Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Jackson Contractor Group, Inc. 

File: B-402348.2 

Date: May 10, 2010 

Nicholas D. Kovarik, Esq., Dunn & Black, for the protester. 

Larry M. Anderson, Esq., Department of the Air Force, for the agency. 

Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Agency decision, in response to a protest, to reopen competition to amend 

solicitation provisions relating to the evaluation of past performance, and to provide 

offerors with an opportunity to submit revised past performance information and/or 

revised prices, is unobjectionable, even where the awardee’s price has been properly 

disclosed. 

DECISION 

Jackson Contractor Group, Inc., of Missoula, Montana, protests corrective action 

taken by the Department of the Air Force in response to a prior protest of an award 

to Jackson under request for proposals (RFP) No. FA4626-09-R-0026 for the removal 

and replacement of the heating-ventilation-air conditioning system at the youth 

activity center building at Malmstrom Air Force Base, Montana. 

We deny the protest. 

The Air Force issued the RFP on August 4, 2009, as a small business set-aside. The 

RFP provided that the best value award decision would be based on the evaluation 

of past performance and price. The RFP detailed what past information should be 

provided by the offerors and described how past performance would be evaluated 

and considered in the best value decision. 

Two proposals were received in response to the RFP by the September 10, 2009 

closing date: one from Jackson and one from James Talcott Construction. Talcott 

submitted the lowest-priced proposal and its past performance rating was 

“satisfactory confidence.” Jackson’s higher-priced proposal received a past 

performance rating of “significant confidence.” The agency made award to Jackson 
on December 2, at which time it properly disclosed the award price. Talcott then 

protested the evaluation of its past performance and the award selection of Jackson 

to our Office. 

On December 29, the agency advised our Office that it would take corrective action 

in response to the protest. In this regard, the contracting officer concluded that the 

original RFP and evaluation that were used to select the awardee were flawed, and 

that corrective action was required because clauses relevant to the past performance 

evaluation included in the solicitation were outdated and not in compliance with the 

current Air Force Federal Acquisition Regulation Supplement Informational 

Guidance 5315.101-1, dated January 2008. Contracting Officer’s Statement at 9. 

Therefore, on February 9, 2010, the agency issued amendment No. 5 to the RFP that 

made changes in the past performance proposal instructions and evaluation 

description, and provided Talcott and Jackson with the opportunity to submit final 

proposal revisions that could include revised past performance information and/or 

revised prices. 

On February 12, Jackson filed this protest objecting to the corrective action. 

Jackson asserts that it is prejudiced by the corrective action because its price has 

been revealed and this will provide Talcott with an unfair competitive advantage in 

the reopened competition. 

In negotiated procurements, agencies have broad discretion to take corrective action 

where they determine that such action is necessary to ensure fair and impartial 

competition. MayaTech Corp., B-400491.4; B-400491.5, Feb. 25, 2009, 2009 CPD ¶ 55 

at 3. We will not object to the specific corrective action so long as it is appropriate 

to remedy the concern that caused the agency to take corrective action. Networks 

Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD ¶ 173 at 3. Where the corrective 

action taken by an agency is otherwise unobjectionable, a request for revised price 

proposals is not improper merely because the awardee’s price has been exposed. 

Strand Hunt Constr., Inc., B-292415, Sept. 9, 2003, 2003 CPD ¶ 167 at 6. 

In its report responsive to the protest, the Air Force explained that its proposed 

corrective action was expressly designed to address its concern that the solicitation 

contained obsolete definitions for the terms “recent” and “relevant” past 

performance, and that this discrepancy in the solicitation would lead to questions 

from offerors regarding how much weight certain past performance was to be 

accorded, as was demonstrated by Talcott’s protest. Agency Report at 6. In its 

comments on the report, Jackson does not disagree with the Air Force’s asserted 

need to modify the solicitation regarding the evaluation of past performance and to 

permit revised past performance submissions. Protester’s Comments at 2. However, 

Jackson contends that because its award price has been disclosed, the agency 

should “freeze the price element . . . and only [allow] re-submi[ssion of proposals] on 

the past performance,” so as not to “give Talcott an unfair advantage.” Id.

Page 2 B-402348.2 
Page 3 B-402348.2 

In our view, the corrective action here is within the discretion afforded to 

contracting agencies in these circumstances. Jackson argues that because offerors 

were informed of its price, rescinding the original award and reopening the 

competition would foster an auction and put Jackson at a competitive disadvantage. 

We have previously noted that the Federal Acquisition Regulation does not prohibit 

auctions, and agencies are not otherwise prohibited from taking corrective action in 

the form of requesting revised price proposals even where the original awardee’s 

price has been disclosed. In this regard, we have repeatedly observed that the 

possibility that the contract may not have been awarded based on a fair 

determination of the most advantageous proposal has a more harmful effect on the 

integrity of the competitive procurement system than does the possibility that the 

original awardee, whose price has been properly disclosed, will be at a disadvantage 

in the reopened competition. Partnership for Response and Recovery, B-298443.4, 

Dec. 18, 2006, 2007 CPD ¶ 3 at 3-4; PCA Aerospace, Inc., B-293042.3, Feb. 17, 2004, 

2004 CPD ¶ 65 at 4. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel