BNUMBER:  B-275999.3
DATE:  February 19, 1997
TITLE:  Global Engineering & Construction Joint Venture

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Matter of:Global Engineering & Construction Joint Venture

File:     B-275999.3

Date:     February 19, 1997

Donald E. Barnhill, Esq. and Joan K. Fiorino, Esq., East & Barnhill, 
for the protester.
Steven W. Feldman, Esq., for the agency.
Jerold D. Cohen, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

The law requires that a contracting officer make every effort to 
provide a prompt preaward debriefing upon a timely request by an 
offeror excluded from the competitive range, but may refuse the 
request if it is not in the "best interests of the Government" to 
conduct a debriefing at that time; in that case, the debriefing must 
be held no later than the time post-award debriefings are held.  
General Accounting Office (GAO) will not review an agency's decision 
in a particular procurement that, based on agency resource issues, it 
is in the government's best interests to delay the debriefing until 
after award, in response to a protest by an excluded offeror that 
claims to better know the agency's resources and needs in that regard.  
The excluded offeror will be entitled to a post-award debriefing, and 
will have the opportunity to file a bid protest at GAO (and obtain a 
stay of performance) if it so desires; it will not be relevant to 
GAO's review that the protest is filed after award. 

DECISION

Global Engineering & Construction Joint Venture protests the exclusion 
of its proposal from the competitive range under Army Corps of 
Engineers request for proposals No. DACA87-96-R-0025.

We dismiss the protest.

The Corps advised Global that the firm's proposal was excluded from 
the competitive range by letter of January 2, 1997, and Global 
immediately requested a debriefing pursuant to 10 U.S.C.  sec.  2305(b) 
(1994), as amended by section 4104 of the Clinger-Cohen Act of 1996, 
Pub. L. No. 104-106, 110 Stat. 186, 644 (1996), and implemented by 
Federal Acquisition Regulation (FAR)  sec.  15.1005 (FAC 90-44, 61 Fed. 
Reg. 69288, 69290, Dec. 31, 1996).  The statute requires that a 
contracting officer "make every effort" to provide an excluded offeror 
a timely requested preaward debriefing "as soon as practicable," but 
permits the contracting officer to refuse the request if it is not in 
the "best interests of the Government" to conduct a debriefing at that 
time; in that case, the debriefing must be held no later than the time 
post-award debriefings are held. 

The Corps denied Global's request, stating that preaward debriefings 
in the procurement would not be in the government's best interest, and 
adding that such debriefing would at a minimum require redirecting the 
agency's resources, "which would not best serve our customers' needs 
or be a wise expenditure of U.S. tax dollars."

Global disputes the Corps' conclusion about the government's best 
interests.  Global states that after award the firm likely will 
protest its exclusion from the competitive range successfully on 
issues that could have been resolved before award, and that the agency 
therefore may well have to terminate any awarded contract or reimburse 
Global proposal preparation costs.  Global argues:

     "Accordingly, the Agency's denial of Global's request is really 
     in the worst interest of the Government because there will likely 
     be upheaval of a completed procurement process, a protest that 
     will take 100 days to resolve and a remedy that will likely 
     require the Agency to terminate the contract for convenience.  
     Thus, it will cost the United States far more tax dollars to 
     resolve this issue post-award than it will to resolve it 
     preaward."

Global also argues that the best use of government resources would be 
to debrief Global now rather than allow the evaluation information "to 
become stale, proceed with a costly procurement process and then be 
required to re-conduct a procurement to include Global in the 
competitive range.  Resources need not be redirected. . . ." 

In Global's view, permitting the Corps to delay a debriefing would 
compromise the aim of much of the recent procurement reform effort to 
avoid unwarranted protests by promoting the early exchange of 
information between excluded offerors and contracting agencies. 

The arguments Global makes all are valid reasons why preaward 
debriefings should be encouraged no matter what the procurement 
circumstances.  For example, the honest exchange of information in a 
preaward debriefing may well obviate the need for, or discourage, a 
bid protest; competitive range evaluation results for excluded 
offerors always are "fresher" in the preaward than in the postaward 
timeframe; and since a protest potentially could result in a 
disruption to correct a procurement deficiency it generally would be 
better to correct the problem at an earlier time whenever possible.

Nevertheless, we will not review the Corps' determination that it is 
not in the government's best interest to provide preaward debriefings 
in this procurement.  In adding the preaward debriefing requirement to 
10 U.S.C.  sec.  2305 through section 4104 of the Clinger-Cohen Act the 
Congress also expressly recognized that it may not be in the 
government's best interests to conduct a debriefing until after award.  
In other words, the Congress determined that despite the 
considerations that make preaward debriefings important elements of 
government procurements, agencies need to retain the discretion to 
decide that the government's interests may warrant delaying 
debriefings in certain circumstances.[1] 

Moreover, it is not relevant to our Office's evaluation and review of 
the procurement whether a bid protest in circumstances like these is 
filed before or after award, so that an agency's denial of a timely 
requested preaward debriefing does not prejudice an offeror for 
purposes of our bid protest forum.  Global's debriefing request, 
coupled with the Army's denial, entitles the firm to a post-award 
debriefing, 10 U.S.C.  sec.  2305(b)(6), supra; FAR  sec.  15.1005(b), supra, 
and our Office will consider timely a protest filed within 10 days of 
the offered debriefing date with respect to any protest bases that are 
known or should be known either before or as a result of the 
debriefing.  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)).  Also, 
the law will require the Army to stay contract performance if the 
agency receives notice of a protest filing within 5 days after the 
offered debriefing date.  31 U.S.C.  sec.  3553(d) (1994); FAR  sec.  33.104(c).  
The Army's decision to delay engaging in an exchange with Global about 
potentially protestable issues until after award based on the agency's 
determination regarding the government's best interests (and the 
apparent belief that the agency violated no law or regulation in 
excluding Global's offer from further consideration) in itself has no 
legal effect on any subsequent bid protest proceeding.  That the 
evaluation information may not be fresh by that time, or that the 
agency may find it difficult to marshall the resources to defend its 
earlier decision, simply may prejudice the agency in defending the bid 
protest. 

Global also argues that the exclusion of its proposal must be 
unreasonable because, in Global's view, the proposal had no 
deficiencies or weaknesses.  Our Bid Protest Regulations,  sec.  
21.1(c)(4) and (f), 61 Fed. Reg. supra (to be codified at 4 C.F.R. 
 sec.  21.1(c)(4) and (f)), require that a protest include a detailed 
statement of the legal and factual grounds for protest, and that the 
grounds stated be legally sufficient.  The requirement contemplates 
that a protester will provide, at a minimum, either allegations or 
evidence sufficient, if uncontradicted, to establish the likelihood 
that the protester will prevail in its claim of improper agency 
action.  Robert Wall Edge--Recon., 68 Comp. Gen. 352 (1989), 89-1 CPD  para.  
335.  An allegation of improper agency evaluation without any 
supporting explanation or documentation does not satisfy the 
requirement that a protester provide a detailed statement of legal and 
factual grounds, Federal Computer Int'l Corp.--Recon., B-257618.2, 
July 14, 1994, 
94-2 CPD  para.  24, which means that we will not accept for further 
development a protest by a firm that has yet to discover why its 
proposal has been rejected, but believes there simply can be no 
rational basis for no longer considering the offer.  In such case, the 
firm must diligently pursue the reasons for the agency's action by, 
for example, requesting a debriefing as Global had done.  Our 
Regulations do not permit pursuit of a basis for protest through our 
bid protest process.  See Alascom, Inc.--Second Recon., B-250407.4, 
May 26, 1993, 93-1 CPD  para.  411.  

Assuming that Global still will be interested in a debriefing after 
contract award in this procurement, and the debriefing provides the 
firm with information that forms the basis for a valid bid protest, 
Global may file with our Office at that time consistent with the 
timeliness rules referenced above. 

The protest is dismissed.

Comptroller General 
of the United States

1. The Corps, in explaining its decision, states that given the 
"extensive deficiencies and weaknesses" in Global's proposal, 
debriefing the firm at this time would take significant preparation 
and would require contracting personnel--who have other duties on many 
other activities--to redirect their efforts from working on what the 
agency characterizes as a highly complex and competitive acquisition.  
The Corps also states that one of its contract specialists will be on 
medical leave for 3-4 weeks.  The agency advises that it therefore has 
decided "to treat all firms rejected from the competitive range 
equally by providing only post-award debriefings."