BNUMBER: B-281030.3
DATE: April 9, 1999
TITLE: Spectrofuge Corporation of North Carolina, Inc.--Recon, B-
281030.3, April 9, 1999
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Matter of:Spectrofuge Corporation of North Carolina,
Inc.--Reconsideration
File: B-281030.3
Date:April 9, 1999
Richard L. Moorhouse, Esq., Holland & Knight, for the requester.
Alison L. Doyle, Esq., McKenna & Cuneo, for Beckman Coulter, an
intervenor.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Disclosure of contract award price under prior decision sustaining
protest does not provide any basis for General Accounting Office to
modify recommendation that agency reopen discussions and solicit
another round of best and final offers, because the risk of an auction
is secondary to the need to preserve the integrity of the competitive
procurement system through appropriate corrective action.
DECISION
Spectrofuge Corporation of North Carolina, Inc. requests that we
reconsider our corrective action recommendation that the agency reopen
discussions and call for another round of best and final offers (BAFO)
in our decision Beckman Coulter,
B-281030, B-281030.2, Dec. 21, 1998, 99-1 CPD para. 49. In that decision,
we sustained a protest filed by Beckman Coulter against the award of a
contract to Spectrofuge for preventive maintenance, rotor inspection
and emergency repair of certain Beckman scientific
instruments/equipment at a government facility, under request for
proposals (RFP) No. 273-98-P-0008 issued by the National Institute of
Environmental Health Services, Department of Health and Human
Services.
We deny the reconsideration request.
In the initial protest, Beckman alleged, among other things, that
Spectrofuge's BAFO was technically unacceptable and that an August 13
post-BAFO meeting between a Spectrofuge representative and agency
personnel constituted improper discussions and unequal treatment
because the agency was thereby giving Spectrofuge an opportunity after
the submission of BAFOs to remedy its noncompliant proposal. We
sustained the protest because we found that Spectrofuge's proposal did
not comply with the RFP requirements for maintenance services,
included an unacceptable termination clause, and deviated from the
RFP's requirement that offerors submit fixed prices. Specifically,
Spectrofuge's proposal (at page 56) included a list of five "Excluded
Services" and allowed either party to "terminate this agreement within
30 days written notice to the other party." In addition,
Spectrofuge's proposal contained (at page 57) its Annual Maintenance
Service Agreement, which states that "[a]ny component or part
determined by Spectrofuge to be defective shall be replaced (upon
authorization by the Buyer) at Spectrofuge's then current price." We
also indicated that the communications that occurred at the August 13
meeting appeared to constitute improper post-BAFO discussions because
they were directed at material terms of Spectrofuge's proposal and
materially affected the proposal's potential for award.
Because we found that the agency had improperly accepted for award a
materially nonconforming proposal, we recommended that the agency
reopen discussions with both offerors, request additional BAFOs and
proceed with the source selection process. We also recommended that
the agency terminate Spectrofuge's contract for the convenience of the
government and award the contract to Beckman if, after evaluating the
revised BAFOs, the agency determined that the Spectrofuge proposal was
no longer considered the most advantageous for the government.
Finally, we recommended that Beckman be paid its costs of filing and
pursuing the protest.
In its request for reconsideration, Spectrofuge objects to the
recommended corrective action, arguing that because Spectrofuge's and
Beckman's prices have been revealed, reopening negotiations with the
two firms and requesting another round of BAFOs would create an
improper auction. Spectrofuge also asserts that Beckman was not
prejudiced by the post-BAFO discussions and points out that our
decision contains "no finding that Beckman would have had a reasonable
opportunity of obtaining the award if it also had been afforded
another BAFO round." Request for Reconsideration at 2. Spectrofuge
contends that corrective action should be limited to the
recommendation that Beckman be allowed to recover its proposal
preparation costs.
Spectrofuge's contention is without merit. It is fundamental that a
materially noncompliant proposal cannot form the basis of an award.
Barents Group, L.L.C., B-276082, B-276082.2, May 9, 1997, 97-1 CPD para.
164 at 10; Martin Marietta Corp., B-233742.4, Jan. 31, 1990, 90-1 CPD para.
132 at 7. Further, contrary to Spectrofuge's contention that Beckman
was not prejudiced, here, while Beckman proposed the required fixed
prices, Spectrofuge's noncompliant proposal reserved for Spectrofuge
the right to escalate its prices and charge an unspecified amount,
subject to denomination by Spectrofuge as its then current price, for
replacement of defective parts. Our recommendation that the agency
reopen discussions with the offerors even though prices have been
revealed is the appropriate means of remedying the improper award and
providing Spectrofuge an opportunity to properly modify its proposal
to comply with the RFP's requirements. As we have made clear in
similar situations, the risk of an auction is secondary to the
importance of correcting an improper award and preserving the
integrity of the competitive procurement system through appropriate
corrective action. Telesec Library Servs.; Dep't of
Agriculture--Recon., B-245844.3, B-245844.4, Aug. 13, 1992, 92-2 CPD para.
103 at 4; Canadian Commercial Corp., B-246311, Feb. 26, 1992, 92-1 CPD para.
233 at 6.
The request for reconsideration is denied.
Comptroller General
of the United States