TITLE:  Ridoc Enterprises, Inc./Myers Investigative & Security Services, Inc., B-293045.2, July 26, 2004
BNUMBER:  B-293045.2
DATE:  July 26, 2004
**********************************************************************
   Decision

   Matter of:   Ridoc Enterprises, Inc./Myers Investigative & Security
Services, Inc.

   File:            B-293045.2

   Date:              July 26, 2004

   Lawrence J. Sklute, Esq., and Nolan Sklute, Esq., Sklute & Associates, for
the protester.

   Anthony G. Beyer, Esq., and Kenneth A. Redden, Esq., Environmental
Protection Agency, for the agency.

   Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's implementation of voluntary corrective action in
response to an earlier protest filed with the Government Accountability
Office is sustained where the agency failed to conduct discussions with
all of the offerors whose proposals the contracting officer determined to
be in the competitive range.

   DECISION

   Ridoc Enterprises, Inc./Myers Investigative & Security Services, Inc.
protests the Environmental Protection Agency's (EPA) award of a contract
to Eagle Technologies, Inc. for security guard services at EPA facilities
in North Carolina under request for proposals (RFP) No. PR-NC-03-10224. 
The protester contends that the agency misevaluated Ridoc's proposal and
improperly conducted discussions with Eagle without conducting discussions
with Ridoc.

   We sustain the protest.

   The RFP, issued on April 28, 2003, provided for the award of a fixed-price
contract for a base year with four 1-year option periods.  The
solicitation provided for award to the offeror whose proposal was the most
advantageous to the government considering price and other factors.  The
RFP further provided that all of the evaluation factors, other than price,
when combined, were significantly more important than price.  RFP S M.4.

   Seven proposals were received in response to the RFP.  A technical
evaluation panel (TEP) reviewed and scored the offerors' technical
proposals.  Based on the TEP's evaluation, the EPA established a
competitive range, which consisted of the proposals of three offerors,
including Ridoc and Eagle.  The EPA conducted discussions with these three
offerors.  The EPA subsequently requested and received revised proposals
from the three offerors.  After the revised proposals were evaluated, the
TEP increased Eagle's score from [DELETED] points to [DELETED] points;
Ridoc's score decreased from its original score of [DELETED] points to
[DELETED] points, and the third offeror's (Offeror A) score increased from
[DELETED] points to [DELETED] points.  The revised price proposals were as
follows:  Eagle--[DELETED]; Offeror A--[DELETED]; and Ridoc--[DELETED]. 
Agency Report (AR), Tab bb, Source Selection Document. 

   The EPA concluded that Ridoc's revised technical proposal was
unacceptable.  More specifically, the EPA found that Ridoc's revised
proposal did not fully address the weaknesses identified during
discussions and contained inconsistencies, incomplete information, and
statements that reflected a lack of understanding of contract
requirements.  The contracting officer concluded that only Eagle's
proposal should remain in the competitive range.  Id.

   The EPA had further questions concerning Eagle's revised proposal and
decided to conduct another round of discussions with Eagle.  After these
discussions, which addressed both price and technical issues, the EPA
requested a second revised proposal from Eagle, as the only offeror whose
proposal was in the competitive range.  AR, Tab X, Request for Revised
Proposal.  In its second revised proposal, Eagle addressed a number of
technical issues and reduced its price to [DELETED].  Based on its second
revised price proposal, Eagle was now the low-priced offeror
(as compared to Offeror A and Ridoc, whose prices are set forth above). 
The EPA subsequently awarded the contract to Eagle on September 26. 

   After an October 1, written debriefing, Ridoc filed a protest with our
Office objecting to the award and to the agency's evaluation of
proposals.  By letter dated NovemberA 10, the EPA requested that our
Office dismiss the protest because the agency had decided to take
corrective action.  The agency announced that it would reevaluate the
revised proposals for the purpose of addressing the inconsistencies in the
evaluation identified by the protester.  AR, Tab hh, Corrective Action
Letter. 
The agency further stated that upon completion of the reevaluation, the
agency's source selection official would redetermine the correctness of
having removed the proposals of Offeror A and Ridoc from the competitive
range, and if the reevaluation warranted, the agency's source selection
official would conduct additional discussions with all offerors whose
proposals remained in the competitive range.  Id.  Our Office subsequently
dismissed the protest on November 14. 

   The EPA convened a new TEP, which reevaluated the revised proposals,
including Eagle's second revised proposal.  After the new TEP's
reevaluation, the technical point scores were as follows: 
Eagle--[DELETED] points; Offeror A--[DELETED] points; and Ridoc--[DELETED]
points.

   Based on the reevaluation, the contracting officer determined that all
three offerors' proposals should be included in the competitive range. 
AR, Tab nn, Source Selection Redetermination.  The contracting officer
also determined that discussions were not necessary since Eagle's proposal
received the highest technical score and offered the lowest price.  The
contracting officer concluded that Eagle's proposal remained the best
value, and she upheld the award to Eagle.  Id.  Ridoc received a written
debriefing on April 6, 2004, and filed this protest with our Office on
April 16.

   The protester argues that the EPA acted improperly by not reopening
discussions with Ridoc after the EPA determined that Ridoc's proposal was
technically acceptable and was within the competitive range.  Ridoc argues
that the EPA improperly conducted an additional round of discussions
solely with Eagle, which allowed Eagle to materially revise its proposal
in terms of addressing technical issues and lowering its price.  We agree
with Ridoc and conclude that the EPA was obligated in these circumstances
to conduct a new round of discussions with all of the offerors whose
proposals were included in the competitive range.

   The Federal Acquisition Regulation (FAR) provides that, when an agency
conducts discussions with one offeror, it must conduct discussions with
all offerors whose proposals are determined to be in the competitive
range, and it must then allow them to submit revised proposals.  FAR
SSA 15.306(d)(1), 15.307(b); World Travel Serv., Ba**284155.3, Mar. 26,
2001, 2001 CPD P 68 at 5-6.  The EPA's corrective action here--a complete
reevaluation of proposals by a new TEP--led to a determination that all
three offerors' proposals should have been included in the competitive
range.  If the agency had not conducted further discussions with any
offeror, the agency's corrective action might have been adequate.  As
explained above, however, the agency, based on the earlier determination
that Eagle's proposal was the only one in the competition range, had
conducted an additional round of discussions solely with that firm.  Once
the agency decided to revise the competitive range determination by
including two more proposals, the fact that the additional round of
discussions had been limited to Eagle had to be addressed as part of the
agency's corrective action.  Specifically, after the EPA determined that
the proposals of Ridoc and Offeror A should have been included in the
competitive range, the agency's failure to conduct another round of
discussions with those firms and to afford them the same opportunity to
submit a second revised proposal as had been afforded to Eagle was
inconsistent with the government's obligation to give all offerors whose
proposals were in the competitive range the same opportunity to learn
about the government's concerns regarding their proposals and to revise
those proposals.  See Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30,
2001, 2001 CPD P 162 at 5.

   The agency argues that Ridoc was not prejudiced by the agency's actions. 
Agency's Final Brief at 7.  We disagree.  The agency's earlier
determination that only Eagle's proposal should be included in the
competitive range was based on the initial TEP's evaluation, which was
superseded by the corrective action.  The additional round of discussions
that, by virtue of that superseded evaluation, was conducted only with
Eagle, provided that firm information about the agency's assessment of the
firm's proposal and the opportunity to reduce its price and to revise its
technical proposal.  The agency's no-prejudice argument assumes that Eagle
did not benefit from the additional discussions and opportunity to further
revise its proposal, or that Ridoc would not have benefited from a similar
opportunity, and we see no basis for that assumption.  On the contrary: 
as explained above, Eagle did, in fact, lower its price significantly
after the additional round of discussions, thereby displacing Ridoc as the
low-priced offeror.  Furthermore, the second round of discussions
conducted with Eagle was not confined to price issues, and it led Eagle to
revise and improve its technical proposal.[1]  We therefore find that the
EPA's additional discussions with Eagle enabled that firm to significantly
improve its price and, arguably, to improve its technical standing in the
subsequent reevaluation.  In our view, this establishes that the agency's
conduct of those discussions only with Eagle prejudiced Ridoc. 

   For these reasons, the protest is sustained.

   We recommend that the EPA reopen the competition and conduct appropriate
discussions with all offerors, including Ridoc, whose proposals were
included in the competitive range, request revised proposals from these
offerors, and make a new source selection. [2]  In addition, we recommend
that the protester be reimbursed its costs of filing and pursuing the
protest, including attorneys' fees.  4 C.F.R. SA 21.8(d)(1) (2004).  The
protester should submit its certified claim, detailing the time expended
and costs incurred, directly to the contracting agency within 60 days of
receiving this decision.  4 C.F.R. S 21.8(f)(1).

   Anthony H. Gamboa

   General Counsel 

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

   [1] For example, Eagle originally identified [DELETED]but, in a
second-round discussion question, the EPA noted [DELETED].  Eagle [Second
Round] Discussion Questions, Sept. 10, 2003.  In its second revised
proposal, Eagle [DELETED].  Eagle Revised Proposal, Sept. 10, 2003.

   [2] Ridoc also raises numerous allegations concerning the EPA's alleged
misevaluation of its technical proposal.  In light of our recommendation
to reopen the competition, we need not address these issues.