BNUMBER: B-276163.3
DATE: October 31, 1997
TITLE: NavCom Defense Electronics, Inc., B-276163.3, October 31,
1997
**********************************************************************
Matter of:NavCom Defense Electronics, Inc.
File: B-276163.3
Date:October 31, 1997
Richard B. Oliver, Esq., McKenna & Cuneo, L.L.P., for the protester.
Clarence D. Long, III, Esq., Department of the Air Force, for the
agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency does not abuse its discretion in implementing a recommendation
for corrective action by reopening discussions with all offerors whose
proposals are in the competitive range and by requesting the
submission of another best and final offer from each offeror.
DECISION
NavCom Defense Electronics, Inc. protests the agency's implementation
of our recommendation for corrective action as provided in NavCom
Defense Elecs., Inc., B-276163, May 19, 1997, 97-1 CPD para. 189, which
involved a procurement for the repair of multiple line items of the
AN/ARN-118 TACAN (Tactical Air Navigation) system under request for
proposals (RFP) No. F09603-95-R-81729, issued by the Department of the
Air Force.
We deny the protest.
In sustaining NavCom's initial protest, we concluded that the agency's
evaluation of the offerors' performance, and the source selection
decision based upon that evaluation, were not reasonable. In this
regard, the agency evaluated NavCom (which submitted the fourth lowest
price) and the awardee (which submitted the lowest price) as each
being of low performance risk under the performance evaluation
criteria. However, the agency failed to establish any basis upon
which it could reasonably have decided that the awardee's demonstrated
performance was, in accordance with the terms of the RFP, the "same"
as or "similar" to the solicitation requirements. We recommended if
the RFP, as drafted, conveyed the agency's needs, that the agency
reevaluate the awardee's performance in light of the "same or similar"
requirement and document the basis for a particular performance risk
rating. If the awardee was determined to be of other than a low
performance risk, we recommended that the agency make a
performance/price tradeoff in accordance with the terms of the RFP.
Depending on the results of that tradeoff, we recommended that the
agency either continue the contract with the awardee or terminate the
awardee's contract and award to NavCom. If the RFP, as drafted, did
not convey the agency's needs, we recommended that the agency amend
the RFP and request new best and final offers (BAFO).
While the agency states that the RFP conveys its needs and therefore
does not require amendment, the agency advises that in implementing
our recommendation for corrective action, it has determined to reopen
discussions with all seven competitive range offerors (including three
offerors which submitted higher prices than NavCom), to reevaluate
their performance in light of the RFP's "same" or "similar"
requirement, to request a second BAFO from each of these offerors, and
to properly document its evaluation and source selection records.
NavCom, the incumbent contractor, contends that in reopening
discussions and in requesting another round of BAFOs, the agency is
not following our recommendation for corrective action. Specifically,
NavCom complains that since the RFP reflects the agency's needs, the
agency should simply be reevaluating the awardee's performance and if
anything other than a low performance risk rating is assigned to that
firm, making a performance/price tradeoff between that firm and
NavCom. NavCom also contends that the course of action adopted by the
agency, in addition to being inconsistent with our recommendation,
will result in an impermissible auction. In this regard, NavCom
states that based on the notices of award and post-award debriefings,
the offerors know their own ranking based on price (and NavCom
speculates that they know the rankings of the other offerors) and the
awardee's low price. NavCom further complains that offerors can learn
what its price was as the incumbent contractor under the predecessor
contract with the Air Force and under other agency contracts for the
same services because the contract prices are publicly available
information.[1]
The details of implementing our recommendation for corrective action
are within the sound discretion and judgment of the contracting
agency. OMNI Int'l Distributors, Inc., 67 Comp. Gen. 123, 124 (1987),
87-2 CPD para. 563 at 2. Here, in implementing our recommendation for
corrective action, the agency is not abusing its discretion in
determining to reopen discussions with all offerors whose proposals
are in the competitive range and in requesting a second BAFO from each
offeror.
The record shows that it has been approximately 8 months since the
award was made and more than 1 year since the original BAFOs were
submitted for evaluation. The agency explains that because its
initial performance risk assessment was not properly performed, as
evidenced by our prior decision, discussions must be reopened with all
competitive range offerors to address issues involving an offeror's
performance in light of the RFP's "same" or "similar" requirement.
For example, the agency states its intention to discuss inadequate or
inaccurate performance information and performance information
involving other than repair contracts. The agency states that these
areas must be discussed with the offerors in order to reasonably
assess an offeror's performance and to reasonably assign a performance
risk rating to the offeror. In addition, because of the time that has
elapsed since the initial submission of BAFOs, the agency believes
that offerors should be given an opportunity to update their
performance information and to address performance information not
previously considered because at that time the agency may have
improperly viewed the information as not being relevant to the
requirements of the RFP. Although our recommendation referred to
reopening discussions only in the context of a need to amend the RFP,
we think the agency's reasons for reopening discussions amply justify
doing so and then requesting second BAFOs, and that course of action
is not inconsistent with our recommendation.
Moreover, we do not believe the agency's action will result in an
impermissible auction. We note initially that there is no evidence
any information was improperly disclosed. With respect to the
agency's disclosure of price rankings, Federal Acquisition Regulation
(FAR) sec. 15.1006(d)(2) provides that in a post-award debriefing, the
overall evaluated price and technical rating of the awardee and the
debriefed offeror are to be provided. In addition, FAR sec.
15.1006(d)(3) provides that an agency is required in a post-award
debriefing to furnish "[t]he overall ranking of all offerors when any
ranking was developed by the agency during the source selection." To
the extent the competitive range offerors, which all received the same
low performance risk rating, know their own and others' rankings and
know the awardee's price, that information was properly disclosed by
the agency. With respect to the release of the awardee's price in the
notice of award, the agency's disclosure of this information was in
accordance with FAR sec. 15.1003(b)(1)(iv), which provides that in the
notice of award to unsuccessful offerors, the notice shall include,
among other things, the total contract price. Finally, since a
successful offeror's contract price, like NavCom's, becomes publicly
available information through the notice of award and post-award
debriefing process, the disclosure of such information is not
objectionable.
Because the agency properly released price rankings and contract price
information, NavCom has no basis to object that the competitive range
offerors' knowledge of such information will result in an
impermissible auction upon the agency's implementation of our
recommendation for corrective action. No unfair competitive advantage
results where an agency carries out the FAR requirements for notices
of award and post-award debriefings and later events require the
reopening of proceedings under the procurement. See, e.g., Sherikon,
Inc., B-250152.4, Feb. 22, 1993, 93-1 CPD para. 188 at 2-3. Moreover, the
need to preserve the integrity of the competitive procurement system
outweighs the risk of an auction. The importance of correcting an
improper award through further negotiations overrides any possible
competitive disadvantage to an offeror. Id. at 3-4. In this case,
we believe the agency is reasonably implementing our recommendation
for corrective action and is not engaging in an impermissible auction.
The protest is denied.
Comptroller General
of the United States
1. NavCom also contends that the original competitive range of seven
should be limited to the four lowest-priced proposals. Including the
three higher-priced proposals in the competitive range clearly does
not directly prejudice NavCom, who submitted one of the lower-priced
proposals. Instead, NavCom is essentially seeking to have the field
of competition restricted. GAO's role in reviewing bid protests,
however, is to ensure that the statutory requirements for full and
open competition are met, not to protect any interest a protester may
have in a more restrictive procurement. See, e.g., Petchem, Inc.,
B-228093, Sept. 8, 1987, 87-2 CPD para. 228 at 3.