B-218021.3, NOV 26, 1985, 85-2 CPD 599

B-218021.3: Nov 26, 1985

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION IS AFFIRMED WHERE NO NEW FACTS OR LEGAL ARGUMENTS ARE RAISED WHICH SHOW THAT PRIOR DECISION WAS ERRONEOUS. OUR DECISION DENIED BRIGHTSTAR'S CLAIM FOR PROPOSAL PREPARATION COSTS BASED ON BRIGHTSTAR'S ALLEGATION THAT ITS PROPOSAL SUBMITTED TO THE UNITED STATES INFORMATION AGENCY (USIA) WAS NOT FAIRLY AND HONESTLY CONSIDERED. WE DENIED BRIGHTSTAR'S CLAIM SINCE WE FOUND THAT NO SOLICITATION HAD BEEN ISSUED BY USIA AND THAT THE RECORD SUPPORTED THE AGENCY'S CONTENTION THAT IT WAS MERELY ENGAGED IN SOLICITING INFORMATION FOR PLANNING PURPOSES. BRIGHTSTAR ARGUES THAT THE RECORD ESTABLISHED THAT USIA WAS ENGAGED IN A FORMAL SELECTION PROCESS.

B-218021.3, NOV 26, 1985, 85-2 CPD 599

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION IS AFFIRMED WHERE NO NEW FACTS OR LEGAL ARGUMENTS ARE RAISED WHICH SHOW THAT PRIOR DECISION WAS ERRONEOUS.

BRIGHTSTAR COMMUNICATIONS LTD.-- RECONSIDERATION:

BRIGHTSTAR COMMUNICATIONS LTD. (BRIGHTSTAR) REQUESTS RECONSIDERATION OF OUR DECISION IN BRIGHTSTAR COMMUNICATIONS LTD., B-218021.2, SEPT. 16, 1985, 85-2 CPD PARA. 290. OUR DECISION DENIED BRIGHTSTAR'S CLAIM FOR PROPOSAL PREPARATION COSTS BASED ON BRIGHTSTAR'S ALLEGATION THAT ITS PROPOSAL SUBMITTED TO THE UNITED STATES INFORMATION AGENCY (USIA) WAS NOT FAIRLY AND HONESTLY CONSIDERED. WE DENIED BRIGHTSTAR'S CLAIM SINCE WE FOUND THAT NO SOLICITATION HAD BEEN ISSUED BY USIA AND THAT THE RECORD SUPPORTED THE AGENCY'S CONTENTION THAT IT WAS MERELY ENGAGED IN SOLICITING INFORMATION FOR PLANNING PURPOSES. BRIGHTSTAR ARGUES THAT OUR DECISION FAILED TO CONSIDER ITS LEGAL ARGUMENTS, AND IGNORED THE FACTUAL RECORD PRESENTED BY BRIGHTSTAR.

WE AFFIRM OUR PRIOR DECISION.

BRIGHTSTAR ARGUES THAT THE RECORD ESTABLISHED THAT USIA WAS ENGAGED IN A FORMAL SELECTION PROCESS. BRIGHTSTAR CONTENDS THAT OUR DECISION FAILED TO TAKE INTO ACCOUNT BRIGHTSTAR'S ARGUMENT THAT IF USIA WAS INDEED MERELY SOLICITING INFORMATION, USIA WAS OBLIGATED BY SECTION 52.215-3 OF THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.215-3 (1984), TO PROVIDE OFFERORS WITH NOTICE THAT NO AWARD WAS INTENDED. THAT PROVISION REQUIRES SUCH A DISCLAIMER TO BE INCLUDED IN ALL SOLICITATIONS ISSUED FOR INFORMATION AND PLANNING PURPOSES AND BRIGHTSTAR CONTENDS THAT OUR FAILURE TO CONSIDER THE EFFECT OF THIS REGULATION CONSTITUTES A MATERIAL LEGAL DEFICIENCY.

IN ADDITION, BRIGHTSTAR ASSERTS THAT THE REQUEST FOR BEST AND FINAL QUOTATIONS MADE OF BRIGHTSTAR BY USIA CLEARLY AROSE IN THE CONTEXT OF A FORMAL SELECTION PROCESS AND THAT OUR POSITION THAT USIA WAS ENGAGED IN PREPROCUREMENT EVALUATION IS INCONSISTENT. IN THIS REGARD, BRIGHTSTAR ALLEGES THAT WE IGNORED THE DETAILED AND INTENSIVE MEETING HELD BETWEEN USIA AND BRIGHTSTAR DURING WHICH THE TECHNICAL DETAILS OF BRIGHTSTAR'S PROPOSAL WERE DISCUSSED, THE ACCEPTANCE OF BRIGHTSTAR'S LENGTHY SUBMISSION AS A FORMAL "PROPOSAL," THE REPEATED REQUESTS FOR BEST AND FINAL QUOTATIONS AND THE AGENCY'S STATEMENT THAT IT INTENDED TO SELECT A "CONTRACTOR" FROM THE PROCESS UNDERWAY.

BRIGHTSTAR'S ALLEGATION THAT WE DID NOT CONSIDER THE EFFECT OF USIA'S FAILURE TO PROVIDE OFFERORS WITH NOTICE THAT NO AWARD WAS INTENDED IS TRUE. HOWEVER, SINCE WE FOUND THAT NO SOLICITATION HAD BEEN ISSUED, WE SAW NO NEED TO DISCUSS THE MATTER FURTHER. THE INITIAL USIA LETTER, WHICH BRIGHTSTAR VIEWS AS A SOLICITATION, PLAINLY STATED THAT USIA WAS REQUESTING ONLY "INFORMATION AND COST ESTIMATES." WE FOUND THAT THAT LETTER COULD NOT REASONABLY BE CONSIDERED A SOLICITATION AND THEREFORE, THE NOTICE PROVISION DOES NOT APPLY. BRIGHTSTAR HAS NOT POINTED TO ANYTHING SUBSEQUENTLY ISSUED BY USIA THAT COULD REASONABLY BE INTERPRETED AS A SOLICITATION ON WHICH BRIGHTSTAR RELIED TO ITS DETRIMENT AND THAT SHOULD HAVE CONTAINED THE NOTICE PROVISION.

IN ADDITION, WHILE WE AGREE WITH BRIGHTSTAR THAT A REQUEST FOR "BEST AND FINAL QUOTATIONS" IS GENERALLY ONE OF THE FINAL STEPS LEADING TO AN AWARD IN A NEGOTIATED PROCUREMENT, THE FACT THAT CERTAIN USIA OFFICIALS UTILIZED THIS TERM AND OTHER PROCUREMENT "TERMS OF ART" IN DEALING WITH BRIGHTSTAR DOES NOT BY ITSELF DEMONSTRATE THAT THE AGENCY WAS ENGAGED IN A FORMAL SELECTION PROCESS. BRIGHTSTAR ARGUED THAT USE OF THIS TERMINOLOGY WAS EVIDENCE THAT USIA WAS NOT SOLELY ENGAGED IN INFORMATION GATHERING. CONSIDERED THIS ARGUMENT AND CONCLUDED THAT IN VIEW OF USIA'S USE OF PROCUREMENT TERMINOLOGY IN ITS INITIAL REQUEST FOR INFORMATION, SUBSEQUENT USE OF SIMILAR TERMINOLOGY SHOULD NOT HAVE BEEN MISLEADING NOR NECESSARILY DEMONSTRATED THAT USIA HAD CHANGED ITS REQUEST FOR INFORMATION TO A FORMAL SELECTION PROCESS.

WE ALSO DISAGREE WITH BRIGHTSTAR'S ASSERTION THAT OUR PREVIOUS DECISION DID NOT CONSIDER THE FACTUAL EVIDENCE SUBMITTED BY BRIGHTSTAR. INDICATED THAT THE THEORY UNDER WHICH THE GOVERNMENT IS HELD LIABLE FOR PROPOSAL PREPARATION COSTS IS THE BREACH OF AN IMPLIED CONTRACT ESTABLISHED BY THE GOVERNMENT'S SOLICITATION OF PROPOSALS AND THE SUBMISSION OF PROPOSAL IN RESPONSE THERETO. WHERE NO SOLICITATION IS ISSUED, NO IMPLIED CONTRACT FOR FAIR AND HONEST PROPOSAL CONSIDERATION IS EVER ESTABLISHED AND, THEREFORE, THERE CAN BE NO BREACH OF THE IMPLIED DUTY. SEE BELL & HOWELL CO., 54 COMP.GEN. 937 (1975), 75-1 CPD PARA. 273; COMPUTER ELECTION SYSTEMS, INC., B-195595, DEC. 18, 1979, 79-2 CPD PARA. 413. ABSENT A SOLICITATION, THE AGENCY HAS NOT ADVISED OFFERORS OF THE EVALUATION CRITERIA WHICH WILL BE UTILIZED IN JUDGING A PROPOSAL OR THE BASIS UPON WHICH AN AGENCY WILL SELECT AMONG COMPETING PROPOSALS. CONSEQUENTLY, THE STANDARDS BY WHICH WE MEASURE THE FAIRNESS OF THE AGENCY'S CONDUCT ARE NEVER ESTABLISHED.

OUR REVIEW OF THE RECORD SHOWED THAT USIA'S INITIAL LETTER CLEARLY REQUEST ONLY INFORMATION AND COST ESTIMATES AND THAT NO FIRM WAS EVER ADVISED OF ANY EVALUATION CRITERIA FOR AWARD OR THE CRITERIA UPON WHICH USIA WOULD SELECT AMONG THE PARTICIPANTS. AS A RESULT, THE EVIDENCE PRESENTED BY BRIGHTSTAR, SUCH AS USIA'S REQUEST FOR A BEST AND FINAL QUOTATION, MUST BE VIEWED IN THE ABSENCE OF ANY STATEMENT BY USIA ADVISING BRIGHTSTAR THE MANNER IN WHICH THE PROPOSAL IT SUBMITTED WOULD BE EVALUATED OR THE BASIS UPON WHICH USIA WOULD SELECT BRIGHTSTAR'S PROPOSAL OVER THE OTHERS THAT HAD BEEN SUBMITTED. WE CONCLUDED THAT USIA'S ACTIONS WERE CONSISTENT WITH THE AGENCY'S CONTENTION THAT IT WAS MERELY ENGAGED IN PREPROCUREMENT EVALUATION RATHER THAN A FORMAL SELECTION PROCESS AND OUR DECISION POINTED OUT THAT EXTENSIVE PREPROCUREMENT TESTS AND DISCUSSIONS ARE LEGITIMATE AND RECOGNIZED MEANS FOR AN AGENCY TO DETERMINE ITS MINIMUM NEEDS. SEE MAREMONT CORP., 55 COMP.GEN. 1362 (1976), 76-2 CPD PARA. 181. WHERE NO FORMAL SOLICITATION IS ISSUED, THE CLAIMANT'S BURDEN IS SIGNIFICANT TO ESTABLISH ITS ENTITLEMENT TO PROPOSAL PREPARATION COSTS AND UNDER THESE CIRCUMSTANCES, WE CONCLUDED THAT THE RECORD FAILED TO ESTABLISH BRIGHTSTAR'S ENTITLEMENT TO PROPOSAL PREPARATION COSTS. DESPITE BRIGHTSTAR'S ASSERTION TO THE CONTRARY, WE REMAIN OF THE VIEW THAT BRIGHTSTAR IS NOT ENTITLED TO BE REIMBURSED ITS PROPOSAL PREPARATION COSTS.

BRIGHTSTAR HAS REQUESTED A CONFERENCE IN THIS MATTER. WE WILL NOT CONDUCT A CONFERENCE ON A RECONSIDERATION REQUEST, HOWEVER, UNLESS THE MATTER CANNOT OTHERWISE BE RESOLVED EXPEDITIOUSLY. GLOBAL ASSOC.-- RECONSIDERATION, B-212820.2, AUG. 21, 1984, 84-2 CPD PARA. 203. WE DO NOT BELIEVE A CONFERENCE IS WARRANTED IN THIS CASE.

OUR PRIOR DECISION DENYING BRIGHTSTAR'S CLAIM IS AFFIRMED.