Reconsideration of Prior Decision

GAO was requested to provide additional information on a previous decision and subsequent reconsideration in which a contract award protest was dismissed as untimely. A firm had alleged that a contract was not awarded on the same basis on which the proposals were evaluated. The proposals were evaluated on the basis of seven labor rates, and the contract included 48 labor rates. The protester alleged that some of the improperly included rates were higher than the evaluated rates and would, therefore, result in an overpayment to the contractor. In response, the agency stated that the 48 labor categories and rates had been inadvertently included in the contract and that the error had been corrected by contract modification. The agency also stated that the contractor had been overpaid for the task orders completed before the execution of the modification. A counsel for the protester contended that the same problem occurred again after the modification, the contract again differed from the competed requirement, and the contractor will again be overpaid. Usually, GAO will not examine untimely protests. However, in this case GAO was concerned because the agency, after having admitted that one of the protest allegations was correct, was alleged to have committed the error again after the protest was dismissed. GAO asked the agency to respond to this allegation. After examining the agency's explanation, GAO was of the opinion that the action was not a reversion to its earlier admitted error. The agency's change was an example of the normal and reasonable kinds of occurrences that are involved in contract administration, which is the function and responsibility of the contracting agency and not GAO. The change did not affect the validity of the award or prejudice the protester, and the government's interests were protected through established audit procedures.