Protest Involving Issues in Litigation

B-197872: Sep 18, 1980

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A firm protested the Department of Energy's (DOE) selection of another firm for final negotiations and eventual award of a contract. The request for proposals (RFP) solicited a communications system to provide the interexchange of teletype messages between designated DOE offices. The protest was also the subject of litigation, and the court expressed an interest in a decision by GAO. An initial evaluation ranked the protester's technical proposal slightly higher than the awardee's and disclosed that the proposed awardee offered a cost-plus-fixed-fee proposal instead of the required firm-fixed-price proposal. However, after best and final offers were solicited from both firms, the proposed awardee submitted a firm-fixed-price revised proposal significantly lower in price than the protester's. A preaward survey concluded that the proposed awardee could comply with the RFP requirements and recommended complete award. The protester contended that: the RFP required an analysis of total proposed price which had to be completed prior to the selection of an offeror for final negotiations; regulations required the contracting officer to make a conclusive responsibility determination of the awardee before final negotiations; and either the awardee's proposal did not satisfy the technical requirements of the RFP, or DOE had relaxed the requirements without giving the protester an equal opportunity to revise its offer. The DOE conclusion that the lower price offered was viable and reasonable was confirmed by an in-depth audit performed by the Defense Contract Audit Agency which eliminated any prejudice to the protester in the conclusions of the DOE preselection analysis. Regulations do not require that a conclusive responsibility determination be made prior to the selection of an offeror for final negotiations. The protester's assumptions as to the alleged relaxing of the RFP requirements or the nonresponsiveness of the awardee's proposal were found to be misconceptions since it did not have access to the evaluation documents or the selected proposal. The GAO review disclosed nothing to contradict the DOE finding that the awardee's technical proposal complied with the RFP requirements. Acccordingly, the protest was denied.