BNUMBER:  B-278030.3 
DATE:  April 29, 1998
TITLE: Southern Technologies, Inc.--Reconsideration and Costs, B-
278030.3, April 29, 1998
**********************************************************************

Matter of:Southern Technologies, Inc.--Reconsideration and Costs

File:     B-278030.3

Date:April 29, 1998

James V. Etscorn, Esq., Baker & Hostetler LLP, for the protester.
Lis B. Young, Esq., Naval Facilities Engineering Command, for the 
agency.
Jennifer Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office 
of the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Request for reconsideration is denied where requester fails to 
demonstrate errors of law or fact in prior decision.

2.  Where agency overrode statutory stay of performance on the basis 
of urgent and compelling circumstances, General Accounting Office is 
not precluded from considering practicability of a recompetition in 
considering whether corrective action proposed by agency is 
appropriate.

3.  General Accounting Office will not recommend that protester 
recover the costs of filing and pursuing its protest where the agency 
offered to take corrective action promptly, i.e., by the due date for 
the agency report.

DECISION 

Southern Technologies, Inc. requests reconsideration of our decision, 
Southern Techs., Inc., B-278030, B-278030.2, Dec. 19, 1997, 97-2 CPD  para.  
167, in which we found that the payment of the protester's proposal 
preparation costs was appropriate corrective action for the agency's 
admittedly improper actions in conducting the procurement under 
request for proposals (RFP) No. N62477-97-R-0041, for power plant 
improvements at the Goddard Power Plant in Indian Head, Maryland.[1]  
Southern argues that we mischaracterized its protest and failed to 
address some of the arguments it raised.  Southern also asks that we 
recommend that the agency reimburse Southern for its protest costs.

We deny the request for reconsideration and the request for costs.

BACKGROUND

In its original protest, Southern complained that its proposal had 
been determined technically unacceptable and excluded from the 
competitive range because the burners that it offered to install in 
the plant's boilers employed overfire air (OFA) technology.  The 
protester argued that OFA technology was consistent with the 
solicitation's requirements and that its proposal therefore should not 
have been excluded from further consideration.  The Navy responded 
that OFA was not an acceptable technology, but conceded that the RFP's 
specifications, as written, could have misled offerors in this regard.  
The agency maintained, however, that including the protester in the 
competitive range, as Southern had requested, would not be appropriate 
corrective action because Southern would have to rewrite its proposal 
using a different technical approach to make the proposal susceptible 
of award.  The Navy instead proposed to reimburse the protester for 
its proposal preparation costs, and asked us to dismiss the protest on 
the ground that it was taking appropriate corrective action.

We declined to dismiss on the basis of the agency's request since, as 
we informed the parties, we did not think that the Navy had 
demonstrated that payment of proposal preparation costs was the 
appropriate corrective action for the impropriety.  We explained that 
although, as a general rule, a proposal should not be included in the 
competitive range if it would have to be substantially rewritten to 
become technically acceptable, that rule did not govern where the 
agency conceded that the specifications were misleading and required 
revision--and the reasons for the proposal's exclusion related 
directly to the misleading provisions that were to be rewritten.  In 
such circumstances, we noted, unless precluded by the urgency of the 
requirement, the agency should amend the solicitation to reflect its 
needs accurately, and then reopen the competition and allow offerors 
to submit new or revised proposals on the basis of the revised 
requirements.

The Navy responded with a supplemental submission arguing that the 
urgency of the requirement did indeed preclude a reopening of the 
competition.  Southern took issue with the agency's representation, 
arguing that reopening the competition for all or part of the 
solicitation was both feasible and appropriate.  The protester further 
argued that if the long lead-time status of the burners precluded 
recompeting the work relating to their installation, award for the 
work on the burners should remain in place with the awardee, Frank 
Lill and Son, and the remaining work recompeted in a competition from 
which Lill would be excluded.

We found that the Navy had demonstrated that a recompetition of the 
RFP would be impracticable since delay in the award would mean that 
the plant would not have a boiler with a low NOx burner available for 
operation during the peak ozone months of 1998, in violation of the 
terms of the plant's operating permit.  We also determined that 
carving out a portion of the work for Lill and recompeting the rest in 
a competition from which Lill would be excluded, as the protester had 
proposed, would be inconsistent with the statutory mandate for full 
and open competition.  See 10 U.S.C.  sec.  2305(a)(1)(A) (1994).  We 
therefore concluded that there was no meaningful remedial action that 
the agency could take and that payment of the protester's proposal 
preparation costs was the only appropriate corrective action 
available.  Having concluded that the agency was taking appropriate 
corrective action, we dismissed as academic Southern's underlying 
protest objecting to the exclusion of its proposal from the 
competitive range.

TIMELINESS

As a preliminary matter, the Navy argues that we should dismiss 
Southern's request for reconsideration, which was filed on December 
31, 1997, as untimely because it was filed more than 10 days after the 
decision was issued.

Our Bid Protest Regulations require that a request for reconsideration 
be filed not later than 10 days after the basis for reconsideration 
is, or should have been, known.  4 C.F.R.  sec.  21.14(b) (1997).  Thus, 
contrary to the agency's position, the critical date for timeliness 
purposes is the date that the protester received our decision, not the 
date the decision was issued.  Accordingly, for the December 31 
reconsideration request to be timely, Southern must have received our 
decision (dated December 19) no earlier than December 21 (a Sunday).  
The protester's counsel states that he did not receive a copy of the 
decision until after December 20, a claim that we find fully credible 
given that we have no record of having furnished a copy other than by 
mail.[2]  Since the request for reconsideration was filed within 10 
days after the protester received a copy of our decision, it is 
timely.

ANALYSIS

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must either show that our prior decision contains 
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); Lovelace Scientific Resources, Inc.--Recon., 
B-256315.2, Nov. 25, 1994, 94-2 CPD  para.  209 at 1.  As explained below, 
Southern's request for reconsideration does not meet this standard.

Southern argues first that we incorrectly characterized its protest as 
an objection to the corrective action proposed by the agency when it 
was in fact a complaint about the agency's actions in conducting the 
underlying procurement.  According to the protester, it "never 
embraced nor rejected the agency's remedial proposal but declined 
acquiescence because it recognized that it [Southern] was in no 
position to determine the appropriateness of the agency's motion 
without a determination by the Comptroller General of the merits of 
Southern's protest."  Request for reconsideration at 1.

We understood that the protester's underlying complaint was that the 
agency had acted improperly in conducting the procurement.  The agency 
conceded this point in its initial submission, however, and requested 
that we dismiss the protest on the ground that it was prepared to take 
corrective action by paying the protester its proposal preparation 
costs.  Since, as we noted in the decision, we will dismiss a protest 
as academic where the agency takes appropriate corrective action, the 
issue that remained before us was the appropriateness of the 
corrective action proposed.  Accordingly, this is the issue on which 
our decision properly focused.

Next, Southern argues that we ought not to have considered the 
practicability of recompeting the solicitation in considering whether 
the proposed corrective action was appropriate.  In support of its 
argument, the protester cites section 21.8(c) of our Bid Protest 
Regulations, 4 C.F.R.  sec.  21.8(c), which provides as follows:

     If the head of the procuring activity determines that performance 
     of the contract notwithstanding a pending protest is in the 
     government's best interest, GAO shall make its recommendation(s) 
     under paragraph (a) of this section without regard to any cost or 
     disruption from terminating, recompeting, or reawarding the 
     contract.

The section cited by the protester addresses situations in which the 
agency has overridden the statutory stay of performance on the ground 
that performance is in the government's best interests.  See 31 
U.S.C.A.  sec.  3553(d)(3)(C)(i)(I), 3554(b)(2) (West Supp. 1997).  The 
section does not apply where, as here, the agency determines to 
proceed with performance on the ground of urgency, pursuant to 31 
U.S.C.A.  sec.  3553(d)(3)(C)(i)(II).  We are not precluded from 
considering the cost or disruption that a recompetition would engender 
in fashioning a recommendation for corrective action where the agency 
has overridden a stay of performance on the grounds of urgency.  See 
Astrophysics Research Corp., 66 Comp. Gen. 211, 214 (1987), 87-1 CPD  para.  
65 at 4.  Similarly here, there was no bar on our considering the 
practicability of a recompetition in deciding whether the corrective 
action proposed by the agency was appropriate.

The protester further argues that we erred in accepting the agency's 
argument that only if the award to Lill was left in place would the 
plant have a boiler with a low NOx burner available for operation in 
time for the peak ozone months of 1998, as required by the plant's 
operating permit.  Southern contends that even if the award to Lill is 
left in place, the plant will not have a low NOx burner by the 
beginning of the summer because the contract gives Lill 360 days from 
the date of award, i.e., until late September 1998, to complete 
installation of the first burner.

We discussed this matter with the parties via conference call at the 
time of the initial protest.  In response to a question from our 
Office regarding Lill's timeline for completing work of the first 
boiler, the agency stated that although the contract gives Lill 360 
days to complete the work, Lill had represented to it that it would 
accelerate its work schedule and complete installation of the first 
burner by June.  The agency further stated that it had no reason to 
think that Lill would not meet this schedule.  We likewise have no 
reason to question the agency's acceptance of this representation.  
Accordingly, we do not think that we erred in considering whether the 
work could be completed by another contractor by the beginning of the 
summer in determining the feasibility of a recompetition.

Southern also argues that we erred in declining to consider its 
argument that the plant could reduce emissions to an acceptable level 
for the 1998 season without installing any new NOx burners by reducing 
its reliance upon coal as a fuel.  We declined to consider this 
argument on the ground that it was not within the scope of our 
authority to question the agency's pollution abatement strategy.  The 
protester contends that its argument addressed the urgency of the 
agency's requirement for a low NOx burner, and not the agency's 
pollution abatement strategy.

Notwithstanding Southern's characterization of its argument, we 
believe it clearly focuses on the agency's strategic approach to 
abating pollution to meet June 1998 requirements, and not just on how 
truly urgent the agency's need is for the items in question.  Indeed, 
the logical extension of the argument is that the agency does not need 
low NOx burners at all because it can continue to attain the lower 
levels of pollution required by its operating permit by continuing to 
rely more heavily on oil and less heavily on coal for fuel.  In sum, 
the protester's argument clearly did address the agency's pollution 
abatement strategy and, as such, is not a matter for our 
consideration. 

Southern argues next that we erred in concluding that it had abandoned 
its argument regarding the rejection of Lill's proposal as 
front-loaded.  The protester maintains that it addressed the argument 
in both its letter of November 11 and in its response to the agency 
report on November 25, and that it therefore cannot be said to have 
abandoned the issue.

First, the agency report responding to Southern's supplemental 
protest, which addressed the issue of front-loading in Lill's offer, 
was not filed until November 19; thus, any discussion of the issue in 
Southern's letter of November 11 was clearly not a response to the 
agency report.  Moreover, although Southern did make reference to 
front-loading in its letter of November 25, it was not in the context 
of arguing that Lill's offer should have been rejected on that basis; 
instead, it was in the context of arguing that recompetition of the 
work encompassed in option No. 2 of the RFP would not be a meaningful 
remedy because Lill would have an insurmountable advantage over other 
offerors due to the front-loaded manner in which it had structured its 
pricing.  Nowhere in its November 25 response to the agency report did 
the protester attempt to rebut the agency's argument that an offer 
that is mathematically unbalanced due to the pricing of the base and 
option items need not be rejected where the agency reasonably expects 
to exercise the options.  MCI Constructors, Inc., B-274347, 
B-274347.2, Dec. 3, 1996, 96-2 CPD  para.  210 at 5.  Thus, we think that we 
properly viewed the protester as having abandoned the argument.

PROTEST COSTS

The protester requests that we recommend that it recover its protest 
costs. 

Under section 21.8(e) of our Bid Protest Regulations, we may recommend 
that a protester be reimbursed the costs of filing and pursuing a 
protest where the contracting agency decides to take corrective action 
in response to the protest.  4 C.F.R.  sec.  21.8(e).  We will make such a 
recommendation, however, only where, based on the circumstances of the 
case, the agency unduly delayed taking corrective action in the face 
of a clearly meritorious protest.  Oklahoma Indian Corp.--Claim for 
Costs, 70 Comp. Gen. 558, 559 (1991), 91-1 CPD  para.  558 at 2.  A 
protester is not entitled to costs where, under the facts and 
circumstances of a given case, the agency has taken reasonably prompt 
corrective action.  DuraMed Enters., Inc.--Request for Costs, 
B-271793.2, Oct. 4, 1996, 96-2 CPD  para.  135 at 2.

In general, if an agency takes corrective action in response to a 
protest by the due date of its protest report, we consider such action 
to be prompt and will not recommend reimbursement of protest costs.  
HSQ Tech.--Request for Costs, B-276050.2, June 25, 1997, 97-1 CPD  para.  
228 at 2.  Such was the case here:  the agency first offered to take 
corrective action on the report due date.  Because the agency offered 
to take corrective action rather than filing an agency report, the 
protester was not put to the time and expense of filing comments in 
response to such a report.  Thus, the purpose of section 21.8(e)--to 
encourage agencies to take corrective action in response to 
meritorious protests before protesters have expended additional 
unnecessary time and resources pursuing their claims--was served 
here.[3]  DuraMed Enters., Inc.--Request for Costs, supra, at 2.
  
The request for reconsideration and the request for costs are denied.

Comptroller General
of the United States

1. The purpose of the improvements is to bring the plant, which is a 
major emitter of nitrogen oxides (NOx), into compliance with emission 
standards set by the state of Maryland.  Work to be performed includes 
the installation of low NOx coal/oil fired burners on each of the 
plant's three boilers.

2. A copy of the decision was posted on the Internet, but not until 
December 22; the protester's counsel states that the protester 
retrieved it from the Internet on December 24.  Even if the protester 
had seen the decision there on the date it was first posted, it would 
have had until January 2, 1998 to file its request for 
reconsideration.

3. To the extent that the protester incurred additional expenses in 
challenging the corrective action offered by the agency, these costs 
are not reimbursable since they are not costs incurred in persuading 
the agency of the merits of the protest, i.e., in pursuing the 
protest.  KPMG Peat Marwick--Entitlement to Costs, B-251902.2, June 8, 
1993, 93-1 CPD  para.  443 at 3.