Matter of: Brunswick Corporation, Defense Division, Reconsideration File: B-250695.2 Date: March 9, 1993

B-250695.2: Mar 9, 1993

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PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration of prior dismissal is denied where protester does not show that decision contains errors of fact or law or that information not previously considered warrants reversal of decision. Brunswick complained that the Navy performed an inadequate cost evaluation because the Navy failed to consider additional costs identified which the Navy would have to pay if it awarded to a foreign firm. Since none of the cost factors listed by Brunswick was identified as an evaluation factor in the RFP. We concluded that these additional cost factors properly were not evaluated by the agency. We also dismissed as untimely Brunswick's protest to the extent that it argued that these factors should have been included in the RFP since this allegation was based on an alleged impropriety apparent from the solicitation that was not filed prior to the closing time for receipt of proposals.

Matter of: Brunswick Corporation, Defense Division, Reconsideration File: B-250695.2 Date: March 9, 1993

PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration of prior dismissal is denied where protester does not show that decision contains errors of fact or law or that information not previously considered warrants reversal of decision, but basically repeats arguments made during consideration of the original protest.

Attorneys

DECISION Brunswick Corporation, Defense Division (Brunswick), requests reconsideration of our dismissal of its protest challenging the award of a contract to TAAS-Israel Military Industries, Inc., Ltd. (TAAS) under request for proposals (RFP) N00019-92-R-0016, issued by the Department of the Navy for Tactical Air Launched Decoy (TALD) vehicle systems.

We deny the request for reconsideration.

In its protest filed after award, Brunswick complained that the Navy performed an inadequate cost evaluation because the Navy failed to consider additional costs identified which the Navy would have to pay if it awarded to a foreign firm. We stated that evaluations of proposals must be on the basis of factors stated in the RFP. See 10 U.S.C. Sec. 2305 (1988 and Supp. III 1991). Since none of the cost factors listed by Brunswick was identified as an evaluation factor in the RFP, we concluded that these additional cost factors properly were not evaluated by the agency. We also dismissed as untimely Brunswick's protest to the extent that it argued that these factors should have been included in the RFP since this allegation was based on an alleged impropriety apparent from the solicitation that was not filed prior to the closing time for receipt of proposals. Laketon Refining Corp. et al., B-235977.2 et al., Jan. 4, 1990, 90-1 CPD Para. 10. Brunswick also argued that the competition was inherently unfair since foreign firms were not required to comply with the same socio-economic requirements as domestic firms. We rejected this contention since procuring activities are not required to equalize whatever competitive advantages foreign firms may have over domestic firms. See Pall Land and Marine Corp. et al., B-223478 et al., July 16, 1986, 86-2 CPD Para. 77; Pyrotechnics Indus., Inc., B-221886, June 2, 1986, 86-1 CPD Para. 505.

In its request for reconsideration, Brunswick argues, as it did in support of its initial protest, that the solicitation's statement that award was to be made on the basis of the "lowest overall cost to the government" reasonably advised offerors that all relevant cost factors would be evaluated. Brunswick contends that this award methodology required that the Navy evaluate additional costs that the Navy must bear if it awards to TAAS, rather than Brunswick, and additional costs which must be included in Brunswick's price that TAAS can avoid. We specifically found that the RFP called for firm, fixed prices and specified the type of cost information it required firms to submit which did not include the costs Brunswick argued should be evaluated. We also found that the term "lowest overall cost to the Government" does not permit award to be based on factors not contained in the RFP and of which offerors were not apprised in the RFP. In expressing disagreement with our decision, Brunswick in essence repeats arguments it made previously.

Brunswick next contends that we misunderstood its allegation concerning the agency's improper technical evaluation. Brunswick argues that its basis for protest was that the Navy failed to adhere to the terms of the RFP by not considering the superior upgrade ability of Brunswick's TALDs. We understood Brunswick in its initial protest to be arguing that the evaluation was improper because the Navy failed to evaluate an alleged $5 million cost advantage resulting from Brunswick's design which permits inexpensive upgrade of the TALD. As stated in our dismissal, we believe this was also a challenge to the cost evaluation that should have been raised prior to the closing time for receipt of proposals. In any event, while the least important technical evaluation factor stated that an offeror's past performance and systematic improvement would be evaluated, the solicitation did not explicitly call for consideration of the cost advantages of any prior design changes under the technical evaluation factors.[1] Further, since this is a fixed-price contract, the cost advantages of Brunswick's design should, presumably, have been reflected in its price.

Since the protester has not shown that our original decision was erroneous or submits new information which would warrant reversal of our decision, the request for reconsideration is denied. 4 C.F.R. 21.12(a) (1992); Professional Safety Consultants Co., Inc., Recon., B-247331.2, Sept. 28, 1992, 92-2 CPD Para. 209.

1. Both firms were found technically acceptable in this area.