Southern Technologies, Inc.--Reconsideration and Costs, B-

B-278030.3 Apr 29, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Request for reconsideration is denied where requester fails to demonstrate errors of law or fact in prior decision. 2. General Accounting Office is not precluded from considering practicability of a recompetition in considering whether corrective action proposed by agency is appropriate. 3. General Accounting Office will not recommend that protester recover the costs of filing and pursuing its protest where the agency offered to take corrective action promptly. In which we found that the payment of the protester's proposal preparation costs was appropriate corrective action for the agency's admittedly improper actions in conducting the procurement under request for proposals (RFP) No. The protester argued that OFA technology was consistent with the solicitation's requirements and that its proposal therefore should not have been excluded from further consideration. View Decision Matter of: Southern Technologies, Inc.--Reconsideration and Costs File: B-278030.3 Date: April 29, 1998 DIGEST Attorneys DECISION Southern Technologies, Inc. requests reconsideration of our decision, Southern Techs., Inc., B-278030, B-278030.2, Dec. 19, 1997, 97-2 CPD Para. 167, in which we found that the payment of the protester's proposal preparation costs was appropriate corrective action for the agency's admittedly improper actions in conducting the procurement under request for proposals (RFP) No. N62477-97-R-0041, for power plant improvements at the Goddard Power Plant in Indian Head, Maryland. /1/ Southern argues that we mischaracterized its protest and failed to address some of the arguments it raised. Southern also asks that we recommend that the agency reimburse Southern for its protest costs. We deny the request for reconsideration and the request for costs. BACKGROUND In its original protest, Southern complained that its proposal had been determined technically unacceptable and excluded from the competitive range because the burners that it offered to install in the plant's boilers employed overfire air (OFA) technology. The protester argued that OFA technology was consistent with the solicitation's requirements and that its proposal therefore should not have been excluded from further consideration. The Navy responded that OFA was not an acceptable technology, but conceded that the RFP's specifications, as written, could have misled offerors in this regard. The agency maintained, however, that including the protester in the competitive range, as Southern had requested, would not be appropriate corrective action because Southern would have to rewrite its proposal using a different technical approach to make the proposal susceptible of award. The Navy instead proposed to reimburse the protester for its proposal preparation costs, and asked us to dismiss the protest on the ground that it was taking appropriate corrective action. We declined to dismiss on the basis of the agency's request since, as we informed the parties, we did not think that the Navy had demonstrated that payment of proposal preparation costs was the appropriate corrective action for the impropriety. We explained that although, as a general rule, a proposal should not be included in the competitive range if it would have to be substantially rewritten to become technically acceptable, that rule did not govern where the agency conceded that the specifications were misleading and required revision--and the reasons for the proposal's exclusion related directly to the misleading provisions that were to be rewritten. In such circumstances, we noted, unless precluded by the urgency of the requirement, the agency should amend the solicitation to reflect its needs accurately, and then reopen the competition and allow offerors to submit new or revised proposals on the basis of the revised requirements. The Navy responded with a supplemental submission arguing that the urgency of the requirement did indeed preclude a reopening of the competition. Southern took issue with the agency's representation, arguing that reopening the competition for all or part of the solicitation was both feasible and appropriate. The protester further argued that if the long lead-time status of the burners precluded recompeting the work relating to their installation, award for the work on the burners should remain in place with the awardee, Frank Lill and Son, and the remaining work recompeted in a competition from which Lill would be excluded. We found that the Navy had demonstrated that a recompetition of the RFP would be impracticable since delay in the award would mean that the plant would not have a boiler with a low NOx burner available for operation during the peak ozone months of 1998, in violation of the terms of the plant's operating permit.