TITLE: B-298164.2; B-298288, Alfa Consult S.A., August 3, 2006
BNUMBER: B-298164.2; B-298288
DATE: August 3, 2006
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B-298164.2; B-298288, Alfa Consult S.A., August 3, 2006

   Decision

   Matter of: Alfa Consult S.A.

   File: B-298164.2; B-298288

   Date: August 3, 2006

   Paul F. Khoury, Esq., and William J. Grimaldi, Esq., Wiley Rein & Fielding
   LLP, for the protester.

   Parag J. Rawal, Esq., U.S. Army Corps of Engineers, for the agency.

   Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency's proposed corrective action--terminating protester's
   contract, amending solicitation and accepting revised offers--in response
   to protest from unsuccessful offeror is unnecessary and improper, is
   denied where agency reasonably concluded that solicitation was unclear
   regarding whether award would be based on "best value" or low
   cost/technical acceptability, and that this deficiency could have affected
   outcome of original competition.

   DECISION

   Alfa Consult S.A. protests the decision of the U.S. Army Corps of
   Engineers to take corrective action in response to a protest filed by
   ALMCO, Ltd. in connection with request for proposals (RFP) No.
   W917BG-06-R-0045 (RFP-0045).

   We deny the protest.

   The RFP, issued on January 21, 2006, contemplated the award of
   "approximately" three fixed-price, indefinite-delivery/indefinite-quantity
   (ID/IQ) contracts to perform construction, renovation, and related
   projects in Iraq. The RFP included technical and price factors, and
   provided that awards would be made pursuant to Federal Acquisition
   Regulation (FAR) sect. 15.101-2--which describes the process for awarding
   a contract on the basis of low cost/technical acceptability--to the
   offerors who present the "best value" considering technical acceptability,
   price, and risk. RFP at 12. However, the RFP also listed the relative
   importance of the technical factors and price, and provided for an
   adjectival rating of proposals under the technical factors, RFP at 10-11,
   both of which evaluation elements are relevant only where a cost/technical
   tradeoff is contemplated.

   On March 23, the Corps awarded contracts to Alfa and two other offerors on
   the basis of low cost/technical acceptability. ALMCO challenged the award
   decision in a protest filed in our Office on April 3, arguing that the
   Corps's failure to perform a cost/technical tradeoff among the proposals
   was inconsistent with the solicitation's weighted evaluation criteria. On
   April 12, the Corps notified our Office that it planned to take corrective
   action with respect to ALMCO's protest by amending the solicitation to
   make it clear that award was to be based on low cost/technical
   acceptability, permitting offerors to submit revised proposals, and
   conducting a new source selection. We therefore dismissed ALMCO's protest
   on April 17 (B-298164). On April 29, the Corps notified Alfa that it was
   terminating its contract for the convenience of the government, and of the
   intended corrective action.

   Alfa protests the Corps's decision to take corrective action in response
   to the ALMCO protest. Alfa argues that, since the solicitation
   incorporated FAR sect. 15.101-2, which explained that the award would be
   made on a low cost/technical acceptability basis, with no mention of a
   cost/technical tradeoff, the basis for award was clear. Alfa concludes
   that there is no basis for now terminating its properly awarded contract.

   Contracting agencies have broad discretion to take corrective action where
   they determine that such action is necessary to ensure a fair and
   impartial competition. It is not necessary for an agency to conclude that
   the protest is certain to be sustained before it may take corrective
   action; where the agency has reasonable concern that there were errors in
   the procurement, even if the protest could be denied, we view it as within
   the agency's discretion to take corrective action. Patriot Contract
   Servs., LLC et al., B-278276.11 et al., Sept. 22, 1998, 98-2 CPD para. 77
   at 4. An agency may amend a solicitation and request and evaluate another
   round of proposals where the record shows that the agency's decision to
   take this action was made in good faith, without the specific intent to
   change a particular offeror's technical ranking or to avoid making award
   to a particular offeror. Federal Sec. Sys., Inc., B-281745.2, Apr. 29,
   1999, 99-1 CPD para. 86 at 5.

   Here, there is no evidence suggesting that the corrective action was
   unreasonable or that the agency acted other than in good faith. The Corps
   states that it was concerned that the basis of award in the original
   solicitation may not have been understood. In this regard, the RFP only
   incorporated FAR sect. 15.101-2 by reference--rather than actually
   describing the process for awarding a contract on a low cost/technically
   acceptable basis--and, at the same time, listed the relative importance of
   the technical factors and price, and stated both that technical factors
   would be rated adjectivally (RFP at 10-11) and that award would be made,
   pursuant to FAR sect. 15.101-2, "to the Offerors whose total proposal
   packages represent the best value to the Government in the areas of
   technical acceptability, and price." RFP at 12. The Corps believed the
   combined references to technical acceptability and best value may have
   been confusing to offerors. We agree that the solicitation seemed to
   indicate two conflicting bases for award, and therefore find that the
   agency's concerns were reasonable. Given the lack of evidence that the
   agency acted other than in good faith, there is no basis for us to
   question the Corps's decision to take corrective action.[1]

   Alfa argues that corrective action was unwarranted because there is no
   indication in the record that ALMCO was prejudiced by the conflicting
   evaluation information, that is, that ALMCO's higher price reflected a
   more expensive, superior technical approach. This argument is untimely. In
   order for our Office to meaningfully consider protest allegations, our Bid
   Protest Regulations require that arguments such as this be presented
   within 10 days after the basis for protest is known or should have been
   known. 4 C.F.R. sect. 21.2(a)(2) (2006). Here, although lack of prejudice
   could have been raised in its original protest as a basis for challenging
   the corrective action, Alfa did not argue prejudice until it filed its
   comments on the agency report. Accordingly, the argument is untimely.[2]
   In any case, the argument is without merit. While Alfa may be correct that
   there is no evidence that ALMCO's higher-priced proposal was based on a
   superior technical approach, this is because--due to the low
   cost/technically acceptable evaluation approach followed by the
   agency--the technical evaluation and best value analysis necessary to make
   this prejudice determination were never performed. Under these
   circumstances, given the nature of the deficiency, we think the agency
   could reasonably conclude that ALMCO or other potential offerors were
   prejudiced by the ambiguity in the RFP.

   Alfa argues that the Corps should have considered awarding a fourth
   contract to ALMCO, rather than terminating the three awards already made
   and reopening the competition. However, procuring agencies are required to
   evaluate proposals and award contracts in accordance with the criteria
   stated in the solicitation. The MIL Corp., B-297508, B-297508.2, Jan. 26,
   2006, 2006 CPD para. 34 at 4. Since the agency reasonably determined that
   the award criteria were unclear, it was reasonable not to make a new award
   under those criteria.

   Alfa complains that its competitive position has been harmed because,
   during the debriefing with ALMCO that followed the initial competition,
   the Corps told ALMCO that its price under the original competition was too
   high. However, it is our view that no improper competitive advantage
   accrues to an offeror by virtue of its obtaining proposal information, as
   here, pursuant to the FAR sect. 15.506 debriefing requirements. See
   SYMVIONICS, Inc., B-293824.2, Oct. 8, 2004, 2004 CPD para. 204 at 6.

   Finally, Alfa asserts that, if the Corps's corrective action under
   RFP-0045 was proper, the Corps should be required to implement the same
   corrective action under RFP No. W917BG-06-R-0055 (RFP-0055), since the
   evaluation schemes under the two RFPs were virtually identical. However,
   since neither Alfa nor any other firm protested the terms of RFP-0055 (or
   the propriety of the awards), there is no basis for us to address the
   propriety of the evaluation scheme or to recommend corrective action. In
   any case, each procurement is a separate transaction, and an agency's
   actions under one procurement do not affect the propriety of its actions
   under another. Luis E. Garcia, Inc., B-254846.2, Mar. 21, 1994, 94-1 CPD
   para. 203 at 3-4. Thus, the fact that the Corps took corrective action in
   connection with a protest under RFP-0045 would not obligate it to take
   similar action under RFP-0055.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] Alfa argues that the agency should not have taken corrective action
   because, under our Regulations, ALMCO's protest was an untimely challenge
   to a solicitation defect, and would not have been considered. However,
   when a contracting agency recognizes the validity of a protest and
   proposes to take corrective action, it is irrelevant whether the protest
   was timely or otherwise complied with our Regulations. Computing Devices
   Int'l, B-258554.3, Oct. 25, 1994, 94-2 CPD para. 162 at 2 n.2.

   [2]Alfa also asserts for the first time in its comments that ALMCO
   unfairly benefited from a sample task revision in the reopened
   solicitation. This, too, is an untimely piecemeal argument, and will not
   be considered. Our protest process does not contemplate consideration of a
   protester's piecemeal presentation of arguments that could have been
   raised earlier in the protest process. See Comprehensive Health Servs.,
   Inc., B-292858.3 et al., Apr. 27, 2004, 2004 CPD para. 165 at 8 n.4.