BNUMBER:  B-275262.2 
DATE:  February 24, 1997
TITLE: Prospective Computer Analysts, Inc., B-275262.2, February 24,
1997
**********************************************************************

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:Prospective Computer Analysts, Inc.

File:     B-275262.2

Date:February 24, 1997

Kenneth D. Brody, Esq., McMahon, David & Brody, for the protester.
John R. Tolle, Esq., and Monica Gray, Esq., Barton, Mountain & Tolle, 
for Computer Systems Development Corporation, an intervenor.
Theresa Chesnut, Esq., and Peter D. Butt, Esq., Department of the 
Navy, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

The Navy may properly reopen negotiations after receiving best and 
final offers where the Navy reasonably decided that further 
discussions are needed to resolve whether offerors intend to pay 
minimum wage rates required by the Service Contract Act.

DECISION

Prospective Computer Analysts, Inc. (PCA) protests the Navy's decision 
to reopen negotiations with firms whose proposals were determined to 
be in the competitive range under request for proposals (RFP) No. 
N00244-96-R-5142 for engineering and technical support services.  The 
protester contends that:  (1) the Navy does not have a valid reason 
for reopening discussions and soliciting a second round of best and 
final offers (BAFO); (2) Navy officials improperly revealed PCA's 
proprietary data to a competing offeror, Computer Systems Development 
Corporation (CSDC) and, therefore, soliciting a second BAFO will 
result in a prohibited auction; and (3) CSDC should be considered 
ineligible for contract award because it received and was allowed to 
review a copy of the RFP before it was issued.

We deny the protest.

Issued on April 10, 1996, by the Fleet and Industrial Supply Center 
(FISC) as a total small business set-aside, the RFP requested 
proposals for providing product development and engineering and 
technical support services for various Navy systems, including various 
aircraft, air combat electronic platform support equipment, common 
support equipment, and aircraft carrier launch and recovery site 
equipment.  Among other things, the contractor will be required to 
perform engineering investigations, modification of hardware and 
software, preparation of technical directives, assembly of change 
kits, development of support equipment and air launch and recovery 
engineering, maintenance, configuration management, revision of 
technical documentation, and site activation and deactivation at 
various locations worldwide.  

The RFP envisioned a time and materials, indefinite delivery, 
indefinite quantity contract for a 1-year base period and included 
options for four additional 1-year periods; offers were to include 
fixed hourly rates for a number of labor categories, and services 
would be provided at those rates upon issuance of delivery orders.  
The RFP required offerors to submit separate cost and technical 
proposals and stated that the contract would be awarded to the offeror 
whose proposal was determined to be most advantageous to the 
government after evaluation of cost and technical factors.  The RFP 
stated that the technical factors combined were more important than 
cost.  Because the procurement was for services, it was subject to the 
Service Contract Act of 1965 (SCA), as amended, 41 U.S.C.  sec.  351-358 
(1994), and the RFP advised that offerors must pay non-exempt 
employees not less than the minimum wages and fringe benefits set 
forth in the Department of Labor (DOL) area wage determination for the 
San Diego area which was incorporated into the RFP.  The RFP also 
provided that the cost proposals would be evaluated for cost realism 
and advised that an offeror's proposed cost might be adjusted for 
evaluation purposes, based on the results of the cost realism 
evaluation.  
 
Three offerors, including PCA and CSDC, submitted initial offers by 
the June 28 closing date.  After initial proposals were evaluated, 
only the proposals of PCA and CSDC were considered to be in the 
competitive range.  In performing the cost realism analysis, the 
contracting officer noted that both PCA's and CSDC's initial proposals 
included hourly rates for several labor categories that were less than 
the SCA rates.  During discussions, the agency expressed concern that 
the hourly rates proposed by each offeror for certain labor categories 
were substantially less than the pay rates specified in the wage 
determination.  The agency asked each offeror to either confirm that 
the relevant labor category was subject to the SCA or to explain why 
the relevant labor categories were exempt from the SCA and to explain 
how it would retain qualified employees at the proposed rates, and 
requested BAFOs.  

Both PCA and CSDC submitted BAFOs addressing the pay rate issue.  In 
its BAFO, CSDC increased its hourly rates for [deleted] labor 
categories and claimed that the other [deleted] categories were exempt 
from the SCA.  In its BAFO, PCA did not claim that any of the 
[deleted] labor categories were exempt from the SCA but continued to 
propose hourly rates that were less than the wage determination rates 
[deleted]; PCA also explained why it was able to offer hourly rates 
that were less than the wage determination rates for these labor 
categories.  PCA's total proposed cost was $[deleted] and CSDC's total 
proposed cost was $[deleted].  In October 1996, the contracting 
officer notified CSDC that PCA had been selected for the proposed 
contract award.  

Subsequently, CSDC filed protests with both the Navy and our Office 
alleging that the Navy's discussions with it were misleading, 
encouraging it to propose higher labor rates and resulting in the 
selection of PCA for contract award.  After investigating CSDC's 
protest allegation, the Navy determined that CSDC had not been misled 
during discussions.  Since the labor rates issue had been raised with 
both offerors during discussions, the Navy also reexamined PCA's BAFO 
response to the labor rates discussion question.  The Navy determined 
that PCA's BAFO did not adequately address the matter of compliance 
with the SCA labor rates.  In fact, the Navy determined that PCA's 
BAFO indicated that PCA [deleted].  The contracting officer, 
therefore, concluded that it would be in the government's best 
interest to reopen negotiations to ensure that both competitive range 
offerors understood the applicability of the SCA wage rates, that the 
eventual awardee would pay the mandated minimum wages, and that the 
contract would be awarded at a fair and reasonable price.[1]  PCA was 
notified of the decision to reopen discussions on November 12, and 
filed this protest shortly thereafter.

The protester contends that it is not reasonable for the Navy to 
reopen discussions after receiving BAFOs and selecting PCA for award.  
In support, PCA cites Federal Acquisition Regulation (FAR)  sec.  15.611(c) 
(FAC 90-31), which prohibits a contracting officer from reopening 
discussions after BAFOs have been received unless it is clearly in the 
government's interest to do so.  The protester contends that it is 
clear from PCA's initial proposal and BAFO that PCA is not taking 
exception to application of the SCA to this procurement [deleted].  
Thus, PCA asserts that there is no legitimate government interest in 
reopening discussions.

Contracting officials have the discretion to reopen negotiations after 
the receipt of BAFOs where such action is necessary to ensure a fair 
and impartial competition.  BNF Technologies, Inc., B-254953.4, Dec. 
22, 1994, 94-2 CPD  para.  258.  Moreover, contracting officials may 
properly reopen negotiations after receipt of BAFOs where it is clear 
that information available at that time is inadequate to reasonably 
justify contractor selection and award based upon the BAFOs received.  
FAR 15.611(c).  Here, we conclude that the Navy has a reasonable basis 
for reopening discussions and requesting a second set of BAFOs because 
its selection decision was made without resolving the concern 
regarding the payment of SCA rates.

The Navy's cost analysis of PCA's initial proposal showed that PCA was 
proposing unburdened hourly rates for [deleted] labor categories 
([deleted]) that were [deleted] the DOL wage determination.  For 
example, [deleted].  Even though PCA was advised during discussions 
that the Navy was concerned that PCA's proposed hourly rates for these 
labor categories were [deleted] the DOL wage determination rates, 
PCA's BAFO response did not allay the Navy's concern and, in fact, PCA 
[deleted] for all [deleted] labor categories.  The Navy thus concluded 
that it needed to reopen discussions to resolve its concerns regarding 
PCA's cost proposal with respect to these labor categories.  

While PCA explained in its BAFO why its unburdened hourly rates were 
[deleted] the wage determination rates, the contracting officer, with 
the advice of Navy counsel, determined that PCA's explanation, coupled 
with [deleted] was an unsatisfactory response to the SCA issue.  In 
its BAFO, PCA stated that it intended to perform [deleted].  We note, 
however, that PCA's BAFO did not [deleted].  We also note that the 
BAFO did not state [deleted].  

PCA further explained in its BAFO that it would give employees in 
these five labor categories [deleted].  PCA stated in its BAFO that:  
"[deleted]."   The contracting officer reports that he viewed PCA's 
explanation as a further indication that PCA [deleted] the minimum 
wages set forth in the wage determination.  The contracting officer 
contacted an investigator in DOL's Wage and Hour Division who 
confirmed the contracting officer's belief that a contractor was 
required to pay its SCA employees [deleted] compensation at the 
minimum wage rates [deleted].[2]  

We believe the Navy had several reasons to conclude that PCA 
[deleted].   The reasons include:  (1) PCA's initial unburdened labor 
rates were [deleted] than the SCA minimum wage rates; (2) PCA's 
response to being advised of the Navy's concern that [deleted] its 
proposed hourly rates in every relevant labor category in its BAFO; 
(3) PCA expressly [deleted]; and (4) cognizant DOL employees twice 
confirmed that [deleted].[3]  Under these circumstances, the Navy 
could reasonably determine that the government's interests require 
further discussions to ensure that  the selected contractor will pay 
its covered employees SCA-required wages.  See National Technologies 
Assocs., Inc.; JWK Int'l. Corp., B-229831.2; B-229831.3, May 13, 1988, 
88-1 CPD  para.  453.[4]

The protester alleges that, after initially selecting PCA for award of 
the contract, the Navy revealed certain PCA proprietary data, 
including names of proposed subcontractors and pricing information, to 
CSDC.  Specifically, PCA states that, after PCA was selected, Navy 
employees displayed a banner congratulating PCA on its selection and 
identifying PCA's proposed subcontractors.  The Navy acknowledges that 
FISC employees did, in fact, display a banner congratulating PCA and 
its subcontractors within the FISC office complex.  However, CSDC's 
San Diego site manager stated that no employee of CSDC ever saw the 
banner or learned the names of PCA's proposed subcontractors from it.  
Since there is no evidence that the banner was seen by anyone from 
CSDC, the Navy's employees' actions apparently caused no competitive 
prejudice to PCA.

PCA also asserts that Navy personnel may have engaged in improper 
discussions with CSDC in which the Navy told CSDC that it would have 
been selected for award if it had not raised its prices in its BAFO in 
response to the SCA discussion question.  PCA alleges that such 
improper discussions effectively informed CSDC that its initial 
proposed prices were [deleted], thus giving CSDC knowledge about PCA's 
proposed prices and an unfair advantage in preparing its second BAFO.  
PCA contends that reopening discussions and soliciting second BAFOs 
will result in an improper auction because the Navy has indicated to 
CSDC its standing relative to PCA's proposed price.  The Navy denies 
that such information was ever provided to CSDC.  In fact, the 
contracting officer avers that he was very careful not to disclose 
offerors' prices or technical rankings in his notification to CSDC 
that PCA had been selected for award and in his subsequent 
conversation with CSDC.  The contracting officer also states that the 
only discussion of pricing that transpired between himself and CSDC 
after PCA was selected for award concerned whether CSDC had been led 
to raise its prices by the agency's previous discussion regarding 
payment of minimum SCA wages to employees.

Prohibited auction techniques include:  (1) indicating to an offeror a 
price it must meet to obtain further consideration, (2) advising an 
offeror of its relative standing, and (3) furnishing information about 
other offerors' prices. FAR  sec.  15.610(e)(2).    The only support PCA 
provided for the allegation that someone from FISC must have given 
CSDC some idea of PCA's BAFO price is derived from CSDC's previous 
protest to our Office concerning this same procurement.  In that 
protest, CSDC asserted that the Navy's discussions with it concerning 
wage rates led it to increase its price to a level that was too high 
to be considered for award; CSDC also asserted "upon information and 
belief" that its prices would have been lower than PCA's if it had not 
increased its labor rates in response to the discussion of SCA wage 
rates.  However, in view of the contracting officer's express denial 
of having provided any information about PCA's prices to CSDC, it 
appears that CSDC's previous protest was based solely upon CSDC's 
speculation that its prices would have been lower than PCA's had it 
not raised its labor rates after discussions, rather than upon any 
pricing information provided to it by the Navy.  Other than this 
reference to pricing in CSDC's previous protest, there is nothing in 
the record showing that contracting officials engaged in any 
prohibited auction practices or otherwise provided CSDC with 
information about PCA's offer. 

The protester also contends that CSDC's San Diego site manager 
improperly 
obtained an advance copy of the RFP from a Navy contracting officer's 
technical representative (COTR) and was given an opportunity to review 
it in the presence of 
the COTR prior to the formal issuance of the RFP.  The only evidence 
offered in support of this assertion is the declaration of a PCA 
employee who states that he 
had a conversation with the CSDC San Diego site manager in the summer 
or fall of 1995 during which the site manager told him that the Navy 
COTR had pointed to his desk and stated that the RFP was in it.  Our 
Bid Protest Regulations require that a protest be filed within 10 days 
after the basis for protest is known.  Bid Protest Regulations,  sec.  
21.2(a)(2), 61 Fed Reg. 39039, 39043 (1996) (to be codified at 4 
C.F.R.  sec.  21.2(a)(2)).  As PCA knew this basis of protest in the fall 
or summer of 1995 but waited until November 15, 1996--more than a year 
later--to file its protest, the allegation is untimely and will not be 
considered.  We note, however, that both the Navy COTR and the CSDC 
San Diego site manager deny that a copy of the RFP was given to the 
CSDC employee at any time before the RFP was formally issued.

The protest is denied.

Comptroller General
of the United States

1. We dismissed CSDC's protest as academic when the Navy notified our 
Office that it was reopening negotiations.

2. The record shows that, subsequent to PCA's filing this protest, 
Navy counsel contacted yet another employee of DOL's Wage and Hour 
Division and was told that "[deleted]."

3. We recognize that, where an offer does not show any intent to 
violate the SCA in a fixed-price contract such as this, the contractor 
is required to pay its employees the applicable SCA wages out of 
whatever hourly price it has proposed to the government, and that 
proposed rates that are less than the required SCA minimum rates may 
simply constitute a below-cost offer.  See Milcom Sys. Corp., 
B-255448.2, May 3, 1994, 94-1 CPD  para.  339.  Here, however, PCA's BAFO 
did indicate that PCA [deleted] SCA-required minimum wage rates.

4. Since, as noted above, CSDC responded to the SCA wage rate 
discussion question by [deleted] proposed labor rates while PCA 
[deleted] the reopening of discussions will also give the Navy an 
opportunity to clarify the SCA's applicability and to ensure that both 
offerors are competing on the same basis.  Unified Indus. Inc., 
B-237868, Apr. 2, 1990, 90-1 CPD  para.  346, aff'd RGI, Inc.-- Request for 
Recon., B-237868.2, Aug. 13, 1990, 90-2 CPD  para.  120.