Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Corrective Action
General Counsel P.C. Highlight: Where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee’s price has been exposed.
Jackson Contractor Group, Inc. protests the corrective action taken by the Department of the Air Force in response to a prior protest of an award to Jackson under a request for proposals (RFP) for the removal and replacement of the heating-ventilation-air conditioning system at the youth activity center building at Malmstrom Air Force Base, Montana. The Air Force submitted the RFP as a small business set aside and provided that the best value award decision would be based on the evaluation of past performance and price.
The Air Force received two proposals in response to the RFP: one from Jackson and one from James Talcott Construction. Talcott submitted the lowest-priced proposal and its past performance rating was “satisfactory confidence.” Jackson’s higher-priced proposal received a past performance rating of “significant confidence.” The agency made award to Jackson, at which time it properly disclosed the award price. Talcott then protested the evaluation of its past performance and the award selection of Jackson.
In response to the protest, the Air Force determined that the original RFP and evaluation that were used to select the awardee were flawed, and that corrective action was required because clauses relevant to the past performance evaluation included in the solicitation were outdated and not in compliance with the current regulations. The Air Force amended the RFP to include these changes and requested final proposal revisions from the offerors, to include past performance information and price revisions. Jackson protested the corrective action, objecting that it was prejudiced by the corrective action because its price has been revealed and would provide Talcott with an unfair competitive advantage in the reopened competition.
GAO noted its long standing principle that, where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee’s price has been exposed. Jackson did not object to the merits of the corrective action, but argued that because offerors were informed of its price, rescinding the original award and reopening the competition would foster an auction and put Jackson at a competitive disadvantage. GAO held that the Federal Acquisition Regulation does not prohibit auctions, and agencies are not otherwise prohibited from taking corrective action in the form of requesting revised price proposals even where the original awardee’s price has been disclosed. GAO has repeatedly noted that the possibility that the contract may not have been awarded based on a fair determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than does the possibility that the original awardee, whose price has been properly disclosed, will be at a disadvantage in the reopened competition.