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.