TITLE: B-296490.6; B-296490.7, Department of the Treasury, Bureau of Engraving and Printing--Request for Modification of Remedy; Johnson Controls Security Systems, LLC--Costs, May 31, 2007
BNUMBER: B-296490.6; B-296490.7
DATE: May 31, 2007
*************************************************************************************************************************************************************************************
B-296490.6; B-296490.7, Department of the Treasury, Bureau of Engraving and Printing--Request for Modification of Remedy; Johnson Controls Security Systems, LLC--Costs, May 31, 2007

   Decision

   Matter of: Department of the Treasury, Bureau of Engraving and
   Printing--Request for Modification of Remedy; Johnson Controls Security
   Systems, LLC--Costs

   File: B-296490.6; B-296490.7

   Date: May 31, 2007

   Marvin K. Gibbs, Esq., Department of the Treasury, Bureau of Engraving and
   Printing, for the agency.

   David R. Johnson, Esq., and Amanda J. Dietrick, Esq., Vinson & Elkins, for
   Johnson Controls Security Systems, LLC.

   Kevin P. Connelly, Esq., and Amanda Weiner, Esq., Seyfarth Shaw, LLP, for
   Quanta Systems Corporation, an intervenor.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Request for modification of recommended corrective action--that agency
   reevaluate proposals and make new source selection decision--is granted
   where agency states it has determined that its needs will best be met by
   splitting original requirement and competing requirement under two new
   solicitations; agency intends to award new contracts expeditiously, after
   which it will terminate improperly awarded contract.

   2. Where, because of modification of recommended corrective action,
   protester is effectively precluded from competing for original
   requirement, Government Accountability Office recommends that agency
   reimburse protester the costs of preparing and submitting its original
   proposal.

   DECISION

   The Department of the Treasury, Bureau of Engraving and Printing (BEP),
   requests that we modify the recommended corrective action in our decision
   Johnson Controls Sec. Sys., LLC, B-296490.3 et al., Mar. 23, 2007, 2007
   CPD para. ___, in which we sustained Johnson Controls and Security
   Systems' (JCSS) protest against the award of a contract to Quanta Systems
   Corporation under request for proposals (RFP) No. BEP-04-0022, issued by
   BEP for operation, monitoring and repair of various security systems at
   the agency's currency production facility in Washington, D.C. The agency
   asserts that it would serve no useful purpose for it to implement our
   original recommendation in light of changes to its requirements. The
   protester argues that, if the agency's request is granted, our Office
   should recommend that it be reimbursed its proposal preparation costs.

   We agree that modification of our remedy is appropriate here.

   In its protest, JCSS argued, among other things, that the agency had
   unreasonably failed to consider Quanta's recent performance of the
   requirement in evaluating the firm's past performance, had given Quanta
   undue credit for its status as the incumbent, and had weighted the
   evaluation factors differently than the weighting specified in the
   solicitation. We found that these assertions had merit, and sustained the
   protest. We recommended that the agency reevaluate the proposals and make
   a new source selection consistent with the terms of our decision and the
   RFP. We also recommended that the agency reimburse JCSS the costs of
   filing and pursuing its protest, including reasonable attorneys' fees.

   The agency requests that we modify our recommendation because of a change
   in the way it intends to acquire the subject services. Whereas the current
   RFP is for the operation, monitoring and repair of its various security
   systems, the agency advises that it is separating its requirements into
   two different acquisitions, one for security systems operations and
   monitoring, and a second for security systems installation and
   maintenance. This split is the result of a realignment within BEP that
   places the security systems operations work under one BEP program office
   (the agency's Office of Security) and the security systems installation
   and maintenance work under another BEP program office (the agency's Chief
   Information Office).

   The agency states that these two procurements will supplant the current
   acquisition and that, once it is able to award contracts under the two new
   procurements, it will terminate the current contract for the convenience
   of the government; according to the agency, it will make award of the new
   contracts in early July 2007. (The agency has synopsized and issued both
   new solicitations.) The agency adds that it has limited contracting
   personnel, and that it would unduly strain its resources to conduct a
   reevaluation and make a new source selection under the current RFP while
   also conducting the other two acquisitions, especially given that the
   contract under the earlier RFP will be terminated once the new contracts
   are awarded.

   Although not challenging BEP's reason for splitting the work into two
   contracts, the protester objects to the agency's request. In JCSS's view,
   there is no reasonable basis to assume that the agency will be able to
   award the two new contracts within the timeframe it has outlined. The
   protester points out in this regard that the current solicitation was
   issued in 2004 and, after two sustained protests, the agency still has not
   been able to successfully award a contract under that RFP.[1] JCSS asserts
   in the alternative that, if we grant the agency's request, JCSS should be
   reimbursed its proposal preparation costs. (The agency states that it
   would not oppose a recommendation that JCSS be reimbursed its proposal
   preparation costs should we modify our recommendation.)

   In determining the appropriate recommendation in cases where we find a
   violation of procurement laws or regulations, we consider the totality of
   the circumstances surrounding the acquisition, including, among other
   things, the impact of the recommendation on the user's or contracting
   agency's mission. 4 C.F.R. sect. 21.8(b) (2006); Department of Health and
   Human Servs.--Modification of Remedy, B-254909.2, July 22, 1994, 94-2 CPD
   para. 40 at 2.

   In light of the change in BEP's acquisition strategy for this requirement,
   and the abbreviated timeframe BEP has established for awarding the new
   contracts, we agree with the agency that no purpose would be served by its
   performing a new evaluation under the prior RFP, and that the appropriate
   corrective action under the circumstances is to allow the agency to
   proceed promptly with new awards under its two new solicitations. While we
   understand that the protester is concerned over the possibility that the
   agency may be unable to make new awards within the timeframe outlined,
   there is nothing in the record that would lead us to question the agency's
   representation regarding its intent to proceed promptly with the new
   awards.

   Accordingly, we modify our prior recommendation. Instead of reevaluating
   the proposals under the original RFP, the agency should proceed
   expeditiously to award contracts under its two new solicitations.
   Additionally, since this change effectively leaves the protester without a
   substantive remedy for the improprieties identified in our prior decision,
   and since JCSS therefore was improperly precluded from an opportunity to
   compete for the agency's requirement under the earlier RFP, we now
   recommend that JCSS be reimbursed its proposal preparation costs under
   that RFP. 4 C.F.R. sect. 21.8(d)(2); National Credit Union Admin.--Request
   for Modification of Remedy, B-240979.2, B-240981.2, May 24, 1991, 91-1 CPD
   para. 504 at 2.

   The requests are granted.

   Gary L. Kepplinger
   General Counsel

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

   [1] At the time the protester made its submission to our Office objecting
   to the agency's request, the agency had only issued one of the two new
   solicitations and the protester had argued that this supported its
   position that the agency would not complete the two acquisitions within
   the timeframe outlined. Since then, however, the agency issued its second
   solicitation.