Anders Construction, Inc. (W912P821R0042)

B-420717 Jul 20, 2022 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Anders Construction, Inc., a small business of Harvey, Louisiana, protests the issuance of an amendment to request for proposals (RFP) No. W912P821R0042, issued by the Department of the Army, Corps of Engineers (Corps) for professional diving services. The protester contends that the agency must award a contract to Anders pursuant to the solicitation as it was originally issued. We dismiss the protest. View Decision Decision Matter of: Anders Construction, Inc. File: B-420717 Date: July 20, 2022 Jonathan S. Forester, Esq., Riess LeMieux, LLC, for the protester. Tristan Brown, Esq., Judith E. Almerico, Esq., and Daniel C. McPhearson, Esq., Department of the Army, for the agency. Hannah G. Barnes, Esq., Glenn G. Wolcott, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the agency’s corrective action is dismissed where the protester repeats arguments from an agency-level protest rendered academic by the agency’s corrective action. DECISION Anders Construction, Inc., a small business of Harvey, Louisiana, protests the issuance of an amendment to request for proposals (RFP) No. W912P821R0042, issued by the Department of the Army, Corps of Engineers (Corps) for professional diving services. The protester contends that the agency must award a contract to Anders pursuant to the solicitation as it was originally issued. We dismiss the protest. BACKGROUND The agency issued the RFP on July 30, 2021, seeking proposals for professional diving services in support of navigation, flood control, environmental projects, and other Corps missions. Req. for Dismissal attach. E, RFP amend. 7 at 1, 4. The solicitation provided for award on a lowest-priced, technically acceptable basis considering three factors: past performance, technical evaluation, and price. Id. at 39. Anders was among several firms that submitted proposals in response to the solicitation. On December 2, the agency sent unsuccessful offeror letters to those offerors found technically unacceptable. Req. for Dismissal attach. D, Corrective Action Determination at 1. One offeror requested reconsideration of its unacceptability determination, alleging the agency had conducted a flawed evaluation. Id. The agency subsequently reevaluated all proposals and determined that Anders’s proposal failed to comply with the solicitation requirements and that its proposed prices were unreasonably high. Protest exh. 4, Letter to Anders, Mar. 2, 2022, at 1-2. Accordingly, the agency reopened discussions with all offerors to address the various deficiencies in their proposals. Req. for Dismissal attach. D, Corrective Action Determination at 1. On March 3, Anders filed an agency-level protest challenging the agency’s reevaluation of its proposal as technically unacceptable and the agency’s decision to reopen discussions; on March 9, Anders filed a supplemental protest. Id. On April 19, upon reviewing Anders’s protests, the agency announced that it would take corrective action by “revising and re-issuing the solicitation and utilizing a new Source Selection Evaluation Board.” Req. for Dismissal attach. C, Notice of Corrective Action at 1. In this context, the agency enumerated multiple solicitation revisions that it found necessary to clarify its requirements, including changes to solicitation section L, which contains instructions for offerors, and section M, which lists the solicitation’s evaluation factors. Req. for Dismissal attach. D, Corrective Action Determination at 2. The agency also determined that it was appropriate to assemble a new source selection evaluation board. Id. On April 29, Anders filed this protest with our Office. DISCUSSION Anders reiterates arguments raised in its agency-level protest and supplemental protest. Req. for Dismissal attach. A, Agency Protest at 1-5, 25-34. The protester takes issue with the deficiencies in its proposal that the agency identified in its March 2 letter, asserting that the Army acted in bad faith when it “manufactur[ed] deficiencies in Anders’ proposal, after being deemed technically acceptable . . . creat[ing] an excuse to allow all bidders to revise their proposals.” Protest at 2. The protester contests these deficiencies in its agency-level protests and reiterates those grounds here.[1] Id. at 6-10. The agency requests that our Office dismiss Anders’s protest, arguing that it undertook corrective action on April 19, after the protester had filed its agency-level protest and supplemental protest. Req. for Dismissal at 1. As noted above, the notice of corrective action stated that the agency “determined that a need existed to take corrective action by revising and re-issuing the solicitation and utilizing a new Source Selection Evaluation Board.” Req. for Dismissal attach. C, Notice of Corrective Action at 1.