M.E.E., Inc.--Recon.

B-265605.5 May 29, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights This was not corrective action in response to a prior protest entitling the protester to the recovery of its protest costs because the revised wage determination was unrelated to the protest. We denied the protest because the agency was required by regulation to amend the solicitation and permit submission of revised BAFOs because it had received a revised Davis-Bacon Act wage determination. We denied the claim for costs because the required actions were not attributable to M.E.E.'s prior protests. M.E.E. alleges that we incorrectly determined that the amendment of the RFP and revised BAFOs were required. Claims that M.E.E. is entitled to recover its costs of pursuing the protest because the agency's corrective action was actually in response to M.E.E.'s protest. View Decision Matter of: M.E.E., Inc.--Recon. File: B-265605.5 Date: May 29, 1996 Agency properly amended solicitation and obtained revised proposals, as required by the Federal Acquisition Regulation sec. 22.404-5(c)(3) and 22.404-6(c)(2), because it received a revised Davis-Bacon Act wage determination prior to award; this was not corrective action in response to a prior protest entitling the protester to the recovery of its protest costs because the revised wage determination was unrelated to the protest. Attorneys DECISION M.E.E., Inc. requests reconsideration of our decision on its protests and claim for costs, M.E.E., Inc., B-265605.3; B-265605.4, Feb. 22, 1996, 96-1 CPD para. 109, regarding the Department of the Air Force's decision to amend and request revised best and final offers (BAFO) under request for proposals (RFP) No. F02604-94-R-0010, issued for a Simplified Acquisition of Base Engineering Requirements (SABER) procurement for maintenance, repair, and minor construction work at various facilities in Arizona. We denied the protest because the agency was required by regulation to amend the solicitation and permit submission of revised BAFOs because it had received a revised Davis-Bacon Act wage determination. We denied the claim for costs because the required actions were not attributable to M.E.E.'s prior protests. M.E.E. alleges that we incorrectly determined that the amendment of the RFP and revised BAFOs were required, and claims that M.E.E. is entitled to recover its costs of pursuing the protest because the agency's corrective action was actually in response to M.E.E.'s protest. We deny the request for reconsideration. Under this SABER procurement, offerors were requested 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. Applicable "Means prices," i.e., fixed unit prices comprised of the typical cost of performing maintenance, repair, and construction work in the locations where the contract is performed, are incorporated into the RFP, and subsequently incorporated into the contract once each year when the Means prices are updated. These Means prices account for Davis-Bacon Act wage determinations and modifications to such determinations. The prices for work performed under the contract will be determined by multiplying the applicable Means prices by the contractor's proposed price coefficient. As explained in our prior decision, award had been previously made to PI Construction Corporation under this RFP set aside for small disadvantaged businesses (SDB). Subsequent to M.E.E.'s protest to our Office, the Small Business Administration (SBA) determined that PI did not qualify as an SDB concern. The agency then decided to obtain revised proposals from the remaining offerors because, among other things, the applicable Davis-Bacon Act wage determination had been modified to increase the wage rates. We denied M.E.E.'s protest that it should have received the award under the RFP, and that the agency had no reasonable basis to amend the solicitation and solicit revised proposals. In our prior decision, we determined that under Federal Acquisition Regulation (FAR) sec. 22.404-5(c)(3) and 22.404-6(c)(2), the agency was required to amend the RFP to incorporate increases in the Davis-Bacon Act wages and provide offerors an opportunity to submit revised BAFOs. The regulation provides that, in negotiated procurements, if the agency receives a wage modification before contract award, as was the case in the protested procurement, the contracting officer shall follow the procedures in FAR sec. 22.404-5(c)(3) and (4), which state: "(3) If the new determination changes any wage rates, the contracting officer shall amend the solicitation to incorporate the new determination, and furnish the wage rate information to all prospective offerors that were sent a solicitation if the closing date for receipt of proposals has not yet occurred, or to all offerors that submitted proposals if the closing date has passed.