[Protest of Bureau of Mines Award of A-E Contract]

A firm protested a Bureau of Mines contract award, contending that: (1) the unqualified evaluation board improperly evaluated the qualifications of and failed to conduct discussions with at least three of the qualified firms; (2) the agency should not have requested cost proposals before selecting the most preferred firm; (3) the awardee could not meet performance requirements and its bid information was not current; (4) the agency's knowledge of the awardee's low prices influenced its reevaluation; and (5) the agency improperly allowed the awardee to update its bid after award. In addition, the protester argued that the proposed corrective actions did not address all of its allegations. The agency contested most of the allegations but admitted that the board failed to conduct the required discussions. The agency proposed to: (1) obtain updated information from the three qualified firms; and (2) appoint a qualified board to conduct discussions with the firms and reevaluate their qualifications to determine whether the contract should be continued or terminated and reawarded. The agency requested an advanced decision as to the propriety of its proposed actions. GAO found that: (1) failure to conduct mandatory discussions could deprive a protester of the opportunity for award; (2) regulations prohibit the consideration of cost during discussions; and (3) regulations require a bidder's information to be current and factual at the time of evaluation. GAO has held that: (1) a firm's capability to perform a contract should be based on the most current information available to the contracting officer; and (2) the details of implementing corrective actions are the discretion and judgment of the contracting agency. GAO also found that the agency did not cease contract performance as required when it received notice of the protest which was filed within 10 days of the contract award; therefore, any corrective actions should be taken without regard to any cost or disruption due to terminating, recompeting, or reawarding the contract. Accordingly, GAO sustained the protest, and recommended that, if the agency determined that a firm other than the awardee was the best qualified firm, it should terminate the contract and make award to that firm.