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Today, the GAO issued the following decision: B-404597; B-404597.2; B-404597.3, Global Computer Enterprises, Inc.; Savantage Financial Services, Inc., March 9, 2011. See it here: http://www.gao.gov/decisions/bidpro/404597.htm.

As may be seen, the protest was upheld on 2 bases. If the agency's corrective action involves a modification of its requirements (e.g. the migration rate or the need for "an integrated system currently in use by the government"), firms that elected not to compete for the original requirement may wish to do so for the modified requirement.

If no protest was involved, and if the agency changed its requirement during negotiations so that other firms might have submitted proposals against the revised requirement, I believe a contractor that did not submit a proposal would have standing to protest an agency's refusal to cancel the original solicitation and to resolicit its changed requirement. See FAR 15.206(e).

However, if the agency in the protest modifies its requirements but does not issue a new solicitation to all potential sources, would firms apart from those involved in the protested competition have standing to protest to GAO?

Or, would the GAO find a refusal to cancel the old and to issue a new solicitation to be within the agency's discretion to implement the recommendation contained in the GAO protest decision?

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Good questions about an interesting case and some curious FAR guidance in 15.206. I looked at the decision before I tuned in to the Discussions page, and wondered if the agency was really thinking, as argued, that they could solicit and award based on a notional schedule that had little resemblance to their most recent forecast. Here is my $0.02 worth:

In addition to FAR 15.206( e ) ? more on that below ? it is useful to look at how ( a ), ( b ), and ( c ) apply in this situation. ( a ) basically says, before or after receipt of proposals, if you change your requirements, you amend the solicitation ? something the agency was found not to have done in this case. ( b ) and ( c ) cover who the amendment is issued to, ( b ) before and ( c ) after proposals are due. (Let?s skip ( d ) since it is about not disclosing protected information, and not pertinent here.)

Under ( b ), the amendment is issued to all parties receiving the solicitation. My practice, whether with the Government or as a contractor, has been to do exactly that, even if a prospective bidder has sent in a ?no bid? notification. The subject of the amendment may make the difference in a bid/no-bid decision. It may be something very simple, such as a short extension of the due date that allows a company to bid when previously their estimating capacity was tied up. Or it could be a seemingly minor change in a technical requirement that brings a job into the company?s area of competence. The point is, it doesn?t take much to change a potential offeror?s bid/no-bid decision. Going back to them all with the amended requirement maximizes the chances of competition.

Under ( c ), there appears to be an anti-competitive note, for amendments issued after the established time and date for receipt of proposals, because they go only to offerors that have not been eliminated from the competition, not to those who might have been in competition for the amended requirement. This would appear to answer the first question in the negative. A potential offeror who had not submitted an offer, being eliminated from the competition, would not be eligible to receive an amendment after the original due date. Doesn?t sound fair, but there it is, subject, however, to ( e ).

FAR 15.206( e ) appears to provide at least a partial remedy for the potential unfairness of ( c ), dealing with the situation after receipt of offers when an amendment proposed for issuance is judged significant enough to affect the competition.

Would a company on the bidders list but didn?t bid have standing to protest? I vote a conditional yes, depending on the answer to the last question.

Would a company not on the original bidders list have standing to protest? Same answer.

Would the GAO find the refusal to cancel and re-issue to be within the contracting officer?s discretion? It depends. On one hand, the FAR is clear that it?s the contracting officer?s call. On the other hand, the FAR provides guidance on the factors affecting that call. How many times have we read that the GAO will not substitute its judgment for the contracting officer?s, provided the file shows a reasonable basis for the decision? Sometimes the GAO finds a reasonable basis and the protest is denied; sometimes not and the protest is upheld.

In this case, the GAO did not find a reasonable basis for what the agency did. FAR 15.206( e ) tells us what should have been done: cancel and re-solicit. That would appear to give standing to any qualified company that might have considered bidding had the real requirement been solicited.

Others with more familiarity with researching precedent, and more time to do so, may come up with different thoughts, but that?s how it looks from here.

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