TITLE:  Rockwell Electronic Commerce Corporation--Modification of, B-286201.8, March 5, 2002
BNUMBER:  B-286201.8
DATE:  March 5, 2002
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Decision

Matter of: Rockwell Electronic Commerce Corporation--Modification of
Recommendation

File: B-286201.8

Date: March 5, 2002

Gerard F. Doyle, Esq., Doyle & Bachman, for the protester.

Seth Binstock, Esq., Social Security Administration, for the agency.

Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

General Accounting Office (GAO) modifies recommendation to include
reimbursement of protester's costs of preparing its proposal where agency
declines to implement GAO's recommendation to reopen discussions with the
protester, thus depriving protester of a meaningful opportunity to compete.

DECISION

Rockwell Electronic Commerce Corporation requests that we recommend that the
Social Security Administration (SSA) reimburse Rockwell for costs the firm
incurred in preparing its proposal in response to request for proposals
(RFP) No. SSA-RFP-00-3929.

SSA issued the solicitation on October 20, 1999 contemplating award of a
fixed-price contract for network-based call answering services. On August
23, 2000, SSA awarded the contract to MCI WorldCom Communications, Inc.
Rockwell protested that award, challenging in part the price evaluation. Our
decision, Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000,
2001 CPD para. 65, sustained the protest on the basis that MCI's proposal had
failed to identify, and the agency had failed to evaluate, FTS 2001 contract
costs as required by the RFP. As part of its allegation that Rockwell was
not prejudiced by the defective evaluation, the agency asserted that the
required level of administrative call services at issue was so insignificant
that any unevaluated FTS 2001 costs associated with MCI's proposed
performance would be insignificant to the price evaluation and source
selection decision. In response, Rockwell stated that, if the level of
services for administrative call traffic was insignificant, it had been
misled by the RFP as to that fact and, as requested by the RFP, had proposed
its best solution for performing those services at a significant incremental
additional cost that was reflected in SSA's evaluation. Rockwell further
stated that, had it known that the agency considered the level of required
services to be insignificant, it would have proposed a different solution at
a significantly lower price. We found that the RFP did not adequately
apprise offerors that the level of service for administrative call traffic
was insignificant and there was no evidence that the agency was aware of
this at the time of the evaluation, or at any time prior to Rockwell's
protest. Our decision recommended that the agency reopen the competition,
amend the solicitation as appropriate, request and evaluate revised
proposals, and make an award decision consistent with the terms of the RFP
and the decision. The agency subsequently requested reconsideration, which
we denied in Social Sec. Admin.; MCI WorldCom Communications, Inc.-Recon.,
B-286201.4, B-286201.5, Apr. 19, 2001, 2001 CPD para. 157.

The agency then implemented "corrective action" that essentially consisted
of conducting discussions with MCI only, requesting and receiving a revised
proposal from MCI only, and again selecting MCI's proposal for award.
Rockwell protested this corrective action as being inconsistent with
procurement law and regulation, and with our prior decisions. In Rockwell
Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD para. 162, we
sustained that protest on the bases that SSA had improperly conducted
discussions with, and considered a revised proposal from, only one offeror
whose proposal was in the competitive range, and that its corrective action
did not remedy the improprieties identified in our decision. We affirmed our
previous recommendation. SSA again requested reconsideration, which we
denied on September 20.

By letter of November 5, 2001, SSA notified our Office that the agency would
not follow our recommendations. Rockwell then requested that our Office
recommend that Rockwell be reimbursed the costs of preparing its proposal
under the RFP.

Where our Office sustains a protest, we may recommend that the protester be
reimbursed its costs of filing and pursuing a protest and preparing a
proposal. 4 C.F.R. sect. 21.8(d) (2001). Although we normally do not recommend
reimbursement of proposal preparation costs where a protester is given an
opportunity to compete under a corrected solicitation, we may recommend
reimbursement where changed circumstances render no longer relevant a
proposal that was previously submitted, where appropriate corrective action
may not be implemented, or where the agency unduly delays taking corrective
action. See COBRO Corp., B-287578.2, Oct. 15, 2001, 2001 CPD para. 181 at 8-9;
Occu-Health, Inc., B-270228.3, Apr. 3, 1996, 96-1 CPD para. 196 at 6; Aberdeen
Tech. Servs.--Modification of Recommendation, B-283727.3, Aug. 22, 2001,
2001 CPD para. 146 at 2. Here, SSA states that it will not follow our
recommendation to cure the improprieties in the competition. Since SSA
states that it will not take appropriate corrective action, Rockwell will
not have a meaningful opportunity to compete based on the proposal
submitted. Reimbursement of Rockwell's proposal preparation costs is thus
appropriate. [1]

We modify our recommendation to provide that Rockwell also be reimbursed the
costs of preparing its proposal under the RFP. 31 U.S.C. sect. 3554(c)(1),
4 C.F.R. sect. 21.8(d)(2). The protester should submit its claim for costs,
detailing and certifying the time expended and cost incurred, with the
contracting agency within 60 days after receipt of this decision. 4 C.F.R.
sect. 21.8(f)(1).

Anthony H. Gamboa

General Counsel

Notes

1. Together with this decision, we are advising the relevant congressional
committees of SSA's failure to implement our recommendation. See 31 U.S.C.
sect. 3554(e)(1) (1994 and Supp. IV 1998).