M.E.E., Inc.

M.E.E., Inc. BNUMBER: B-265605.3; B-265605.4 DATE: February 22, 1996 TITLE: M.E.E., Inc. ********************************************************************** Matter of:M.E.E., Inc. File: B-265605.3; B-265605.4 Date: February 22, 1996 Donald A. Tobin, Esq., Thomas J. Touhey, Esq., and Lori Ann Lange, Esq., Bastianelli, Brown, Touhey, & Kelley, for the protester. Lt. Col. Richard W. Tobin II, and Kathryn M. Burke, Esq., Department of the Air Force, for the agency. Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Where a solicitation's required Davis-Bacon Act wage determination is revised after submission of proposals but prior to award, the contracting agency properly proposes to amend the solicitation to incorporate the revised determination and reopen the competition to permit submission of revised proposals. 2. Where an agency proposes to amend a solicitation and reopen the competition on bases that are not the subject of a protest, the proposed action is not corrective action in response to a protest and the protester is not entitled to reimbursement of its protest costs. DECISION M.E.E., Inc. protests the reopening of discussions under request for proposals (RFP) No. F02604-94-R0010, issued by the Department of the Air Force for maintenance, repair, and minor construction services under the simplified acquisition of base engineering requirements at Luke Air Force Base, Gila Bend Air Force Auxiliary Field, and Fort Tuthill Recreation Area, Flagstaff, Arizona. M.E.E. also claims entitlement to protest costs under this and two earlier protests filed against a contract awarded to PI Construction Corporation. We deny the protest and the claim. The RFP, issued on October 25, 1994 as a total set-aside for small disadvantaged businesses (SDB), contemplated award of an indefinite delivery/indefinite quantity, fixed-price task order contract. The RFP provided for award on a best value basis and stated that technical merit and price were of equal importance. Offerors were required to propose prices in terms of a coefficient of the "Means price," which is determined from standardized prices for construction work published in the Means cost book. Under this pricing method, the sum of labor and materials is adjusted to reflect the Phoenix City Cost Index and minimum wage rates specified under the Davis-Bacon Act, 40 U.S.C. sec. 276a (1994), to produce the Means price. The Means price for work performed under the contract will be multiplied by the contractor's proposed price coefficient to ascertain the price to be paid the contractor for work performed. Thus, an offeror proposing a coefficient of 1.0 offers to perform the contract at the Means price, while a proposed coefficient greater than 1.0 or less than 1.0 is an offer to perform at a price greater than or less than the Means price, respectively. After the conduct of discussions and evaluation of best and final offers (BAFO), the Air Force awarded a contract to PI as representing the best value to the government. PI's proposal was higher-rated technically and was priced higher than M.E.E.'s. On August 4, 1995, M.E.E. protested the award to PI to our Office on the following bases (hereafter, the "first protest"): "A. The Air Force failed to give equal weight to cost and technical criteria[;] "B. Air Force improperly penalized M.E.E. for providing a price below the coefficient[;] "C. The Air Force failed to hold meaningful discussions with M.E.E.[;] "D. The Air Force improperly gave credit to capabilities not required by the solicitation[.]" M.E.E. also protested PI's SDB status to the Small Business Administration (SBA). On September 13, 1995, at about the time the Air Force submitted its report on M.E.E.'s first protest, the SBA determined that PI did not qualify as an SDB concern for this procurement. On September 15, M.E.E. submitted two additional protest bases (hereafter, the "second protest") to our Office, challenging the award to PI because the SBA had determined that PI was not an SDB concern, and objecting to the Air Force's evaluation of M.E.E.'s proposed price coefficient. On September 29, the Air Force terminated PI's contract based upon the SBA's determination that the contractor was not an SDB concern. On October 3, the Air Force notified our Office of the termination, stating that it was amending the RFP and would reopen discussions and request revised BAFOs. On October 5, M.E.E. protested the Air Force's proposed amendment of the RFP and reopening of negotiations (hereafter, the "third protest"). M.E.E.