicting, unsworn, and otherwise unsupported retraction of its earlier statement concerning that telephone conversation. Based on the preponderance of the evidence in the record at that time, the Board concluded that, as of November 17, protester had full knowledge of its grounds of protest, and, to be timely, would have had to file a protest within ten working days. It did not do so. Protester's motion does little more than reassert its contention that the telephone call it initially conceded took place around November 17 actually took place much later in November. In contrast to the contracting officer's declaration, no sworn affidavit or declaration is offered to support the contention that the date asserted in the compliant as initially filed was mistaken. Protester has offered no new argument or evidence that it could not have offered prior to the dismissal to justify granting its motion for reconsideration. Rule 32. Decision Protester's motion for reconsideration is DENIED. _______________________________ CATHERINE B. HYATT Board Judge We concur: ______________________________ ______________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge