Rockwell Electronic Commerce Corporation--Modification of Recommendation, B-286201.8, March 5, 2002

Rockwell Electronic Commerce Corporation--Modification of Recommendation, B-286201.8, March 5, 2002

DIGEST

Attorneys

DECISION

Rockwell Electronic Commerce Corporation requests that we recommend that the Social Security Administration (SSA) reimburse Rockwell for costs the firm incurred in preparing its proposal in response to request for proposals (RFP) No. SSA-RFP-00-3929.

SSA issued the solicitation on October 20, 1999 contemplating award of a fixed-price contract for network-based call answering services. On August 23, 2000, SSA awarded the contract to MCI WorldCom Communications, Inc. Rockwell protested that award, challenging in part the price evaluation. Our decision, Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 CPD Para. 65, sustained the protest on the basis that MCI's proposal had failed to identify, and the agency had failed to evaluate, FTS 2001 contract costs as required by the RFP. As part of its allegation that Rockwell was not prejudiced by the defective evaluation, the agency asserted that the required level of administrative call services at issue was so insignificant that any unevaluated FTS 2001 costs associated with MCI's proposed performance would be insignificant to the price evaluation and source selection decision. In response, Rockwell stated that, if the level of services for administrative call traffic was insignificant, it had been misled by the RFP as to that fact and, as requested by the RFP, had proposed its best solution for performing those services at a significant incremental additional cost that was reflected in SSA's evaluation. Rockwell further stated that, had it known that the agency considered the level of required services to be insignificant, it would have proposed a different solution at a significantly lower price. We found that the RFP did not adequately apprise offerors that the level of service for administrative call traffic was insignificant and there was no evidence that the agency was aware of this at the time of the evaluation, or at any time prior to Rockwell's protest. Our decision recommended that the agency reopen the competition, amend the solicitation as appropriate, request and evaluate revised proposals, and make an award decision consistent with the terms of the RFP and the decision. The agency subsequently requested reconsideration, which we denied in Social Sec. Admin.; MCI WorldCom Communications, Inc.-Recon., B-286201.4, B-286201.5, Apr. 19, 2001, 2001 CPD Para. 157.

The agency then implemented "corrective action" that essentially consisted of conducting discussions with MCI only, requesting and receiving a revised proposal from MCI only, and again selecting MCI's proposal for award. Rockwell protested this corrective action as being inconsistent with procurement law and regulation, and with our prior decisions. In Rockwell Elec. Commerce Corp., B-286201.6, Aug. 30, 2001, 2001 CPD Para. 162, we sustained that protest on the bases that SSA had improperly conducted discussions with, and considered a revised proposal from, only one offeror whose proposal was in the competitive range, and that its corrective action did not remedy the improprieties identified in our decision. We affirmed our previous recommendation. SSA again requested reconsideration, which we denied on September 20.

By letter of November 5, 2001, SSA notified our Office that the agency would not follow our recommendations. Rockwell then requested that our Office recommend that Rockwell be reimbursed the costs of preparing its proposal under the RFP.

Where our Office sustains a protest, we may recommend that the protester be reimbursed its costs of filing and pursuing a protest and preparing a proposal. 4 C.F.R. Sec. 21.8(d) (2001). Although we normally do not recommend reimbursement of proposal preparation costs where a protester is given an opportunity to compete under a corrected solicitation, we may recommend reimbursement where changed circumstances render no longer relevant a proposal that was previously submitted, where appropriate corrective action may not be implemented, or where the agency unduly delays taking corrective action. See COBRO Corp., B-287578.2, Oct. 15, 2001, 2001 CPD Para. 181 at 8-9; Occu-Health, Inc., B-270228.3, Apr. 3, 1996, 96-1 CPD Para. 196 at 6; Aberdeen Tech. Servs.--Modification of Recommendation, B-283727.3, Aug. 22, 2001, 2001 CPD Para. 146 at 2. Here, SSA states that it will not follow our recommendation to cure the improprieties in the competition. Since SSA states that it will not take appropriate corrective action, Rockwell will not have a meaningful opportunity to compete based on the proposal submitted. Reimbursement of Rockwell's proposal preparation costs is thus appropriate. /1/

We modify our recommendation to provide that Rockwell also be reimbursed the costs of preparing its proposal under the RFP. 31 U.S.C. Sec. 3554(c)(1), 4 C.F.R. Sec. 21.8(d)(2). The protester should submit its claim for costs, detailing and certifying the time expended and cost incurred, with the contracting agency within 60 days after receipt of this decision. 4 C.F.R. Sec. 21.8(f)(1).

Anthony H. Gamboa General Counsel

1. Together with this decision, we are advising the relevant congressional committees of SSA's failure to implement our recommendation. See 31 U.S.C. Sec. 3554(e)(1) (1994 and Supp. IV 1998).