____________________________________________________ MOTION FOR RECONSIDERATION DENIED: December 6, 1994 ____________________________________________________ GSBCA 12952-P-R FORTRAN CORPORATION, Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and EXECUTONE INFORMATION SYSTEMS, INC., Intervenor. Victor G. Klingelhofer and G. Brent Connor of Cohen & White, Washington, DC, counsel for Protester. Richard J. McCarthy, Anthony L. Washington, Patricia A. McNall, Federal Aviation Administration, Department of Transportation, Washington, DC, counsel for Respondent. Barbara C. Anderson of Executone Information Systems, Inc., Fairfax, VA, counsel for Intervenor. Before Board Judges PARKER, DEVINE, and HYATT. PARKER, Board Judge. When Fortran Corporation protested the Federal Aviation Administration's (FAA's) purchase of a telephone system, the Board agreed with Fortran that the FAA had violated statute and regulation by permitting the awardee, Executone Information Systems, Inc., to substitute one item of equipment for another after receipt of best and final offers (BAFOs). We declined to order the FAA to call for a new round of BAFOs, however, because we found that Fortran had not been prejudiced by the FAA's actions: . . . Fortran lost the procurement not because the FAA failed to call for a second round of BAFOs, but because Fortran made a poor business decision to offer an expensive system. If, during the procurement, the FAA had called for a new round of BAFOs, Fortran, not knowing that the lowest-priced offer was more than $3,000,000 (or 43 percent) lower than its own offer, could never have beaten Executone's price. Fortran's proposed system (the only one with which it had the required installation experience) was simply too expensive. Fortran now knows that it would have to offer a completely different system to be competitive and it assertedly has the installation experience to do so. By asking the Board to order the FAA to call for a new round of BAFOs, Fortran is attempting to use the protest system to obtain an undeserved "second bite at the apple" by correcting a problem which had no effect whatsoever on Fortran's chances of winning the original contract. The protest process was never intended to be used in this manner. Fortran Corp. v. Department of Transportation, GSBCA 12952-P, 1994 BPD 245, at 7 (Oct. 27, 1994). Fortran moves the Board to reconsider that decision. According to Fortran, the record shows that Fortran could have offered a lower-priced system in February 1994, at the time the FAA permitted Executone to amend its offer. Thus, Fortran argues, if the FAA had called for a second round of BAFOs at that time, Fortran could have offered a different, lower-priced system. Thus, the argument goes, Fortran was prejudiced by the FAA's actions. We deny Fortran's motion for two reasons: (1) the record does not show that Fortran could have offered a different telephone system at the time and (2) Fortran would still lose, regardless of whether it "could have" offered a lower-priced system. Fortran acknowledges that it lacked the installation experience to offer a less expensive telephone system initially but maintains that it had acquired the necessary experience by February 1994 -- the time when new BAFOs should have been called for. As support for this proposition, Fortran cites its response to the FAA's interrogatory 11: [Question] In paragraph 5(b) of its Complaint, Protester Fortran contends, "if Fortran was able to offer non-compliant equipment, it could have substantially lowered its offered pricing." . . . . b) State all facts upon which contention is based; Protester's Exhibit 1. The response included the following: The basic fact underlining this contention is that Fortran could substantially lower its offered price by substituting any of a number of different types of equipment in response to the RFP [request for proposals]. In fact, by substituting only compliant equipment (i.e., meeting all RFP requirements), Fortran can substantially lower its BAFO pricing to a level below that offered by Executone. Id. (emphasis added). This response does not, as Fortran contends, say that Fortran could have offered a different system in February 1994. It says that Fortran "can" do it now (i.e., in September 1994, while the protest was pending). There is absolutely nothing in the record to show that Fortran could have offered a lower-priced system at the time the procurement was ongoing.[foot #] 1 Even if Fortran had been given the opportunity to submit a second BAFO, Fortran has not shown that it would have offered a different system, even if it "could have" done so. Fortran, for a number of reasons, chose to offer a high-quality, high-priced telephone system. This was Fortran's "best and final offer." In February, Executone was permitted to amend its BAFO to correct a relatively minor deficiency. Fortran, whose offer had no deficiencies, was not provided with an opportunity to submit a second BAFO. There is no credible evidence in the record to support Fortran's contention that it would have considered abruptly dumping its offered system after two rounds of offers and ----------- FOOTNOTE BEGINS --------- [foot #] 1 Fortran also claims that a draft document entitled "Revised BAFO Pricing," which was referred to in Fortran's response to interrogatory 11, supports Fortran's claim that it "could have" offered a lower-priced system during the procurement. The record does not support such a reading of the document. The testimony of protester's president clearly establishes that the document refers to items and prices that Fortran could offer now, not as of February 1994. See Transcript ___ at 42. ----------- FOOTNOTE ENDS ----------- evaluations and substituting a less expensive one, even if it could have done so. This radical move would have made little sense because, at that point, Fortran had no reason to believe that its offer was not competitive. Now, of course, things are different. Fortran now knows the winning price and knows that it must substitute a much cheaper system to win. That Fortran could be competitive now, however, does not mean that Fortran was prejudiced by the Government's actions during the procurement. We denied the protest because Fortran failed to convince us that it would have had a reasonable chance for award if the FAA had done what it was supposed to do. Fortran's motion to reconsider has not convinced us otherwise. Decision The motion is DENIED. _______________________ ROBERT W. PARKER Board Judge We concur: __________________________ DONALD W. DEVINE Board Judge __________________________ CATHERINE B. HYATT Board Judge