Protest Involving Contract Award

B-196442.2: Nov 7, 1980

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A firm protested, for a second time, the award of a contract for the evaluation of foreign language training and an area studies program. The request for proposals (RFP) required the contract work to be done in two phases. GAO sustained the firm's first protest, because the agency awarded the contract for both phases without affording other offerors an opportunity to submit proposals on that basis. GAO recommended that the agency reopen negotiations for another round of offers; however, the agency reopened negotiations for only Phase II since Phase I was substantially underway. The agency did not revise the RFP, but advised the offerors that it had increased its estimated level of effort and the performance period for the second phase. The protester contended that the awardee enjoyed an unfair advantage in competing for Phase II, because only it had access to the Phase I report prior to submitting a proposal for the second phase. To equalize the competition, the protester argued that the agency should have postponed the due date for the Phase II proposals and released the Phase I report to all offerors. Certain firms may enjoy a competitive advantage because of their incumbency, but such an advantage is not improper unless it results from preference or unfair action by the Government. GAO did not think that the awardee enjoyed an unfair competitive advantage in this case. Phase I and Phase II were designed to evaluate two different subjects involving data collected from entirely different populations. The request for proposals advised offerors where to obtain the data, what data were needed, and defined the scope of each study. This gave the offerors a clear basis upon which they could write Phase II technical proposals. There was no evidence on the record to show that the competitive advantage which the awardee enjoyed resulted from any preference or unfair action by the Government. The protester also objected to the composition of the technical evaluation panel. The agency had denied this protest more than 2 months before the protest was filed with GAO; thus, the protest on this basis was untimely.