Saltwater Inc.--Reconsideration and Costs, B-294121.3; B-294121.4, February 8, 2005

Saltwater Inc.--Reconsideration and Costs, B-294121.3; B-294121.4, February 8, 2005 TITLE: Saltwater Inc.--Reconsideration and Costs, B-294121.3; B-294121.4, February 8, 2005 BNUMBER: B-294121.3; B-294121.4 DATE: February 8, 2005 ********************************************************************** Decision Matter of: Saltwater Inc.--Reconsideration and Costs File: B-294121.3; B-294121.4 Date: February 8, 2005 Joseph Sullivan, Esq., Mundt MacGregor, for the protester. William T. Grimm, Esq., Davis Grimm Payne & Marra, for NWO, Inc., an intervenor. Terry Hart Lee, Esq., Department of Commerce, for the agency. Christina Sklarew, Esq., and Jerold D. Cohen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Where agency's implementation of the corrective action proposal that led GAO to dismiss a protest as academic is such that the issue in controversy in fact has not been rendered academic, GAO will consider the protest's merits in response to reconsideration request. 2. Protest that contract award was based on terms different than those on which competitive offers were received is sustained where the contract's term exceeds the term provided for in the underlying solicitation. DECISION Saltwater Inc. asks that we reconsider our August 25, 2004 dismissal of its protest of the award of a sole-source contract to NWO, Inc. by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), for fisheries observer services. Saltwater argues that the corrective action that Commerce had proposed in response to the protest, which led to our dismissal decision, in fact provided no meaningful remedy. Saltwater also complains that Commerce's implementation of that corrective action has resulted in the continuation of an unjustified sole-source contract with NWO. Finally, Saltwater requests that it be reimbursed its costs of pursuing this and its prior protest. We agree with Saltwater that, in light of Commerce's actions since we dismissed the firm's protest, its challenge to the propriety of the award to NWO is not academic. Moreover, having reviewed the issue's merits, we sustain Saltwater's protest in part. We also recommend that Saltwater be reimbursed the costs of pursuing this and its prior protest. BACKGROUND In January 2003, NOAA issued request for proposals (RFP) No. AB1330-03-RP-0024, seeking fisheries observer services in connection with NOAA's National Marine Fisheries Service (NMFS) Pacific Islands Region Observer Program (PIROP), under a fixed-rate contract, for a base year and one option year. Saltwater and NWO both submitted proposals, and Saltwater was awarded the contract, the first year of which expired on June 30, 2004 and which had a 1-year option ending on June 30, 2005. Following a protest filed by NWO, the agency held discussions and twice permitted the offerors to submit final proposal revisions (FPR). In its second request for FPRs, Commerce advised Saltwater that if the agency again selected Saltwater, its contract would be modified to include certain overtime pay requirements. In December 2003, Saltwater was again selected for award and was given, for execution, a modification to its earlier-awarded contract. Saltwater declined to execute the modification, on the basis that it did not accurately reflect the terms of Saltwater's FPR. In January 2004, NOAA informed Saltwater that it intended to terminate the firm's contract and make award to NWO. Saltwater protested this decision to our Office, and we denied the protest in our decision, Saltwater Inc., Ba**293335.3, AprilA 26, 2004, 2004 CPD P 106. Following our decision, rather than terminate Saltwater's contract for convenience the contracting officer decided to wait for the base period of the contract to expire, on June 30, 2004. The agency awarded a contract for the requirement to NWO on June 18, to commence performance on JulyA 1. This contract award was for a base period of July 1, 2004 through December 31, 2004, with an option for an additional year extending to December 31, 2005 (which has been exercised). This contract also included provisions implementing the overtime pay requirements. Saltwater protested that the award to NWO was improper, and the attorney from our Office handling the protest conducted an alternative dispute resolution (ADR) conference call with the parties in an attempt to resolve the matter. During that discussion, the GAO attorney advised the parties that he anticipated that our Office would sustain the protest, on the basis that the award was made on a sole-source basis without justification. The GAO attorney indicated that the protest would be rendered academic if the agency (1) prepared and executed a Justification and Approval (J&A) adequate to support the award to NWO, or (2)A recompeted the acquisition.