TITLE:  Consortium HSG Technischer Service GmbH and GeBe GebÃ¤ude- und, B-292699.4, February 24, 2004
BNUMBER:  B-292699.4
DATE:  February 24, 2004
**********************************************************************
Consortium HSG Technischer Service GmbH and GeBe GebACURude- und, B-292699.4,
February 24, 2004

   Decision
    
    

   Matter of: Consortium HSG Technischer Service GmbH and GeBe Geba:ude- und
                           Betriebstechnik GmbH Su:dwest Co., Management KG
    
File:            B-292699.4
    
Date:              February 24, 2004
    
Reed L. von Maur, Esq., for the protester.
Maj. Gregg A. Engler, Department of the Army, 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
    
Protest challenging agency*s corrective action, taken in response to an
earlier General Accounting Office protest, of reopening discussions and
requesting revised proposals, rather than reevaluating existing offers, is
denied where the record shows that the agency reasonably concluded that
discussions held before the previous award decision may not have been
adequate to advise one of the offerors of significant weaknesses in its
proposal.
DECISION
    
Consortium HSG Technischer Service GmbH and GeBe Geba:ud- und
Betriebstechnik GmbH Su:dwest Co., Management KG (HSG) protests the
corrective action taken by the Department of the Army in response to HSG*s
protest of the Army*s award of a contract to SKE GmbH/Siemens Geb a:
udemanagement GmbH & Co. OHG, Joint Venture (SKE) for preventive
maintenance and repairs of facilities and equipment used by the Defense
Commissary Agency in Germany, Belgium, and the Netherlands. Specifically,
the agency decided to reopen discussions, request revised proposals,
conduct new evaluations, make a new selection decision, and if the
decision is to award to HSG, terminate the award to SKE. HSG argues that
the agency*s corrective action should be limited to a reevaluation of the
proposals as submitted. It contends that reopening discussions and
requesting revised proposals unfairly favors SKE, and is an abuse of
agency discretion.
    

   We deny the protest.
    
As indicated above, the solicitation here, request for proposals (RFP) No.
DABN01-03-R-0010, contemplated award of a contract for preventive
maintenance and repairs at facilities used by the Defense Commissary
Agency in Germany, Belgium, and the Netherlands.  The award at issue was
for one of four geographic regions covered by the solicitation; this
region was referred to in the RFP as area IV.  Area IV includes not only a
portion of the regular commissary facilities identified in the RFP, but
also includes the Central Meat Processing Plant (CMPP), located at
Ramstein Air Base in Germany.  The CMPP is the principal meat-packing
plant for the U.S. forces in Europe, and contains highly sophisticated
refrigeration equipment, which must operate without interruption both to
preserve meat and to permit ongoing meat-packing activities. 
    
The RFP required offerors to submit certain specific types of information
with their proposals.  For example, with respect to the area of technical
staffing, and the requirement that the contractor repair and maintain
certain sophisticated refrigeration equipment in use at the locations
within area IV, offerors were required to have a refrigeration *meister*
on staff.[1]  To demonstrate the availability of required meisters,
offerors were instructed to append meister certificates to their technical
proposals.  The RFP included similarly detailed instructions and requests
for information in other areas.
    
The gravamen of HSG*s earlier protest was that the agency*s favorable
evaluation of SKE disregarded SKE*s failure to provide the required
documentation in several areas.  These areas included the solicitation*s
requirement, set forth above, of identifying a refrigeration meister for
area IV, as well as the requirements for providing evidence of necessary
licenses and permits required by the host nation of Germany, and providing
evidence of adequate capitalization to perform the work.  HSG also argued
that the agency*s evaluation of SKE*s past performance was unreasonable.
    
After all pleadings on both the initial and supplemental protests were
submitted, and after our Office convened two conference calls to clarify
the record about the content of the proposals, oral presentations, and
subsequent discussions, the agency decided to take corrective action in
response to HSG*s protest.  As explained during the course of the current
protest, the agency reached its decision because *the Protester made
several key points that the Army could not effectively refute.*  Agency
Report, Dec. 17, 2003, at 4. 
    
HSG*s challenge to the proposed corrective action is that the agency
should only reevaluate proposals and make a new selection decision; it
asserts that reopening discussions and requesting revised proposals
improperly will allow SKE to address  shortcomings in its proposal.  The
agency answers that responding to the protest revealed to it *that the
awardee*s proposal may have significant weaknesses that disqualify it from
award.*  Id. at 7. Given this situation, the agency points out that it was
required to *notify each offeror in the competitive range of deficiencies,
significant weaknesses, and other aspects of its proposal that the offeror
could alter or explain to materially enhance its potential for award.* 
Id.   In reply, HSG urges our Office to reject these concerns because, in
HSG*s view, the discussions held with SKE during the course of the
procurement were sufficient to put SKE on notice of any of the problems
with its proposal. 
    
Contracting officials in negotiated procurements have broad discretion to
take corrective action where the agency determines that such action is
necessary to ensure fair and impartial competition.  Patriot Contract
Servs. LLC et al., B‑278276.11 et al., Sept. 22, 1998, 98-2 CPD
P: 77 at 4.  We will not object to the specific proposed corrective
action, so long as it is appropriate to remedy the concern that caused the
agency to take corrective action.  Networks Elec. Corp., B‑290666.3,
Sept. 30, 2002, 2002 CPD P: 173 at 3.  Where an agency has reasonable
concerns that there were errors in the procurement, corrective action may
appropriately include reopening discussions and requesting revised
proposals before reevaluating.  Main Bldg. Maint., Inc., B-279191.3, Aug.
5, 1998, 98-2 CPD P: 47 at 3.
    
In our view, the corrective action here is well within the broad
discretion afforded to contracting agencies in these circumstances.  As
noted above, HSG*s earlier protest alleged that the SKE proposal did not
include certain information required by the RFP.  During the course of
defending against the protest, the agency came to the conclusion that
there were areas where HSG*s assertions about significant shortfalls in
SKE*s proposal had merit.  Since discussions were held in this
procurement, the agency was required to advise offerors of significant
weaknesses and deficiencies in their proposals.  Federal Acquisition
Regulation S: 15.306(d)(3).  Given this requirement, together with the
agency*s concern that it may not have adequately advised SKE of these
weaknesses, we think the agency reasonably decided to reopen discussions
here.
    
We also note that HSG*s own arguments--both in the earlier protest and in
the instant proceeding--support the agency*s assessment that the
weaknesses in SKE*s proposal were significant and should have been raised
during discussions.  For example, during the earlier protest, HSG argued
that SKE*s proposal should have been disqualified from further
consideration for failing to meet minimum requirements of the RFP.  Supp.
Protest, Sept. 25, 2003, at 2, 3.  Even now, HSG complains that the agency
should not allow SKE *to correct its at-best minimum submission.* 
Protester*s Comments on Agency*s Response to the Corrective Action
Challenge, Dec. 29, 2003, at 6.  Given the protester*s consistent
assessment of SKE*s proposal during these proceedings, we see no basis for
its current assertion that the agency is acting unreasonably in concluding
that it must ensure that the significant weaknesses in SKE*s proposal were
pointed out during discussions.
    
With respect to HSG*s reply that the earlier discussions were sufficient
to lead SKE into the areas of its proposal that needed improvement, we
again see nothing unreasonable in the agency*s determination.  Although
HSG points to places in the record in the earlier protest--which,
incidentally, was not about the adequacy of discussions with SKE--where it
appears the oral presentation and subsequent discussions broached areas
somewhat related to the issues HSG challenged in its earlier protest, we
see no basis to find unreasonable the agency*s view that more precise
discussions are needed. 
    
In sum, since the agency reasonably has concluded that its prior
discussions may not have been adequate, we think its approach to
structuring its corrective action here is unobjectionable. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1]Under the German labor system, a meister is a highly trained tradesman
who has been certified by the Handwerkskammer (Chamber of Trade) in the
geographic area in which the tradesman works.  Protester*s Comments on
Supp. Agency Rep., Oct. 17, 2003, attach. 1, at 1; see also Vereinigte
Geba:udereinigungsgesellschaft,
B-280805, Nov.  23, 1998, 98-2 CPD P: 117 at 2 n.2.