Networks Electronic Corporation, B-290666.3, September 30, 2002

B-290666.3 Sep 30, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest challenging agency's decision to conduct recompetition as corrective action taken in response to a General Accounting Office protest is denied. There is no basis to conclude that the only legally permissible option is for the agency to make a directed award to the protester where the agency had conducted discussions after receipt of final proposals with only one offeror. After which new final proposals will be received. Is unobjectionable in view of the broad discretion afforded to agencies in fashioning corrective action. After which the Air Force will conduct a new evaluation and best value determination. The only remedy legally available to the Air Force is to make an award to NEC based on NEC's extant proposal. View Decision Networks Electronic Corporation, B-290666.3, September 30, 2002 * REDACTED DECISION DIGEST Attorneys DECISION Networks Electronic Corporation (NEC) protests the corrective action taken by the Department of the Air Force consisting of the disclosure of comparable information to both offerors under solicitation No. FD2030-02-54711, and a request for new final proposals from both offerors, after which the Air Force will conduct a new evaluation and best value determination. The protester contends that, under the circumstances presented, the only remedy legally available to the Air Force is to make an award to NEC based on NEC's extant proposal. We deny the protest. This remedy was taken as corrective action by the Air Force after NEC had protested to our Office the Air Force's decision to make an award to New Hampshire Ball Bearings (NHBB). NEC's protest, as supplemented, questioned the propriety of the agency's determination that NHBB's proposal represented the best value, and in particular alleged that the Air Force had failed to recognize and evaluate the superior delivery schedule offered under NEC's proposal. After the agency filed its report, it became apparent that the Air Force had conducted discussions with NHBB only, after the receipt of proposals. As a result, the Air Force decided to take corrective action in the form of issuing an amendment extending the due date for final proposals and requesting final proposals from both offerors, after receipt of which it will perform a new evaluation and make a new best value determination and, if necessary, terminate for convenience NHBB's contract and make a new award. The Air Force further determined that it would first disclose NEC's proposed pricing and delivery schedule in order to make equal information available to both offerors because NHBB's information in this regard had been disclosed, and that it would continue to stay contract performance during this recompetition. Based on this proposed corrective action, our Office dismissed NEC's protest. NEC objects to this corrective action, arguing that "the only legally available and appropriate remedy or corrective action in this case is termination of NHBB's contract and award to NEC." Protester's Comments, July 19, 2002, at 1. NEC's argument is based on its contention that NHBB had submitted an ineligible proposal because it contained a nonconforming warranty clause, and that the subsequent interchange between the Air Force and NHBB amounted to an improper extension of the due date for proposals, thereby permitting NHBB to untimely modify its proposal in order to make it acceptable. In these circumstances, NEC contends that since its conforming, fully qualified and reasonably priced offer was received on time, the only remedy available to the Air Force was to award to NEC. Id. at 2-3. We disagree. NEC's argument is that NHBB's timely received proposal was ineligible for award because the proposal contained a warranty clause which allegedly imposed certain impermissible restrictions and rendered the proposal unacceptable. This premise is factually misplaced; the warranty clause at issue was both added and subsequently modified by NHBB during the discussions that occurred after NHBB's proposal had been submitted, after the deadline for submission had passed. As the Air Force correctly points out, the record establishes that the NHBB proposal as timely submitted did not contain the allegedly offending warranty clause and thus was fully eligible for award. Agency Report, July 24, 2002, at 3 n.2. The deficiency which prompted the corrective action is related to the discussions which were conducted after the closing time for receipt of proposals, and the record does not provide any basis to conclude that NEC was the only offeror that timely submitted an acceptable proposal. The underlying solicitation to purchase certain connecting links from approved sources for Pratt & Whitney engines was issued under a justification and approval authorizing other than full and open competition.