TITLE:  Norvar Health Services--Protest and Reconsideration, B-286253.2; B-286253.3; B-286253.4, December 8, 2000
BNUMBER:  B-286253.2; B-286253.3; B-286253.4
DATE:  December 8, 2000
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Norvar Health Services--Protest and Reconsideration, B-286253.2; B-286253.3;
B-286253.4, December 8, 2000

Decision

Matter of: Norvar Health Services--Protest and Reconsideration

File: B-286253.2; B-286253.3; B-286253.4

Date: December 8, 2000

Robert M. Cambridge, Esq., for the protester.

John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Jennifer A. Mahar, Esq.,
and Nils R. Kessler, Esq., Smith, Pachter, McWhorter & D'Ambrosio, for
Hunter Medical, Inc., an intervenor.

Charles A. Walden, Esq., and James E. Hicks, Esq., Drug Enforcement
Administration, for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protester's contention that the agency is acting improperly in conducting
a reopened competition by permitting submission of revised prices despite
the release of the protester's award price in the earlier competition during
postaward debriefings of unsuccessful offerors is denied where the
disclosure was made pursuant to the debriefing requirements in the Federal
Acquisition Regulation (FAR); disclosure of an awardee's price and rating
(or ranking) under these circumstances does not create an improper
competitive advantage.

2. Protest alleging that the agency violated the guidelines set forth at FAR
sect. 15.507, regarding competitions reopened in response to a protest, is
denied where the agency concedes that it failed to advise the protester of
the information regarding its proposal provided to unsuccessful offerors
during their postaward debriefings, but the protester is unable to
demonstrate how it was prejudiced by not receiving this information given
the significant revisions to the solicitation between the initial and
reopened competitions.

3. Request for reconsideration of issues dismissed during development of a
protest on the basis that the protester is not an interested party to raise
them is denied where the reconsideration request raises arguments that the
protester could have made, but did not, in its initial protest, and where
those arguments are now untimely.

DECISION

Norvar Health Services protests a decision by the Drug Enforcement
Administration (DEA) to terminate a contract initially awarded to Norvar,
and to reopen discussions with, and request final revised proposals from,
Norvar and all other offerors in the competitive range. In a supplemental
protest, Norvar claims that the agency failed to follow the guidelines
applicable to reopened procurements set forth at Federal Acquisition
Regulation (FAR) sect. 15.507 by failing to provide Norvar with the information
about its proposal provided to Hunter during its earlier postaward
debriefing. In addition, Norvar requests reconsideration of a decision by
our Office dismissing several, but not all, of the issues raised in Norvar's
initial protest.

We deny the protest and the request for reconsideration.

BACKGROUND

The underlying solicitation here, request for proposals (RFP) No.
DEA-00-R-0002, anticipated award of a fixed-price contract for the
facilities, staff, materials, and equipment necessary to provide
non-personal healthcare services at the DEA headquarters facility in
Arlington, Virginia, as well as at field offices in Newark, New Jersey, and
New York, New York. On September 7, 2000, DEA awarded the contract to Norvar
at a price of $6.3 million for the base period and four 12-month options.

Five days later, on September 12, a disappointed offeror, Hunter Medical,
Inc., filed a protest with our Office alleging that the award was improper.
On September 28, DEA advised our Office, Norvar and Hunter, that it would be
canceling the award to Norvar and reopening the procurement. DEA explained
that it was taking this action because it had "identified an anomaly in the
acquisition process other than those arguments put forward in the protest
filed by Hunter Medical." DEA Corrective Action Letter, Sept. 28, 2000. The
letter also advised that, in the interim, DEA would meet its ongoing needs
through an extension of Hunter's incumbent contract. As a result, our Office
dismissed Hunter's protest as academic. Hunter Med., Inc., B-286253, Sept.
28, 2000.

By letter dated September 29, Norvar filed an agency-level protest with DEA
challenging the decision to reopen the procurement, terminate Norvar's
contract, and extend Hunter's contract in the interim. In its letter denying
Norvar's protest, DEA provided a more detailed explanation of its decision
to reopen the procurement, as set forth below:

As I stated to you and to counsel who previously represented [Norvar], DEA
elected to take corrective action after a review determined that your
client's proposal was noncompliant with the terms of the solicitation.
Specifically, as I informed you, your client failed to propose a qualified
individual for the position of Chief Nurse as required in the statement of
work. . . Thus, it was determined that DEA had made award to your client on
the basis of a noncompliant proposal.

DEA Letter Denying Norvar's Agency-Level Protest, Oct. 2, 2000, at 3. In
addition, DEA's letter advised Norvar that its proposal, as written, could
not form the basis for a valid contract award. Id.

On October 6, Norvar filed this protest challenging DEA's decision to
terminate its contract (rather than suspend it in the face of a protest). In
its protest, Norvar argued that none of the improprieties alleged by
Hunter's protest required reopening the competition and allowing submission
of revised prices. Norvar did not, however, address the agency's
determination that its proposal was ineligible for award.

On October 24, our Office concluded that Norvar was not an interested party
to pursue a protest of the agency's decision to terminate its contract and
reopen the competition. Norvar Health Servs., B-286253.2, Oct. 24, 2000, at
2-3. Our decision explained that since the agency advised that it was
reopening the procurement because it had concluded that Norvar's proposal
could not properly be accepted for award, and since Norvar failed to
challenge this assessment, Norvar lacked the direct economic interest
necessary to pursue a challenge of the termination decision. Id. at 2. On
the other hand, our October 24 decision expressly acknowledged that one
issue in Norvar's protest remained unresolved, and should be addressed by
the parties--i.e., whether in reopening the competition the agency was
abusing its discretion by allowing offerors to reprice their proposals,
given the earlier disclosure of Norvar's price. Id. at 3.

On October 30, Norvar supplemented its protest with a contention that the
agency was also violating the requirements of FAR sect. 15.507 by refusing to
advise Norvar of the debriefing information provided to Hunter about
Norvar's initially successful proposal. In addition, on November 3, Norvar
asked for reconsideration of our October 24 decision dismissing portions of
its initial protest. In this filing, Norvar argued that our decision wrongly
dismissed its contentions that the DEA decision to terminate Norvar's
contract (rather than suspend it in the face of Hunter's protest) was
improper, and that DEA's extension of Hunter's existing contract was
improper. [1]

PROTEST ISSUES

As set forth above, Norvar's protest raises two issues: (1) whether the
agency abused its discretion by permitting submission of revised prices
despite the release of Norvar's initial award price to unsuccessful offerors
during their postaward debriefings on the earlier award decision; and (2)
whether the agency violated the requirements of FAR sect. 15.507 regarding
reopened competitions. In Norvar's view, allowing offerors to reprice their
proposals with the knowledge of Norvar's price places it at a competitive
disadvantage during the reprocurement, as does the agency's failure to
provide Norvar with the information required by FAR sect. 15.507.

With respect to the first issue, DEA argues that it was not only reasonable,
but necessary, for the agency to permit offerors to submit revised prices in
the reopened competition. In this regard, DEA points out that there were a
total of 80 additions to the requirements established in the statement of
work, changes to two of the evaluation subfactors, and a newly-issued wage
determination applicable to the personnel covered by this contract. In
addition, DEA contends that the solicitation revisions were sufficiently
significant that knowledge of Norvar's total initial price was of little use
to the offerors responding to the reopened competition. With respect to the
second issue (regarding the guidelines at FAR sect. 15.507(b) for reopened
procurements), DEA concedes that it did not follow the FAR guidelines. In
this area, however, DEA argues that Norvar was not prejudiced by its error.

Norvar's complaints highlight a tension between the information provided
during postaward debriefings, and subsequent competitions resulting from a
decision to reopen a procurement or to conduct a new competition. This
tension arises because the same information that makes an unsuccessful
offeror's postaward debriefing meaningful--such as, for example, the
successful offeror's price and its technical score or ranking--could be
considered to provide a competitive advantage in any subsequent
recompetition or reopened competition held soon after the initial
competition.

The FAR guidelines for postaward debriefings of unsuccessful offerors
specifically enumerate six types of information that, at a minimum, must be
made available in every postaward debriefing. FAR sect. 15.506(d). Of relevance
here, the required information includes "[t]he overall evaluated cost or
price (including unit prices) and technical rating, if applicable, of the
successful offeror and the debriefed offeror . . . ." FAR sect. 15.506(d)(2).
While we recognize that possession of this information could provide a
competitive advantage under some circumstances, an agency is not required to
equalize such an advantage unless it results from preferential treatment or
other improper action by the government. Federal Auction Serv. Corp., et
al., B-229917.4 et al., June 10, 1988, 88-1 CPD para. 553 at 3, recon. denied,
B-229917.8, June 22, 1988, 88-1 CPD para. 597 at 2. We have held that where
later events require the reopening of a procurement, there is nothing
improper about any competitive advantage provided by the disclosure of an
awardee's price and rating (or ranking), where that disclosure has been made
pursuant to the FAR's debriefing requirements. NavCom Defense Elec., Inc.,
B-276163.3, Oct. 31, 1997, 97-2 CPD para. 126 at 4; Sherikon, Inc., B-250152.4,
Feb. 22, 1993, 93-1 CPD para. 188 at 4; Federal Auction Serv. Corp., et al.,
supra. Accordingly, we deny Norvar's contention that the DEA abused its
discretion by not taking steps to ameliorate any advantage given the other
offerors by their knowledge of Norvar's earlier price.

In any event, we agree with the agency that knowledge of Norvar's price
under the initial solicitation provides little benefit to any other offeror
in this procurement. The agency points out, and Norvar does not deny, that
there were some 80 additions to the requirements established in the
statement of work, changes to two of the evaluation subfactors, and a
newly-issued wage determination applicable to the personnel covered by this
contract. Under these circumstances, we conclude that the agency reasonably
concluded that knowledge of Norvar's earlier price was of little
significance in light of the solicitation changes.

We reach a similar conclusion with respect to Norvar's contentions regarding
the FAR's guidelines on reopened procurements. In this regard, Norvar
correctly notes that the FAR requires that if, as the result of a protest,
an agency issues a new solicitation, or issues a request for revised
proposals, the contracting officer shall provide the following information
to all prospective offerors (in the case of a new solicitation), or to all
offerors that were in the competitive range and are requested to submit
revised proposals (in the case of a reopened procurement):

  1. Information provided to unsuccessful offerors in any debriefings
     conducted on the original award regarding the successful offeror's
     proposal; and
  2. Other nonproprietary information that would have been provided to the
     original offerors.

FAR sect. 15.507(c). DEA concedes that it failed to advise Norvar of the
information disclosed to Hunter in its debriefing. Specifically, Norvar was
not advised that Hunter was told Norvar's total price, its total point score
(88 on a 100-point scale), or that Norvar and Hunter were the only two
offerors in the competitive range. DEA Debriefing Letter to Hunter, Sept. 8,
2000, at 1.

Despite DEA's failure to comply with the requirements identified in the FAR,
our Office will not sustain a protest unless there is a reasonable
possibility of prejudice, that is, unless the protester demonstrates that,
but for the agency's actions, it would have had a substantial chance of
receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54
at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
1996). For the same reasons that lead us to conclude that the agency did not
abuse its discretion by not taking steps to ameliorate any advantage given
by knowledge of Norvar's earlier price, we conclude that, under the
circumstances here, Norvar was not prejudiced by not receiving this
information prior to the time that it submitted its second proposal.

As discussed above, when the agency reopened this competition it made
substantial changes to the statement of work, changes to two evaluation
subfactors, and incorporated a revised wage determination. Of the three
pieces of information Norvar claims the agency was required to disclose,
Norvar clearly knew its own price, and should have known that its price was
disclosed to unsuccessful offerors, since disclosure of an awardee's price
is mandated by FAR sect. 15.506(d)(2). While Norvar did not know its total point
score, or the fact that it was one of two competitive range offerors, [2] we
fail to see how it was prejudiced given the significant revisions made to
the solicitation. In short, Norvar cannot (and did not) claim any meaningful
prejudice arising from preparing a response to a significantly revised
solicitation without knowing its total point score under the earlier
competition, or without being expressly advised that there was only one
other offeror in the competitive range. [3]

RECONSIDERATION ISSUES

In its request for reconsideration of the issues that were dismissed at the
start of this process, Norvar argues that our Office wrongly concluded that
it was not an interested party to challenge DEA's decision to terminate its
contract (rather than suspend it in the face of Hunter's protest), or to
challenge the extension of Hunter's existing contract. In this regard,
Norvar argues that its general challenge to the award should have been
sufficient to establish its direct economic interest in the outcome. In
support of its contention, Norvar now provides--for the first time--a
substantive response to the agency's conclusions regarding the acceptability
of its proposal.

As set forth above, Norvar's initial challenge to the agency's corrective
action was dismissed because it provided no basis to disturb the conclusion
that the company's proposal was ineligible for award. Thus, we concluded
that Norvar could not be considered an interested party. In its
reconsideration request, Norvar now disputes DEA's conclusion that its
proposal was unacceptable, but its attempt comes too late for consideration
by our Office, as Norvar was required to raise these issues not more than 10
days after the basis for its protest was known. 4 C.F.R. sect. 21.2(a)(2)
(2000). Since DEA advised Norvar of the problems with its proposal in a
letter dated October 2, Norvar's response--first filed in its
reconsideration request over a month after receipt of the agency's
letter--is untimely.

Moreover, our Regulations require that a protester's request for
reconsideration include a detailed statement of the factual and legal
grounds upon which reversal or modification is deemed warranted, specifying
any errors of law or fact or information not previously considered. 4 C.F.R.
sect. 21.14. In our view, information not previously considered means
information that was not available to the protester when the initial protest
was filed--as opposed to information that could have been presented, but was
not. Global Crane Inst.--Recon., B-218120.2, May 28, 1985, 85-1 CPD para. 606 at
1-2. Here, since Norvar could have presented its response to the agency's
rejection of its proposal in its initial protest, but did not do so, it is
not entitled to reconsideration of the matter based on its untimely rebuttal
of the DEA's conclusions. PDC Machines, Inc.--Recon., B-244724.2, Aug. 7,
1991, 91-2 CPD para. 141 at 2.

Finally, Norvar asks that we reconsider its contention that the agency's
decision to extend Hunter's existing contract while the reprocurement is
ongoing is improper and somehow violates the automatic stay provisions of
the Competition in Contracting Act (CICA).

Norvar's allegation regarding the automatic stay provisions of CICA is based
on a flawed understanding of that statute. These provisions operate to
preserve the status quo for a protester while its protest contentions are
being resolved. Here, the protester at the time the agency decided to take
corrective action was Hunter, not Norvar. Hunter, in essence, received the
relief it sought when the agency decided not to proceed with Norvar's award.
Now that Norvar is the protester, the agency is similarly barred from
proceeding with award. These provisions, however, in no way bar an agency
from deciding to back away from an award decision and essentially "redo" the
procurement. Norvar's assertion to the contrary has no merit, and we will
not consider this matter further.

The protest and the request for reconsideration are denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Norvar's request for reconsideration also argued that our Office
improperly dismissed its contention that the agency violated FAR sect. 15.507 by
not providing Norvar the information about its initially successful proposal
that was provided to the unsuccessful offerors during their debriefings.
This portion of Norvar's reconsideration request is based on a
misunderstanding. Our Office did not consider this issue to be raised by
Norvar's initial protest, and thus did not dismiss it. Instead, this issue
was the subject of Norvar's October 30 supplemental protest (filed some
6 days after our dismissal decision), and is addressed in this decision.

2. We take no position on whether knowledge of the size of the competitive
range falls within the scope of FAR sect. 15.507(c), as we conclude that even if
it does, the protester was not prejudiced, under the circumstances here, by
not having this information.

3. For the record, we note that, despite our long-standing requirement that
protesters demonstrate prejudice, Norvar refuses to "speculate on all the
various ways that the uncertainty generated by the agency action impacted on
its bid decisions . . . ." Norvar Comments at 3.