Southern Technologies, Inc., B-278030; B-278030.2, December

Southern Technologies, Inc., B-278030; B-278030.2, December BNUMBER: B-278030; B-278030.2 DATE: December 19, 1997 TITLE: Southern Technologies, Inc., B-278030; B-278030.2, December 19, 1997 ********************************************************************** Matter of:Southern Technologies, Inc. File: B-278030; B-278030.2 Date:December 19, 1997 James V. Etscorn, Esq., Baker & Hostetler, for the protester. Charles G. Lill for Frank Lill & Son, Inc., an intervenor. Ann Giddings, Esq., and Lis B. Young, Esq., Naval Facilities Engineering Command, for the agency. Jennifer Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protester's objection to corrective action proposed by contracting agency in response to protest--i.e., paying protester's proposal preparation costs--is without merit where, although agency acknowledges that the solicitation specifications were misleading, agency demonstrates that, due to urgency of the requirement, alternate corrective action requested by protester--recompeting with revised specifications--is not feasible. DECISION Southern Technologies, Inc. objects to the corrective action proposed by the Department of the Navy in response to Southern's protest of the rejection of its proposal under request for proposals (RFP) No. N62477-97-R-0041. The Navy decided not to reopen the competition, as requested by Southern, but instead to pay Southern its proposal preparation costs as compensation for the agency's improper actions in conducting the procurement. The protester contends that the agency should reopen the competition since reopening is a practicable, and more meaningful, remedy for the impropriety that occurred. We deny the protest in part and dismiss it in part. BACKGROUND The RFP, which was issued on May 28, 1997, solicited proposals for power plant improvements at the Goddard Power Plant in Indian Head, Maryland. The purpose of the improvements is to bring the plant, which is a major emitter of nitrogen oxides (NOx), into compliance with emission standards set by the state of Maryland. Work to be performed includes the installation of low NOx coal/oil fired burners with combustion controls on each of the plant's three boilers, plant controls, a burner management system, and incidental related work. The bid schedule divided the work among a base item and two options. The base item encompassed the entire project, with the exception of the work described in the option items. Option 1 was for plant controls, and option 2 was for the work involving the second and third boilers. The solicitation provided for the evaluation of proposals on the basis of price, technical/management factors, and past performance, with price carrying greater weight in the selection process than the latter two factors. Technical/management factors included relevant experience, technical methodology, project staffing, work plan, and subcontracting plan. Under the technical methodology subfactor, offerors were to describe the burners that they intended to install and to submit documentation demonstrating the burners' compliance with performance criteria identified in the RFP. Six offerors, including Southern, submitted proposals by the July 25 closing date. The technical evaluation panel determined that the protester's proposal was technically unacceptable because Southern had proposed burners employing over-fire air (OFA) combustion, a technology that the panel considered to be unduly risky and thus unacceptable. Another proposal was rejected as technically unacceptable for proposing the same technology.[1] The four remaining proposals were included in the competitive range. After a pre-award debriefing at which it was informed of the basis for the exclusion of its proposal from the competitive range, Southern protested to our Office, arguing that the OFA technology that it had proposed was consistent with the solicitation's requirements and that its proposal ought therefore not to have been excluded from further consideration.[2] The Navy responded that its technical experts had considered and rejected OFA as an acceptable compliance technology prior to issuance of the RFP. The agency conceded that the RFP's specifications, as written, could have misled offerors regarding the acceptability of OFA technology, however, and accordingly, proposed to take corrective action. The Navy maintained that the corrective action requested by the protester--i.e., inclusion of its proposal in the competitive range--was not appropriate, however, because Southern would have to rewrite its proposal using a different technical approach to make the proposal susceptible of award. The Navy therefore proposed instead to reimburse Southern for its proposal preparation expenses.