BNUMBER: B-277260.4
DATE: July 31, 1998
TITLE: Department of Commerce--Reconsideration, B-277260.4, July 31,
1998
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Matter of:Department of Commerce--Reconsideration
File:B-277260.4
Date:July 31, 1998
Minh N. Vu, Esq., Latham & Watkins, for the protester.
Mark Langstein, Esq., and Amy L. Freeman, Esq., Department of
Commerce, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Request for reconsideration of prior decision sustaining a protest of
a contract award for software development is denied where the
procuring agency's request fails to show that the prior decision
contains any errors of fact or law or to present information not
previously considered, and presents evidence that could have been, but
was not, presented during the prior protest; however, recommendation
in the prior decision that the agency take certain corrective action,
which could ultimately result in the termination of the awarded
contract, is modified because the agency has established, as verified
through a site visit by the General Accounting Office, that such a
significant portion of the contract work has been completed that it
would be impracticable to disturb the award.
DECISION
The National Oceanic and Atmospheric Administration (NOAA), Department
of Commerce requests reconsideration of, and/or modification of the
recommendation made in, our decision, Techno-Sciences, Inc.,
B-277260.2, Mar. 25, 1998, 98-1 CPD
para. 128, sustaining Techno-Sciences's protest of a market survey
undertaken by NOAA to implement corrective action recommended in our
decision in Techno-Sciences, Inc., B-277260, Sept. 22, 1997, 97-2 CPD para.
115.
We deny the request for reconsideration, but modify the
recommendation.
In Techno-Sciences, Inc., B-277260, supra, we sustained
Techno-Sciences's protest of the award of a contract to Research and
Professional Services, Inc. (RPS), negotiated through the Small
Business Administration section 8(a) set-aside program under request
for proposals (RFP) No. 50-DDNE-7-90034, for software development,
testing and maintenance to support the United States Mission Control
Center (USMCC). The protest was sustained because the agency did not
reasonably determine, in accordance with applicable regulations, that
the RPS award was at a fair market price, particularly given
Techno-Sciences's apparently acceptable offer to perform the services
at a much lower price. We recommended that the agency review its fair
market price estimate, specifically considering Techno-Sciences's
commercial software enhanced to meet NOAA's requirements, and if it
was determined that the RPS contract costs exceeded a fair market
price, that RPS's contract be terminated and the requirements
fulfilled under an unrestricted procurement. We also recommended that
Techno-Sciences be reimbursed its costs of filing and pursuing the
protest.
In Techno-Sciences, Inc., B-277260.2, supra, we found that the market
survey conducted by NOAA to implement the recommendation in our
initial decision was not a reasonable method of determining whether
the RPS award was at a fair market price because the survey included
material requirements that were not included in the RPS contract. We
again recommended that NOAA review its fair market price estimate,
considering Techno-Sciences's commercial software enhanced to meet
NOAA's requirements, after fairly describing to Techno-Sciences the
material requirements included in RPS's contract. If it was
determined that RPS's contract exceeded a fair market price, we
recommended that RPS's contract be terminated and the requirements
fulfilled under an unrestricted procurement. NOAA requests
reconsideration of this latter decision.
In order to obtain reconsideration under our Bid Protest Regulations,
the requesting party must show that our prior decision may contain
errors of fact or law, or present information not previously
considered that warrants reversal or modification of our decision. 4
C.F.R. sec. 21.14(a) (1998). Repetition of arguments made during
consideration of the original protest or mere disagreement with our
decision does not provide a basis for reconsideration. PRC,
Inc.--Recon., B-274698.4, July 10, 1997, 97-2 CPD para. 10 at 1. Nor will
we consider arguments that could have been made, but were not raised
during our initial consideration of the
protest since to do so would undermine the goal of our bid protest
forum--to produce fair and equitable decisions based on consideration
of the parties' arguments on a fully developed record. Dyna-Air Eng'g
Corp.--Recon., B-271587.2, Aug. 30, 1996, 96-2 CPD para. 93 at 1-2. As
explained below, we find that NOAA has not established a basis for
reconsideration of the prior decision.
For example, NOAA contends that Techno-Sciences, Inc., B-277260.2,
supra, erroneously concluded that the market survey required producers
of commercial USMCC software to meet requirements materially different
from those being met under RPS's contract. Specifically, NOAA asserts
that the requirements of the market survey were not materially
different because the additional requirements (local user terminal
(LUT) pass scheduling and search and rescue (SAR) mapping
requirements, and LUT communications check) not being coded under the
RPS contract allegedly constitute less than 2 percent of the contract
cost. It also argues that the inference that our Office drew from its
failure to produce the contracting officer's technical representative
that there may have been additional requirements was unjustified,
since it has now confirmed that only the three foregoing requirements
were not being coded by RPS.
NOAA's arguments merely either repeat arguments that the agency
previously made during the course of the protest, constitute its
disagreement with the decision, or reflect arguments that it could
have made during course of the protest.
For example, the issue of whether the coding of the LUT pass
scheduling and SAR mapping coding requirements were being performed
under the RPS contract was a specific subject of the protest and the
hearing on the protest. However, neither at the hearing nor in its
post-hearing comments did NOAA contend that these were not material
requirements and, as indicated in our prior decision, the record
evidenced that these were material requirements. Id. at 9. Moreover,
as discussed in our prior decision, the agency did not produce, as
requested, the official with the most knowledge in this matter at the
hearing (who was the person who apparently had knowledge as to these
requirements' materiality). Id. at 7, 9. Since NOAA waited until its
request for reconsideration to assert or advance evidence that these
requirements were not material, they provide no basis to reconsider
our prior decision.
While NOAA objects to the inference drawn in our prior decision that
there may be other requirements in the market survey that were not
being coded under the RPS contract, we made this inference because the
witness produced for the hearing by the agency admitted that this
might be the case, Hearing Transcript (Tr.) at 100, 109-10, and NOAA
failed to produce the requested witness with the most knowledge of
this matter. While NOAA may disagree with the inference drawn by the
decision, it was consistent with the record that had been developed as
of the time of our decision and our Bid Protest Regulations, 4 C.F.R. sec.
21.7(f), which state:
If a witness whose attendance has been requested by GAO fails to
attend the hearing or fails to answer a relevant question, GAO
may draw an inference unfavorable to the party for whom the
witness would have testified.
NOAA also claims that it properly solicited products in the market
survey that met the total requirements of the system, not merely those
that were being coded under the RPS contract, because these
requirements represented NOAA's actual needs, regardless of who coded
the software. This contention reflects NOAA's misunderstanding of the
purpose of the recommendation in our prior decision that NOAA develop
a fair market price estimate, considering Techno-Sciences's offer to
supply assertedly similar software, so as to ascertain whether the RPS
contract was at a fair market price--not to conduct a survey to
determine whether to purchase commercial USMCC software to meet all of
NOAA's USMCC software requirements. Thus, we noted in the decision
which is the subject of this reconsideration that NOAA's market
survey, although unobjectionable in general, was not necessary, since
NOAA could simply have obtained a price from Techno-Sciences to
provide software similar to that being coded under RPS's contract.
As noted, in conducting this market survey, Techno-Sciences was
required to price material requirements that were not being coded by
RPS, such that the survey did not represent a reasonable basis for
ascertaining whether the RPS contract price was fair or reasonable.
While NOAA again asserts that Techno-Sciences should have known that
the LUT pass scheduling and SAR mapping requirements would not be
coded by RPS and that Techno-Sciences was not prejudiced by the market
survey's request that it respond to these requirements, these
assertions amount to mere disagreement with our prior decision and
provide no basis for reconsideration.[1]
NOAA finally asserts that it would be impracticable to implement the
recommendation made in Techno-Sciences, Inc., B-277260.2, supra,
because the coding of the software under the RPS contract is almost
complete and operational. In this regard, given the timing of the
protest, NOAA was not required to stay performance pending our
decisions. Given that NOAA's witness at the hearing on the prior
protest testified that the specifications that constituted the basis
for the RPS coding work were incomplete, Tr. at 125, our Office
conducted a site visit of the USMCC to determine the level of progress
made in the RPS software development effort.[2] This visit confirmed
that a significant portion of the fourth generation USMCC software has
already been coded by RPS and that the completed software is currently
performing key aspects of the USMCC's core functions. Under the
circumstances, we agree that it would be impracticable to disturb the
procurement at this time and accordingly modify our recommendation.
However, Techno-Sciences is still entitled to recover its reasonable
costs of filing and pursuing the protests, including reasonable
attorneys' fees, as well as its costs of responding to the agency's
request for reconsideration. See Department of State--Recon.,
B-243974.4, May 18, 1992, 92-1 CPD para. 447 at 8-9.
The request for reconsideration is denied, except to the extent that
the recommendation is modified as discussed herein.
Comptroller General
of the United States
1. NOAA also asserts that our decision did not address the agency's
argument regarding whether prices proposed by commercial manufacturers
were required to meet a commercial requirement similar to that
reflected in the Federal Acquisition Regulation (FAR) sec. 2.101,
governing commercial items. This is not true. We fully considered
NOAA's arguments and found them to be without merit. See
Techno-Sciences, Inc., B-277260.2, supra, at 6-7.
2. The protester's counsel also attended the site visit.