[Protest of Bureau of Mines Contract Award Alleging Improper Procurement Procedures]

A firm protested a Bureau of Mines contract award, contending that the agency improperly accepted a late modification of the awardee's bid which displaced it as the low offerer. The agency agreed with the protester that the award was improper because the awardee failed to submit an otherwise successful proposal. Therefore, the agency requested the awardee to stop performance, but would take no corrective action without GAO concurrence. In addition, the awardee filed a protest contending that the procedures used in the procurement were not proper and that the agency should recompete its requirement. GAO agreed with the agency that the acceptance of the late modification was improper because there was no basis for accepting the modification after the time set for receipt of best and final offers. GAO found that the protester's failure to submit a more price-competitive bid was due to its failure to understand that negotiations had been reopened. Therefore, GAO sustained the protest and recommended that the agency reopen discussions with both offerers. If, upon resolicitation, the protester's bid is low, the contract with the awardee should be terminated and awarded to the protester. In addition, Federal Acquisition Regulations should be revised to include a specific requirement that oral requests for best and final offerers be confirmed in writing. Accordingly, both protests were sustained.