Matter of: Anderson Hickey Company File: B-250045.3 Date: July 13, 1993
B-250045.3: Jul 13, 1993
It is not required to make award to the protester. Where awards were to be based on technical concerns as well as price and contracting officer could not conclude. That the protester's offer will provide the best value to the government. PROCUREMENT Contract Management Contract administration Convenience termination Resolicitation GAO review Agency decision to correct failure to conduct meaningful discussions by resoliciting the requirement is proper where protester will suffer no prejudice from such corrective action. Resolicitation will place all offerors in the same competitive posture they enjoyed prior to the defective award. GSA's action was taken in response to a prior protest of those awards filed by Anderson.
Matter of: Anderson Hickey Company File: B-250045.3 Date: July 13, 1993
PROCUREMENT Contract Management Contract administration Convenience termination Competitive system integrity Where agency terminates contract awards because it determined that it failed to conduct meaningful discussions with all offerors, it is not required to make award to the protester, the lowest-priced offeror, where awards were to be based on technical concerns as well as price and contracting officer could not conclude, prior to discussions, that the protester's offer will provide the best value to the government. PROCUREMENT Contract Management Contract administration Convenience termination Resolicitation GAO review Agency decision to correct failure to conduct meaningful discussions by resoliciting the requirement is proper where protester will suffer no prejudice from such corrective action; resolicitation will place all offerors in the same competitive posture they enjoyed prior to the defective award.
DECISION Anderson Hickey Company protests the decision by the General Services Administration (GSA) to resolicit rather than make award to or reopen negotiations with Anderson under request for proposals (RFP) No. FCNO-91-S202-N-4-8-92, after partially terminating for convenience two contracts awarded under the RFP to The Hon Company and to Steelcase, Inc. GSA's action was taken in response to a prior protest of those awards filed by Anderson.
We deny the protest.
The RFP was issued on February 6, 1992, and contemplated award of a requirements contract for various items of steel office furniture. Section M of the RFP, as revised by amendment No. 2, stated that award would be made to the responsible offeror whose proposal "offers the greatest value to the [g]overnment in terms of quality and price. . . . technical quality is more important than cost or price." Section M also listed two evaluation factors, technical and management; each of these evaluation factors had various sub-factors. For purposes of evaluation, the RFP's section L required bidders to submit bid samples for several enumerated contract line items (CLIN). Subsequent to receipt of proposals and evaluation, GSA awarded two contracts for the CLINs at issue here to Hon and to Steelcase.
Anderson initially protested these awards as to eight different CLINs on February 19, 1993. Anderson primarily alleged that GSA failed to conduct meaningful discussions with it; the protester further asserted that GSA should have awarded the contracts for the CLINs in question to it as the "low bidder." On March 19, GSA advised our Office that it had partially terminated for convenience the contracts for the CLINs at issue, and planned to resolicit. In light of the agency's corrective action, on March 22 we dismissed Anderson's protest. The propriety of this corrective action is the subject of Anderson's protest filed on that same date.
After Anderson filed this protest, GSA informed our Office that it had taken corrective action because, after reviewing Anderson's initial protest, it concluded that it had failed to conduct meaningful discussions with all three offerors. The agency explained that it required bid samples to conduct meaningful discussions on an equal basis with all offerors; since GSA no longer possessed all of those bid samples, a resolicitation was necessary to compel the offerors to resubmit bid samples.
We generally will not object to corrective action which places all offerors in the same competitive posture they enjoyed prior to the defect in the source selection process. Henkels & McCoy, Inc., B-250875 et seq., Feb. 24, 1993, 93-1 CPD Para. 174; Power Dynatec Corp., B-236896, Dec. 6, 1989, 89-2 CPD Para. 522, aff'd, B-236896.2, Apr. 20, 1990, 90-1 CPD Para. 404. This is so because contracting officials in negotiated procurements have broad discretion to determine the corrective action necessary to insure a fair and equal competition. Oshkosh Truck Corp.; Idaho Norland Corp., B-237058.2; B-237058.3, Feb. 14, 1990, 90-1 CPD Para. 274. We will consider whether corrective action taken by an agency in the face of a protest was appropriate to remedy the original improper award. Power Dynatec Corp., supra.
Anderson contends that the appropriate corrective action is not to resolicit for the requirement, but to make award to it; Anderson asserts that it is "undisputedly the low responsible bidder" whose furniture meets all of the solicitation's requirements. Alternatively, Anderson contends that the agency should reopen discussions rather than resolicit.
Anderson's contention that GSA should now make award to it is without merit. While Anderson may be the "low bidder," the RFP states that award will be made to the offeror offering the greatest value to the government in terms of quality and price; technical quality is more important than price. Since technical quality is more important than price under this RFP, Anderson is not entitled to award merely by virtue of its low price. Moreover, Anderson's contention that its furniture meets all of the RFP's technical requirements is not supported by the record. The evaluation documents show that numerous deficiencies in Anderson's furniture led the Source Selection Evaluation Board to rate its furniture significantly lower than it rated the furniture of either Hon or Steelcase. While Anderson asserts that GSA improperly evaluated its furniture against unstated evaluation criteria, the evaluation documents belie this assertion.
Anderson argues that its furniture should be regarded as acceptable because it has long provided this type of furniture to GSA under previous procurements with no complaint. However, each procurement is a separate transaction and agency action under one procurement does not affect the propriety of the agency's action under a different procurement. See Ashland Scissors, Inc., B-240930.2, Jan. 30, 1991, 91-1 CPD Para. 86.
Under the circumstances, GSA properly concluded that it could not simply make award to Anderson.
As for Anderson's contention that the agency should reopen negotiations rather than resolicit, it is true that when a contract has been improperly awarded due to a failure to conduct meaningful discussions, one appropriate corrective action would be to reopen negotiations, conduct meaningful discussions, and then allow offerors an opportunity to submit revised proposals. Son's Quality Food Co., B-244528.2, Nov. 4, 1991, 91-2 CPD Para. 424; Power Dynatec Corp., supra. Here, GSA is no longer in possession of all the bid samples required under this RFP. The agency argues that if bid samples are not provided by all offerors, new discussions will be based on the existing written evaluations, and any corrections to deficiencies will also be based on those prior evaluations without the advantage of supporting samples. As a result, those offerors without samples at GSA could assert that a bias existed in the evaluation process in favor of Anderson, whose sample GSA still has. GSA believes that if it reopens discussions and requests bid samples, some offerors may request that they be evaluated based on samples previously submitted. Without supporting samples, the agency is concerned about challenges to its evaluation process. A resolicitation requiring the submission of new bid samples would assure that all offerors would be evaluated on an equal basis.
Irrespective of GSA's concerns, we are aware of no legal impediment to the agency's requiring new bid samples as a condition of participation in further negotiations under the existing RFP. However, the approach preferred by GSA is unobjectionable. Anderson does not explain how it would be prejudiced by GSA resoliciting instead of reopening negotia- tions, and the record otherwise contains no evidence of any such prejudice. While Anderson argues that resolicitation would create an improper auction because its prices have been revealed, this would be true as well if negotiations were reopened. In any event, Anderson's prices were not the only ones revealed--the prices of both Hon and Steelcase were also made public when the notices of award were published in the Commerce Business Daily. Under the circumstances here, we will not object to resoliciting the requirement, as it will place all offerors, including the protester, in the same competitive posture they enjoyed prior to the defective award. See Henkels & McCoy, Inc., supra.
The protest is denied.
1. The solicitation was originally issued as RFP No. FCNO-91-S202-N-3-18 -92; that number was changed by amendment No. 1, issued on March 3, 1992.
2. Anderson's furniture was downgraded for such things as uneven and grainy paint finishes, rough and sharp edges, and noisy drawers. Contrary to Anderson's assertion, these deficiencies were included under the stated evaluation criteria: "[t]he finish shall be free from imperfections," "[w]elds should be neat," "[c]omponents should operate in a manner so as not to endanger the user," and "[c]omponents shall operate quietly." To the extent Anderson is complaining that the stated evaluation criteria were too subjective, the protest is untimely, as alleged solicitation defects must be protested prior to the time set for receipt of initial proposals. 4 C.F.R. Sec. 21.2(a)(1) (1993).
3. In any event, the same concern voiced by Anderson regarding release of its price arises even if GSA reopens negotiations instead of resoliciting. Further, even if only Anderson's prices had been revealed, the risk of an auction is secondary to the need to preserve the integrity of the competitive procurement system through appropriate action to remedy the agency's failure to conduct meaningful discussions prior to award, whether that appropriate action is a resolicitation, see generally Roy F. Weston, Inc.--Recon., B-221863.3, Sept. 29, 1986, 86-2 CPD Para. 364, or a reopening of discussions. See The Faxon Co., 67 Comp.Gen. 39 (1987), 87-2 CPD Para. 425.