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: Department of Justice--Modification of Recommendation 

File: B-400760.6 

Date: May 5, 2010 

Kristen E. Bucher, Esq., and John R. Caterini, Esq., Department of Justice, for the 

agency/requester. 

Lawrence J. Sklute, Esq., Sklute & Associates, for AINS, Inc., the protester. 

Peter F. Garvin, III, Esq., and Grant H. Willis, Esq., Jones Day, for Privasoft 

Corporation, an intervenor. 

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the 

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

DIGEST 

Request for modification of recommendation for corrective action is denied where 

agency fails to demonstrate that recommendation was not reasonable. 

DECISION 

The Department of Justice requests reconsideration of our recommendation in AINS, 

Inc., B-400760.4, B-400760.5, Jan. 19, 2010, 2010 CPD ¶ 32. In that decision, we 

sustained AINS’s protest of the establishment of a blanket purchase agreement 

(BPA) with, and issuance of a first call for services to, Privasoft Corp. under request 

for quotations (RFQ) No. DJJR-08-F-0536, for an automated Freedom of Information 

Act (FOIA) system and associated services. We found that the agency had failed to 

conduct meaningful discussions with the protester and that it had treated the two 

vendors unequally in its evaluation of quotations. We recommended that the agency 

reopen discussions as appropriate, request and reevaluate revised quotations, and 

make a new source selection determination. We further recommended that in the 

event that AINS was selected as the vendor whose quotation represented the best 

value to the government, the agency terminate the BPA established with Privasoft 

and enter into a BPA with AINS.1

 

1

 We also recommended that AINS be reimbursed its protest costs. 
Page 2 B-400760.6 

 

 

The agency contends that in making our recommendation, we failed to take into 

consideration that performance on the first call was not suspended during our 

consideration of the protest (due to the protester’s failure to file within the statutory 

time period for obtaining an automatic stay) and that the agency thus has already 

incurred substantial expenses associated with Privasoft’s performance. The agency 

notes in this connection that at the time it submitted its request for reconsideration 

on January 29, Privasoft had already furnished it with an invoice for $56,991.72 and 

was scheduled to furnish it with a second invoice in the amount of $47,347.46 on 

February 10; in addition, Privasoft was scheduled to incur training costs of $7,232.40 

during early February. Thus, according to the agency, it had already incurred costs 

of $111,571.58 that would be lost if the call issued to Privasoft were terminated. 

The agency further noted that its own personnel had invested approximately 

600 hours in working with Privasoft on the requirements gathering and software 

configuration process; specifically, agency personnel had been meeting with 

Privasoft’s business team and software developers on an ongoing basis to educate 

the Privasoft representatives regarding the Office of Information Policy’s “specific 

business processes” because, “although Privasoft is supplying a [commercial off-theshelf] product, Privasoft needs to configure the software to meet OIP’s particular 

needs.” Agency Request for Reconsideration, Jan. 29, 2010, at 7. According to the 

agency, none of the effort expended by the Department can be salvaged and applied 

to work by another vendor; rather, if a new vendor were selected, the entire process 

would have to be repeated. The agency also argues that given that Privasoft has 

already completed the software configuration process, there is no meaningful way 

for it to reopen discussions and compare revised proposals. That is, there is no way 

to reopen the competition on a common basis given that Privasoft has already 

performed a portion of the work that AINS, if selected, would have to perform in full. 

The agency is incorrect in asserting that in fashioning our recommendation, we 

failed to consider the potential cost to the agency of terminating the call to 

Privasoft.2

 We were aware that performance had not been suspended and that, 

based on Privasoft’s proposed schedule, the project planning and the development 

and configuration phases of the work, as well as approximately half of the 

integration and testing work--for which Privasoft had quoted a combined total of 

approximately $110,000--would likely have been completed by the time we issued 

our decision; however, given that AINS’s quoted price for the first call work was 

more than $115,000 lower than Privasoft’s quoted price, it was not apparent that 

2

 We also point out that we recommended that the BPA established with Privasoft be 

terminated and a BPA established with AINS only if the reopening of the source 

selection process resulted in the selection of AINS as the vendor whose quotation 

represented the best value to the government. That is, implementation of our 

recommendation will not necessarily result in the costs described by the agency--it 

will result in those costs only if Privasoft is not again selected. 
Page 3 B-400760.6 

 

termination of Privasoft’s call and issuance of a call to AINS would be more 

expensive than leaving the call issued to Privasoft in place.3

 

Moreover, the potential cost to the government of terminating the call to Privasoft 

was not the only factor that we considered in making our recommendation.4

 We also 

considered the fact that the agency established the BPA with the intention of issuing 

additional calls against it over its 5-year term, and allowing Privasoft to continue 

with performance of the initial call would give it an enormous advantage in the 

competition for any subsequent calls. In addition, we took into account that this was 

the second decision by our Office concerning this procurement in which we found 

an unequal treatment of vendors. We concluded that the adverse effect on the 

integrity of the competitive procurement system that would result from allowing 

Privasoft to continue to perform on the first call--without a reassessment of the best 

value decision--outweighs the potential costs to the government of implementing our 

recommendation. See Panafax Corp., B-201176, June 22, 1981, 81-1 CPD ¶ 515 

at 2-3.5 We see no basis to alter our conclusion. Accordingly, we deny the agency’s 

request for modification of our recommendation. 

Lynn H. Gibson 

Acting General Counsel 

 

3

 We were not aware at the time we made the recommendation that the agency 

intended to invest a substantial number of hours of its own employees’ time in 

defining its requirements and communicating them to the selected vendor after 

issuance of the first call. 

4

 Our Bid Protest Regulations, 4 C.F.R. § 21.8(b) (2009), provide that in making a 

recommendation, we are to consider all circumstances surrounding the 

procurement, including the seriousness of the procurement deficiency, the degree of 

prejudice to other parties or to the integrity of the competitive procurement system, 

the good faith of the parties, the extent of performance, the cost to the government, 

the urgency of the procurement, and the impact of the recommendation on the 

contracting agency’s mission. 

5

 With regard to the agency’s argument that it is now impossible for it to conduct a 

competition on a common basis for the first call work given that Privasoft has 

already accomplished part of the effort, we did not recommend that the agency 

revise the scope of work and seek revised quotations; we recommended that the 

agency reopen discussions as appropriate and that it request and evaluate revised 

quotations. In other words, if the only way to ensure an equal competition is to for 

both vendors to continue to quote on the full scope of work, we recommend that the 

agency proceed on that basis.