BNUMBER:  B-265865.5; B-265865.6
DATE:  June 3, 1996
TITLE:  Southwest Marine, Inc.; American Systems Engineering
Corporation--
Reconsideration

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Matter of:Southwest Marine, Inc.; American Systems Engineering 
Corporation--                                                    
Reconsideration

File:     B-265865.5; B-265865.6

Date:June 3, 1996

Peter B. Jones, Esq., Jones & Donovan, for Southwest Marine, Inc.; 
James J. McCullough, Esq., Joel R. Feidelman, Esq., Anne B. Perry, 
Esq., and C. Anthony Trambley, Esq., Fried, Frank, Harris, Shriver & 
Jacobson, Esq., for American Systems Engineering Corporation, for the 
protesters.
Michael J. Cunningham, Esq., and David H. Turner, Esq., Department of 
the Navy, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protesters' request for reimbursement of protest costs that resulted 
from the contracting agency's failure to retain evaluation 
documentation in accordance with the Federal Acquisition Regulation is 
denied where, despite the destruction of documents, the General 
Accounting Office found that the agency's evaluation, source selection 
and award were reasonable and in accord with statute and regulation.

DECISION

Southwest Marine, Inc. (SWM) and American Systems Engineering 
Corporation (AMSEC) request reconsideration of our decision in 
Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3; 
B-265865.4, Jan. 23, 1996, 96-1 CPD  para.  56, in which we denied the SWM's 
and AMSEC's protests of the award of a contract to BAV, under request 
for proposals (RFP) No. N00140-95-R-F021, issued by the Department of 
the Navy for engineering, technical, and logistics support services.

We deny the requests for reconsideration.

In our prior decision, we found, among other things, that the Navy had 
properly evaluated the firms' technical proposals and reasonably 
selected BAV's higher-cost, higher-rated proposal for award as 
representing the best value to the government.  We also found that the 
evaluation documentation retained by the Navy did not satisfy Federal 
Acquisition Regulation (FAR)  sec.  15.608(a)(2)(ii), which requires the 
agency to sufficiently document its evaluation judgments.[1]  We 
conducted a hearing, in part, to obtain the agency's explanation of 
its evaluation of the offerors' technical proposals and its selection 
of BAV's proposal, given that the retained documentation did not 
sufficiently justify the award selection.  As a result of the hearing, 
as well as the parties' arguments and explanations, the protest record 
was adequate to explain the agency's procurement actions and to allow 
our Office to effectively review the protest matter.

SWM and AMSEC request that we modify our prior decision to recommend 
that the protesters be reimbursed for the protest costs that resulted 
from the Navy's violation of FAR  sec.  15.608.  The protesters state that 
the Navy's violation of the FAR resulted in increased protest costs 
relating to the conduct of the hearing and filing of post-hearing 
comments.  

Our authority to declare entitlement to the reimbursement of protest 
costs is derived from the Competition in Contracting Act of 1984 
(CICA), 31 U.S.C.  sec.  3554 (1988), which provides in pertinent part 
that:

     "(c)(1)  If the Comptroller General determines that a 
     solicitation for a contract or a proposed award or the award of a 
     contract does not comply with a statute or regulation, the 
     Comptroller General may declare an appropriate interested party 
     to be entitled to the costs of--

        (A) filing and pursuing the protest, including reasonable 
     attorneys' fees. . . ."  [Emphasis added.]

As the plain language of CICA indicates, Congress intended that we 
should find protesters entitled to reimbursement of the costs of 
filing and pursuing protests only where we have found an agency's 
solicitation, proposed award, or award did not comply with statute or 
regulation.  See H.R. Rep. No. 98-861, 98th Cong. 2d Sess. 1437, 
reprinted in 1984 U.C. Code Cong. & Ad. News 2109, 2125 ("[f]inally, 
the conferees expect that the Comptroller General will declare 
monetary awards only in cases where the agencies have unfairly 
excluded vendors from procurements, and not in cases involving minor 
technicalities"); see also Teknion, Inc.--Claim for Costs, B-230171.22 
et al., Sept. 6, 1988, 88-2 CPD  para.  213.

Here, we find no authority under CICA to award protest costs to SWM or 
AMSEC.  While it is true that we found the Navy's destruction of 
evaluation documentation to be improper and not in compliance with FAR  sec.  
15.608, this did not, as we explained in our prior decision, affect 
the propriety of the award.  To the contrary, we specifically found 
the Navy's evaluation and source selection to be reasonable and in 
accord with statute and regulation.  Because the Navy's failure, in 
this case, to comply with the documentation requirements of FAR  sec.  
15.608 did not result in our determination that the Navy's award was 
inconsistent with statute or regulation, we have no authority under 
CICA to declare that the protesters should be reimbursed their protest 
costs that resulted from the Navy's destruction of documents.

Accordingly, the requests for reconsideration are denied.

Comptroller General
of the United States

1. FAR  sec.  15.608(a)(2)(ii) provides that an agency's technical 
evaluation documentation is required to include "[a]n analysis of the 
technically acceptable and unacceptable proposals, including an 
assessment of each offeror's ability to accomplish the technical 
requirements."  Here, the Navy destroyed the evaluators' notes and 
workpapers after the preparation of the final evaluation report, and 
the evaluation report did not sufficiently explain the differences in 
the ratings provided the parties' proposals.