TITLE:  SYMVIONICS, Inc., B-293824.2, October 8, 2004
BNUMBER:  B-293824.2
DATE:  October 8, 2004
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   Decision

   Matter of:   SYMVIONICS, Inc.

   File:            B-293824.2

   Date:              October 8, 2004

   Charlotte Rothenberg Rosen, Esq., Dickstein, Shapiro, Morin & Oshinsky,
for the protester.

   Damon A. Martin, Esq., Department of the Navy, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest is sustained where the agency provided material information
concerning solicitation requirements to a single competitor in a
post-award debriefing and the agency subsequently reopened the competition
without providing the other competitors with the same information.

   2.  Agency's decision not to release prices of all competitors in reopened
competition after the protester's prices had been disclosed was not
improper since the disclosures were made pursuant to the debriefing
requirements set forth in the Federal Acquisition Regulation; disclosure
of an awardee's prices under these circumstances did not create an
improper competitive advantage.

   DECISION

   SYMVIONICS, Inc. protests the actions of the Department of the Navy, Naval
Facilities Engineering Command, in connection with request for proposals
(RFP) No. N68711a**03a**Ra**2206 for various military family housing
maintenance and repair services.  SYMVIONICS challenges the agency's
conduct of a reopened competition, arguing that the agency was required to
provide all offerors with information concerning the RFP's requirements
that was released to a single offeror during an earlier post-award
debriefing.  SYMVIONICS further contends that the agency is required to
release all of the competitors' earlier prices in the reopened competition
because its price information had been disclosed in an earlier post-award
debriefing.

   We sustain the protest in part and deny it in part.

   On July 16, 2003, the agency issued the subject solicitation for military
family housing maintenance and repair services at the Naval Weapons
Station, Seal Beach, California. The RFP anticipated the award of a
combination fixed-price, indefinitea**delivery/indefinite-quantity (ID/IQ)
contract for a base year and two 1-year options to the firm submitting the
lowest cost, technically acceptable offer.[1]  RFP S L.9.  

   As it relates to the subject protest, the RFP required the submission of
extensive pricing information on exhibit line item numbers (ELIN) for both
the fixed-price and ID/IQ requirements.  The fixed-price ELINs sought
prices for recurring maintenance work while the ID/IQ ELINs, as a general
matter, sought prices for other miscellaneous services that would be
ordered on a task order basis.  Each ELIN included a description of the
work required at a location that was either "on station" or "off station"
(presumably meaning at a location either on the military installation or
at a site that was not on the installation), a quantity (or an estimated
quantity for the ID/IQ items), and a place for the offerors to include
their unit and total prices for the work item.  Offerors were also
required to calculate and include their total prices for the fixed-price
work for the base year and each of the two option years as well as their
total prices for ID/IQ work for the base and option years.  RFP S L.9.

   With regard to pricing, the RFP required offerors to separately price "all
overhead costs, direct costs and profit" for "each housing site (*on base'
and *off base')" because "the government may elect to remove the entire
site or a part of the housing site . . . from [the] contract in order to
place them in the PPV [Public Private Venture] program."[2]  RFP S C2.7. 
The RFP advised that if a section was placed in the PPV program it would
be removed from the contract by unilateral contract modification and that
the government would not negotiate any costs associated with the reduction
in work.  Id. 

   After receiving eight proposals by the September 5, 2003 deadline, the
agency determined that SYMVIONICS had submitted the lowest-priced,
technically acceptable proposal.  However, before making award to
SYMVIONICS, the agency realized that it had included the wrong Davis-Bacon
Act wage determination in the solicitation and that it needed to correct
the error.[3]  Without informing the other offerors of the issue, the
agency asked SYMVIONICS to review the changed wage determination and to
notify the agency if the changes had any effect on its proposal.  Agency
Report, Tab 3, E-mail Message from the Navy to the President/CEO of
SYMVIONICS, Mar. 4, 2003.  SYMVIONICS responded the same day, [deleted]. 
The next day, the agency made award to SYMVIONICS at a total price of
$3,166,566.

   After receipt of the notice of award, which included the protester's total
price, Eastern Maintenance & Services, Inc. requested a debriefing as an
unsuccessful offeror.  During the debriefing the agency revealed the
protester's totals for the fixeda**price work and the ID/IQ work for the
base and 2 option years (six prices altogether).  Upon learning these
prices, Eastern alleged, during the debriefing, that SYMVIONICS had
improperly front-loaded the fixed-price work "knowing that PPV is to take
over this contract."  AR, Tab 7, Memorandum of Eastern's Debriefing.  The
contracting officer responded by informing Eastern that "PPV would
probably not happen as scheduled," adding that the agency would "then have
to exercise the two option years and, based on the past [indefinite
quantity] ordering history, [it] would be ordering [a] substantial amount
of [indefinite quantity work] so in the end [it] would not be paying more
under SYMVIONICS' contract."  Id.

   Eastern then filed a protest with our Office alleging that pricing in the
proposal submitted by SYMVIONICS was unbalanced and that Eastern should
have received the award.  In response, the agency indicated that it would
reevaluate proposals for the purpose of determining whether proposed
prices were balanced.[4]  Based on the agency's corrective action, our
Office dismissed the protest as academic.  Following the reevaluation, the
agency determined that it was necessary to amend the solicitation, conduct
discussions with the offerors, and seek revised proposals.  The Navy
amended the solicitation to include the correct wage determination and
modified the RFP's language concerning the evaluation of price.[5]  The
solicitation was later amended again to include an updated Service
Contract Act wage determination.  Final proposal revisions were due by
July 6, 2004. 

   During discussions, the agency informed SYMVIONICS that [deleted].  AR,
Tab 11, Agency Discussion Letter to SYMVIONICS, June 3, 2004.  SYMVIONICS
responded by explaining [deleted].  AR, Tab 14, SYMVIONICS Discussion
Response Letter, June 24, 2004. 

   In addition to responding to the agency's discussion questions, SYMVIONICS
requested that the agency reveal the pricing information of the other
offerors.  SYMVIONICS maintained that it would be disadvantaged in the
reopened competition if it did not know its competitors' prices since its
prices had been disclosed after the initial award.[6]  The agency denied
the request and this protest ensued before the closing date set for final
proposal revisions.         

   When SYMVIONICS filed its protest, it principally challenged the agency's
decision not to release its competitors' prices in the recompetition. 
However, upon receipt of the Navy's report, which was submitted under a
protective order issued by our Office, counsel for SYMVIONICS obtained
additional information about the procurement.  Specifically, protected
documents in the report revealed that the Navy had provided Eastern with
information about the PPV program during a post-award debriefing.  Based
on this information, the protester's comments on the agency report
included the allegation that the Navy had provided Eastern with an unfair
competitive advantage in the reopened competition when it informed
Eastern, during its posta**award debriefing, that the RFP requirements
would probably not be removed under the PPV program during the life of the
contract.  According to the protest, the Navy should have disclosed this
information to all the offerors when it reopened the competition.[7] 
While, as explained below, we conclude that the gravamen of the protest is
without merit, we find that the protest is correct with respect to this
issue, and we therefore sustain this protest ground.

   It is a fundamental principle of competitive negotiations that offerors
must be provided with the same statements of the agency's requirements so
as to provide a common basis for the submission of proposals.  Union
Carbide Corp., B-184495,
Feb. 26, 1976, 76-1 CPD P 134.  The Navy asserts that the information it
provided Eastern did not in any way change the terms of the solicitation
since the solicitation did not discuss the PPV schedule and thus that it
did not provide Eastern with a competitive advantage. 

   The information given to Eastern concerning the PPV program, however, was
clearly material for purposes of proposal preparation since it provided
additional information concerning an important aspect of the agency's
requirements.[8]  The RFP expressly identified the risks associated with
the PPV program--the fact that contract requirements may be
eliminated--and warned offerors that the costs of eliminating requirements
due to the PPV program would not be negotiated.  Thus, as   SYMVIONICS
notes, a reasonable offeror would have factored the risk of PPV
implementation into its prices.  [Deleted].  SYMVIONICS further notes that
the Navy has eliminated hundreds of housing units under two SYMVIONICS
contracts as well as an entire contract for 3,300 housing units, as a
result of the PPV program.  Because Eastern knows that the risk associated
with the PPV program is minimal in this instance, it can more accurately
reflect this risk in its pricing in the recompetition.    

   Since the agency provided the information in the context of a post-award
debriefing, there was no need at that time to share the information with
the other offerors.  However, after the agency decided to re-open the
competition and seek revised proposals, it was incumbent upon the agency
to ensure that all the offerors had the same information concerning the
PPV program so that they could compete with the same understanding of the
agency's requirements and we sustain this basis of protest.  See EMS Dev.
Corp., B-242484, May 2, 1991, 91-1 CPD P 427 at 2-3.

   We deny, however, the initial protest issue raised by SYMVIONICS.  As
noted above, when SYMVIONICS first filed its protest it argued that the
agency should disclose the prices of its competitors in the recompetition
since its competitors maintain a competitive advantage by knowing its
prices, which were disclosed after the initial award decision.  The agency
contends that the protester's pricing information was disclosed as
required by law and regulation in a post-award setting (specifically, in
notice of award letters to unsuccessful offerors and in the context of a
required debriefing to Eastern) and, as a consequence, it is not required
to equalize any competitive advantage associated the release of the
protester's prices.  In addition, the agency maintains that any
competitive advantage associated with the unequal disclosure of price
information is diminished by the fact that prices were of little value
since they were 10 months old when the agency initiated the recompetition,
new wage determinations have been incorporated in the solicitation, and
the price evaluation terms have changed.  Moreover, the agency expressed
concern that release of prices "could effect an auction atmosphere in
which offerors proposed unrealistically low prices, merely to undercut the
known prices of [their] competitors."  AR at 4.

   As a general matter, an agency is not required to equalize the possible
competitive advantage flowing to other offerors as a result of the release
of pricing information in a post-award setting where the release was not
the result of preferential treatment or other improper action on the part
of the agency.  See, e.g., PCA Aerospace, Inc.,
B-293042.3, Feb. 17, 2004, 2004 CPD P 65 at 4; Alatech Healthcare,
LLC--Protest; Custom Servs. Int'l, Inc.--Costs, B-289134.3, B-289134.4,
Apr. 29, 2002, 2002 CPD P 73 at 4; Norvar Health Servs.--Protest and
Recon., B-286253.2 et al., Dec. 8, 2000, 2000 CPD P 204 at 4.  Because the
SYMVIONICS prices were not disclosed as a result of preferential treatment
or any improper action on the part of the agency--they were disclosed in
letters to the unsuccessful offerors and in the context of a post-award
debriefing as contemplated by Federal Acquisition Regulation (FAR)
S 15.506(d)(2)--the Navy was not required to equalize any competitive
advantage that may have been afforded to the protester's competitors as a
result of the release of its prices.[9]

   While we cannot conclude that the Navy is required to do so in this case,
and we therefore deny this protest ground, an agency may decide to release
offerors' prices in a recompetition in an effort to remedy the potential
competitive advantage (even if not improperly obtained) held by the other
offerors in the competition whose prices were not disclosed.  See, e.g.,
Ocean Servs, LLC, B-292511.2, Nov. 6, 2003, 2003 CPD P 206 at 4-6;
Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD P 173 at 3; The
Cowperwood Co., B-274140.2, Dec. 26, 1996, 96-2 CPD P 240 at 2a**3. 

   The facts suggest that this approach--while not required--may be the
preferable approach here, especially given that we are sustaining the
protest on another ground and recommending submission of revised
proposals.  In this regard, we note that while the Navy decided not to
disclose the pricing information of the firms in the competition because
it believed the information was of little value given the passage of time
and the changes to the solicitation, its concern could also be viewed as
an argument in favor of disclosure since the less valuable the pricing
information, the less harm would result from its release.  Moreover, the
agency's cited concern about fostering an "auction" situation by releasing
the prices of the other competitors ignores the fact that an auction-like
situation already exists by virtue of the recompetition, since the RFP
provides for award to the firm submitting the lowest cost, technically
acceptable proposal and the other competitors know the price submitted by
SYMVIONICS in the initial competition. 

   We recommend that the Navy provide all the firms in the recompetition with
the same information about the likely impact of the PPV program on the
subject requirements that it provided Eastern in its post-award debriefing
and allow for the submission of revised proposals.  To the extent that the
information it provided to Eastern is not accurate, the Navy should advise
the offerors accordingly.  We further recommend that the Navy reimburse
SYMVIONICS for the costs of filing and pursuing the protest ground
alleging that the Navy was required to provide all the competitors in the
recompetition with the PPV information that it had shared with Eastern in
its debriefing.[10]  The protester's certified claim for costs, detailing
the time spent and the costs incurred on this issue, must be submitted to
the agency within 60 days of receiving this decision. 4 C.F.R. S
21.8(f)(1) (2004).

   The protest is sustained in part and denied in part.

   Anthony H. Gamboa

   General Counsel

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

   [1] Throughout their submissions, the parties distinguish between
"fixed-price" and ID/IQ requirements.  We recognize that this distinction
is misleading since the RFP actually provides for the award of a contract
with definitea**quantity items and ID/IQ items, both of which are
fixed-price.  For the sake of consistency with the record, however, we
adopt the parties' terminology throughout our decision.     

   [2] The RFP advises offerors that under the Public Private Venture (PPV)
program, the Department of Defense has statutory authority to effectively
privatize military housing by working with the private sector to build,
renovate, and manage military housing.  RFP S C2.7.

   [3] The original solicitation included a wage determination applicable to
"Building Construction Projects; Dredging Projects; Heavy Construction
Projects; and, Highway Construction Projects."  RFP Attach. J-9, at
361-82.  According to the agency, the solicitation should have included
the wage determination applicable to "Residential Construction Projects
(consisting of single family homes and apartments up to and including 4
stories)."  AR at 2 n.2. 

   [4] The agency also indicated it had made a mathematical error during its
evaluation of Eastern's proposal, necessitating a reexamination of
Eastern's proposed price.

   [5] The initial solicitation had indicated that price proposals would be
evaluated for reasonableness in relation to "resources proposed"; however,
because the RFP did not require offerors to propose any resources, the
reference was struck from the solicitation.  In addition, the Navy amended
the solicitation language regarding unbalanced pricing.  Specifically, the
solicitation had provided that unbalanced offers could be rejected "either
on the basis the offeror does not understand the requirement or the
offeror has made an unrealistic proposal."  The Navy revised the
solicitation to simply state that unbalanced offers could be eliminated
from the competition.

   [6] When SYMVIONICS raised this issue with the agency, it did not know how
many firms were in the competition or what pricing information they had
received. 

   [7] SYMVIONICS also argues that the Navy provided Eastern with an unfair
competitive advantage when it informed Eastern during its debriefing that
based on its past ordering history, the agency anticipated ordering
substantial quantities of ID/IQ work.  We do not see how such information
provides Eastern with a competitive advantage.  The agency's use of the
term "substantial quantity" during Eastern's debriefing did not, on its
face, provide Eastern with any additional material information concerning
the estimated quantities for the ID/IQ work that were disclosed to all the
offerors in the RFP.

   [8] While the Navy maintains that PPV could occur during performance, it
does not assert that the information provided to Eastern--that PPV would
probably not occur--was in any way incorrect.

   [9] SYMVIONICS asserts that the release of its fixed-price and ID/IQ
totals for the base and each option year during Eastern's post-award
debriefing constituted preferential treatment with regard to Eastern. 
However, because the information was provided in the context of a required
debriefing pursuant to FAR S 15.506(d)(2), which expressly provides for
the disclosure of the successful offeror's evaluated price including unit
prices, the disclosures could not be considered preferential.  The Navy
further notes that by not disclosing the protester's unit pricing, it
provided substantially less pricing information in the debriefing than
called for under the debriefing rules.

   SYMVIONICS further maintains that the Navy improperly disclosed its option
year pricing, citing the decision in McDonnell Douglas Corp. v. United
States Dep't of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004).  The
McDonnell Douglas case, however, is distinguishable.  First, McDonnell
Douglas concerned the disclosure of option prices under the Freedom of
Information Act, 5 U.S.C. SS 551 et seq. (2000), not FAR
S 15.506.  Second, the case involved the release of unit prices for option
years, while in this case the Navy did not disclose the protester's option
year unit pricing, but rather its total option year prices for the
fixed-price and ID/IQ work.     

   [10] As a general rule, we consider a successful protester entitled to
costs incurred with respect to all issues pursued, not merely those upon
which it prevails.  AAR Aircraft Servs.--Costs, B-291670.6, May 12, 2003,
2003 CPD P 100 at 9; Price Waterhouse--Claim for Costs, B-254492.3, July
20, 1995, 95-2 CPD P 38 at 3; Data Based Decisions, Inc.--Claim for Costs,
B-232663.3, Dec. 11, 1989, 89-2 CPD P 538 at 4.  We are limiting our
recommendation as to the protester's costs in this case, however, because
the bulk of the protest concerned an issue we deny and because the issue
we sustain was predicated on a different legal and factual basis.  See
Department of the Armya**a**Modification of Remedy, B-292768.5, Mar. 25,
2004, 2004 CPD P 74.