Contract Award Protest

B-196832: Feb 14, 1980

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A firm protested the award of a cost-plus-award-fee contract for various operating, logistic, design, and construction services in support of the Antarctic Research Program. The contract award was based on an offer by the awardee to accept a lower award fee and to provide, at no cost, a study of a communications system for Antarctica. The protester contended that the award was improper because the request for proposals (RFP) did not call for proposals on either item, and the other offerors were given no opportunity to offer competing proposals. It further contended that the agency made numerous errors in evaluating proposals. The agency and the awardee argued that the lower fee and communications study bases were without merit and the erroneous evaluation basis was untimely. After examining the record GAO found that the awardee did not take exception to any of the agency's requirements, offered to meet all the agency's needs reflected in the RFP, and offered to do so at a reduced price. It appeared that the protester was unaware that, in this negotiated procurement, it could have offered to do the required work at a lesser cost to the Government than the maximum fee stated in the IFB. This aspect of the protest was without merit because the essence of competitive negotiated procurement is for the Government to obtain its requirements under the best terms and conditions, including cost. GAO believed that the protester was not prejudiced by the agency's acceptance of the offer with the lower award fee provisions. GAO calculated that even if the protester had lowered its maximum award fee to zero percent, it could not have affected the agency's award selection because the awardee would still have had an estimated cost advantage and technical superiority. GAO found that a study concerning communications improvement was within the scope of the RFP, and the agency had no duty to disclose this element of the awardee's proposal to the protester. Consideration of such matters was within the RFP evaluation criteria. The offer of the study was minor and did not determine the outcome. GAO concluded that the protester's objections concerning the agency's evaluation criteria were essentially the protester's disagreement with the agency's award determination. The protester did not show that errors were made, and GAO could not conclude that the evaluation was in error or prejudicial to the protester. Accordingly, the protest was denied.