Environmental Protection Agency; CGI Federal, Inc.--Reconsiderations
B-299504.3,B-299504.4, Jul 23, 2008
The Environmental Protection Agency (EPA) and CGI Federal, Inc. ask that we reconsider our decision in IBM Corp., B-299504, B-299504.2, June 4, 2007, 2008 CPD para. 64, in which we sustained IBM's protest of the award of a contract to CGI under request for proposals (RFP) No. PR-HQ-05-12521, issued by the EPA for the upgrade of the agency's financial management system. In its protest, IBM argued, among other things, that the agency did not reasonably evaluate the offerors' price/cost proposals. We sustained the protest, concluding that the agency improperly made upward adjustments to fixed-price elements of IBM's proposal and did not reasonably evaluate CGI's price/cost proposal. However, because of subsequent developments, the agency and CGI ask that we reconsider and either rescind (i.e., vacate) or modify our decision sustaining IBM's protest.
We deny the requests for reconsideration.
B-299504.3; B-299504.4, Environmental Protection Agency; CGI Federal, Inc.--Reconsiderations, July 23, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
GAO will not grant request to vacate protest decision based on subsequent developments where the parties requesting such action have not demonstrated that newly-disclosed information has rendered the decision as issued invalid, or that the public interest would be served by vacating the decision.
The Environmental Protection Agency (EPA) and
The RFP contemplated the award of an indefinite-delivery/indefinite-quantity contract under which performance-based task orders would be issued. After evaluating the four initial proposals submitted in response to the RFP, the agency selected the proposals of
In its protest filed with our Office,
EPA'S REQUEST FOR RECONSIDERATION
In its request for reconsideration, the agency asks that we rescind or modify our
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. sect. 21.14(a) (2008). Here, we conclude that the standard for reconsideration has not been satisfied.
As stated above, in requesting reconsideration, the agency relies on events that took place after we issued our
In requesting rescission or modification of our decision sustaining
In this regard, the agency has cited no legal authority to support its request and it has not, for example, demonstrated any error or injury that results from the decision as written; moreover, the agency has neither alleged nor shown any nexus between the alleged improper use of proprietary information by
While we are not aware of any instance in which our Office has been asked to rescind a published protest decision, the United States Civilian Board of Contract Appeals recently addressed a request that the Board vacate one of its decisions. See Hedlund Constr., Inc. v. Dep't of Agriculture, CBCA 105-R, Civilian B.C.A., June 5, 2008 (citing U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29 (1994), in which the Supreme Court explained its view that settlement of a dispute by the parties after the issuance of a decision does not justify vacatur of an issued decision). See also ROI Invs. v. GSA, GSBCA 14402-R, 99-1 BCA para. 30,353 (absent some extraordinary circumstance, the public interest would not be served by rescinding a published decision).
In our view, published decisions provide valuable information to the procurement community in terms of, for example, analyzing violations of procurement statutes and regulations and explaining why such violations provide a basis for sustaining a protest. To the extent that EPA asks that we recognize [the] circumstances regarding the subsequently disclosed investigation and the agreement between it and
Regarding its first argument,
More specifically, it is clear from the record that when
Moreover, Federal Acquisition Regulation (FAR) Subpart 9.4, which the agency cited in its suspension notice as authority for its actions, makes clear that suspension and debarment do not have a retroactive effect. For example, FAR sect. 9.405-1(a) provides that [n]otwithstanding the debarment, suspension, or proposed debarment of a contractor, agencies may continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, or proposed for debarment unless the agency head directs otherwise. Therefore, contrary to
Regarding its second argument, we similarly find no merit to
The requests for reconsideration are denied.
Gary L. Kepplinger
 Details of the facts, arguments, analyses, and conclusions from the underlying decision sustaining the protest are not required to understand the requests for reconsideration and, therefore, are not repeated here.
 With respect to
 In this regard, the suspension notice also stated that [n]otwithstanding this suspension,