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Request for Reconsideration

B-194356.2 Apr 06, 1981
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Highlights

The Department of the Air Force requested reconsideration of a decision in which it was held that the Air Force should conduct discussions with all offerors within the competitive range under a solicitation, rather than proceed with an award on the basis of initial proposals. That decision was made because the record indicated that it was likely that an award could be made at a lower price than if made on the basis of initial proposals, discussions would be neither time consuming nor costly, and the services to be procured were not urgently needed. The Air Force argued that the decision was not in accordance with prior GAO decisions regarding the legality of an award on the basis of initial proposals. It cited numerous cases in which GAO held that an award on the basis of initial proposals was not legally objectionable so long as the conditions set forth in regulations were satisfied. GAO believed that the Air Force misinterpreted its holding. Unlike the cases cited by the Air Force, GAO was not faced with determining the legality of an awarded contract, but with a preaward situation which indicated that the potential savings to be gained by conducting discussions outweighed the limited cost or administrative inconvenience of conducting such discussions. Additionally, the record reflected confusion on the part of the Air Force concerning whether it could properly conduct discussions with the protester in the case at issue, since the protester failed to acknowledge a material amendment. GAO sustained the protester's objections to the proposed award on the basis of initial proposals, since such an award appeared unwise. The Air Force also alleged that the decision radically departed from the historical limits and nature of GAO review. GAO did not agree. Previous decisions show that GAO will recommend that a procuring agency take a given course of action if GAO believes such action is required by public policy embodied in the competitive procurement statutes and believes the action proposed by the agency to be undesirable. This is true even if the action proposed to be taken by the procuring agency may not be legally objectionable. GAO continues to believe that its recommendation was correct and that the Air Force should conduct discussions in this procurement and in similar cases. Accordingly, the prior decision was affirmed.

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