[Protest of NRC Contract Award for Career Counseling Services]

A firm protested a Nuclear Regulatory Commission (NRC) contract award, contending that: (1) the solicitation was defective; (2) the discussions which NRC conducted were inadequate or misleading; and (3) NRC improperly or unfairly evaluated proposals. The solicitation had warned bidders that technical merit would be more significant than cost in proposal evaluation, and a bid with a higher technical score was chosen over the protester's lower priced bid. Although the protester complained that NRC denied it access to certain information which would be useful in the development of its bid protest, GAO has held that a contracting agency has the primary responsibility for determining which documents are subject to release, and it will not question an agency determination absent a showing of fraud or bad faith, and no such showing was made here. Complaints against alleged deficiencies in the solicitation were untimely since the protest was filed after the closing date for receipt of proposals. GAO found that much of the protest against insufficient discussions was untimely because it was filed more than 10 working days after the basis of the protest was known. The protester failed to prove that NRC acted unreasonably in its conduct of the discussions it held; therefore, GAO was unable to conclude that the protester was prejudiced by any inadequacy of discussions. GAO found that NRC complied with proposal evaluation requirements and that the protester failed to show that the evaluation was unreasonable. Although the protester alleged that bidders were not treated fairly or equally, GAO has held that a competitive advantage gained by virtue of a firm's incumbency is not an unfair advantage which must be eliminated. Finally, although the protester contended that NRC failed to justify award at a higher price, in a negotiated procurement there is no requirement that award be made on the basis of lowest cost. Accordingly, the protest was denied in part and dismissed in part.