TITLE:  Department of Commerce--Reconsideration, B-294121.5, April 12, 2005
BNUMBER:  B-294121.5
DATE:  April 12, 2005
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   Decision

   Matter of:   Department of Commerce--Reconsideration

   File:            B-294121.5

   Date:              April 12, 2005

   Joseph M. Sullivan, Esq., Mundt MacGregor, for the protester.

   William T. Grimm, Esq., Davis Grimm Payne & Marra, for NWO, Inc., an
intervenor.

   Mark Langstein, Esq., Department of Commerce, 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

   GAO will not reconsider a prior decision where the request is based on
information that was available to the requester and could have been
presented during consideration of the protest.

   DECISION

   The Department of Commerce asks that we reconsider our decision in
Saltwater, Inc.--Recon., B-294121.3, B-294121.4, Feb. 8, 2005, 2005 CPD P
33, in which we reversed our dismissal of Saltwater's protest of the award
of a sole-source contract to NWO, Inc. by the Department of Commerce,
National Oceanic and Atmospheric Administration (NOAA), for fisheries
observer services, and sustained the protest on the merits.   Commerce
alleges that our reconsideration decision contained both factual and legal
errors.

   We deny the request for reconsideration.

   BACKGROUND

   The Initial Protest

   In January 2003, NOAA issued request for proposals (RFP) No.
AB1330-03-RP-0024, seeking fisheries observer services in connection with
NOAA's National Marine Fisheries Service (NMFS) Pacific Islands Region
Observer Program (PIROP), under a fixed-rate contract, for a base year and
one option year.  Saltwater and NWO both submitted proposals, and on July
11, 2003, Saltwater was awarded the contract, the first year of which was
to expire on June 30, 2004 and which had a 1-year option ending on June
30, 2005.  Following a protest filed by NWO, the agency held discussions
and twice permitted the offerors to submit final proposal revisions
(FPR).  In its second request for FPRs, Commerce advised Saltwater that if
the agency again selected Saltwater, its contract would be modified to
include certain overtime pay requirements. 

   In December 2003, Saltwater was again selected for award and was given,
for execution, a modification to its earlier-awarded contract.  Saltwater
declined to execute the modification on the basis that it did not
accurately reflect the terms of Saltwater's FPR.  In January 2004, NOAA
informed Saltwater that it intended to terminate the firm's contract and
make award to NWO.  Saltwater protested this decision to our Office, and
we denied the protest in our decision, Saltwater Inc., B-293335.3,
Apr.A 26, 2004, 2004 CPD P 106.

   Following our decision, rather than terminate Saltwater's contract for
convenience, the contracting officer decided to wait for the base period
of the contract to expire on June 30, 2004.  The agency awarded a contract
for the requirement to NWO on June 18, to commence performance on
JulyA 1.  This contract award was for a base period of July 1, 2004
through December 31, 2004, with an option (which has since been exercised)
for an additional year extending to December 31, 2005. 

   Saltwater protested that the award to NWO was improper, and the attorney
from our Office handling the protest conducted an alternative dispute
resolution (ADR) conference call with the parties in an attempt to resolve
the matter.  During that discussion, the GAO attorney advised the parties
that he anticipated that our Office would sustain the protest on the basis
that the award was made on a sole-source basis without justification.  The
GAO attorney indicated that the protest would be rendered academic if the
agency:  (1) prepared and executed a Justification and Approval (J&A)
adequate to support the award to NWO, or (2)A recompeted the acquisition. 
Commerce then advised our Office by telephone, and confirmed in writing,
that the agency would recompete the services as part of a restructuring of
fishery observer services nationwide, and that it envisioned that it would
require at least 15 months to develop the solicitation.  In addition,
Commerce stated that it would, "as expeditiously as possible, make a
determination as to the necessity for a sole-source contract and
thereafter prepare and execute an appropriate J&A for the contract file." 
Agency Letter of Aug. 23, 2004.  Based on Commerce's representation, we
dismissed the protest as academic by decision of August 25.

   Saltwater's Reconsideration Request

   After we dismissed Saltwater's protest, Saltwater filed a request for
reconsideration on September 1, 2004, arguing that we should not have
dismissed the protest because Commerce's proposed corrective action did
not, in fact, render the protest academic, especially given the way the
corrective action had been implemented.  We agreed. 

   In response to Saltwater's filing, Commerce maintained that the award to
NWO in fact did not constitute a sole-source award requiring a J&A because
it was based on the 2003 competition.  Specifically, in its September 30,
2004 opposition to Saltwater's reconsideration request, Commerce stated:

   The agency submits that GAO's *outcome prediction' that the agency had
made a sole source award to NWO, Inc. is incorrect and not supported by
the record.  The record clearly shows that the award to NWO, Inc., was
based on full-and-open competition and occurred as part of the culmination
of numerous protests . . . .

   Agency's Opposition to Recon. Request at 7 n.6.

   Because Commerce repeatedly argued that the award to NWO was not an
improper sole-source and because Commerce had not identified a J&A in
support of the award to NWO in any of its filings with our Office, we
understood Commerce as having decided not to execute a J&A in support of
the award to NWO.  As a consequence, we reversed our dismissal and
considered the merits of Saltwater's protest. 

   Merits of Saltwater's Protest

   Saltwater protested that the award to NWO was improper because it was made
on a basis other than the original RFP, and we agreed.

   The competitive award to Saltwater had been based upon a 1-year contract,
which specified an end date of June 30, 2004, with a 1-year option
expressly ending on JuneA 30, 2005.  However, the award to NWO was for a
6-month contract period from July 1, 2004 toA December 31, 2004, with an
option to extend the contract 1 year, i.e., to DecemberA 31, 2005, which
Commerce has exercised.  Because the period of performance under NWO's
contract was to extend beyond June 30, 2005, we found that it was
inconsistent with the basis for the competition and therefore improper. 
See Tennessee Valley Serv. Co., B-188771, Dec. 8, 1977, 77-2 CPD P 442. 
That is, the extension of NWO's contract beyond JuneA 30, 2005 constituted
an improper sole-source award, since it was not supported by a J&A. 

   Since the contract with NWO is now in its option year, we recommended that
Commerce meet its needs after June 30 competitively (through limited
competition if full and open competition is not feasible) and terminate
NWO's contract as of the date of the new award, if NWO is not the
successful offeror.  We further recommended that the agency reimburse
Saltwater for the costs of filing and pursuing its protests, including
reasonable attorneys' fees. 

   COMMERCE'S REQUEST FOR RECONSIDERATION

   In requesting reconsideration, Commerce essentially complains that our
decision is inconsistent with our ADR advice and dismissal of Saltwater's
protest.  According to Commerce, in order to render Saltwater's protest
academic in accordance with GAO's advice during ADR, it represented to our
Office that it intended to recompete the PIROP effort in 15 months and to
prepare a J&A if it deemed necessary.  Commerce asserts that these
proposed actions were "confirmed" since we dismissed Saltwater's protest
as academic, and maintains that it has not deviated from the stated
corrective action.  Request for Reconsideration at 1.  Commerce argues
that, by subsequently concluding that the agreed-upon corrective action
was insufficient, our Office has effectively retracted the ADR advice "at
whim," and reversed our precedent concerning the implementation of GAO
recommendations, which we have always considered to be within the sound
discretion of the agency.  Id.

   Under our Bid Protest Regulations, to obtain reconsideration the
requesting party must set out the factual and legal grounds upon which
reversal or modification of the decision is deemed warranted, specifying
any errors of law made or information not previously considered.  4 C.F.R.
S 21.14(a) (2004).  The agency has failed to meet this standard.

   As noted above, during ADR the GAO attorney advised Commerce that he
anticipated that our Office would sustain Saltwater's challenge of the NWO
contract as an improper sole-source award unless Commerce took corrective
action in either of two ways--recompete NWO's contract, or prepare a J&A
in support of the award to NWO.  In response, Commerce represented that it
would prepare a J&A if it determined that a sole-source contract was
necessary.  Subsequently, however, Commerce repeatedly asserted that a J&A
was not needed to support award to NWO--this was in direct opposition to
our ADR advice.  In addition, the other aspect of the corrective action
proposed by Commerce, the future recompetition of the PIROP effort, failed
to address Saltwater's challenge of NWO's current contract.[1] 

   In sum, while we initially dismissed Saltwater's protest as academic based
on Commerce's proposed corrective action, after further reflection and
argument from the parties, we reversed that determination because we
concluded that the corrective action proposed and Commerce's subsequent
actions did not address the impropriety of the sole-source award to NWO
and therefore Saltwater's protest had not been rendered academic. 

   Commerce suggests that our reversal was improper because we had tacitly
approved the manner of Commerce's corrective action when we dismissed
Saltwater's protest.  This contention, however, fails to recognize that
our reconsideration process is expressly designed to address situations
such as the one presented in this case where our initial decision warrants
reversal.  See 4 C.F.R. S 21.14.  The simple fact is that, as subsequent
events revealed, our Office should not have dismissed Saltwater's protest
as academic; we remedied the situation when we reversed the dismissal of
Saltwater's protest.         

   Commerce also argues that our February 8 decision mistakenly concluded
that the award to NWO was not supported by a J&A.  For the first time,
Commerce has now provided a copy of a J&A dated September 21, 2004,
purporting to justify the sole-source award to NWO.  Commerce's reliance
on this J&A as a basis for reconsideration is inappropriate.  We will not
reconsider a prior decision where the request is based on information that
was available to the requester and could have been presented during our
initial consideration of the protest.  Affording consideration to such
information would undermine the goal of our bid protest forum--to produce
fair and equitable decisions based on consideration of both parties'
arguments on a fully developed record.  Department of the Army--Recon.,
B-254979.2, Sept. 26, 1994, 94-2 CPD P 114 at 3; Department of the Navy--
Recon., B-228931.2, Apr. 7, 1988, 88-1 CPD P 347 at 2; Newport News
Shipbuilding and Dry Dock Co.--Recon., B-221888.2, Oct.A 15, 1986, 86-2
CPD P 428 at 3.

   Here, the J&A now offered by the agency was available to Commerce when it
opposed Saltwater's request for reconsideration, yet Commerce failed to
bring this information to our attention.  Rather, as noted above, Commerce
expressly argued before our Office in its September 30, 2004 opposition to
Saltwater's reconsideration request, after the J&A had apparently been
executed on September 21, that NWO's contract was not a sole-source
award.  See also Agency's Opposition to Recon. Request at 8 ("the agency
does not agree that it made an improper sole-source award to NWO, Inc."). 
In light of Commerce's insistence that no sole-source award had been made,
and in light of the fact that Commerce failed to inform our Office of the
J&A when that information was clearly available to the agency, Commerce
may not now rely on that J&A as a basis for reconsideration of our
decision.  See Department of the Army--Recon., supra; Department of the
Navy-- Recon., supra; Newport News Shipbuilding and Dry Dock Co.--Recon.,
supra.

   In view of our conclusion that the request for reconsideration is without
merit, we recommend that Saltwater be reimbursed the additional costs
incurred in responding to the agency's request for reconsideration.  See
Department of the Navy--Modification of Remedy, B-284080.3, May 24, 2000,
2000 CPD P 99 at 4; Department of the Army--Recon., B-270860.5, July 18,
1996, 96-2 CPD P 23 at 5; Pacific Northwest Bell Tel. Co., Mountain States
Bell Tel. Co.--Claim for Costs, B-227850.3, June 6, 1988, 88-1 CPD P 527
at 2.  Saltwater's certified claim for these additional costs, detailing
the time spent and the costs incurred, must be submitted to the agency
within 60A days of receiving this decision.  4 C.F.R. S 21.8(f)(1).   

   The request for reconsideration is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] With regard to the recompetition of the PIROP effort, Commerce asserts
that our decision erred in stating that the agency had agreed to take
corrective action by "promis[ing] to include the PIROP effort as part of
the broader restructuring of the nationwide fishery observer program for
which a solicitation would be developed in future."  Saltwater,
Inc.--Recon., supra, at 3.  According to Commerce, "the PIROP effort was
never intended to be part of a larger solicitation."  Request for
Reconsideration at 2.  Commerce maintains that the "broader restructuring"
merely referenced its effort to "fairly resolve the important and complex
policy and legal issues raised by this series of protests . . . so that
all future competitions, including the PIROP re-competition, could be
conducted on the same fair, lawful basis."  Id.  While the precise meaning
of Commerce's statement is not entirely clear, the alleged error, in any
case, is irrelevant and therefore does not provide a reason for reversing
our decision.  The fact remains that NWO's performance after June 30, 2005
is beyond the scope of the competition conducted, and Commerce's future
plans for recompetition do not address this concern.