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B-221306.2, MAY 5, 1986

B-221306.2 May 05, 1986
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WE FOUND THAT IT WAS PROPER FOR THE CORPS TO REOPEN NEGOTIATIONS TO ENABLE MCCANN TO COMPETE SINCE. THE CORPS WOULD HAVE MADE AN AWARD TO TSCO WITHOUT COMPETITION. WE HAVE REEXAMINED OUR DECISION IN LIGHT OF THE PROTEST RECORD AND THE POINTS RAISED IN TSCO'S LETTER TO YOU. WE HELD IN OUR DECISION THAT: (1) THE CORPS HAD NOT MADE AWARD TO TSCO AT THE TIME NEGOTIATIONS WERE REOPENED. (2) SINCE THIS WAS A REPROCUREMENT FOR THE ACCOUNT OF A DEFAULTED CONTRACTOR. THE CORPS WAS NOT BOUND TO FOLLOW CERTAIN REGULATIONS APPLICABLE TO NORMAL NEGOTIATED PROCUREMENTS. (3) THERE WAS NO EVIDENCE IN THE RECORD AND NO CLEAR REASON TO BELIEVE THAT THE CORPS HAD DISCLOSED TSCO'S PROPOSED PRICE TO MCCANN.

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B-221306.2, MAY 5, 1986

PRECIS-UNAVAILABLE

THE HONORABLE WENDELL H. FORD:

UNITED STATES SENATOR

172-C NEW FEDERAL BUILDING

LOUISVILLE, KENTUCKY 40202

THIS IN REFERENCE TO YOUR MARCH 28, 1986, LETTER TO OUR OFFICE, RECEIVED APRIL 9, ON BEHALF OF TSCO, INC. YOU ASKED THAT WE CONSIDER TSCO'S MARCH 3 LETTER TO YOUR OFFICE EXPRESSING DISAGREEMENT WITH OUR FEBRUARY 26 DECISION DENYING TSCO'S PROTEST OF AN AWARD TO BILL MCCANN, INC., UNDER UNITED STATES ARMY CORPS OF ENGINEERS SOLICITATION NO., DACA27-85-B-0050. WE FOUND THAT IT WAS PROPER FOR THE CORPS TO REOPEN NEGOTIATIONS TO ENABLE MCCANN TO COMPETE SINCE, OTHERWISE, THE CORPS WOULD HAVE MADE AN AWARD TO TSCO WITHOUT COMPETITION.

INITIALLY, WE POINT OUT THAT OUR BID PROTEST REGULATIONS PROVIDE FOR RECONSIDERATION OF A DECISION BASED ON ALLEGED ERRORS OF FACT OR LAW WHERE A PARTY FILES A RECONSIDERATION REQUEST WITHIN 10 WORKING DAYS AFTER RECEIPT OF OUR DECISION. 4 C.F.R. SEC. 21.12 (1985). WE DID NOT RECEIVE YOUR LETTER, OR ANY CORRESPONDENCE FROM TSCO, WITHIN THE 10-DAY PERIOD.

NEVERTHELESS, DUE TO YOUR INTEREST, WE HAVE REEXAMINED OUR DECISION IN LIGHT OF THE PROTEST RECORD AND THE POINTS RAISED IN TSCO'S LETTER TO YOU. WE HELD IN OUR DECISION THAT: (1) THE CORPS HAD NOT MADE AWARD TO TSCO AT THE TIME NEGOTIATIONS WERE REOPENED; (2) SINCE THIS WAS A REPROCUREMENT FOR THE ACCOUNT OF A DEFAULTED CONTRACTOR, THE CORPS WAS NOT BOUND TO FOLLOW CERTAIN REGULATIONS APPLICABLE TO NORMAL NEGOTIATED PROCUREMENTS; AND (3) THERE WAS NO EVIDENCE IN THE RECORD AND NO CLEAR REASON TO BELIEVE THAT THE CORPS HAD DISCLOSED TSCO'S PROPOSED PRICE TO MCCANN. TSCO'S LETTER LARGELY ONLY EXPRESSES DISAGREEMENT WITH OUR DECISION, WITHOUT ANY SUBSTANTIVE SUPPORT FOR ITS DISAGREEMENT. OUR REEXAMINATION OF THE FILE, HOWEVER, INDICATES THAT OUR DECISION IS CONSISTENT WITH THE RECORD AND CONTAINS NO LEGAL OR FACTUAL ERRORS.

ONE OF TSCO'S ASSERTIONS-- THAT OUR OFFICE FABRICATED FACTS TO JUSTIFY OUR DECISION-- WARRANTS DISCUSSION. TSCO NOTES THAT WHILE WE STATED THAT MCCANN'S LATE BID ON THE ORIGINAL PROCUREMENT WAS RETURNED UNOPENED, WE LATER STATED THAT "THE RECORD SHOWS MCCANN'S LATE BID ON THE ORIGINAL PROCUREMENT WAS LOWER THAN EITHER TSCO'S OR WEBB'S (THE ORIGINAL AWARDEE'S) BID." TSCO QUESTIONS HOW THE RECORD COULD SHOW THE AMOUNT OF AN UNOPENED BID.

OUR OFFICE, OF COURSE, DOES NOT FABRICATE FACTS TO SUPPORT PROTEST DECISIONS AND DID NOT DO SO HERE. THE RECORD IN THIS PROTEST CONSISTED OF SUBMISSION FROM TSCO, THE CORPS, AND MCCANN WHICH, AS THE AWARDEE, WAS AN INTERESTED PARTY IN THE PROCEEDINGS. IN TWO SEPARATE SUBMISSIONS DATED DECEMBER 19, 1985, AND FEBRUARY 11, 1986, COUNSEL FOR MCCANN EXPLAINED (IN RESPONDING TO TSCO'S ALLEGATION THAT ITS PRICE HAD BEEN DISCLOSED) THAT MCCANN'S LATE BID ON THE ORIGINAL PROCUREMENT WAS LOWER THAN WEBB'S, THE LOW BIDDER (BY $500,000) AND TSCO'S BIDS. COPIES OF BOTH LETTERS WERE SENT TO TSCO'S COUNSEL AND, IN TSCO'S JANUARY 29 COMMENTS ON THE CORPS' REPORT, TSCO REFERS TO MCCANN'S CLAIM THAT ITS LATE BID WAS LOW WITHOUT CHALLENGING MCCANN'S VERACITY. THIS UNCONTROVERTED INFORMATION FROM MCCANN WAS PART OF "THE RECORD."

AS REQUESTED, WE ARE RETURNING THE MATERIALS FORWARDED WITH YOUR LETTER.

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