Matter of: A Plus Services Unlimited File: B-260298.2 Date: June 9, 1995

B-260298.2: Jun 9, 1995

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Agency's determination to conduct discussions with all competitive range offerors in order to correct its failure to properly evaluate three proposals which had originally been found technically unacceptable is unobjectionable. The RFP was issued on September 16. The Air Force determined that Speedy Food Services was the low. Subsequently determined that Speedy was nonresponsible and hence ineligible for award. Technically acceptable offeror on the basis of initial proposals. [1] HQ ACC disagreed with the original determination that the three proposals judged technically unacceptable (which were the three lowest-priced proposals) could not be made acceptable. A Plus alleges that it is unfair to conduct discussions with the three firms whose proposals were originally determined to be technically unacceptable because the RFP permitted award based on initial proposals without discussions.

Matter of: A Plus Services Unlimited File: B-260298.2 Date: June 9, 1995

Agency's determination to conduct discussions with all competitive range offerors in order to correct its failure to properly evaluate three proposals which had originally been found technically unacceptable is unobjectionable.

Attorneys

DECISION

A Plus Services Unlimited protests the determination of the Air Force to hold discussions with three offerors whose proposals had originally been found technically unacceptable under request for proposals (RFP) No. F41652-94-R-0056 issued by the Department of the Air Force for mess attendant services at Dyess Air Force Base, Texas.

We deny the protest.

The RFP was issued on September 16, 1994, as a competitive set-aside for small and disadvantaged businesses under the Small Business Administration's (SBA) 8(a) program. The solicitation provided that award would be made to the low-priced, technically acceptable, responsible offeror, and that the government could make award based on initial proposals.

The Air Force evaluated the six proposals received, rejected three as technically unacceptable and found the other three, including A Plus's, technically acceptable. Without conducting discussions, the Air Force determined that Speedy Food Services was the low, technically acceptable offeror. The SBA, however, subsequently determined that Speedy was nonresponsible and hence ineligible for award.

The contracting officer then requested authorization from Headquarters, Air Combat Command (HQ ACC) to award to A Plus as the next low, technically acceptable offeror on the basis of initial proposals. [1] HQ ACC disagreed with the original determination that the three proposals judged technically unacceptable (which were the three lowest-priced proposals) could not be made acceptable, finding that the deficiencies in each of these proposals could be addressed through discussions and that the initial evaluations had not been conducted in conformity with the evaluation criteria. Accordingly, HQ ACC advised the contracting officer to conduct discussions with all five offerors remaining in the competition. On February 24, the contracting officer opened discussions. This protest followed.

A Plus alleges that it is unfair to conduct discussions with the three firms whose proposals were originally determined to be technically unacceptable because the RFP permitted award based on initial proposals without discussions. The protester alleges that HQ ACC "disregarded the technical evaluators' and the contracting officer's learned judgment and relaxed the technical requirements for the sole purpose of seeking a lower price for the services."

While the RFP provided that the agency could make award based on initial proposals without discussions, it did not prohibit such discussions where the agency determined that discussions were necessary. Here, HQ ACC did not view the technical evaluations as adequately supporting the finding that several proposals were technically unacceptable and incapable of being made acceptable, and concluded that discussions were needed to determine the lowest-priced technically acceptable proposal. We see nothing unreasonable or improper with this conclusion. See Perez Housing Maintenance, B-249309, Nov. 12, 1992, 92-2 CPD Para. 341; Latecoere Int'l, Inc.--Advisory Opinion, B-239113.3, Jan. 15, 1992, 92-1 CPD Para. 70. Moreover, we generally will not object to corrective action which places all offerors in the same competitive posture they enjoyed prior to the defect in the source selection process. Henkels & McCoy, Inc., B-250875 et al., Feb. 24, 1993, 93-1 CPD Para. 174. This is so because contracting officials have broad discretion to determine the corrective action necessary to ensure a fair and equal competition. Id. Thus, where the agency determines that proposals initially found technically unacceptable are reasonably susceptible to being made acceptable through meaningful discussions, its decision to open discussions with these offerors, instead of making award to A Plus on the basis of initial proposals, is reasonable. [2]

Finally, the protester's assertion that HQ ACC disregarded the technical evaluator's judgment and capriciously reversed the position of the evaluators is without merit. The authority to review the procurement functions of lower-level agency officials inherently includes the authority to review source selection decisions, reverse or vacate those decisions and make one's own reasonable source selection decisions in accordance with RFP criteria. Latecoere Int'l, Inc.--Advisory Opinion, supra; Oklahoma Aerotronics, Inc.--Recon., B-237705.2, Mar. 28, 1990, 90-1 CPD Para. 337. Thus, HQ ACC had the authority to require the conduct of discussions. Id.

The protest is denied.

1. The Air Force's acquisition regulations provide that award of a contract cannot be made prior to obtaining approval, in the form of a business clearance memorandum, by the appropriate authority, in this case HQ ACC. Air Force Federal Acquisition Regulations subpart 5301.90 and Air Combat Command Federal Acquisition Regulations Supplement Sec. 5301.9.

2. A Plus's assertion that opening discussions and advising offerors of deficiencies constitutes technical leveling is misplaced. Technical leveling arises only where, as the result of successive rounds of discussions, the agency helps to bring one proposal up to the level of other proposals by pointing out inherent weaknesses that remain in the proposal because of the offeror's own lack of diligence, competence, or inventiveness. Henkels & McCoy, Inc., supra. Since the Air Force did not previously hold discussions with any offerors, the proposed discussions could not constitute technical leveling.