B-233372.2, B-233372.3, Jul 24, 1989, 68 Comp.Gen. 559

B-233372.2, B-233372.3, Jul 24, 1989, 68 Comp.Gen. 559

Procurement - Bid Protests - GAO procedures - GAO decisions - Reconsideration 1. Prior decision is affirmed despite the agency's contention that protester was not prejudiced where the record remains unclear as to what selection decision would have been made if the awardee had submitted a factually accurate final offer concerning the availability and number of its proposed key personnel. Procurement - Bid Protests - GAO procedures - Preparation costs 2. Award of protest costs is affirmed where, upon learning during the course of the protest that awardee misrepresented the availability and number of its key personnel, the agency elected to treat the matters as immaterial instead of taking prompt corrective action. taking prompt corrective action.

Omni Analysis; Department of the Navy-- Requets for Reconsideration:

Omni Analysis and the Navy request reconsideration of our decision, Omni Analysis, B-233372, Mar. 6, 1989, 68 Comp.Gen. ***, 89-1 CPD Para. 239, sustaining a protest against the award of a contract to Advanced Technology, Inc. (ATI), for training support services under request for proposals (RFP) No. N60921-88-R-0113. The Navy argues that the protest should not have been sustained because Omni was not prejudiced by the award. The agency also questions the award of protest costs, and both parties request modification of our recommended corrective action to recompete the Navy's requirements for the option periods.

We affirm our prior decision.

The RFP required offerors to propose a minimum of 18 key personnel; in addition, signed letters of intent were required for key personnel who were not in an offeror's employ. Proposals were to be evaluated in accordance with criteria placing more emphasis on technical considerations than cost, and personnel was one of the most heavily weighted technical evaluation factors. ATI's initial proposal was evaluated on the basis of the 18 employees it designated as key personnel and, as a result, it outscored Omni by 75 points out of 1000 possible. In its best and final offer (BAFO)-- which was not rescored- ATI did not disclose that two of its proposed key personnel had left its employ and, in fact, gave assurances that its original personnel team remained intact.

Upon learning that several of ATI's key personnel had departed after the firm received evaluation credit for them, the Navy took the position that these departures were immaterial. In holding that the award to ATI was improper, we found that position to be unreasonable because, among other things, it ignored the fact that, in effect, ATI proposed only 16 key personnel, while the RFP required a minimum of 18. It also ignored the fact that the awardee continued to receive full evaluation credit for a lesser number of employees in a closely scored competition with Omni, who proposed a full personnel slate. Moreover, we held that by effectively misrepresenting the number and availability of its key personnel, ATI had compromised the validity of the technical evaluation and the integrity of the procurement process.

The Navy contends that Omni was not prejudiced because it would not have received the award in any event. As support for this proposition, the agency relies on an RFP clause which provided that estimated cost could increase in importance as an evaluation factor as the degree of equality of technical competence between competing proposals increased. Noting that ATI's evaluated cost was lower than Omni's, the Navy argues that even if the awardee's technical score had been reduced as a result of its misrepresentations, the firm "most likely would have received the award" by operation of this clause.

Our earlier decision specifically considered ATI's 75-point technical scoring advantage and the fact that its evaluated costs were about 7 percent less than Omni's. However, in concluding that it was not clear from the record whether ATI would have received the award if it had submitted a factually accurate BAFO, we noted that the evaluators thought highly of the two employees who departed after evaluation and were not available to perform, and that they were impressed with the "fact" that ATI had proposed a readily available slate of 18 of its own employees. Moreover, we noted that the RFP simply did not provide for offers to be evaluated on the basis of fewer than 18 key personnel. In addition, although not specifically cited in our earlier decision, we were aware of the RFP language now relied upon by the agency in its request for reconsideration and, thus, we remain unpersuaded that the misrepresentations in ATI's proposal were not prejudicial to Omni.

The Navy also questions the award of protest costs to Omni. While no longerdisputing the underlying impropriety of ATI's actions in submitting a factually inaccurate BAFO, the agency argues that, since it had no pre- award knowledge of the firm's misrepresentations, there is no basis for our Office to determine that the award did not comply with statute or regulation-- a prerequisite to the award of protest costs. See Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Sec. 3554(c)(1) (Supp. IV 1986).

We recognize that the award was made by the Navy without prior knowledge of the misrepresentations in ATI's proposal. However, the Navy was aware of ATI's factually inaccurate BAFO as early as its receipt of Omni's initial letter of protest where the issue was first raised-- 9 days after award and before contract performance was scheduled to begin. The issue was more fully argued in the protester's comments on the agency report, and the Navy was provided by this Office with an opportunity to file a supplemental report in response. Instead of taking the corrective action it now suggests may be appropriate-- i.e., conducting another evaluation and soliciting another round of BAFOs-- the Navy elected to treat the matter as immaterial and maintained this position throughout our consideration of Omni's protest. In these circumstances, we believe that the protester is entitled to be reimbursed for the reasonable costs of pursuing its protest. Cf. Storage Technology Corp., B-235508, May 23, 1989, 89-1 CPD Para. 495 (holding that the award of protest costs is inappropriate where an agency takes prompt corrective action to remedy a defective award selection brought to its attention by a protester, and thereby obviates a decision on the merits).

The Navy also argues that we should limit Omni's entitlement to only those costs incurred in pursuing the one issue on which it prevailed, as we did in Interface Flooring Sys., Inc.-- Claim for Attorneys' Fees, 66 Comp.Gen. 597 (1987), 87-2 CPD Para. 106, and in Ultra Technology Corp., B-230309.6, Jan. 18, 1989, 89-1 CPD Para. 42. For the reasons discussed below, we disagree.

As a general rule, we consider a protester entitled to costs incurred with respect to all issues pursued, not merely those upon which it prevails, since they are intertwined parts of a successful protest of one contract award. See Princeton Gamma-Tech, Inc.-- Claim for Costs, B-228052.5, Apr. 24, 1989, 68 Comp.Gen. ***, 89-1 CPD Para. 401. Navy, is an exception to the general rule involving protests in which there are unsuccessful challenges to line items which are awarded separately from those which are successfully challenged; as we specifically noted in that decision, protests involving separately awarded items stand in contrast to protests where, as here, several grounds of objection to the same award are raised.

In the other case cited by the Navy, Ultra Technology, we limited the recovery of costs where we sustained a protest solely because the record disclosed a "possibility" that the agency had made an improper award. was subsequently determined that the award was proper. See Ultra Technology Corp. et al.-- Requests for Reconsideration, B-230309.7 B-230309.8, June 6, 1989, 89-1 CPD Para. 528.

Finally, in lieu of our recommendation to recompete the option requirements, Omni requests that we modify our decision to recommend termination of ATI's contract and immediate recompetition, while the Navy suggests that it may be appropriate to conduct another evaluation and solicit another round of BAFOs on the original procurement. Since the agency reports that it has already undertaken to recompete the option requirements in accordance with our recommendation, and in view of the short time remaining on ATI's contract, we do not believe that termination for convenience and recompetition are feasible. As to the agency's suggestion for another evaluation and another round of BAFOs, as discussed above, the appropriate time for such corrective action has passed.

he prior decision is affirmed.