BNUMBER:  B-276163.3 
DATE:  October 31, 1997
TITLE: NavCom Defense Electronics, Inc., B-276163.3, October 31,
1997
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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.