Summary

The Naval Facilities Engineering Command requests that our Office modify the recommendation in our decision Rosemary Livingston--Agency Tender Official, B-401102.2, July 6, 2009, 2009 CPD para. __, in which we sustained the agency tender official's (ATO) protest, concluding that there was inadequate documentation to support a finding that the ATO's fourth revised tender was unacceptable and further discussions were necessary. In issuing our recommendation, we stated that ordinarily we would have recommended that the agency re-evaluate proposals, document those conclusions, and then take appropriate action based on those conclusions. However, because the implementation of such a recommendation is barred by 8023 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, we recommended that the agency terminate the contract award. The Navy contends that we should have left to the agency's discretion whether corrective action is unlawful under the circumstances of this case.

We deny the request.