BNUMBER:  B-281030.3 
DATE:  April 9, 1999
TITLE: Spectrofuge Corporation of North Carolina, Inc.--Recon, B-
281030.3, April 9, 1999
**********************************************************************

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