Department of Commerce--Reconsideration, B-294121.5, April 12, 2005

B-294121.5 Apr 12, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Department of Commerce asks that we reconsider our decision in Saltwater, Inc.--Recon., B-294121.3, B-294121.4, Feb. 8, 2005, 2005 CPD 33, in which we reversed our dismissal of Saltwater's 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, and sustained the protest on the merits. Commerce alleges that our reconsideration decision contained both factual and legal errors. We deny the request for reconsideration. View Decision B-294121.5, Department of Commerce--Reconsideration, April 12, 2005 Decision Matter of: Department of Commerce--Reconsideration File: B-294121.5 Date: April 12, 2005 Joseph M. Sullivan, Esq., Mundt MacGregor, for the protester. William T. Grimm, Esq., Davis Grimm Payne & Marra, for NWO, Inc., an intervenor. Mark Langstein, Esq., Department of Commerce, for the agency. Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST GAO will not reconsider a prior decision where the request is based on information that was available to the requester and could have been presented during consideration of the protest. DECISION The Department of Commerce asks that we reconsider our decision in Saltwater, Inc.--Recon., B-294121.3, B-294121.4, Feb. 8, 2005, 2005 CPD 33, in which we reversed our dismissal of Saltwater's 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, and sustained the protest on the merits. Commerce alleges that our reconsideration decision contained both factual and legal errors. We deny the request for reconsideration. BACKGROUND The Initial Protest 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 on July 11, 2003, Saltwater was awarded the contract, the first year of which was to expire 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. , B-293335.3, Apr.26, 2004, 2004 CPD 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 July1. This contract award was for a base period of July 1, 2004 through December 31, 2004, with an option (which has since been exercised) for an additional year extending to December 31, 2005. 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)recompeted the acquisition. Commerce then advised our Office by telephone, and confirmed in writing, that the agency would recompete the services as part of a restructuring of fishery observer services nationwide, and that it envisioned that it would require at least 15 months to develop the solicitation. In addition, Commerce stated that it would, "as expeditiously as possible, make a determination as to the necessity for a sole-source contract and thereafter prepare and execute an appropriate J&A for the contract file." Agency Letter of Aug. 23, 2004.