THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MAY 2, 1995 MOTION FOR RECONSIDERATION DENIED: February 24, 1995 GSBCA 13004-P-R MARTIN MARIETTA CORPORATION, MANAGEMENT AND DATA SYSTEMS, Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and TRW, INC., SYSTEMS INTEGRATION GROUP, Intervenor. Thomas C. Papson, Patrick K. O'Keefe, David Kasanow, and C. Stanley Dees of McKenna & Cuneo, Washington, DC, counsel for Protester. Patricia A. McNall, Gregory C. Carter, Jerome P. Jones, Robert Zuckerman, and Maureen Cummings-Spickler, Federal Aviation Administration, Department of Transportation, Washington, DC, counsel for Respondent. James J. McCullough, John W. Chierichella, Deneen J. Melander, and Anne B. Perry of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC; and James C. Diggs, Vice President & Senior Counsel of TRW, Inc., Systems Integration Group, Fairfax, VA, counsel for Intervenor. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. GOODMAN, Board Judge. Pursuant to Board Rule 32,[foot #] 1 protester, Martin Marietta Corporation, Management and Data Systems (MMC), filed a timely motion for reconsideration of our decision dated January 13, 1995, in Martin Marietta Corporation, Management and Data Systems v. Department of Transportation, GSBCA 13004-P. As discussed below, protester's motion for reconsideration is denied. Discussion Rule 32 states, in relevant part: Reconsideration may be granted . . . for any of the reasons stated in Rule 33(a)[foot #] 2 and the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States. . . . Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration. The standard this Board uses in reviewing motions for reconsideration was set forth in Electronic Data Systems Corp. v. Department of State, GSBCA 11593-P-R, 92-1 BCA 24,763, 1992 BPD 27: ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69,246, 69,264 (1993) (to be codified at 48 CFR 6101.32). [foot #] 2 Rule 33(a), Relief from Decision or Order, sets forth the following grounds: (1) Newly discovered evidence which could not have been earlier discovered, even through due diligence; (2) Justifiable or excusable mistake, inadvertence, surprise, or neglect; (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) The decision has been satisfied, released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is no longer equitable that the decision should have prospective application; (5) The decision is void, whether for lack of jurisdiction or otherwise; or (6) Any other ground justifying relief from the operation of the decision or order. ----------- FOOTNOTE ENDS ----------- Motions for reconsideration should not be routine requests of losing parties. Mere disagreement with the result of a decision, or the belief that the decision is in error does not warrant reconsideration. Nor will a request for reconsideration be granted on the basis of simple reiteration of arguments raised and rejected in the underlying decision. Id. at 123,555-56, 1992 BPD 27, at 2 (citations omitted). Protester seeks reconsideration of that portion of our underlying decision denying the grounds for protest stated in counts four and five of the amended protest complaint. Count four alleged that the awardee's offer was mathematically and materially unbalanced and count five alleged that the awardee's proposal contained various misrepresentations. In requesting reconsideration, protester states that "[t]he grounds for this motion are that the decision on those counts is based on clear legal error concerning the nature and purpose of the price evaluation in a fixed-price procurement for professional services." Motion for Reconsideration at 1. Protester states in its motion: This was, as the panel correctly states, a fixed-price procurement in which the offerors were not required to submit certified cost or pricing data. The panel is not correct, however, in finding that the legal consequence of these facts is that it made no difference whether the component pricing information (i.e., the cost data) that the solicitation did require the offerors to submit had any relationship to the offerors' true, expected costs of performance. Id. at 2. In support of its argument of "clear legal error," protester disagrees with the result of the Board's prior decision and reiterates arguments that it previously made before this Board with regard to count five, i.e., that the pricing information required by the solicitation was to reflect the offerors' expected cost of performance and intervenor's offer contained various misrepresentations. The Board responded to this argument at length in its decision at pages 37-45. In an attempt to reargue this same issue, protester's motion for reconsideration also sets forth legal and factual arguments which do not pertain to counts four and five of the protest, but to two counts which were withdrawn by protester before the hearing on the merits. These arguments concern the requirements of the solicitation and the evaluation of offerors' price proposals as to reasonableness and price realism of the proposed professional employee compensation plan. Protester suggests that the Board's decision in the instant protest is therefore inconsistent with previous decisions in Planning Research Corp., GSBCA 10694-P, 91-2 BCA 23,882, 1992 BPD 74, and GSBCA 10697-P, 91-2 BCA 23,881, 1992 BPD 82, which concern the issue of price realism in fixed- price contracts and the impact of unrealistic pricing on the offeror's ability to attract and retain competent employees.[foot #] 3 The first and second counts of MMC's original protest complaint in the instant protest raised similar issues of price realism with regard to alleged unrealistically low prices and the awardee's ability to attract and retain professional employees. The first ground of protest alleged that respondent "failed to adequately or rationally evaluate . . . TRW's price proposal and Professional Employees Compensation Plan [and] should have determined that TRW's proposed prices and plan were unrealistic . . . ." Complaint 52. The second ground of protest alleged that "TRW's unrealistically low proposed prices and unrealistic Professional Employees Compensation Plan should have been evaluated as severely impairing TRW's ability to attract and retain competent and professional employees . . . ." Id. 56. When protester withdrew these two counts, before the hearing on the merits, it stated: MMC withdraws the First and Second Grounds for Protest . . . . MMC continues to believe that TRW's labor rates . . . were unrealistically low and that the agency's evaluation of the realism of those rates and of the TRW Professional Employees Compensation Plan was flawed in various respects. MMC recognizes, however, that to prevail on these grounds it would likely need to establish that the agency's evaluation judgment was not only wrong, but unreasonable or irrational. In addition, the withdrawal of these counts substantially reduces the factual complexity of the protest and the number of fact and expert witnesses. Notice of Amendment to Protest Complaint 1. Matters that could have been raised in the original proceedings, but were not, may not be raised for the first time on reconsideration. Al-Henco Enterprises, GSBCA 9673-R, 91-1 BCA 23,503 (1990). ----------- FOOTNOTE BEGINS --------- [foot #] 3 In these cases, the protester's primary allegation was that the awardee's price was unrealistically low and that GSA thus should have eliminated the awardee from the competition. The Board rejected the argument that price realism was not a significant concern in a fixed-price procurement because unrealistically low prices could impact the contractor's ability to hire and retain qualified employees. The Board concluded that although the contracts may be termed fixed-price, the Government remains at risk in the event of unrealistically low pricing. The Board granted the protests, finding that the awardee's prices were not realistic and that GSA abused its discretion when it did not reject the awardee's offers as unacceptable. ----------- FOOTNOTE ENDS ----------- With regard to count four, which concerned the allegation of unbalanced bidding, protester, in its motion for reconsideration, states: The [Board's] decision also mischaracterizes MMC's unbalanced bidding position. MMC did not attempt to show that the skill mix would differ from the mix estimated in the solicitation because MMC's theory of materiality was that the imbalance would adversely affect the integrity of the competitive bidding system, not that the award failed to represent the lowest ultimate cost to the Government. Motion for Reconsideration at 11, n.3. This argument reiterates arguments previously made -- that the imbalance in bidding adversely affected the integrity of the bidding system. In raising this issue again on reconsideration, protester ignores that portion of the Board's decision (pages 50- 51) which directly addressed this argument. Protester's motion for reconsideration, while alleging "clear legal error," merely reiterates arguments previously made and presents additional arguments and case law in support of counts that protester has withdrawn. Pursuant to Rules 32 and 33(a), protester has not presented sufficient grounds for granting reconsideration. Decision Protester's motion for reconsideration is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ ________________________ MARY ELLEN COSTER WILLIAMS MARTHA H. DeGRAFF Board Judge Board Judge