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.