B-229838, Mar 23, 1988, 88-1 CPD ***

B-229838, Mar 23, 1988, 88-1 CPD ***

PROCUREMENT - Bid Protests - GAO Procedures - Preparation Costs PROCUREMENT - Competitive Negotiation - Offers - Evaluation Errors - Prices PROCUREMENT - Competitive Negotiation - Offers - Preparation Costs DIGEST: Protest is sustained where agency misevaluated offers and awarded a contract to other than the low offeror, and the protester is awarded the costs of filing and pursuing its protest and its proposal preparation costs.

Matter of: Metal Forming Systems, Inc:

Metal Forming Systems, Inc. (MFS), protests the award of a contract to Lynch Machinery Co., Inc. under request for proposals No. N00600-87 R- 4996, issued by the Naval Regional Contracting Center, for a hydraulic, power operated press brake.

We sustain the protest.

The RFP stated that award would be made to the lowest priced, technically acceptable offeror, and incorporated by reference Federal Acquisition Regulation Sec. 52.215-16, which informed offerors of the possibility of awarding the contract on the basis of initial proposals without discussion. The Navy states that it awarded the contract to Lynch because it believed Lynch was the lowest priced, technically acceptable offeror, inclusive of duty. Lynch proposed a U.S. made product, and its price was $33,500. MFS's price was $34,297, including duty and $32,960 without duty.

MFS protested that the correct evaluated price of its press brake is $32,960. In its report, the Navy agreed that since MFS was proposing a 75 percent Canadian manufactured end product, the Navy should have evaluated MFS price exclusive of duty under Defense Federal Acquisition Regulation Supplement Sec. 25.74. The regulation states that offers of any equipment, item of supply, component or end product purchased by the Department of Defense shall be evaluated without application of duty if it is from a participating NATO country. Canada is listed as a participating country. The Navy states that MFS submitted the lowest priced, technically acceptable offer, and that MFS, not Lynch, should have been awarded the contract.

As the Navy has conceded, MF8's price clearly was lower than the awardee's and, therefore, Lynch should not have received the award. Therefore, MFS's protest against the award to Lynch is sustained.

Since we have sustained the protest, MFS is entitled to remedy. Reopening of the procurement and conducting discussions to determine the proper awardee is not possible as performance of the contract apparently has been completed. In this circumstance, MFS is entitled to the costs of filing and pursuing the protest. The protester may also recover its proposal preparation costs since it has been unreasonably excluded from the competition and no other remedy enumerated in our regulations is appropriate. 4 C.F.R. Sec. 21.6(e) (1987).

MFS should submit its claim for protest costs directly to the agency.