MOTION FOR RECONSIDERATION, OR ALTERNATIVELY FOR RELIEF FROM DECISION, DENIED: October 21, 1994 GSBCA 12978-P-R ACCURATE INFORMATION SYSTEMS, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and INFORMATION MANAGEMENT CONSULTANTS, INC., and MANAGEMENT SYSTEMS DESIGNERS, INC., Intervenors. Christopher M. Collins, McLean, VA, counsel for Protester. Donald M. Suica, Robert H. Humphries, Herwood R. Roberson, and Lori R. Larson, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. William A. Roberts III, Lee Curtis, Jerone C. Cecelic, and Alice M. Crook of Howrey & Simon, Washington, DC, counsel for Intervenor Information Management Consultants, Inc. William W. Goodrich, Jr., Craig S. King, and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Intervenor Management Systems Designers, Inc. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. DANIELS, Board Judge. On September 30, 1994, the Board dismissed a protest brought by Accurate Information Systems, Inc. (Accurate), against the award of contracts by the Department of the Treasury's Internal Revenue Service (IRS) to Information Management Consultants, Inc. (IMC), and Management Systems Designers, Inc. (MSD). The protest was dismissed in part as untimely filed, in part for failure to state a valid basis of protest, and in part for lack of jurisdiction. Accurate Information Systems, Inc. v. Department of the Treasury, GSBCA 12978-P, 1994 BPD 203 (Sept. 30, 1994). On October 13, Accurate moved for reconsideration of this decision on the ground that newly discovered evidence, unavailable to Accurate until October 11, should cause the Board to allow the protest to continue as to one allegation. The allegation is that the contracting officer acted unreasonably in that after he had determined that Accurate was not responsible to perform a contract of the type awarded, and so informed the Small Business Administration (SBA), he received new information pertinent to Accurate's financial capability but did not reverse his determination based on it. The Board dismissed this count for failure to state a valid basis of protest, having found that Accurate had not pled any facts which might support the contention. As soon as the motion for reconsideration was docketed, the parties let fly with a barrage of filings. Almost immediately, the IRS moved to dismiss the motion for reconsideration as untimely filed and Accurate moved for an enlargement of one day within which to file the motion for reconsideration. After the Board requested comment on the timeliness motions, the IRS filed an opposition to Accurate's motion for an enlargement of time, IMC and MSD supported the IRS's position and opposed Accurate's, IMC moved separately to dismiss the motion for reconsideration, and Accurate filed a memorandum in support of its positions -- and alternatively asking that the motion for reconsideration be considered a motion for relief from decision. After the last- described filing was made, the IRS asked that if the Board treats Accurate's principal motion as one for relief from decision, the other parties be permitted an opportunity to respond; Accurate then opposed this request. Discussion Board Rule 32 permits a party to move for reconsideration, amendment of a decision or order, or a new hearing. Rule 32(a) (to be codified at 48 CFR 6101.32(a) (58 Fed. Reg. 69,246, 69,264 (Dec. 30, 1993)). Rule 33 authorizes the filing of a motion for relief from the operation of a final decision or order. The former rule is analogous to Federal Rule of Civil Procedure 59; the latter is analogous to Federal Rule of Civil Procedure 60(b). Like the Federal rules, ours provide different deadlines for the filing of the motions. A motion for reconsideration may be filed, in a protest, "within 7 working days after the date of receipt by the moving party of the decision or order." Rule 32(c). A motion for relief from decision may be filed, in a protest, "no later than 30 calendar days after the date of the moving party's receipt of the decision or order from which relief is sought." Rule 33(c). Accurate's principal motion was filed on the eighth working day after the date on which Accurate received our decision. More specifically, the motion was sent by facsimile transmission on the afternoon of the seventh working day, but the entire printed submission did not arrive until after our Clerk's office had closed for that day, so the motion is considered to have been filed on the next business day. Rules 1(b)(5), (15). The motion is timely either (a) if it is viewed as one for relief from decision, or (b) if it is considered one for reconsideration and the Board grants an enlargement of time in which the filing could be made. An enlargement of time for taking a required action may be sought after the specified time has expired, but only if "the party requesting the enlargement [has shown] good cause for its inability to make the request before that time expired." Rule 2(b). Accurate presents this excuse for not having sought an enlargement of time by the last day on which a motion for reconsideration could be filed: Because the clock on its counsel's fax machine was not properly calibrated, counsel did not realize when the transmission was made that the motion would arrive late; he consequently had no reason even to consider asking for more time until the following day, when he learned of the tardy arrival. The grounds upon which a motion for reconsideration and a motion for relief for decision may be based are similar. Among them are the one that Accurate cites here: the movant has newly discovered evidence which could not have been earlier discovered, even through due diligence. Rules 32(a), 33(a); 11 C. Wright & A. Miller, Federal Practice & Procedure 2859 (1973). There is no need in this case to decide which appellation should properly be ascribed to Accurate's motion, for whether we call the motion one for reconsideration and grant an enlargement of time in which it might be filed, or alternatively call the motion one for relief from decision, the result is the same: the motion must be denied because it does not meet a necessary prerequisite for consideration. In our earlier decision, we explained that when a contracting officer determines that a small business concern is not responsible to perform a contract, but is otherwise eligible for award, he must refer the matter to the SBA, which in turn shall offer the firm an opportunity to apply to the SBA for a certificate of competency. Accurate at 3. If, while the matter is before the SBA, the contracting officer receives new information pertinent to the firm's responsibility, he may reverse his determination, award a contract, and thus moot any consideration by the SBA of giving the firm a certificate of competency. Id. at 6. Before we issued that decision, Accurate had presented no evidence of new information which might have been considered by the contracting officer before he awarded contracts to IMC and MSD. Accurate at 6. We explained in the opinion that the SBA had declined to issue a certificate of competency for Accurate, and that the IRS had proceeded promptly to invite IMC and MSD officials to sign contracts on the next business day. According to declarations from the IRS contracting officer and the procurement manager, while IMC and MSD officials were in the contracting officer's office on that day, reviewing contract documents, an SBA associate administrator telephoned the procurement manager. The SBA official told him, in the contracting officer's presence, that Accurate was about to provide material relevant to its financial responsibility. After this conversation ended, the contracting officer returned to his office and found that both the IMC and MSD representatives had signed their contracts. Id. Accurate attaches to its motion for reconsideration two documents which it portrays as "newly discovered evidence" -- a memorandum from the SBA associate administrator, which was allegedly provided to Accurate on October 11, and a declaration by Accurate's president, dated October 12. Both of these documents mention the conversation described above. According to Accurate, the documents demonstrate that during that discussion, the SBA official provided specific information to the IRS about Accurate's financial responsibility. The declaration by Accurate's president is not the type of information upon which this motion for reconsideration or relief from decision may be based. By the terms of Rule 33(a)(1), upon which Accurate relies in seeking further review of its complaint, information may support such a motion only if it is evidence which is both "newly discovered" and "could not have been earlier discovered, even through due diligence." Material within a party's control, such as information known by the party's president, cannot meet either part of this test. Adelaide Blomfield Management Co. v. General Services Administration, GSBCA 11909-R (Aug. 11, 1994); Koll Construction Co. v. General Services Administration, GSBCA 12306-R, 94-2 BCA 26,599. The declaration by Accurate's president thus does not fit within the class of evidence to which protester points. Accurate maintains that the SBA memorandum, which does meet both parts of the test, demonstrates that the SBA official provided specific information to the contracting officer before the IMC and MSD contracts were signed. Accurate maintains further that the memorandum "challenges the veracity of the declarations" of the IRS employees. Motion for Reconsideration at 7. The document does neither of these things. All it says about the conversation in question is this: I contacted the IRS to explain that [Accurate's president] had called and said he had new information which would present his company in a better financial light. I spoke with [the procurement manager] and [the IRS] Deputy Assistant Commissioner (Procurement). [The procurement manager] informed me that he was signing contracts with the successful offerors at that very moment and would not ask SBA to re-review [Accurate's application for a certificate of competency]. Id., Exhibit A at 2. Newly discovered evidence is a proper foundation for a motion for reconsideration only where the evidence "is such that is likely to produce a new outcome if the case were retried, or is such that would require the judgment to be amended." Taylor v. Texgas Corp., 831 F.2d 255, 259 (11th Cir. 1987); see also Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir. 1975), rev'd on other grounds, 425 U.S. 273 (1976); Niedland v. United States, 338 F.2d 254, 260 (3d Cir. 1964). The memorandum to which Accurate now calls our attention merely confirms evidence which is already in the record. Had we had this document before we wrote our decision, it would have made no difference in the result. The memorandum, like the declaration of Accurate's president, is therefore not an acceptable basis for the motion. On October 20, Accurate provided us with yet another document that it considers newly discovered evidence which could not have been discovered earlier. This is a declaration from the SBA associate administrator regarding, among other things, the conversation in question. The declaration states: I informed [the IRS project manager] that [Accurate] had received approval from an IRS Revenue Officer for a workout agreement regarding delinquent taxes, although I had not seen a written plan and the agreement would have to be approved by the Revenue Officer's superiors. [The project manager] informed me that he did not consider this information either new or sufficient to overcome the very serious financial problems facing the company. He further said that [Accurate] had been given at least four opportunities to demonstrate financial capability and that the firm had been unable to do so. He further informed me that he was signing contracts with offerors at that very moment, and that it was unfair to those companies to continue to withhold award of the contract[s]. Accurate's Supplement to the Record (Oct. 20, 1994), Exhibit A 6-7. This declaration conveys information which if true would be extremely unlikely to require our order of September 30 to be amended. Regulation affords contracting officers considerable discretion in determining the responsibility of a prospective contractor. When a responsibility determination is challenged -- the protester's burden is quite substantial because our de novo review authority must be tempered in such a highly discretionary area. We will thus grant deference to those determinations regarding the responsibility of prospective contractors, without slavishly following them. Technology Advancement Group, Inc. v. Department of the Navy, GSBCA 12709-P, 94-2 BCA 26,714, at 132,885, 1994 BPD 29, at 9; National BioSystems, Inc., GSBCA 10823-P, 90-1 BCA 22,543, at 113,127, 1989 BPD 384, at 10-11 (both quoting Del Net, Inc., GSBCA 9178-P, 88-1 BCA 20,342, at 102,870, 1987 BPD 259, at 12, aff'd, 861 F.2d 728 (table) (Fed. Cir. 1988)). Accurate does not suggest why the standard should be different in the context of this case. The SBA official's declaration demonstrates that the IRS contracting officer made a considered judgment in response to whatever he learned from the SBA, but did not know earlier. In light of significant evidence of Accurate's financial infirmity, the firm's repeated failures to respond positively to IRS invitations to show improved capability, and the fact that contracts were in process of being awarded at the moment the information arrived, the contracting officer viewed the possibility that an agreement for payment of back taxes would be approved as insufficient to change his mind. Given the broad discretion that regulation affords to contracting officers in making responsibility determinations, the new declaration does not raise any doubt in our minds that the determination at issue was reasonable. Decision Accurate's motion, whether it be deemed one for reconsideration or one for relief from decision, is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge