TITLE:  	Spectrum Sciences & Software, Inc., B-282373, June 22, 1999
BNUMBER:  B-282373
DATE:  June 22, 1999
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Spectrum Sciences & Software, Inc., B-282373, June 22, 1999

Decision

Matter of: Spectrum Sciences & Software, Inc.

File: B-282373

Date: June 22, 1999

Jesse W. Rigby, Esq., Clark, Partington, Hart, Larry, Bond, Stackhouse &
Stone, for the protester.

Lt. Col. Gary L. Halbert and Capt. Karen L. Deimler, Department of the Air
Force, for the agency.

Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency misled offeror into believing that it would have an
additional opportunity to revise its price because the request for final
proposal revision did not state that the government intended to make an
award without obtaining further revisions is denied where the notice
reasonably conveyed this intention by specifying that discussions had been
concluded and requesting a final proposal revision.

DECISION

Spectrum Sciences & Software, Inc. protests the award of a contract to C.
Martin Company under request for proposals (RFP) No. F16602-99-R-0003,
issued as a small business set-aside by the Department of the Air Force for
the operation and maintenance of the Claiborne Bombing Range. The protester
objects that the Air Force's letter requesting Spectrum's final proposal
revision failed to specify that the agency intended to make an award without
obtaining further revisions, thereby leading Spectrum to conclude that it
would have a further opportunity to revise its price, which was not
provided.

We deny the protest.

The solicitation, issued on December 31, 1998, contemplated the award of a
fixed-price requirements contract for a base period of 1 year, with four
1-year options. The RFP stated that award would be made to the responsible
offeror whose offer conforms to the solicitation, is determined technically
acceptable based on the minimum mandatory evaluation criteria, and offers
the lowest evaluated price, based on the total price for the base year and
all options years. RFP sect. M-502. The RFP provided that the technical
evaluation would result in a determination of conformance or non-conformance
in respect to the following technical evaluation areas: (1) general and
specific tasks; (2) government furnished property; (3) contractor furnished
items and services; and (4) specific tasks. RFP sect. M-502.c.1, c.2. In order
to be rated acceptable, a proposal had to achieve a rating of acceptable in
each of the technical areas. RFP sect. M-502.c.3.a. The RFP warned offerors to
propose their best offer initially since award could be based on initial
proposals without discussions. RFP sect. M-502.b.3.

Five proposals were received by the February 8, 1999 closing time. Two
proposals were rejected as technically unacceptable. Air Force Memorandum of
Law at 1. On February 12, requests for additional information and
clarifications were sent to the three remaining technically acceptable
offerors, in a letter, which stated that it was not a request for final
proposal revision. Responses were received and evaluated. On February 22,
the three offerors were notified that discussions were concluded and that
their proposals were found to be technically acceptable, and each was
requested to submit a final proposal revision. The text of Spectrum's notice
was as follows:

  1. Written discussions have been concluded for subject solicitation and
     your proposal was found to be technically acceptable. Request you
     submit your final proposal revision on the attached schedule, pages 2
     through 11. Be sure to recheck your figures to eliminate any
     calculation errors.
  2. Final proposal revisions are due in the 2d Contracting Squadron, 841
     Fairchild Ave., Suite 204, Barksdale AFB LA 71110-2271, no later than
     4:00 P.M. CST on 4 March 1999. If you have any questions, please
     contact . . . .

Agency Report (AR), Tab 8, Memorandum from Contracting Officer to Spectrum
(Feb. 22, 1999).

On March 2, Spectrum submitted its response entitled "Final Proposal
Revision," referencing the Air Force's February 22 "Request for Final
Revision." AR, Tab 12, Letter from Spectrum to Contracting Officer (Mar. 2,
1999). Spectrum's cover letter stated that it was "pleased to provide the
enclosed Final Proposal Revision," and the cover sheet to its price schedule
stated in large type "Price Proposal Final Revision." Spectrum's price was
the highest of the three technically acceptable offerors. On March 17, the
Air Force notified offerors that C. Martin Company, Inc. was the low
offeror. On March 25, award was made to C. Martin, the unsuccessful offerors
were notified, and Spectrum filed this protest with our Office.

Spectrum argues that the award is improper because the Air Force failed to
comply with Federal Acquisition Regulation (FAR) sect. 15.307(b) because it made
the award without first explicitly notifying all competitive range offerors
that the government intended to make award without obtaining further
revisions. Spectrum maintains that because there was no such notice in the
agency letter requesting a final proposal revision, "Spectrum concluded that
the contracting officer was still in discussion (negotiations) concerning
the Price Proposal," and Spectrum further claims that it "fully intended to
submit other price revisions until the contracting officer provided notice
that no further revisions would be accepted." Protest at 2-3.

Part 15 of the FAR has been recently rewritten and contains a new provision
concerning requests for final proposal revisions. Currently FAR sect. 15.307 (b)
provides as follows:

The contracting officer may request or allow proposal revisions to clarify
and document understandings reached during negotiations. At the conclusion
of discussions, each offeror still in the competitive range shall be given
an opportunity to submit a final proposal revision. The contracting officer
is required to establish a common cut-off date only for receipt of final
proposal revisions. Requests for final proposal revisions shall advise
offerors that the final proposal revisions shall be in writing and that the
Government intends to make award without obtaining further revisions.

The earlier language, at FAR sect. 15.611, required that, upon completion of
discussions, the contracting officer issue requests for best and final
offers (BAFO) to all offerors still remaining in the competitive range, and
required that such requests include notice that discussions were concluded,
state that this was an opportunity to submit a BAFO, and specify a common
cutoff date and time for submission of written BAFOs.

The current language at FAR sect. 15.307(b), which substitutes the term "final
proposal revision" for the previously denominated "BAFO," includes a
requirement that offerors be advised that award is contemplated without
obtaining further revisions. While the agency did not include precise
language to this effect in its request for final proposal revision, we fail
to see how this could reasonably have misled the protester in the manner
that it asserts, and Spectrum's own submission strongly suggests that it was
not so misled.

The solicitation provided that award was to be made to the lowest price
technically acceptable offeror, and contained a notice of the possibility of
award on the basis of initial proposals. In fact, the agency held
discussions after which it requested a final proposal revision in a notice
that advised each of the competitive range offerors that discussions had
been concluded and that their proposals had been found technically
acceptable. At this point, Spectrum knew that the only plausible purpose

for the requested final proposal revision was to provide offerors an
opportunity to modify their prices. In these circumstances, Spectrum could
not reasonably assume that it would be given any additional opportunities to
submit its best price.

Moreover, as noted above, Spectrum's submission in response to the agency's
request specifically stated in several places that it was a final proposal
revision, in particular, labeling its price schedule cover sheet as "Price
Proposal Final Revision." Thus, notwithstanding Spectrum's current assertion
that it had every intention of submitting additional revisions until the
agency specifically stated no further revisions would be accepted, its
actual proposal indicates that it understood otherwise.

In its comments on the agency report, Spectrum contends that under FAR sect.
15.611, the contracting officer had the authority to reopen discussions
after requesting BAFOs, while the currently applicable FAR sect. 15.307(b) does
not contain a similar provision. From this, Spectrum concludes that the
current scheme "prohibits the Government from reopening the bidding process
once it is finally closed, but requires explicit compliance with the FAR in
order to close discussions and revisions of offers." Protester's Comments at
3. In fact, the predecessor FAR provision admonished the contracting officer
not to reopen discussions after receipt of BAFOs unless it was "clear that
information available at that time is inadequate to reasonably justify
contractor selection and award based on the best and final offers received."
FAR sect.15.611(c) (June 1997). There is no such admonition against reopening
discussions in the new FAR provision. Moreover, under the old FAR provision,
we recognized that a request for BAFOs that did not contain the similarly
specifically prescribed language was unobjectionable as long it reasonably
provided notice that it was a BAFO request. Israel Aircraft Indus., Ltd.,
B-239211, July 30, 1990, 90-2 CPD para. 84 at 4.

Here, the request for a final proposal revision specified that discussions
were concluded and reasonably provided notice that the agency was requesting
final prices. The protester should have and appears to have understood this
to be the case, and has no reasonable basis to complain that it was misled
because it did not receive adequate notice.

The protest is denied.

Comptroller General

of the United States