TITLE:  Fisher-Cal Industries, Inc., B-285150.2, July 6, 2000
BNUMBER:  B-285150.2
DATE:  July 6, 2000
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Fisher-Cal Industries, Inc., B-285150.2, July 6, 2000

Decision

Matter of: Fisher-Cal Industries, Inc.

File: B-285150.2

Date: July 6, 2000

Lawrence W. Saltzman, Esq., for the protester.

Clarence D. Long, III, Esq., and Denise McLane, Esq., Department of the Air
Force, for the agency.

Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of contracting agency's decision to terminate awardee's contract and
resolicit the requirement is denied where the agency's decision--corrective
action in response to a protest--is reasonable under the circumstances to
protect the integrity of the procurement system.

DECISION

Fisher-Cal Industries, Inc. protests the Department of the Air Force's
decision to terminate its contract under request for proposals (RFP) No.
F28609-99-R0004 and to resolicit the requirement. The Air Force's decision
is corrective action in response to a protest filed by a competitor, which
argued that the Air Force had improperly evaluated Fisher-Cal's proposal.

The protest is denied.

The solicitation contemplated award of a fixed-price requirements contract
for visual information services at McGuire Air Force Base, New Jersey. RFP
at 1, 4, 7; Statement of Work (SOW) at 1. The agency planned to award the
contract, without conducting discussions, to the firm whose offer was most
advantageous to the government, considering technical capability, past
performance, and price factors. RFP at 51, 48-49. Competing offerors' past
and present performance history, and technical factors, would be
significantly more important than price. RFP at 48.

The RFP explained its evaluation methodology as follows. First, offers were
to be ranked according to price. Next, the technical evaluation team (TET)
was to evaluate the lowest-priced technical proposals against four
evaluation factors: contract management/staffing; equipment; product
samples; and quality control. Finally, the contracting officer was to seek
performance information on the lowest-priced, technically acceptable offers
and make a risk assessment. If the lowest-priced technically acceptable
offer was judged to have an exceptional performance rating, that offer would
be deemed to represent the best value for the government and award was to be
made to that offeror without further consideration of any other offers. [1]
If the lowest-priced offeror had a performance risk rating of very good, the
government could award the contract to another firm after making an
"integrated assessment best value award decision." RFP at 48-49.

The Air Force received five proposals in response to the solicitation and
conducted its evaluation. The contracting officer determined that the
proposal submitted by Fisher-Cal, the incumbent contractor, provided the
best overall value to the government. She recommended award to the firm
because they were the

lowest-priced offeror; they had an exceptional present and past performance
rating; and they had "demonstrated their superb technical capability during
their past and present performance here at McGuire AFB as well as for other
Government agencies." Agency Report (AR), Tab 8, Integrated Best Value
Assessment.

After its debriefing, an unsuccessful offeror filed a protest in our Office
arguing that Fisher-Cal had failed to comply with the RFP's requirements and
the Air Force had improperly evaluated the firm's proposal. The protest
prompted the Air Force to review the procurement file. This review revealed
what the Air Force believed to be serious flaws in the procurement. One week
after the protest was filed, the Air Force advised this Office that, based
upon these flaws, it had decided to terminate Fisher-Cal's contract and
resolicit the requirement from the initial offerors. The solicitation was to
be revised to ensure that there were no ambiguities or misunderstandings as
to the technical requirements. AR, Tab 9, E-Mail Analysis of Procurement.
This Office dismissed the protest as academic on April 27, 2000.

On that same day, Fisher-Cal filed the instant protest of the decision to
terminate its contract. The firm complained that its overall price had been
exposed by being posted on the Electronic Posting System (EPS), giving other
offerors an unfair advantage during the resolicitation. After receiving a
copy of the prior protest, Fisher-Cal, on May 12, raised various additional
arguments in support of its award. [2]

Generally, we decline to review the termination of contracts for the
convenience of the government because such actions are matters of contract
administration. We will review the propriety of the termination where the
termination flows from a defect the contracting agency perceived in the
award process. In such cases, we examine the award procedures that underlie
the termination action for the limited purpose of determining whether the
initial award may have been improper and, if so, whether the corrective
action taken was appropriate to protect the integrity of the competitive
procurement system. GAI, Inc., B-247962, B-247971, July 8, 1992, 92-2 CPD para.
10 at 3. We will not object to an agency's proposed corrective action where
the agency concludes that the award, because of perceived flaws in the
procurement process, was not necessarily made on the basis most advantageous
to the government, so long as the corrective action taken is appropriate to
remedy the impropriety. Rockville Mailing Serv., Inc., B-270161.2, Apr. 10,
1996, 96-1 CPD para. 184 at 4.

The record contains abundant evidence that this was a flawed procurement
resulting in an award not necessarily made on the basis most advantageous to
the government, and that the agency's corrective action is appropriate.

First, the solicitation is ambiguous with respect to the minimum staffing
level the agency required. The SOW can be read to require as few as four
staff in the inartfully worded "Employee Requirements" section, but the
"Photographic Services and Products" section requires at least six staff.
SOW at para.para. 1.1.1, 1.12.1. The offerors here did, in fact, proposed a range of
staffing levels. AR, Tab 9, E-Mail Analysis of Procurement, at 2. Where, as
here, the solicitation is ambiguous with the result that offerors responded
to it based on different reasonable assumptions as to what was required, the
competition has been conducted on an unequal basis and the

government has been deprived of the full benefits of competition. Under
these

circumstances, the requirement should be resolicited. [3] MLC Fed., Inc.,
B-254696, Jan. 10, 1994, 94-1 CPD para. 8 at 5. Moreover, while the solicitation
did not set forth a minimum staffing requirement, the TET used such a
requirement in order to evaluate a proposal as technically acceptable. The
minimum staffing requirement the TET used is inconsistent with at least one
reasonable interpretation of the RFP's requirements.

In addition to problems with the solicitation itself, to the extent that the
technical evaluation of proposals can be understood, it was seriously
flawed. For example, the TET evaluated Fisher-Cal's proposal as technically
acceptable despite the fact that it did not comply with the solicitation's
requirement to submit the required organizational chart; the protester
concedes that this was a mandatory requirement. Protester's Comments at 1.
The TET acknowledged that Fisher-Cal did not submit the organizational
chart, but believed the proposal's narrative provided the required
information. While the narrative does address the required details, neither
the Air Force nor this Office is persuaded that the narrative "clearly
details the overall structure and manning necessary" to perform the
requirements as called for by the RFP. RFP amend. 0002, at 46.

Even if the narrative in Fisher-Cal's proposal were sufficient to meet the
RFP's requirements, the evaluation record is also filled with other serious
problems. The Air Force correctly states that the individual evaluation
records do not make sense. They contain various negative comments concerning
the firm's proposal which indicate it was technically unacceptable, but the
TET inexplicably evaluated the proposal as technically acceptable. Even the
overall records of the technical evaluation are incomprehensible. The
narrative points out at least one "unacceptable" component of the proposal,
and the spreadsheet of all offeror technical ratings rates Fisher-Cal's
proposal as "unacceptable" under several factors, but the proposal
nevertheless is rated technically acceptable. [4] There is nothing in the
record to explain any of these anomalies. Finally, the source selection
document not only fails to discuss the technical evaluation, but appears to
place an undue emphasis on past performance. AR, Tab 8, Integrated Best
Value Assessment.

Fisher-Cal argues that, since the agency posted its price on the EPS, all
other competitors have the successful low price and can adjust their
pricing, giving them an undue advantage. [5]

Where, as here, the corrective action proposed by the agency is not
improper, the prior disclosure of information in an offeror's proposal does
not preclude the corrective action, and the resolicitation of the same
requirement is not improper. See SMS Data Prods. Group, Inc., B-280970.4,
Jan. 29, 1999, 99-1 CPD para. 26 at 3-4. The possibility that the contract might
not have been awarded based on a true determination of the most advantageous
proposal has a more harmful effect on the integrity of the competitive
procurement system than the disclosure of the price of an improperly awarded
contract. See Patriot Contract Servs., LLC, et al.,

B-278276.11 et al., Sept. 22, 1998, 98-2 CPD para. 77 at 4.

The protest is denied.

Comptroller General

of the United States

Notes

1. While not raised here, this evaluation methodology appears to be
inconsistent with the RFP's statement that award was to be made to the firm
whose offer was most advantageous to the government, and that past and
present performance history and technical factors were significantly more
important than price. RFP at 48.

2. In this May 12 filing, the protester also challenged the Air Force's
issuance of a modification to its contract adding the termination for
convenience clause. Such an allegation is an issue of contract
administration over which this Office has no jurisdiction. Bid Protest
Regulations, 4 C.F.R. sect. 21.5(a) (2000). In addition, since the record shows
that the allegation was not raised until 15 days after the protester
received the modification, the matter is untimely. 4 C.F.R. sect. 21.2(a)(2).

3. The record also shows that the TET evaluation form asked for the
evaluation of several items not clearly required by the solicitation, such
as the matter of sick and annual leave. At a minimum, this suggests that the
solicitation might not have reflected the agency's minimum needs.

4. Since the flaws in the technical evaluation are more than sufficient to
conclude that the agency's decision to terminate the contract and resolicit
were appropriate, we need not reach the issues concerning the past
performance evaluation.

5. While Fisher-Cal believes the release of its total price was improper,
the disclosure of the total price of an awarded contract is generally
required. See Federal Acquisition Regulation sect.sect. 15.503(b)(1)(iv),
15.506(d)(2).