Noelke GmbH, B-278324.2, February 9, 1998

B-278324.2 Feb 09, 1998 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested the Army's cancellation of a solicitation and resolicitation for building renovations, contending that the: (1) it was entitled to award as result of the corrective action taken in response to its earlier protest; and (2) the Army should be held to a higher standard of review than usually applies to cancellation of a negotiated procurement because bid prices disclosed. GAO held that the: (1) protester was not entitled to award under the earlier solicitation, since the Army reasonably concluded that the protesters specifications overstated the government's needs and the Army might achieve greater competition by resoliciting; and (2) cancellation was justified, since the disclosure of bid prices did not place the protester in any worse position in relation to the other bidders. Accordingly, the protest was denied. View Decision Matter of: Noelke GmbH File: B-278324.2 Date: February 9, 1998 DIGEST Attorneys DECISION Noelke GmbH protests the corrective action taken by the Department of the Army, Corps of Engineers in response to its earlier protest challenging award of a contract to SKE GmbH, pursuant to request for proposals (RFP) No. DACA90-97-R-0060, seeking offers for the renovation of two buildings located at Kleber Kaserne, Kaiserslautern, Germany. Noelke argues that, rather than terminating SKE's award and resoliciting for these services, the agency should have made award to Noelke as the offeror with the lowest proposed price under the RFP. We deny the protest. BACKGROUND On October 8, 1997, shortly after learning of award to SKE, Noelke filed a protest with our Office arguing that the evaluation of proposals and the resulting price/technical trade-off--the Army concluded that SKE's higher- rated, higher-priced offer presented the best value to the government-- were unreasonable. Prior to submitting the agency report, the Army advised our Office that it was taking corrective action by terminating the awardee's contract and resoliciting for the needed services. Specifically, the letter stated that "[a]mong the deficiencies found in the procurement, the [a]gency's records reflected errors in the reading and subsequently the scoring of the proposals, and as such, the propriety of the agency's cost-tech trade off is questionable." Army Request for Dismissal, Oct. 22, 1997, at 1. Our Office subsequently dismissed Noelke's initial protest as academic. On October 31, Noelke filed its current protest with our Office challenging the Army's proposed corrective action. Noelke argues that the Army should have made award to it under the RFP, and that the agency's decision to resolicit for these renovation services is unreasonable. In the agency report filed on November 22 in response to Noelke's current protest, the Army's justification of its decision to cancel and resolicit does not rely upon the same reasons identified in its above-referenced dismissal request. Instead, the Army explains that cancellation and resolicitation are appropriate because: the evaluation scheme was misleading, did not accurately reflect the agency's priorities, and no longer reflects the agency's needs; the specifications were ambiguous and inaccurate; and circumstances suggest that there may be a significantly broader competition now than was achieved under the earlier solicitation. At the time the Army submitted its agency report here, it had not issued the revised solicitation. On December 4, the new solicitation (RFP No. DACA90-98-R-0007) was issued, including new evaluation criteria, and on December 23, the Army issued amendment 0001 to the new solicitation, revising the new solicitation's evaluation scheme. At each juncture, Noelke has been permitted to file supplemental comments on the Army's actions. DISCUSSION With respect to Noelke's initial argument--that it is entitled to award as a result of the corrective action taken in response to its earlier protest--Noelke's complaint misstates the appropriate remedy available under these circumstances. Although the Army agreed with Noelke's general contentions that the evaluation and resulting price/technical trade-off were flawed, we have no basis to assume that under a proper evaluation, Noelke would have won the competition. Noelke's claim that it was entitled to award as the responsible offeror which submitted the lowest- priced, "responsive" proposal, overlooks the fact that this was a best value procurement, and that the RFP advised offerors that the agency was "more concerned with obtaining superior technical or management features than with making an award at the lowest overall cost to the Government." RFP No. DACA90-97-R-0060, Amend. 0001 at 00100-7. Thus, Noelke is not entitled to award as a result of the agency's corrective action decision. See Anderson Hickey Co., B-250045.3, July 13, 1993, 93-2 CPD Para.