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

B-296490.6,B-296490.7: May 31, 2007

Contact:

Ralph O. White
(202) 512-8278
WhiteRO@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

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.

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.

Apr 15, 2014

Apr 14, 2014

Apr 10, 2014

Apr 9, 2014

Apr 7, 2014

Looking for more? Browse all our products here