BNUMBER:  B-261711.7; B-261711.8
DATE:  March 27, 1996
TITLE:  Exide Electronics Corporation; Department of the
Air Force-Reconsideration

**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Exide Electronics Corporation; Department of the 
            Air Force-Reconsideration

File:     B-261711.7; B-261711.8

Date:     March 27, 1996

Marc F. Efron, Esq., John E. McCarthy, Jr., Esq., and Lisa A. Price, 
Esq., Crowell & Moring, for Exide Electronics Corporation, a 
requester.
Brian J. Donovan, Esq., Jones & Donovan, for Liebert Federal Systems, 
Inc. and
Richard F. Smith, Esq., John S. Pachter, Esq., and Jonathan D. 
Shaffer, Esq., Smith, Pachter, McWhorter & D'Ambrosio, for L.K. 
Comstock, Inc., the interested parties.
Gregory H. Petkoff, Esq., Department of the Air Force, for the agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Requests for reconsideration of decision sustaining protests of 
agency's cost evaluations are denied where the requests provide no 
basis for reconsidering the decision.

DECISION

Exide Electronics Corporation and the Department of the Air Force 
request reconsideration of our decision sustaining the protests of 
L.K. Comstock, Inc. and Liebert Federal Systems, Inc. against the 
award of a contract to Exide under request for proposals (RFP) No. 
F04606-94-R-0002, issued by the Air Force for static uninterrupted 
power supplies (SUPS) and associated equipment and services.

We deny the requests for reconsideration.

We sustained the protests due to the agency's unreasonable cost 
evaluations; specifically, we found that the agency's application of 
unsupported, unrealistic quantity estimates to the various discounts 
offered by Exide in its proposal was improper and that the record 
therefore did not reasonably support the agency's determination that 
the Exide proposal offered the lowest cost to the government.  L.K. 
Comstock, Inc.; Liebert Fed. Sys., Inc., B-261711.5; B-261711.6, Dec. 
14, 1995, 96-1 CPD  para.  4.

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must show that our prior decision may contain 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.  
21.12(a) (1995); see Richards Painting Co.--Recon., B-232678.2, May 
19, 1989, 89-1 CPD  para.  481.  The repetition of arguments made during our 
consideration of the 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.

Exide essentially repeats arguments made previously regarding the 
timeliness of the challenges to the RFP's quantity estimates and 
evaluation provisions, and expresses disagreement with our 
consideration of the issues.  Exide contends that early in the 
procurement the protesters knew, or should have known, their bases for 
protest of the estimates, and the evaluation provisions' use of those 
estimates, since the estimates were questioned prior to the closing 
date for receipt of proposals.  We believe, however, that since the 
agency generally confirmed the RFP's estimates in the pre-closing 
question and answer period, there was no reason for the protesters to 
challenge the accuracy of the estimates until information first 
learned after award revealed questions about the propriety of the 
evaluation of Exide's discounted proposal, which was based upon those 
estimates.  The reasonable accuracy of the estimates then became an 
appropriate, relevant, and timely matter for our review.  As we 
pointed out in our decision, a post-award challenge to an agency's 
stated estimates is timely and may serve as a valid basis for 
overturning an award where the estimates misrepresented the 
government's needs such that the inaccurate estimates reasonably 
skewed the determination of which offer would result in the lowest 
cost to the government in terms of actual performance.  See Comstock 
Communications, Inc., B-242474, May 6, 1991, 91-1 CPD  para.  438.  Further, 
as the decision states, since Exide's offered discounts are based on 
the challenged estimates, and the Exide discounts could only be 
evaluated for award if the condition on which the discounts are based 
likely will be met, the protests of the estimates, which played an 
integral role in the evaluation of proposals, were appropriate and 
timely for our review.  See 48 Comp. Gen. 256 (1968).

Exide contends that two portions of the decision regarding the 
evaluation of its ancillary equipment discounts contain errors of fact 
that support the firm's request for reconsideration.  Exide states 
that its [deleted] under the contract and not just [deleted] required 
by scenario 2, as represented in our decision.  Our decision, which 
reviewed the agency's evaluation of the proposed [deleted], that is, 
the most probable cost analysis, as protested, reflects the agency's 
characterization and evaluation of [deleted].  Although Exide's 
proposal includes a general [deleted] on all [deleted], Exide did not 
challenge the most probable cost analysis for Exide as too high 
despite the fact that the agency characterized [deleted] as applying 
to [deleted].  In fact, in its numerous submissions to our Office 
during the protests, Exide itself repeatedly referred to [deleted] for 
[deleted] in describing its [deleted] effect on its proposed price, 
and also pointed out that the [deleted], suggesting that the 
characterization of [deleted] in terms of the price for the [deleted] 
was reasonable.  Further, given the lack of any reasonable accuracy of 
the quantity estimates used for the evaluation of the [deleted], Exide 
has not shown, nor does the record suggest, that the outcome of our 
decision is affected in any material respect by our characterization 
of [deleted].  The price reduction claimed by Exide in regard to this 
[deleted] is de minimus in light of the overall flaws in the agency's 
evaluation of its proposal, which flaws resulted in a substantial, 
unsupported difference in cost among the proposals, and does not show 
that our decision that Exide was unreasonably determined to be the 
low-price offeror was incorrect.

The RFP included two sample tasks ("scenarios") for which offerors 
were to provide technical and cost proposals for evaluation.  To 
determine each offeror's evaluated price for contract line item number 
25, regarding ancillary equipment, each offeror's cost proposals for 
the sample tasks were to be averaged, then multiplied by the firm's 
proposed weighted average conversion factor, and the resulting amount 
was to be multiplied by the RFP's estimated quantity of 935 
installation sites requiring ancillary equipment.  Exide proposed a 
$50,000 discount on all delivery orders for $400,000 or more of 
ancillary equipment.  Exide now contends that our Office should have 
found that this discount should have been evaluated as applying to 468 
sites rather than the 935 sites mentioned in the decision.  Exide 
generally contends that, at 468 sites, the discount would more likely 
be achieved than under our Office's analysis (which found unreasonable 
the evaluations' application of the RFP's multiplier of 935 sites to 
the proposed discount since the record showed that nowhere near 935 
sites reasonably would require $400,000 or more in ancillary equipment 
to trigger the discount as evaluated by the agency).  As provided for 
in the RFP, however, the agency took the averaged cost of scenarios 1 
and 2, and, after conversion factor application, multiplied it by 935 
sites, not 468 sites, to determine the ancillary equipment price.  
Moreover, Exide fails to show that the evaluation approach for which 
it argues would have made any meaningful difference to our decision.  
Further, the record does not even suggest, as Exide contends, that 468 
sites would reasonably require the $400,000 or more in ancillary 
equipment necessary to trigger this $50,000 discount.  Exide, in its 
request for reconsideration, in fact agrees that the alleged reduction 
to its proposed price due to this discount is approximately that 
calculated by the agency in its most probable cost analysis and stated 
in our prior decision.  The request for reconsideration does not 
provide any reasonable basis to support a change in our opinion that 
Exide's proposal was not reasonably evaluated as offering the lowest 
cost to the government.

The Air Force requests that we modify our corrective action 
recommendation that the agency review the RFP quantity estimates and 
evaluation provisions and amend the RFP as appropriate; request and 
evaluate new cost proposals; and then terminate Exide's contract and 
award to one of the two protesters if either is in line for award.  
The Air Force asks that we instead recommend termination of the Exide 
contract and award to Liebert.  

We do not view the requested recommendation as appropriate in light of 
the improprieties cited in the cost evaluations stemming from the 
inadequate estimates upon which offerors based their cost proposals.  
The Air Force, in effect, states its willingness to reject Exide's 
discounted offer due to our determination that the quantity estimates 
upon which it was evaluated were defective and were not a reasonable 
or reliable basis for evaluation of the agency's expected costs under 
the contract.  However, the Air Force requests that we recommend award 
of a contract to Liebert under the RFP based upon the same flawed 
estimates.  We believe the defective estimates permeated every aspect 
of the preparation and evaluation of the cost proposals--the accuracy 
of which the agency should have questioned during the procurement but 
did not--and cannot reasonably be the basis of an award determination.  
It is simply not reasonably possible on this record to determine with 
any certainty that Liebert, as the agency contends, is in line for 
award.

The Air Force also repeats arguments it previously made to our Office 
requesting that the protest of the cost evaluation of Exide's discount 
proposal filed by Comstock, which included allegations contesting the 
estimates used by the agency, be dismissed on the basis that the firm 
is not an interested party to challenge the award determination.  The 
Air Force contends that Comstock would not be line for award even if 
the award determination was improper since Comstock's cost proposal is 
higher than Liebert's and, thus, the firm does not have sufficient 
direct economic interest to file the protest.  We disagree.  Due to 
the serious, numerous, and fundamental improprieties in the estimates 
and evaluations here, the record does not show with any reasonable 
certainty which offeror would be next in line for award.

The requests for reconsideration are denied.

Comptroller General
of the United States