TITLE:   The Jones/Hill Joint Venture--Reconsideration, B-286194.2, December 8, 2000
BNUMBER:  B-286194.2
DATE:  December 8, 2000
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The Jones/Hill Joint Venture--Reconsideration, B-286194.2, December 8, 2000

Decision

Matter of: The Jones/Hill Joint Venture--Reconsideration

File: B-286194.2

Date: December 8, 2000

William A. Roberts, III, Esq., Phillip H. Harrington, Esq., William S.
Lieth, Esq., and Janet L. Eichers, Esq., Wiley, Rein & Fielding, for the
requestor.

John L. Formica, Esq., and Jerold D. Cohen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging agency's decision, pursuant to Office of Management and
Budget Circular No. A-76, that it would be more economical to perform
services in-house, rather than contract with a private-sector firm, was
properly dismissed as academic where the corrective action proposed by the
agency, while not addressing all of the issues raised by the protester, may
affect the cost comparison and the attendant determination whether to
perform the requirements in-house or by contract.

DECISION

The Jones/Hill Joint Venture requests reconsideration of our decision in The
Jones/Hill Joint Venture, B-286194, Nov. 22, 2000, dismissing as academic
Jones/Hill's protest of the Department of the Navy's decision, pursuant to
Office of Management and Budget (OMB) Circular No. A-76, that it would be
more economical to perform base operations and support services in-house at
the Naval Air Station Lemoore (NASL), California, rather than contract for
these services with Jones/Hill under solicitation No. N62474-98-R-2069.

The request for reconsideration in denied.

In its protest, Jones/Hill challenged the adequacy of the agency's
comparison of the performance reflected in the Most Efficient
Organization/Management Study (MEO/MS) with the performance reflected in
Jones/Hill's proposal, and the reasonableness of the agency's determination
that after certain adjustments to the MEO/MS, it and Jones/Hill's proposal
were equal in terms of level of performance and performance quality.
Jones/Hill also contended that the agency improperly failed to inform the
offerors of certain changes to the agency's requirements, as well as the
existence and terms of an interservice support agreement between the Navy
and the General Services Administration (GSA), and a memorandum of agreement
between the NASL and GSA, which, according to the protester, adversely
affected its competitive position.

Following an alternative dispute resolution session that our Office
conducted with the parties, the agency, by letter dated November 16, 2000,
informed our Office that it "intends to take corrective measures" in
response to a number of contentions raised by the protester regarding the
propriety of the agency's comparison of the performance reflected in the
MEO/MS with the performance reflected in Jones/Hill's proposal, and the
ultimate determination that, after certain adjustments, the MEO/MS and
Jones/Hill's proposal were equal in terms of performance. Specifically, the
agency stated that it would "examine the 68 ‘strengths'" identified in
Jones/Hill's proposal during the evaluation process, and "compare those
‘strengths' that predict a higher quality performance . . . to the
MEO," with the MEO/MS being "adjusted as necessary." The agency explained
that as part of these "corrective measures" it would review the Jones/Hill
proposal and the MEO/MS to determine "whether different approaches offer a
comparable level of performance," and would also review the MEO/MS to
determine whether or where it proposes to perform work by non-MEO personnel,
with the MEO/MS being adjusted as appropriate.

It was apparent, and the parties do not argue otherwise, that the corrective
measures to be taken by the agency may result in some adjustments being made
to the MEO/MS, which in turn would affect the cost comparison between the
MEO/MS and Jones/Hill's proposal. As such, it was unclear whether the agency
would determine to perform the requirements in-house, or by contract with
Jones/Hill. Accordingly, we found that the corrective measures, while not
addressing all of the issues raised by Jones/Hill in its protest, rendered
the protest academic. Since it is not our practice to consider academic
protests, we dismissed the protest. In doing so, we specifically noted that
should the agency again determine to perform the requirements in-house, and
should Jones/Hill decide to protest that determination, its protest may
include, among other things, the issues raised in this protest that, in the
protester's view, were not adequately addressed by the agency's corrective
measures.

In its request for reconsideration, Jones/Hill argues that our Office erred
in dismissing the protest because the agency's proposed corrective measures
do not address all the issues raised by Jones/Hill in its protest.
Jones/Hill contends that because of this, the agency's proposed corrective
measures are "inadequate" and our dismissal of its protest as academic was
"premature." Reconsideration Request at 8. In support of its request,
Jones/Hill points to a number of decisions issued by our Office that
purportedly stand for the proposition that "simply proposing corrective
action is not enough--the corrective action must resolve the issues raised
by the protester." Id. at 9.

Our Office may dismiss protests as academic in any number of circumstances.
For example, we may dismiss a protest as academic where the corrective
action proposed by the agency addresses all of the issues raised by the
protester, Elec. Assocs., Inc., B-240666.2, Oct. 11, 1991, 91-2 CPD para. 327 at
2, or where the agency cancels the underlying solicitation and addresses
none of the issues raised. PBM Constr.--Recon., B-242221.3, B-242221.4, Aug.
12, 1991, 91-2 CPD para. 181. We may also dismiss a protest as academic where
the corrective action, while not addressing the issues raised by the
protester, appears appropriate based upon the particular circumstances of
the acquisition and protest. S. Tech., Inc.--Recon. and Costs, B-278030.3,
April 19, 1998, 98-1 CPD para. 125 (protest challenging the terms of a
solicitation was properly dismissed as academic where the agency, while
conceding that the terms of the solicitation may have misled the protester,
demonstrated that a recompetition was impracticable and had taken
appropriate corrective action by agreeing to reimburse the protester for its
proposal preparation costs).

As explained in our prior decision and referenced above, even though the
Navy's proposed corrective measures may not address all of the issues raised
by Jones/Hill in its protest, the measures may affect the cost comparison
and the attendant determination whether to perform the requirements in-house
or by contract with Jones/Hill. Although we appreciate Jones/Hill's desire
that our Office issue a decision directly resolving all of the issues raised
in its protest, we simply will not proceed to consider matters that, under
the circumstances, may well make no difference in the procurement's outcome.

The request for reconsideration is denied.

Anthony H. Gamboa
Acting General Counsel