About PubKLaw and New Subscriber Offer About PubKLaw and New Subscriber Offer Booz Allen Hamilton, Inc. B-405993; B-405993.2 January 19, 2012.
DIGEST:
1. Protest challenging agency’s cost realism evaluation of awardee’s proposal is denied where the record demonstrates that the agency’s conclusions were reasonable.
2. Protest that awardee’s cost proposal failed to comply with a material solicitation requirement (a mandated allocation of labor between stateside and overseas locations within a notional work package) is denied where the awardee’s cost proposal was consistent with a reasonable interpretation of the solicitation requirement, and the agency’s subsequent evaluation ensured a fair comparison on a common basis notwithstanding the offerors’ different understandings of the requirement.
3. Exchanges between the awardee and the Defense Contract Audit Agency in a negotiated procurement after the contracting agency’s receipt of proposals, intended to further explain the basis of indirect rates included within the awardee’s cost proposal, did not constitute discussions, where the exchange clarified information already present in the awardee’s proposal and the awardee was not presented with an opportunity to revise its proposal.
Cryo Technologies B-406003
January 18, 2012.
DIGEST:
In a procurement for a helium refrigerator for a research laboratory, protest challenging a requirement that the refrigerator use gas bearing turbine expanders is denied where agency establishes that the requirement is reasonably necessary to meet the agency’s needs.
AdvanceMed Corporation; TrustSolutions, LLC
B-404910.4; B-404910.5; B-404910.6; B-404910.9; B-404910.10 January 17, 2012.
DIGEST:
1. Protest that the award was tainted by organizational conflicts of interest is denied where the record shows that the agency reasonably concluded that the potential areas of concern either did not constitute significant conflicts that warranted disqualification of the awardee, or were significant conflicts that were adequately mitigated.
2. Protest challenging evaluation of the realism of the awardee’s proposed labor costs is denied where the contracting officer’s use of a sampling method to evaluate the realism of the offerors’ proposed costs provided a sufficient basis to conclude that they were realistic.
3. Protest challenging evaluation of offerors’ technical proposals is denied where the agency’s evaluation was reasonable and consistent with the solicitation, with the exception of some minor non-prejudicial inconsistencies.
Veterans Contracting Group, Inc. B-405940
January 12, 2012.
DIGEST:
Protest that agency unreasonably rejected protester’s bid for not meeting solicitation requirements is sustained, where invitation for bids did not restrict bids to specific types of chillers or refrigerants and record does not support that agency reasonably considered protester’s bid.
W.B. Construction and Sons, Inc. B-405818; B-405818.2
January 4, 2012.
DIGEST:
1. Rejection of a bid as nonresponsive for failing to provide the price for one of many line items included in the bid schedule was improper, where the item for which the price was omitted is divisible from the solicitation’s overall requirements, de minimis as to total cost, and would not affect the competitive standing of the bidders; the omission should be waived as a minor informality under such circumstances.
2. Rejection of a bid as nonresponsive because it was unbalanced is improper where the agency failed to conduct a risk analysis to determine whether the protester’s unbalanced bid posed an unacceptable risk to the government, as required by Federal Acquisition Regulation ¤ 15.404-1(g).
Commandeer Construction Company LLC B-405771
December 29, 2011.
DIGEST:
Protest alleging that agency improperly rejected protester’s bid in violation of a solicitation clause is sustained where the clause contained a latent ambiguity, the protester reasonably concluded that the clause at issue allowed for an expedited verification review of Òthe apparently successful offeror’sÓ status for inclusion in the Department of Veterans Affairs Vendor Information Pages database of eligible service-disabled veteran-owned small business concerns, and the protester had no basis to be aware of the agency’s contrary interpretation of the clause.
Hawker Beechcraft Defense Company, LLC B-406170
December 22, 2011.
DIGEST:
Protest challenging an agency’s decision to exclude protester’s proposal from the competitive range is dismissed as untimely where: (1) the protest was filed more than 10 days after receipt of a written notice provided via certified mail, return receipt requested; (2) the notice was accurately addressed and delivered to the government business address set out multiple times in the protester’s proposal; (3) the notice accurately indicated the precise name of the protester’s designated contracts manager; and (4) an employee of the protester signed for receipt of the certified notice.
Kingdomware Technologies B-405727
December 19, 2011.
DIGEST:
The Department of Veterans Affairs (VA) improperly used non-mandatory Federal Supply Schedule procedu
res to procure services, rather than using a set-aside for service-disabled veteran-owned small businesses, where the applicable statute-- Veterans Benefits, Health Care, and Information Technology Act of 2006--and implementing regulations require the VA to use such set-asides where the statutory prerequisites are met.
W.B. Construction and Sons, Inc. B-405874; B-405874.2
December 16, 2011.
DIGEST:
Protest that contracting agency improperly awarded contract is sustained where the record reflects that the legal entity awarded the contract did not participate in the procurement and appears to be a different legal entity from the offering entity.
NCI Information Systems, Inc. B-405745
December 14, 2011.
DIGEST:
Final proposal revision is late where deadline was set as “close of business,” but no particular time was specified, and offeror submitted proposal after 4:30 p.m., the time designated by the Federal Acquisition Regulation as the time for submission if no time is specified in the solicitation.
BlueStar Energy Solutions B-405690, December 12, 2011.
DIGEST:
1. Protest that a procurement violates the bundling provisions of the Small Business Act is denied where the record shows that all of the requirements covered by the solicitation were already being procured as a single procurement.
2. GAO will not review a procuring agency’s choice of the North American Industry Classification System code to be applied to a procurement because this is a matter for review exclusively by the Small Business Administration.
ITT Electronic Systems Radar, Reconnaissance & Acoustic Systems B-405608
December 5, 2011.
DIGEST:
1. Agency reasonably evaluated awardee’s proposal as superior to protester’s proposal under the most important evaluation factor, mission capability, based on the agency’s determination that awardee’s proposal offered technology that exceeded the solicitation requirements and would benefit the government.
2. Agency reasonably assigned an unknown confidence rating to protester’s proposal under the past performance evaluation factor where the agency properly considered the dollar value of protester’s prior contracts, as well as the dissimilarity of technology and type of effort that had been previously provided, and concluded that the past performance information formed an insufficient basis for making a substantive performance confidence assessment.
3. Protester’s assertion that agency should have upwardly adjusted the price that awardee proposed under fixed-price contract line item numbers (CLINs) is without merit where such adjustment is precluded by law, and the terms of the solicitation expressly provided that any evaluated risk associated with fixed-price CLINs would be reflected in the agency’s evaluation under the mission capability evaluation factor.
King Farm Associates, LLC; One Largo Metro LLC; Metroview Development Holdings, LLC
B-404896.10; B-404896.11; B-404896.12; B-404896.13; B-404896.14 December 5, 2011.
DIGEST:
1. Protest that the agency failed to consider both the variety and quantity of amenities offered under the access to amenities subfactor in a lease procurement is denied, where the variety and quantity of amenities was reasonably considered in the agency’s evaluation and selection decision.
2. Protests arguing that the ultimate selection official, the head of the contracting activity here, did not meaningfully consider the evaluated differences in the offerors’ proposals in her selection decision are denied, where the official implemented our prior recommendation by looking beyond the adjectival ratings assigned to the offerors’ proposals.
Science Applications International Corporation B-405612; B-405612.2; B-405612.3
December 5, 2011.
DIGEST: Protest challenging an agency’s evaluation of proposals is denied where agency’s evaluation was reasonable and in accordance with the evaluation criteria.
WingGate Travel, Inc.; AirTrak Travel; and Alamo Travel Group B-405007.9
November 29, 2011.
DIGEST:
Protest that solicitation provision, which precludes prospective contractors’ from obtaining equitable price adjustments based on variance from numbers of orders issued as compared to estimated quantities stated in solicitation, places undue risk on prospective contractors is denied; an agency has discretion to offer for competition a proposed contract that imposes maximum risks on the contractor and minimum burdens on the agency.
MICCI Imaging Construction Company, Inc. B-405654
November 28, 2011.
DIGEST:
In a Department of Veterans Affairs (VA) procurement that was set aside for service-disabled, veteran-owned small business concerns, the protester is not an interested party to maintain its protest where the VA denied the protester’s application for inclusion in VA’s VetBiz Vendor Information Pages database, notwithstanding the firm’s pending request to the VA for reconsideration.
The Ross Group Construction Corporation B-405180.2
November 28, 2011.
DIGEST:
Protest that agency had no reasonable basis for its selection of awardee’s higher-priced proposal is sustained where the source selection decision was based on the awardee’s evaluated superiority for past performance, even though the awardee’s proposal failed to comply with the solicitation’s stated requirements under the past performance factor.
SBBI, Inc. B-405754 November 23, 2011.
DIGEST:
Agency properly accepted bids as timely, where the bids were received at the place designated in the solicitation at the applicable local time.
C-T Construction JV, B-405575, November 21, 2011.
DIGEST:
Protest is sustained where agency failed to employ adequate procedures to receive proposal delivered to designated mailing address more than 3 hours before submission deadline.
VSE Corporation B-404833.4 November 21, 2011.
DIGEST:
Protest challenging the agency’s termination of a contract awarded to the protester is sustained where the record does not support the contracting officer’s determination that an appearance of impropriety had been created by the protester’s hiring of a former government employee as a consultant, because the record shows that the determination was based on assumptions, rather than hard facts, and relied on an incorrect understanding of the statutes and regulations that apply to post- government employment activities.
Shaka, Inc. B-405552 November 14, 2011.
DIGEST:
Agency improperly determined bid bond to be unacceptable where the surety’s liability under the bid bond was unaffected by a letter in the bid package from the bidder and its subcontractor disclosing that the bidder had obtained the bond through the subcontractor’s relationship with the surety and advising the agency that it was not affiliated with the subcontractor.
North
Wind, Inc.; Earth Resources Technology, Inc. B-404880.4; B-404880.5;
B-404880.6 November 4, 2011.
DIGEST: Protest of
agency’s re-evaluation of the awardee’s proposal, as part of a
corrective action, is sustained where the agency failed to evaluate the
awardee’s proposal in accordance with the solicitation requirements.
Southern Recycling, L.L.P. B-405446
November 3, 2011.
DIGEST:
Protest that solicitation’s price evaluation criterion is unduly restrictive is denied where the record shows that the agency reasonably determined to consider the additional costs to the government for required dry-dock cleaning of vessels for offerors proposing recycling outside the San Francisco Bay area.
Supreme Foodservice GmbH B-405400.1; B-405400.2 October 31, 2011.
DIGEST:
1. Protest that estimates in solicitation based on current troop levels do not accurately reflect agency’s needs due to presidential announcement of troop withdrawals is denied where agency determines that due to absence of official notification and guidance regarding announced troop withdrawal and possibility that troops may be replaced with individuals to be serviced under contemplated contract, agency’s basis for solicitation estimates is reasonable.
2. Protest that solicitation calling for fixed prices for delivery of products to be ordered on indefinite-delivery/indefinite-quantity basis to locations in war zone subjects contractor to undue risk is denied where record reflects that solicitation includes adequate information for offerors to factor risk into pricing, [DELETED] proposals have been submitted, protester represents that it understands risk and has submitted proposal responding to solicitation, and agency has articulated reasonable bases for shifting risk to contractor.
3. Protest that agency unreasonably failed to provide for price realism evaluation in solicitation is denied where solicitation contemplates award of fixed-price contract and assessment of performance risk in connection with technical evaluation.
4. Protest that agency unreasonably failed to include definitive responsibility criterion for financial capability in solicitation is denied where record reflects that agency intends to make pre-award responsibility determination based on information both independently obtained by agency and submitted by offerors.
TeleCommunication Systems Inc. B-404496.3
October 26, 2011.
DIGEST:
Protest of propriety of agency’s termination of contract with awardee that hired a former high-level agency employee on the basis that there was an appearance of impropriety that may have caused an unfair competitive advantage for the awardee is denied where the agency conducted a thorough and well-documented investigation, which found that the employee had access to non-public source selection sensitive information during his government employment and appeared to have input into awardee’s preparation of its revised proposal when employed by the awardee.
Six3 Systems, Inc. B-404885.2 October 20, 2011.
DIGEST:
Protest challenging agency decision to set aside acquisition for small business competition is denied where record demonstrates reasonable basis for contracting officer’s determination that at least two capable small businesses may be expected to submit offers.
Technosource Information Systems, LLC; TrueTandem, LLC B-405296; B-405296.2; B-405296.3
October 17, 2011.
DIGEST:
1. Protest of agency requirement that any non-U.S.-based cloud computing data centers be located in Trade Agreements Act Designated Countries is sustained where the agency failed to establish a connection to any legitimate government need.
2. Protest of agency requirement for a “government community cloud” limited to United States federal, state, local, or tribal government entities, is denied where the record supports a potentially meaningful security benefit associated with the requirement.
3. Allegation that solicitation’s internet routing requirements are ambiguous is sustained where the relevant terms are only apparent by reference to explanations and documents which were not incorporated in, or referenced by, the solicitation.
A1
Procurement JVD B-404800.4 October 11, 2011.
DIGEST: Agency
acted reasonably and in a manner consistent with the solicitation when it
considered past performance evaluations from references for contracts not
mentioned in the vendors’ quotations, but found on a Department of Defense
database.
EBA Ernest Bland Associates, P.C. B-404825.5; B-404825.6
October 11, 2011.
DIGEST:
Protest challenging agency’s selection of firms with which to negotiate contracts for architect/engineering services is sustained where agency’s final selections were based solely on results of oral interviews and did not consider specific evaluation factors established by terms of solicitation.
Aldevra
B-405271; B-405524 October 11, 2011.
DIGEST:
Protest that Department of Veterans Affairs (VA) improperly used non-mandatory Federal Supply Schedule procedures to procure items, rather than using a set-aside for service-disabled veteran-owned small businesses, is sustained, where the applicable statute--the Veterans Benefits, Health Care, and Information Technology Act of 2006--and implementing regulations require the VA to use such set-asides where the statutory prerequisites are met.
Construct Solutions, Inc.--Protest and Reconsideration B-405288; B-405288.2
October 11, 2011.
DIGEST:
Protest challenging Small Business Administration’s (SBA) denial of certificate of competency (COC) is sustained where the basis for SBA’s refusal to issue the COC resulted from SBA’s misapplication of its regulations.
Raytheon Technical Services Company LLC B-404655.4; B-404655.5; B-404655.6 October 11, 2011.
DIGEST:
1. Protest that awardee had “unequal access to informationÓ” type of organizational conflict of interest is denied where allegations were based upon suspicion and not “hard facts,” agency’s investigation was meaningful, and agency reasonably concluded that awardee did not have access to nonpublic information that would provide firm a competitive advantage in procurement.
2. Protest is sustained where solicitation required proposal of loaded labor rates to be used as ceiling rates in future task order competitions and awardee failed to propose rates for 20 labor categories; omission in awardee’s proposal constitutes material omission rendering proposal unacceptable.
3. Protest is sustained where agency’s failure to provide common cutoff date for revised proposals may have prejudiced protester (one of original competitive range offerors).
4. Protest is sustained where agency treated offerors unequally by assigning strength to awardee’s proposal for management feature while failing to credit protester’s proposal with a strength for a comparable feature, and failed properly to apply evaluation criteria by giving another awardee’s proposal credit for key personnel under wrong evaluation factor.
RELM Wireless Corporation B-405358
October 7, 2011.
DIGEST:
Protester is not an interested party where, as here, even if the protest is sustained, the protester will be ineligible for award under the remaining terms of the solicitation.
KMS Solutions, LLC B-405323.2; B-405323.3 October 6, 2011.
DIGEST:
1. In evaluating protester’s proposal under the most-heavily-weighted management evaluation factor, the agency reasonably determined that protester’s proposal contained multiple errors and omissions that reflected a lack of understanding or an approach that could not be expected to meet the solicitation’s requirements.
2. Based on its consideration of a Defense Contract Audit Agency (DCAA) audit performed in 2010, and the protester’s specific non-concurrence with various DCAA criticisms regarding protester’s cost accounting system, the procuring agency reasonably determined that protester’s accounting system was inadequate for award of a cost-reimbursement contract.
MPC Containment Systems, LLC B-405354; B-405354.4
October 6, 2011.
DIGEST:
1. Protest that proposal was misevaluated is denied where evaluation was reasonably supported by the record and the protester’s arguments reflect mere disagreement with agency’s technical judgments.
2. GAO will not invoke the significant issue exception to its timeliness rules where GAO has previously considered the issue on the merits in prior decisions.
3. Supplemental protest filed after receipt of agency report is untimely where the information on which the protest was based was known or should have been known by the protester at the time it received its debriefing.
Vizada Inc.
B-405251; B-405251.2; B-405251.3 October 5, 2011.
DIGEST:
1. Agency reasonably found significantly lower-priced proposal of awardee to be realistic.
2. Protest that agency improperly failed to find the awardee’s proposal technically unacceptable for not complying with various material specification requirements is denied, where the record shows that the agency reasonably determined that the proposal was acceptable.
3. Protest that awardee’s proposal contained a material misrepresentation is denied where there is no convincing evidence of a misrepresentation.
4. Agency was not required to advise an offeror during discussions of proposal weaknesses that were reasonably not considered significant, even when the weaknesses were noted as a discriminating factor in making the award.
APEX-MBM, JV B-405107.3 October 3, 2011.
DIGEST:
Protest that agency used unstated evaluation criteria when it rejected protester’s proposal for failure to propose site-specific staff deployments and supplies and equipment is sustained where the solicitation did not require, and its general instructions and 15-page limitation for submissions did not suggest, that offerors propose staff deployments or supplies and equipment, and instead requires such details to be coordinated with, and approved by, the agency after contract award.
Focused Management, Inc.--Costs B-404029.6
October 3, 2011.
DIGEST:
1. GAO recommends reimbursement of the costs of filing and pursuing protest challenging the agency’s failure to include protester in discussions with other offerors in the competitive range, where issue was clearly meritorious but agency unduly delayed taking corrective action.
2. Protest costs are not recommended where issues concerning evaluation of protester’s technical proposal are readily severable from successful discussions challenge based on different set of facts and legal theories.
Securities and Exchange Commission-Recording of Obligation for Multiple-Year Contract
B-322160 October 3, 2011.
DIGEST:
The Securities and Exchange Commission (SEC) failed to fully record its
obligation when it entered into a 10-year contract. The recording statute, 31
U.S.C. § 1501(a)(1), requires SEC to record an obligation for its total
liability under the contract. Although SEC estimated that its total obligation
would be at least $371.7 million, SEC recorded an obligation for only $180,000.
SEC had no authority to record an obligation for an amount less than its full
liability under this contract.
Science Applications International Corporation B-405155.3
October 3, 2011.
DIGEST:
GAO recommends reimbursement of protest costs where procuring agency took corrective action after parties were informed through alternative dispute resolution (ADR) procedures the protest was clearly meritorious.
NEK Advanced Securities Group, Inc. B-405270.2; B-405270.3
October 3, 2011.
DIGEST:
Government Accountability Office will not consider protest of subcontractor selection as “by” the government where prime contractor developed the evaluation criteria, participated in the evaluation of initial proposals, developed the terms of a request for final offers, evaluated the final proposals, performed the responsibility determinations, and selected the awardee.
Dell Services Federal Government, Inc. B-405244; B-405244.2
September 30, 2011.
DIGEST:
Protest alleging that agency failed to provide the protester with effective notice of a solicitation amendment is denied where the amendment was received by one of two points of contact identified in the protester’s proposal.
U.S. Small
Business AdministrationÑIndefinite-Delivery Indefinite- Quantity Contract
Guaranteed Minimum B-321640 September 19, 2011.
DIGEST: A
valid obligation must reflect a bona fide need at the time the obligation is
incurred. Thus, an agency must have a bona fide need for the guaranteed minimum
of an indefinite-delivery indefinite-quantity contract (IDIQ). The U.S. Small
Business Administration (SBA) violated the bona fide needs rule where it did not
have a bona fide need for the guaranteed minimum quantities specified in an IDIQ
contract at the end of fiscal years 2009 and 2010. SBA reported that it has
adjusted its accounts to correct its bona fide needs violation.
GlobaFone Inc. B-405238 September 12, 2011.
DIGEST:
Protest that solicitation is unduly restrictive because it requires satellite telephone numbers for agency personnel and volunteers to remain unchanged is denied where the record establishes that the requirement is reasonably designed to meet the government’s needs.
Rohmann Services, Inc. B-405171; B-405171.2 September 8, 2011.
DIGEST:
1. Protest challenging agency’s evaluation of awardee’s past performance is denied where protester alleges awardee lacks experience with work not expressly specified in solicitation and where record reflects agency determined awardee had relevant experience in all service areas specified in solicitation; protester’s mere disagreement with agency’s evaluation is insufficient to show it was unreasonable.
2. Protest alleging agency failed to evaluate validity of awardee’s teaming agreement is denied where awardee’s proposal represented agreement was valid and where solicitation did not require submission or evaluation of offeror teaming agreements.
3. Protest concerning agency’s consideration of awardee’s ability to obtain security clearances is denied where solicitation did not contain definitive responsibility criteria regarding security clearances and where there is no evidence of fraud or bad faith in connection with contracting officer’s responsibility determination.
Enterprise Information Services, Inc. B-405152; B-405152.2; B-405152.3 September 2, 2011.
DIGEST:
1. Challenge to the evaluation of the protester’s quotation as unacceptable is denied where the protester’s failure to respond to one of the performance work statement requirements was based on the protester’s unreasonable interpretation of the solicitation as permitting vendors to not address “optional” requirements.
2. Protest that the awardee’s subcontractor had an unmitigated unequal access to information organizational conflict of interest is denied where the record shows that, although the contracting officer did not follow the requirements of the Federal Acquisition Regulation to ensure that contractors enter into non-disclosure agreements with other contractors to prevent competitive harm arising from disclosures of information, there was no competitive prejudice to the protester because the contracting officer obtained different kinds of non-disclosure agreements from the awardee’s subcontractor’s personnel, which provided adequate protections of the protester’s confidential and proprietary information.
3. Protest that the awardee’s subcontractor had an unmitigated impaired objectivity organizational conflict of interest arising from its contract with the procuring agency is denied where the record shows that the contracting officer investigated the matter and determined that the subcontractor’s work under its contract did not involve the subject matter implicated by the protested procurement.
Vetsummit, LLC B-405187 August 29, 2011.
DIGEST: Protest that agency improperly rejected protester’s bid is denied where agency referred concerns over the protester’s responsibility to the Small Business Administration (SBA), which declined to issue a certificate of competency, and where the protester’s claim that the SBA had failed to consider vital information bearing on the protester’s responsibility lacked merit.
Pro South-Emcon, a Joint Venture B-405267; B-405268
August 18, 2011.
DIGEST:
1. Where solicitation requires that a service-disabled veteran-owned small business offeror be listed in the VetBiz database, that requirement applies to a joint venture offeror and is not met by one of the joint venturers’ compliance.
2. Protester is not an interested party to challenge agency’s evaluation where the record shows that the protestor’s proposal would not be eligible for an award even if the protest were sustained.
Integral Systems, Inc. B-405303.1
August 16, 2011.
DIGEST:
Parent corporation is not interested party to protest elimination from consideration for award of proposal submitted by parent’s wholly-owned subsidiary where parent fails to show that subsidiary is other than separate and distinct legal entity with which government would contract if award were made under proposal in question.
Touch Federal Systems, LLC B-404894.3
August 15, 2011.
DIGEST:
1. Agency was not required to provide protester, which represented itself as a small business concern in its proposal, with an opportunity to submit a revised proposal where, post-award, the Small Business Administration found the protester to be other than a small business, and the agency elected to reevaluate proposals.
2. Protest that agency improperly evaluated protester’s proposal is denied where the record establishes that the proposal failed to comply with the solicitation requirements.
Power Connector, Inc. B-404916.2
August 15, 2011.
DIGEST:
Protest is sustained where, in response to an earlier protest, the agency took corrective action by amending the solicitation to change a material requirement under its past performance evaluation scheme, but improperly precluded offerors from making revisions to all aspects of their proposals, including price.
Nationwide IT Services, Inc. - Costs B-404160.2
August 8, 2011.
DIGEST:
GAO recommends reimbursement of protest costs where procuring agency took corrective action after parties were informed through alternative dispute resolution procedures that protest would be sustained on single ground, since that ground is considered to be clearly meritorious; reimbursement is not recommended with regard to other protest grounds, since those grounds are severable from the successful protest ground.
PCCP Constructors, JV; Bechtel Infrastructure Corporation B-405036; B-405036.2; B-405036.3; B-405036.4; B-405036.5; B-405036.6 August 4, 2011.
DIGEST:
1. Agency unreasonably evaluated awardee’s proposal for compliance with foundation design requirements to account for lateral loads, in a manner inconsistent with the terms of the solicitation.
2. Offerors may have been misled by a procuring agency, where the solicitation established a build-to-budget concept that informed offerors to use the full amount of budget identified in the solicitation in developing their technical approach, where despite questions and discussions concerning this concept offerors were not informed that they could propose less than the budgeted amount, no offeror but the awardee proposed less than the full budget amount, and the awardee was credited by the agency for offering a lower price.
3. An agency’s investigation of the awardee’s alleged unequal access to information organizational conflict of interest was unreasonable, where the agency concluded that the awardee’s hiring of a high-level government employee from the office responsible for the project being procured created a potential conflict, but limited its review to what responsibility and role the government employee had in the procurement prior to his retirement without any consideration of the employee’s access to non-public, source selection information, and where the record establishes the employee’s continued daily contact with members of the source selection team and access to inside information concerning the agency’s build-to-budget concept.
O’Gara Training and Services, LLC B-404901.2
July 28, 2011.
DIGEST:
Where solicitation defined relevance of past performance in terms of magnitude (similarity in dollar value) and scope (similarity to experience defined in performance work statement), evaluation of protester’s past performance as neutral was unobjectionable; the agency reasonably found that, although protester’s past contracts were similar in magnitude, its experience under the past performance references was not similar in scope.
QinetiQ North America, Inc. B-405008; B-405008.2
July 27, 2011.
DIGEST:
1. Protest that awardee has “biased ground rules” type organizational conflict of interest (OCI) is denied where record does not establish that awardee’s prior contract performance put awardee in position to materially affect competition.
2. Protest that awardee has “unequal access to information” type OCI is denied where record reflects that any advantage arising from awardee’s prior contract performance was normally occurring incumbent advantage.
3. Protest that agency improperly evaluated protester’s technical proposal is denied where proposal ratings are supported by record and consistent with solicitation; protester’s arguments reflect mere disagreement with agency’s technical judgments.
4. Protest that agency improperly evaluated protester’s cost proposal is denied where record supports agency’s determination that proposed reduction to indefinite-delivery/indefinite-quantity contract labor rates lacked sufficient detail to warrant cost proposal risk level rating of low.
STG, Inc.
B-405082; B-405082.2 July 27, 2011.
DIGEST:
Protest of 4-month sole-source task order for interim services placed against Federal Supply Schedule (FSS) contract is denied where the services were urgently required and agency reasonably concluded that following the applicable FSS competitive ordering procedures would result in unacceptable interruptions of service.
A1 Procurement, JVG B-404618.3 July 26, 2011.
DIGEST:
1. GAO has jurisdiction to review a protest challenging a contracting officer's decision that the protester was not listed in the Department of Veterans Affairs (VA) VetBiz database as eligible for award under a VA service-disabled, veteran-owned small business set-aside.
2. The contracting officer reasonably determined that the protester was not listed in the VetBiz database and was not eligible for award.
Raytheon Company B-404998
July 25, 2011.Dell Federal Systems, L.P. B-404996; B-404996.2 July 22, 2011.
DIGEST:
Agency reasonably concluded that the handheld device component of the protester’s biometric collection system did not meet the solicitation’s requirements for fingerprint collection and therefore the proposal was technically unacceptable where the fingerprint collection feature was not integrated and was smaller in size than what was required by the solicitation. [DORFP-Delivery Order Request for Proposals, I don't recall seeing this acronym before-jaw]
901 North Fifth Street, LLC B-404997; B-404997.2
July 22, 2011.
DIGEST:
1. Protest that agency’s evaluation and selection decision were flawed is denied where the record shows that both the evaluation and the resulting selection decision were reasonable and consistent with the solicitation’s evaluation factors.
2. Protest that agency failed to comply with terms of Executive Order 12072 is dismissed; our Office does not normally review allegations of an agency’s failure to comply with executive branch policies.
Explo Systems, Inc. B-404952; B-404952.2 July 8, 2011.
DIGEST:
1. In a procurement that required a best value tradeoff, agency was required to apply Historically Underutilized Business Zone (HUBZone) price evaluation preference in evaluating proposals, even though HUBZone proposal was lower in price than the large business proposal, where the plain language of the solicitation, which incorporated Federal Acquisition Regulation clause 52.219-4, required that the price evaluation preference be applied.
2. Protest that agency misevaluated awardee's proposal under two technical subfactors and the past performance factor is denied, where the evaluation is consistent with the criteria stated in the solicitation.
CASE LLC B-404954 July 7, 2011.
DIGEST:
Protest challenging agency’s elimination of protester’s proposal from the competitive range is denied where record shows that agency reasonably found, after engaging in meaningful discussions with protester, that its proposal included several deficiencies that rendered it technically unacceptable.
MediaNow, Inc. B-405067 June 28, 2011.
DIGEST:
Offer of “equal” products under brand name or equal solicitation was properly rejected where the technical information provided to the contracting agency failed to demonstrate that the “equal” products met all of the salient characteristics set forth in the solicitation.
SafeGuard Services, LLC B-404910 June 28, 2011.
DIGEST:
Agency improperly rejected protester's final proposal revisions (FPR) as late due to the fact that a minor subcontractor submitted a late FPR, where the agency did not determine whether the protester's FPR was acceptable without considering the subcontractor's late FPR.
Waterfront Technologies, Inc.--Protest and Costs B-401948.16; B-401948.18 June 24, 2011.
DIGEST:
1. GAO rejects agency's contention that protester is not interested party to pursue protest, which was based on the assertion that the protester, which is a small business concern, did not comply with solicitation requirement for an interim secret facility clearance; this compliance concerns a matter of responsibility and the protester's proposal could not be rejected for this reason without referring the matter to the Small Business Administration for a certificate of competency review.
2. GAO will not dismiss a protest where the protester's counsel violated the protective order and there is no evidence that the protester knowingly participated in the violation.
3. Protest challenging the evaluation of offerors' past performance, technical proposals, and price realism is denied where the record demonstrates that the agency's evaluations were reasonable.
4. Request for reimbursement of costs for filing and pursuing an earlier protest is granted where the protester raised a clearly meritorious protest ground, and the agency did not take prompt corrective action.
Ahtna Facility Services, Inc. B-404913; B-404913.2 June 30, 2011.
DIGEST:
1. Agency reasonably determined that protester's proposal contained multiple deficiencies and significant weaknesses that rendered the proposal technically unacceptable, and properly excluded the proposal from the competitive range.
2. Agency's discussions with protester were meaningful where they reasonably led protester into the areas of its proposal that reflected deficiencies and significant weaknesses.
One Largo Metro LLC; Metroview Development Holdings, LLC; King Farm Associates, LLC
B-404896; B-404896.2; B-404896.3; B-404896.4; B-404896.5; B-404896.6; B-404896.7
June 20, 2011.
DIGEST:
1. Protest is sustained where the agency failed to consider both the variety and quantity of amenities offered under the access to amenities subfactor, as required by the solicitation.
2. Protest is sustained where the head of the contracting activity did not meaningfully consider the evaluated differences in the offerors' proposals in her selection decision.
Northrop Grumman Technical Services, Inc. B-404636.11 June 15, 2011.
DIGEST:
Protest that agency corrective action did not include reopening discussions with all offerors and the opportunity to generally revise proposals is denied where the corrective action—reevaluation and reexamination of performance validations for all offerors, followed by a new source selection decision—was appropriate to remedy the concerns identified during an outcome prediction alternative dispute resolution conference.
Mission Essential Personnel, LLC B-404218.2; B-404218.3 June 14, 2011.
DIGEST:
Protest of agency evaluation is sustained where record reflects that agency failed to consider one of evaluation factors established by terms of solicitation.
Technatomy Corporation, B-405130 June 14, 2011.
DIGEST:
The Government Accountability Office (GAO) will not dismiss a protest concerning the issuance of a task order under the authority of Title 41 of the U.S. Code, notwithstanding the sunset of 41 U.S.C. § 4106(f) (2006 & Supp. IV 2010) (formerly codified at 41 U.S.C. § 253j(e) (2006 & Supp. III 2009)). The sunset provision eliminated both a pre-existing restriction on GAO's jurisdiction to hear protests concerning the issuance of task or delivery orders under multiple-award indefinite- delivery/indefinite-quantity contracts, and a temporary partial waiver of that restriction concerning task orders over $10 million. With the elimination of both the underlying restriction, and the partial waiver of that restriction, GAO's jurisdiction reverts to its original jurisdiction for its bid protest function--i.e., the jurisdiction set forth in the Competition in Contracting Act of 1984--under which GAO had jurisdiction to hear such protests.
Lani Eko & Company, CPAs, PLLC B-404863 June 6, 2011.
DIGEST:
Agency reasonably rejected protester's hand-carried proposal as late where a preponderance of the evidence does not establish that the protester delivered the proposal to the designated location prior to the time set for closing and where the protester significantly contributed to the late delivery by failing to allow sufficient time for delivery.
MPRI, Division of L-3 Services, Inc.; LINC Government Services B-402548; B-402548.2; B-402548.3; B-402548.4; B-402548.5; B-402548.6 June 4, 2010.
DIGEST:
Protest of cost realism evaluation is sustained where, although agency reasonably determined that protester had failed to adequately support its proposed substantial reduction in labor rates relative to those under its incumbent contract, the extent of the agency's resulting upward adjustment in the labor rates was unreasonable.
Diebold, Inc. B-404823 June 2, 2011.
DIGEST:
Protest is sustained where an agency made material modifications to the terms and conditions of a commercial item solicitation's clauses in making the award without requesting revised proposals from the other offerors.
Torres International, LLC B-404940 May 31, 2011.
DIGEST:
Protest challenging contracting agency's negative responsibility determination of a joint venture is denied where that determination is reasonably based on fact that the joint venture did not have a top secret facility clearance mandated by the solicitation.
U.S. Foodservice, Inc.; Labatt Food Services, LP B-404786; B-404786.2; B-404786.3; B-404786.4 May 13, 2011.
DIGEST:
Protest of the terms of solicitation for food distribution services on grounds that the terms are inconsistent with commercial practice and are otherwise unreasonable is denied where the agency properly issued a waiver in accordance with Federal Acquisition Regulation § 12.302(c) for commercial item solicitation requirements that may be inconsistent with customary commercial practice, and the record shows that the terms are reasonably justified.
The CFS Group, LLC--Costs B-403539.3 May 13, 2011.
DIGEST:
Request for recommendation that protest costs be reimbursed where an agency took corrective action in response to the protest is denied where the record does not establish that the protest was clearly meritorious.
Analytic Strategies
B-404840 May 5, 2011.
DIGEST: Agency's evaluation of the protester's
proposed low price as posing performance risk was consistent with the terms of the solicitation and
reasonably based where the solicitation sought specific cost and price information and provided for
a price realism analysis, and the protester's labor rates were significantly below the
agency's independent government estimate and the other offerors' proposed labor rates.
Addx Corporation B-404888 May 4, 2011.
DIGEST:
Where protester's cost proposal for performance of a task order indicated that approximately 78 percent of its personnel costs would be incurred for subcontractor personnel, agency reasonably rejected the task order proposal for taking exception to the limitation on subcontracting clause, which requires that at least 50 percent of the cost of contract performance incurred for personnel be expended for employees of the concern.
MG Mako, Inc. B-404758 April 28, 2011.
DIGEST:
Protest challenging rejection of proposal for failure to acknowledge solicitation amendment is denied where amendment contains material terms affecting legal relationship of the parties, including obligation for contractor to coordinate with local utility company to minimize electrical outages.
United Concordia Companies, Inc. B-404740 April 27, 2011.
DIGEST:
1. Agency reasonably considered proposal risk in connection with its evaluation of the offerors' technical proposals, and reasonably determined that awardee's larger existing provider network was superior to the protester's smaller provider network.
2. Agency's determinations regarding the relevance of offerors' prior contracts were reasonable where the agency's consideration of the magnitude and scope of the services previously performed included consideration of a numerical claims processing threshold to distinguish between prior contracts considered to be relevant and those that were considered to be less relevant.
3. Agency was not required to perform a realism assessment regarding the components of the awardee's proposed price where the solicitation provided for award of a fixed price contract and stated that offerors' proposed prices would be evaluated to determine whether they were fair and reasonable.
Raytheon Company B-403110.3 April 26, 2011.
DIGEST:
Protest challenging the agency's decision not to select protester's proposal for award is denied, where the proposal was reasonably evaluated as having weaknesses that were within the stated evaluation criteria, and additional discussions were not required given that the weaknesses stemmed from proposal revisions made by the protester after the completion of discussions.
CWTSatoTravel B-404479.2 April 22, 2011. .
DIGEST:
1. Protest that solicitation seeking fixed prices for electronic travel management service imposes excessive risk on offerors is denied where solicitation does not have an unlimited scope of work and provides sufficient information on which offerors can base their prices.
2. Protest that solicitation requirements for updates to electronic travel management system in response to changes in pertinent federal regulations and policy are unduly restrictive is denied where agency establishes that requirements are reasonably related to agency's needs.
3. Protest that agency improperly conducted procurement using commercial item procedures and policies is denied where protester does not show that use of those procedures and policies will cause it competitive prejudice.
4. Protest that certain terms of solicitation do not clearly communicate whether objectives are optional or required--rendering solicitation ambiguous--is sustained; remaining challenges to terms of solicitation are denied where those terms were not susceptible to more than one reasonable interpretation, and where solicitation contained sufficient information to allow offerors to compete intelligently and on a relatively equal basis.
The Analysis Group, LLC B-401726.3
April 18, 2011.
DIGEST:
1. Protest that agency failed to give adequate consideration to awardee’s potential organizational conflicts of interest (OCI) is denied, where record shows that agency extensively investigated potential OCIs and, after completing its investigation and concluding that there was a remote possibility of an OCI, properly executed a waiver of the residual OCI.
2. Protest of agency’s method of evaluating price is dismissed as untimely where protester knew or should have known from reading the solicitation that agency did not intend to normalize the level of effort for all offerors.
B&S Transport, Inc. B-404648.3 April 8, 2011.
DIGEST:
Agency properly rejected protester's hand-delivered proposals as late where the protester, rather than the agency, was the paramount cause for the late receipt.
L-3 Systems Company B-404671.2; B-404671.4 April 8, 2011.
DIGEST:
1. Protester's assertions challenging the agency's past performance evaluation reflect mere disagreement with the agency's reasonable judgments where the record establishes that the agency comprehensively considered relevant past performance information for both offerors, recognized positive and negative aspects of both offerors' past performance, considered each offeror's corrective actions to address prior performance problems, and reasonably determined that the proposals presented essentially the same performance risk.
2. Agency performed a reasonable cost evaluation where it relied on statistical analysis, considered other information provided by the offerors related to the status of the labor market and the costs incurred under similar contracts, and recognized and evaluated the differences in fringe benefits, tax status, and related factors regarding each offeror's proposed labor rates.
3. Protester's assertions that it was misled during discussions regarding its proposed rates for mentor/trainers does not provide a basis to sustain the protest since, whether or not discussions were misleading, protester was not prejudiced since the cost difference between protester's and awardee's proposals for the relevant portion of their proposals was substantially less than the awardee's total cost advantage and the proposals were otherwise equal.
USIS Worldwide, Inc. B-404671; B-404671.3 April 6, 2011.
DIGEST:
1. Protester's assertion that awardee's proposal should have been evaluated as technically unacceptable on the basis that awardee proposed to perform 78 percent of the contract effort with host country nationals (HCNs) and third country nationals (TCNs) provides no basis to sustain the protest where the solicitation stated that “there are no nationality restrictions” on proposed personnel; the record shows that the awardee proposed a significantly lower percentage of TCNs and HCNs than protester alleged; and protester, itself, proposed to perform over [deleted] percent of the contract effort with HCNs and TCNs.
2. Protester's assertions challenging the agency's past performance evaluation reflect mere disagreement with the agency's reasonable judgments where the record establishes that the agency comprehensively considered relevant past performance information for both offerors, recognized positive and negative aspects of both offerors' past performance, considered each offeror's corrective actions to address prior performance problems, and reasonably determined that the proposals presented essentially the same performance risk.
3. Agency performed a reasonable cost evaluation where it relied on statistical analysis, considered other information provided by the offerors related to the status of the labor market and the costs incurred under similar contracts, and recognized differences in the fringe benefits associated with each offeror's proposed rates.
Ocean Services, LLC B-404690 April 6, 2011.
DIGEST:
Protest that contracting agency improperly refused to allow the protester to revive its expired proposal is sustained where the revival would not prejudice other offerors or the competitive system, given that the protester's proposal, the acceptance period for which expired on a Saturday, was revived by its extension of the acceptance period on the following Monday morning.
Solers, Inc. B-404032.3; B-404032.4 April 6, 2011.
DIGEST:
1. Protest is sustained where the awardee's proposal improperly took exception to the solicitation requirement to propose a fixed price.
2. Protest challenging the evaluation of the offerors' past performance is sustained where the record does not permit a meaningful review of whether the agency's evaluation was reasonable.
3. Protest challenging the evaluation of offerors' technical proposals is sustained where the record does not demonstrate that agency reasonably evaluated the qualifications of the awardee's proposed personnel.
USA Jet Airlines, Inc.; Active Aero Group, Inc. B-404666 April 1, 2011.
DIGEST:
1. Protest of agency requirement that offerors present evidence of certification under certain industry quality standards (specifically ISO 9001, ISO 9100, or AS 9110) at the time of proposal submission, rather than at the time of award or performance, is sustained where requirement exceeds agency's reasonable needs.
2. Protest that solicitation for aircraft maintenance services is ambiguous because agency has not provided service manuals or other more specific information about services that will be required is denied where solicitation provided sufficient information about the aircraft (most of which have not been purchased) to allow offerors to prepare proposals, and for agency to assess offeror understanding in evaluating those proposals.
Medical Development International, Inc. B-402198.2
March 29, 2010.
DIGEST:
1. Agency’s evaluation of proposals for comprehensive medical services for a federal correctional complex was not reasonable where the agency determined that the awardee’s proposal included a “firm commitment” to provide [DELETED], even though the proposal required that the agency inform the awardee in writing by a specified date that the agency wanted the [DELETED] provided, and that date had passed without the requisite action.
2. Agency failed to consider price in accordance with the terms of the solicitation during its source selection where the solicitation advised offerors that their evaluated price would include base and option period pricing, and the agency’s source selection decision references only the base period pricing and reflects no recognition of the price advantages of the protester’s proposal, which increased from the base period through each of the option periods.
RSL Electronics Ltd. B-404117.3; B-404117.4; B-404117.5; B-404117.6 March 28, 2011.
DIGEST:
1. Solicitation for muzzle velocity sensor systems to be used in howitzer gun systems that required a 100-percent score for all aspects of the bid sample test in order for the proposal to be considered technically acceptable is unobjectionable where the requirements are reasonably based.
2. Agency's evaluation of the protester's proposal as technically unacceptable was reasonable and consistent with the terms of the solicitation where the protester's bid sample, submitted in response to a solicitation for muzzle velocity sensor systems to be used in howitzer gun systems, failed to accurately measure the muzzle velocity of the projectiles fired on two occasions during the bid sample test.
Qwest Government Services, Inc. B-404845 March 25, 2011.
DIGEST:
Costs for equipment and services furnished by the government in connection with performance of task order are not considered when determining whether value of the order exceeds the $10 million threshold to invoke task order protest jurisdiction.
Technology Concepts & Design, Inc. B-403949.2; B-403949.3 March 25, 2011.
DIGEST:
Protest challenging the issuance of a task order is sustained where the agency did not provide adequate supporting rationale in the record for GAO to conclude that the agency's evaluation of the protester's proposal was reasonable.
California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters B-403397.3 March 21, 2011.
DIGEST:
Protest that solicitation is unduly restrictive because it requires firms to submit proposals based solely on a brand name list of particular products is sustained where the solicitation does not include salient characteristics for the brand name products, and the agency has not taken the steps necessary to procure its requirements using other than full and open competition.
Hurricane Consulting, Inc. B-404619; B-404619.2; B-404619.3 March 17, 2011.
DIGEST:
1. Protest that agency misevaluated protester's proposed staffing and failed to provide meaningful discussions about staffing is denied where discussions informed protester of the agency's concerns over the proposed lower staffing level, and the contemporaneous evaluation record for the protester's final proposal revision demonstrated a reasonable basis for downgrading the protester's proposal where evaluators questioned the protester's explanation and viewed its lower staffing as only minimally adequate.
2. Protest grounds arguing that successful vendor's joint venture was not a properly constituted service-disabled veteran owned small business joint venture, and therefore the agency should have rejected the successful vendor's proposal, are dismissed where the essence of the protest is a matter of small business status, for which protest jurisdiction is reserved to the Small Business Administration, not GAO.
A1 Procurement, JVG B-404618 March 14, 2011.
DIGEST:
In a negotiated procurement for a fixed-price contract, protest of the rejection of the protester's proposal on the basis of its low price is sustained, where the agency's evaluation of the protester's proposal was not reasonable or in accordance with the terms of the solicitation.
Global Computer Enterprises, Inc.; Savantage Financial Services, Inc. B-404597; B-404597.2; B-404597.3, March 9, 2011.
DIGEST:
1. Protest challenging the award of an indefinite-delivery/indefinite-quantity contract is sustained where the agency knew, prior to award, that the agency's anticipated schedule for issuance of task orders was materially different from the assumptions set forth in the solicitation, upon which offerors were required to base their proposals.
. Protest challenging the evaluation of the awardee's compliance with a mandatory solicitation requirement to propose an integrated financial management solution currently in use in the federal government is sustained, where the record does not show that the agency reasonably evaluated the awardee's proposal and solution demonstration with respect to this requirement.
Noble Supply and Logistics B-404731 March 4, 2011.
DIGEST:
Protest challenging agency's rejection of the protester's proposal as late is denied where the protester unreasonably disregarded closing date established by solicitation and instead relied on oral advice from the contracting officer indicating that the protester's proposal would be considered if submitted one day after the solicitation's closing date.
Bannum, Inc. B-404712 March 1, 2011.
DIGEST
Protest that an agency misevaluated the protester's past performance by considering the default termination of an earlier contract is denied where the solicitation did not limit the evaluation of past performance to those references submitted by the offeror, or to events within 3 years of the date of the award.
Northrop Grumman Information Technology, Inc. B-404263.6 March 1, 2011.
DIGEST:
Protest objecting to proposed corrective action taken in response to earlier protests is denied where agency reasonably determined that the proposals received in earlier acquisition indicated that the solicitation did not provide adequate information for offerors to compete intelligently and on a relatively equal basis.
I.M. Systems Group B-404583; B-404583.2; B-404583.3 February 25, 2011.
DIGEST:
1. A procuring agency improperly rejected the protester's low-priced proposal as unrealistic where the agency did not reasonably assess the realism of the protester's labor rates, as required by the solicitation.
2. Protest challenging the award of indefinite-delivery/indefinite-quantity contracts is sustained where, although the solicitation provided that the agency would assess the realism of offerors' loaded labor rates, the agency did not assess the realism of the awardees' labor rates.
Resource Dimensions, LLC B-404536 February 24, 2011.
DIGEST:
Protest is sustained where the agency failed to provide adequate supporting rationale in the record for GAO to conclude that the agency had a reasonable basis for its evaluation of the protester's oral presentation because of unresolved discrepancies regarding the unrecorded portion of the oral presentation.
Waterfront Technologies, Inc. B-403638.3 February 22, 2011.
DIGEST:
Where initial protest at GAO is dismissed because third party files protest at U.S. Court of Federal Claims (COFC), re-filing of protest at GAO 37 days after conclusion of COFC litigation is untimely; monitoring proceedings at COFC through a commercial website that was not regularly updated instead of using the official COFC website (PACER), which provides real-time updates for all filings, does not satisfy the requirement for protesters to utilize the most expeditious information- gathering approach under the circumstances.
Istituto di Medicina del Lavoro- Archimede B-404650 February 18, 2011.
DIGEST:
Although an agency failed to make an award to a firm registered in the Central Contractor Registration (CCR) database prior to award as required by the solicitation, the agency reasonably invoked the exception to this requirement under Federal Acquisition Regulation § 4.1102(a)(5), which allows waiver of this requirement if the award is made to a foreign vendor and the work is to be performed outside the United States, and the agency determines that it was impractical for the awardee to obtain CCR registration prior to award.
JRS Management B-404022.2 February 15, 2011
Dates:
Protest against solicitation requirement that vendors provide written certification for Spanish GED instructors at the time of quotation submission is denied where the record establishes that the requirement for such certification at the time of quotation submission is necessary to meet the needs of the agency.
U.S. Bank B-404169.3 February 15, 2011.
DIGEST:
For purposes of determining GAO jurisdiction over challenges to the award of task and delivery order, the term “value” for a no cost task order for third party payment services for transportation service providers (TSP) includes the anticipated transaction fees that the contractor will recover from the TSPs during the term of the contract, including options. However, GAO has no jurisdiction where the anticipated transaction fees of the selected contractor are less than $10 million based on the estimated dollar volume of the total transactions under the order as stated in the solicitation and where the protester did not timely challenge the estimated dollar volume.
M. Erdal Kamisli Co. Ltd. (ERKA Co., Ltd.) B-403909.2; B-403909.4 February 14, 2011.
DIGEST:
An agency reasonably determined that protester was not responsible based on protester's documented negative past performance, including a termination for default.
Facility Services Management, Inc. B-402757.6; B-402757.7 February 10, 2011.
DIGEST:
Past performance evaluation rating of satisfactory was unobjectionable where record included negative past performance information on protester's incumbent contract and showed protester's business relations ratings generally declined on contracts nearing completion.
Unisys Corporation B-403054.2 February 8, 2011.
DIGEST:
Protest that awardee's use of a former government employee in the preparation of its proposal provided the firm with an unfair competitive advantage due to the employee's access to proprietary information of the protester is denied where the record reflects that the information at issue was not competitively useful.
Intermarkets Global B-400660.10; B-400660.11 February 2, 2011.
DIGEST:
Protest of agency determination to limit the revisions offerors may make to their proposals during corrective action is denied where the corrective action was appropriate to remedy the concerns identified by the cognizant GAO attorney during an outcome prediction alternative dispute resolution conference, and agency permitted offerors to make changes required to address clarifications of solicitation requirements.
U S Information Technologies Corporation B-404357; B-404357.2 February 2, 2011.
DIGEST:
1. In a procurement conducted pursuant to Federal Supply Schedule procedures, an agency, when ordering services priced at hourly rates and when a statement of work is included, is required to consider the level of effort and the mix of labor offered to perform a specific task being ordered and determine that the total price is reasonable.
2. Protest of an agency evaluation of the awardee's past performance is sustained, where the solicitation provided for the evaluation of projects that were similar in scope and complexity, and there is no explanation in the record or in response to the protest explaining why the awardee's smaller-value past performance projects were similar in scope and complexity.
3. Protest is sustained in a Federal Supply Schedule procurement that provided for issuance of a task order on a best value basis, where the agency failed to assess the vendors' differing strengths or otherwise explain why the quotations were technically equal.
Eagle Collaborative Computing Services, Inc. B-401043.3 January 28, 2011.
DIGEST:
Agency properly awarded a sole-source contract under the Small Business Administration's section 8(a) program where award was consistent with section 8(a) sole-source requirements.
George T. Brown Associates, Inc., B-404398, January 26, 2011.
DIGEST:
Protest challenging agency's finding that protester's quotation was technically unacceptable is denied, where the record shows that quotation did not meet two of eight requirements in the statement of work and the evaluation was reasonable and consistent with the terms of the solicitation.
Herve Cody Contractor, Inc. B-404336 January 26, 2011.
DIGEST:
An agency reasonably evaluated the protester's corporate experience as unacceptable where the solicitation required three projects of similar scope to the solicited work and only two of the protester's projects were found to be of similar scope.
B&B Medical Services, Inc.; Rotech Healthcare, Inc. B-404241; B-404241.2 January 19, 2011.
DIGEST:
Statutory non-manufacturer rule does not apply to procurements set aside for Historically Underutilized Business Zone small business concerns.
Marine Group Boat Works, LLC B-404277; B-404277.2 January 19, 2011.
DIGEST:
1. An agency's decision to not consider delivery price options in its price evaluation is unobjectionable, where the protester did not timely protest a patent ambiguity in the solicitation that did not state whether delivery options would be evaluated and failed to include either of the two standard Federal Acquisition Regulation (FAR) clauses that identify whether or not options would be evaluated.
2. Protest that, under a procurement conducted pursuant to Federal Supply Schedule (FSS) procedures, an agency accepted pricing information from the awardee for optional services not included on that vendor's FSS contract is denied, where the solicitation did not provide for evaluation of the option services and the option services were not ordered under the awardee's FSS contract.
3. Protest that an agency treated the protester and awardee unequally by allowing the awardee to reduce its price quotation after the closing date for receipt of quotations is denied, where the agency allowed both firms to submit quotation revisions after the closing date.
4. An agency's communications with vendors in an FSS procurement are governed by FAR subpart 8.4, which requires that the communications be fair and equitable.
Martin Electronics, Inc.; AMTEC Corporation B-404197; B-404197.2; B-404197.3; B-404197.4; B-404197.5 January 19, 2011.
DIGEST:
1. Protests that the agency conducted non-meaningful and unequal discussions with the protesters is denied where the record shows that the agency's discussion questions reasonably advised offerors of the areas of their proposals that required revision, and that the offerors were treated in an equal manner.
2. Protests that the agency evaluated proposals on an unequal basis is denied where the record shows that the agency had a reasonable basis for distinguishing between the offerors' proposals.
3. Agency is not required to apply a Historically Underutilized Business Zone (HUBZone) small businesses price evaluation preference for an offeror that is not a HUBZone small business concern.
Northeast Military Sales, Inc., B-404153, January 13, 2011.
DIGEST:
An agency's assessment of awardee's past performance as exceptional was not reasonable where the agency failed to consider adverse past performance information of which it was aware.
Rod Robertson Enterprises, Inc. B-404476 January 31, 2011.
DIGEST:
1. Protest that an agency used unannounced evaluation criteria in evaluating past performance is denied, where the areas considered in the evaluation were reasonably related to the past performance factor as described in the solicitation.
2. Unless there is a clear reason to question the validity of the past performance information, an agency is not required to communicate matters of adverse past performance where no discussions are conducted under an acquisition.
Northwest Airport Management, L.P., B-404098; B-404098.2, January 5, 2011.
DIGEST:
Protest challenging solicitation requirements as unduly restrictive of competition is denied where agency demonstrates that the challenged requirements are reasonably related to the agency's current minimum needs.
DPK Consulting B-404042; B-404042.2, December 29, 2010.,
DIGEST:
1. Agency reasonably did not evaluate portions of the protester's revised proposal that did not comply with the format and page limit instructions.
2. Challenge to agency's evaluation of key personnel is denied where the agency reasonably distinguished between the experience of the awardee's and protester's proposed candidates.
Serco Inc., B-404033; B-404033.2; B-404033.3; B-404033.4, December 27, 2010.
DIGEST:
1. Protest that awardee and intervening offeror have an fimpaired objectivity” type organizational conflict of interest (OCI) is denied where record shows that protester's contention relies on an incorrect factual predicate relating to what work will be performed under the contract; given the actual work to be performed, there is no basis to conclude that there is an “impaired objectivity” type OCI on the part of either the awardee or intervening offeror.
2. Protest assertions relating to the agency's evaluation of the awardee's proposal are dismissed where record shows that protester is not an interested party to maintain its allegations.
B-318274, December 23, 2010, The Honorable James P. Moran Chairman The Honorable Michael K. Simpson Ranking Member
Subcommittee on Interior, Environment, and Related Agencies
Committee on Appropriations House of Representatives
Subject: Bureau of Land Management and General Services AdministrationÑ Selected Land Transactions
Improper Augmentation of Appropriations.
L&N/MKB, Joint Venture, B-403032.3 December 16, 2010.
DIGEST:
Protest challenging an agency's evaluation of awardee's experience is denied where the record shows that the awardee had relevant experience.
Flight Safety Services Corporation B-403831; B-403831.2 December 9, 2010.
DIGEST:
Protest that agency failed to reasonably evaluate awardee's low fixed price is denied where the solicitation provided only that the agency may reject an offeror's proposal where its price was “unreasonably” low such that it reflected an inherent lack of competence or failure to comprehend the complexity and risks of the program, and the record reflects that the agency considered the awardee's low price and raised the matter with the awardee during discussions, and the awardee advised the agency that it understood the requirements and intended to submit a low price because securing award of the contract was a key element of its corporate strategy.
Triad Logistics Services
Corporation, B-403726, November 24, 2010.
DIGEST: Assertion that agency
determination to perform work in-house rather than under protester's contract improperly was
based on an internal agency cost comparison that did not comply with 10 U.S.C. § 129a or
internal department policy and guidance does not state a valid basis of protest; 10 U.S.C. §
129a sets forth general personnel policy of Department of Defense and does not bear directly on
federal agency procurements, and compliance with internal agency guidance is a matter GAO will not
consider.
Missouri Machinery &
Engineering Company, B-403561, November 18, 2010.
DIGEST: In a commercial item
acquisition for the repair and overhaul of pumps, protest requiring vendors to be an original
equipment manufacturer's authorized repair facility is sustained, where the agency does not show
that the restriction on competition is necessary to meet its needs.
NCS Technologies, Inc.,
B-403435, November 8, 2010.
DIGEST: Solicitation requirements that computers and
monitors be from the same manufacturer and use Intel-based microprocessors is overly restrictive
where the agency fails to demonstrate a reasonable basis for the requirements.
Commissioning Solutions Global,
LLC, B-403542, November 5, 2010.
DIGEST: 1. Protest that the contracting agency
improperly considered the quantity of relevant past performance where the solicitation did not
specifically state that the amount of relevant past performance would be considered is denied where
the quantity of relevant experience is logically encompassed by or related to considering the
quality of the vendor's past performance.
2. A contracting agency may properly consider
in its past performance evaluation the protester's termination for default, even where that
termination is appealed and where, after award, the termination is converted to one of convenience
by agreement of the parties.
Sikorsky Aircraft
Corporation, B-403471; B-403471.3, November 5, 2010.
DIGEST: Protest
challenging the use of the public interest exception to full and open competition for acquisition of
Russian-made helicopters for delivery to the Afghanistan Air Force is denied where the Acting
Secretary of the Navy issued a determination that justified the restricted competition.
Marine Hydraulics
International, Inc., B-403386; B-403386.2, November 3, 2010.
DIGEST: Protest
challenging agency's cost realism evaluation is sustained, where agency unreasonably made several
upward adjustments to protester's proposed cost that raised protester's cost above awardee's; but
for the erroneous adjustments, protester's evaluated cost would have been low.
UXB-KEMRON Remediation Services, LLC, B-401017.4,
October 25, 2010.
DIGEST: Protest contesting the agency's decision
to issue a delivery order request for proposals to the “unrestricted” pool of
contractors under an indefinite-delivery/indefinite-quantity contract rather to
the small business” pool is dismissed as untimely where it was filed after the
due date for receipt of proposals; protester's previous appeal of this matter to
the agency Task Order Ombudsman did not constitute an agency-level protest and
did not toll GAO's timeliness requirements.
Ellwood National Forge Company, B-402089.3, October 22,
2010.
DIGEST: Protest that competitor has an unfair access to
information organizational conflict of interest is denied where record shows
that the information at issue was obtained by a former employee and consultant
of protester; alleged dissemination of such information is a dispute among
private parties that Government Accountability Office will not consider,
notwithstanding that the former employee may also have had subsequent
opportunity to obtain the same information through performance of government
contract.
Colonial Press International, Inc.
B-403632 October 18, 2010.
DIGEST: An agency may properly exclude a defaulted
contractor from a reprocurement for the remaining work in the defaulted contract, even where the
contractor is in the process of challenging the default.
Hostetter, Keach & Cassada
Construction, LLC, B-403329, October 15, 2010.
DIGEST: Protester's bid is
responsive despite a discrepancy in the names of the bidder and the bid bond principal, where the
record shows that the bidder and bid bond principal are the same entity so that it is certain that
the surety would be liable to the government in the event that the bidder withdrew its bid or failed
to execute a written contract or to furnish required performance and payment bonds.
Buy Rite Transport, B-403729;
B-403768, October 15, 2010.
DIGEST: Protest that solicitations should have been
set aside for veteran-owned small businesses instead of service-disabled veteran-owned small
businesses is denied where the agency reasonably determined, through a search of the Vetbiz database
using the correct North American Industry Classification System code, the existence of significant
numbers of potential offerors, and where under the prior solicitation the agency received more than
two offers from service-disabled veteran-owned small businesses.
Kiewit Louisiana Company,
B-403736, October 14, 2010.
DIGEST: Where protester fails to timely protest a
patent ambiguity in solicitation's initial proposal award provision--the solicitation failed
to incorporate one of two mandatory clauses to indicate whether award was to be made with or without
discussions--agency's decision to award on basis of initial proposals to a higher-rated,
higher-priced offeror was unobjectionable.
PMO Partnership Joint
Venture, B-403214; B-403214.2 October 12, 2010.
DIGEST: Agency's decision
to exclude the protester from a competition because the protester's cost proposal, which
contained other than cost or pricing data as was contemplated by the solicitation, was determined to
be inconsistent with the instructions in Federal Acquisition Regulation § 15.408, Table 15-2,
was unreasonable where: (1) the instructions at issue are only applicable to cost proposals when
cost or pricing data is required, (2) the instructions were neither referenced nor incorporated into
the RFP, (3) there is no evidence in the record that offerors were ever given notice that their cost
information had to be presented in this unique--and regulatorily-inapplicable--format, and (4) the
record strongly suggests that none of the audits of the other offerors' cost proposals were
evaluated against this standard
Powerhouse Design Architects & Engineers, Ltd., B-403174; B-403175; B-403176;
B-403177; B-403633; B-403647; B-403648; B-403649, October 7, 2010.
DIGEST:
Protests that Department of Veterans Affairs improperly failed to set aside architect-engineering
services procurements for service-disabled veteran-owned small businesses are sustained, where the
applicable statute—the Veterans Benefits, Health Care, and Information Technology Act of
2006—and implementing regulations require such set asides where the statutory prerequisites
are met.
U.S.
Aerospace, Inc., B-403464, B-403464.2, October 6, 2010.
DIGEST: 1. Agency
reasonably concluded that protester's proposal was received after the established closing time
where agency's conclusion is supported by contemporaneous email from protester's
representative and telephone records, and protester's messenger did not dispute the stated
time of receipt at the time the proposal was submitted.
2. The delay accompanying admission of
protester's messenger to a secure military facility, and the alleged misdirection by the
facility's entry gate guards, were not the paramount cause of protester's late
submission of its proposal where protester's messenger did not attempt to enter the facility
at the gate designated for entry of non-military visitors, did not seek advance entry approval, and
failed to determine the location of, and directions to, the building designated for proposal
submission.
3. Protester's proposal was not under government control prior to the time
set for receipt of proposals where protester's messenger did not relinquish physical custody
of the proposal until after the proposal submission deadline.
Douglas County Fire District
#2, B-403228, October 4, 2010.
DIGEST: Agency unreasonably evaluated the
protester's quotation for ambulance services as unacceptable under the solicitation's
geographic coverage evaluation factor where, as described in its quotation, the protester offered to
provide the same services within the required geographic coverage as it had performed under the
incumbent contract and its quotation provided similar information to that provided by the awardee,
which received an acceptable rating under this factor.
OLBN Architectural Service, Inc. B-402444.4; B-402444.5 October 4, 2010.
DIGEST:
Agency properly excluded protester from further consideration in procurement of architect-engineering services where agency reasonably downgraded the protester's submission consistent with the solicitation evaluation criteria.
Total Health Resources,
B-403209, October 4, 2010.
DIGEST: Solicitation requirement that the prime
contractor itself have 2 years of family advocacy program experience is unduly restrictive, where
the agency does not show that its needs could not be satisfied by a subcontractor with the requisite
experience.
Aegis
Defence Services, Ltd., B-403226; B-403226.2; B-403226.3, October 1, 2010.
DIGEST:
Agency reasonably determined that awardee's pricing was realistic, notwithstanding the fact
that it was below that of the other technically acceptable offerors, where the agency determined
that awardee's lower pricing was due to its particular staffing approach, which allowed it to
significantly reduce its costs.
Information Ventures, Inc., B-403321, September 27, 2010.
DIGEST:
Protest that agency failed to provide maximum practicable preference to making multiple awards under
solicitation for services is sustained where record fails to support contracting officer's
conclusion that multiple awards were not appropriate.
Standard Heater Tube, Inc.,
B-403155, September 24, 2010.
DIGEST: 1. Protest that “brand name or
equal” requirement in solicitation for heater tubes—used for aviation fuel
testing—was overly restrictive is denied where record shows brand name or equal product was
needed to ensure uniformity of heating tubes, which was necessary for valid testing results.
2. Protest challenging as overly restrictive solicitation requirement that heater tubes be tested
under protocol established by national testing organization is denied where testing is required by
military specifications and protester fails to establish that testing is not necessary to meet
agency's needs.
DynCorp International, LLC B-403065; B-403065.2 September 17, 2010.
DIGEST:
Protest that agency evaluation of offeror's final proposal revision (FPR) improperly failed to consider offeror's responses to agency errors, omissions and clarifications (EOC) notices and items for negotiation (IFN) notices is denied where offerors were repeatedly instructed by agency to incorporate in FPRs all changes to the proposal made by responses to EOCs and IFNs.
Science Applications International Corporation, B-403051, September 17, 2010.
DIGEST: 1. Protest challenging the evaluation of the protester's proposal is denied
where the record shows that the agency assessed weaknesses that were reasonably related to the
stated evaluation criteria, and the agency reasonably concluded that the proposal had not provided
sufficient details.
2. Protest challenging the evaluation of awardee's past performance
is denied where the agency reasonably concluded that statements concerning the awardee's
performance as a subcontractor to the protester under the incumbent contract did not reflect
negative information concerning the awardee, but were more related to the protester's
supervision of its subcontractors.
Andros Contracting, Inc., B-403117, September 16, 2010.
DIGEST:
When filing a protest document with the Government Accountability Office (GAO) via e-mail, the
document must be timely received at protests@gao.gov, the address specifically designated under
GAO's Bid Protest Regulations for filing protest documents via e-mail. Filing is not
accomplished by e-mailing the document to another address in GAO or by e-mailing a copy of the
document to the GAO attorney handling the protest.
MEDI-e-ImageData Corporation B-405164
September 16, 2011.
DIGEST:
Placement of an order based on a quotation submitted in response to a request for quotations, issued on a “brand name or equal” basis, was improper, where the awardee’s “equal” product did not show compliance with a material solicitation requirement.
Rice Services, Inc.,
B-403746, September 16, 2010.
DIGEST:
In accordance with DGR Assocs., Inc., B-402494, May 14, 2010, 2010 CPD ¦ 115, protest is summarily sustained where contracting agency declined to consider whether to set aside solicitation for competition limited to Historically Underutilized Business Zone small business concerns in reliance on the August 21, 2009 Memorandum Opinion by the Office of the Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice.
Rice Services, Inc., B-402966.2, September 16, 2010.
DIGEST: In accordance with DGR Assocs., Inc.,
B-402494, May 14, 2010, 2010 CPD ¦ 115, protest is summarily sustained where
contracting agency declined to consider whether to set aside solicitation for
competition limited to Historically Underutilized Business Zone small business
concerns in reliance on the August 21, 2009 Memorandum Opinion by the Office of
the Deputy Assistant Attorney General, Office of Legal Counsel, Department of
Justice.
HID Global, Inc., B-403103, September 15, 2010.
DIGEST:
Protest that solicitation improperly includes provisions of the Buy American Act without also including the domestic preference exemption available under the Trade Agreements Act of 1979 is denied where the procuring agency is not one whose procurements are covered by the Trade Agreements Act exemption.
Biblia, Inc., B-403006, September 13, 2010.
DIGEST:
1. The Government Accountability Office has jurisdiction to decide a protest of an award under a solicitation for a tender of service for the one-time transport of a barge, where the transportation service is being obtained based on a “best value” source selection decision made in a procurement conducted using a formal solicitation containing evaluation criteria.
2. An undocumented “best value” award determination to make award to other than the low cost carrier under a solicitation for a tender of service for the one-time transport of a barge does not evidence that the award decision was in accordance with the solicitation or otherwise provide a reasonable basis for the award
Enterprise Information Services, Inc., B-403028, September 10, 2010.
DIGEST:
Where a competitive request for task order proposals issued under a long-term multiple-award indefinite-delivery/indefinite-quantity contract limits competition to small disadvantaged business concerns, procuring agency properly may require firms to re-certify as to their small business size status as of the time they submit their task order proposals.
Harrington, Moran, Barksdale, Inc., B-401934.2; B-401934.3, September 10, 2010.
DIGEST:
Protest that agency unreasonably determined that an offeror's revised proposal did not meet the solicitation's submittal requirement is dismissed as untimely; any conflict between the requirement as described in the agency's discussions letter (as interpreted by the protester) and the solicitation requirement created a patent ambiguity that should have been filed prior to the submission deadline for revised proposals.
CIGNA Government Services, LLC, B-401068.4, B-401068.5, September 9, 2010.
DIGEST:
1. Contracting officer's determination that awardee's activities, and access to information, in connection with performing contracts related to implementation of agency's new accounting system did not create organizational conflicts of interest (OCI) was not unreasonable where the determination was based on consideration of awardee's responses to specific questions regarding its activities and access to information; consideration of input from agency personnel knowledgeable of, and responsible for, the new accounting system; and consideration of the contracting officer's own independent internet research.
2. Protest challenging agency's waiver of an OCI is denied where, in accordance with requirements of the Federal Acquisition Regulation, waiver request detailed the extent of the conflict and authorized agency official determined that waiver was in the government's interest.
3. Agency's communications with awardee regarding OCI mitigation strategies, following submission of final revised proposals, did not constitute discussions or require that discussions be conducted with other offerors.
4. Protester's assertions that the agency failed to reasonably evaluate protester's and awardee's proposals under various evaluation factors and subfactors constitute mere disagreement with the agency's evaluation and source selection decisions, and do not provide any bases for sustaining protests.
Affirmative
Solutions, LLC, B-402996, September 8, 2010.
DIGEST: Agency
request for manufacturer's commercial sales practice data from an offeror,
which is an exclusive distributor/wholesaler for the manufacturer, to assist the
contracting officer in making a price reasonableness determination as a
prerequisite to making award of a Federal Supply Schedule contract for medical
items, was proper where the offeror's sales to the general public were
reasonably considered to be not significant.
DRS ICAS, LLC,
B-401852.4; B-401852.5, September 8, 2010.
DIGEST: 1. Protest challenging
evaluation of protester's technical proposal is sustained where the record shows that the
agency assessed numerous weaknesses that lacked a reasonable basis.
2. Protest is sustained
where the agency incorrectly assumed that it was required to ignore the passage of time between the
agency's initial evaluation and its post-corrective action reevaluation with regard to the
evaluation of the protester's ongoing work and its relevance to the evaluation of system
maturity and schedule risk factors.
Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard
Recovery Assistance, Joint Venture, B-401679.8; B-401679.9; B-401679.10,
September 8, 2010.
DIGEST: Protest that agency's
reevaluation of protester's past performance was unreasonable is sustained
where the agency's reevaluation was based on a numerical scoring system,
which had the effect of penalizing protester based on its submission of
performance information for additional less relevant contracts.
Denali
Commission—Authority to Receive State Grants, B-319246, September 1,
2010.
DIGEST: The Denali Commission does not have authority to
accept grant funds from the state of Alaska that the state has designated for
use for a particular purpose. The state grant constitutes a conditional gift
because, as a condition of receipt, the Commission was required to award the
grant to a particular organization for a particular project and then monitor it,
thereby placing an obligation or duty on the Commission. Federal agencies may
not accept conditional gifts unless specifically authorized by statute to do so.
While the Denali Commission has authority to accept gifts, its gift acceptance
authority does not extend to conditional gifts.
Heath
Construction, Inc., B-403417, September 1, 2010.
DIGEST: In a
sealed bid procurement, which did not authorize the submission of bids by
facsimile, the agency did not violate a procurement law or regulation when it
rejected the protester's facsimile bid, even though the protester was
informed by the contract specialist that it could submit its bid by facsimile.
Edmond Computer Company; Edmond Scientific Company, B-402863;
B-402864, August 25, 2010.
DIGEST: The set-aside provisions of
Federal Acquisition Regulation (FAR) part 19 do not apply to competitions among
Federal Supply Schedule vendors using FAR part 8 procedures.
Bilfinger
Berger Government Services GmbH, B-402944 August 19, 2010.
DIGEST: Agency's determination not to attribute affiliated
entities' experience and past performance to protester for evaluation
purposes was unobjectionable where it reasonably concluded that
protester's proposals neither adequately established that incorporation of
affiliated entities into protester was complete or substantially complete--as
represented by protester--nor otherwise demonstrated that affiliated entities
would be meaningfully involved in contract performance.
Nilson Van
& Storage, Inc., B-403009, August 19, 2010.
DIGEST:
Awardee's bid's failure to establish compliance with solicitation
requirement for appropriate federal and state certifications for transportation
of household goods did not render awardee ineligible for award where it is clear
from solicitation that requirement was intended to apply to contractor, rather
than to all bidders, and thus was not a prerequisite to receiving award.
MCR
Federal, LLC, B-401954.2, August 17, 2010.
DIGEST: 1. Protest
challenging agency's decision to waive organizational conflict of interest
(OCI) is denied where--in accordance with requirements of Federal Acquisition
Regulation--waiver request detailing why application of OCI rules would not be
in government's interest was approved by appropriate agency official.
2. Evaluation of protester's proposal was unobjectionable where agency
reasonably determined that, under technical approach subfactor, proposal lacked
detail as to how protester would accomplish three required subtasks, and
demonstrated only a limited depth of experience in cost analysis in several
required areas, and, under transition plan subfactor, lacked strategy to
mitigate risk to ongoing operations if grants of security access were delayed.
3. Protest that agency improperly evaluated awardee's proposal under
past performance factor is denied, where agency considered relevance of
awardee's and subcontractor's prior contracts, in accordance with
solicitation, and reasonably determined that majority of past work was similar
to solicitation requirements in size, scope, and complexity.
4.
Cost-technical tradeoff was reasonable where source selection official
identified technical distinctions between competing proposals and specifically
determined that higher-rated proposal represented best value despite higher
cost.
Richcon Federal Contractors, Inc., B-403223, August 12,
2010.
DIGEST: Agency properly rejected a quotation submitted by
facsimile, where the solicitation incorporated a Federal Acquisition Regulation
clause which expressly prohibited submission of quotations by facsimile
Argon ST, Inc. B-402908; B-402908.2 August 11, 2010.
DIGEST:
Agency reasonably awarded a contract on a sole-source basis for urgently needed surveillance systems, where the agency determined that only the awardee, the original equipment manufacturer of the systems, and not the protester, which has never manufactured and delivered such systems, could timely meet the agencyx's needs, and the sole-source did not result from a lack of advance procurement planning.
Alaska Structures, Inc., B-402648.3, August 10, 2010.
DIGEST: Protest challenging an agency's corrective action
decision to terminate an order issued to another firm and recompete its
remaining requirements under relaxed specifications is denied, where the agency
reasonably determined that the solicitation materially overstated the
agency's requirements and that recompeting under specifications that
reflected its actual needs would lead to enhanced competition.
East
West, Inc., B-400325.7; B-400325.8, August 6, 2010.
DIGEST:
Protest alleging procurement integrity violation is denied where the only source
selection information disclosed by the agency to the awardee prior to award was
that its proposal was in line for award, and protester has not demonstrated that
it suffered prejudice as a result of the advance notification.
ITT
Corporation-Electronic Systems File: B-402808, August 6, 2010.
DIGEST: 1. Protest that awardee had impermissible “unequal
access to information”-type organizational conflict of interest is denied,
where record shows that protester had access to the same information, and, in
any case, the information was properly provided to the awardee by virtue of the
agency's contractual right to use the information.
2. Protest
alleging various evaluation errors in evaluation of protester's proposal
is denied, where record shows that, even if protester's allegations were
found to be meritorious, alleged errors were not prejudicial to protester due to
its substantially higher cost.
John P. Santry--Designated Employee Agent, B-402827, August 2, 2010.
DIGEST:
1. The statutory requirements for public-private competition, codified at 10 U.S.C. § 2461, regarding functions performed by Department of Defense “civilian employees” do not apply to non-appropriated fund employees.
2. Where a solicitation seeking private contractor proposals for food services at Air Force bases is amended to provide that appropriated fund employees who are currently performing the solicited functions will not be “displaced, reassigned, subjected to reduction in force, or otherwise adversely affected,” agency's procurement actions do not constitute conversion of those functions to private sector performance.
Infrastructure Defense Technologies, B-401860.2; B-401860.3, July 27, 2010.
DIGEST:
1. Corrective action taken in response to a prior protest is not objectionable where the agency took this action to address legitimate concerns raised by the protester concerning the propriety of the prior award.
2. Agency's evaluation of the protester's and the awardee's technical proposals was reasonable and supports the agency's conclusion that the protester's slight technical advantage was not worth its higher proposed price.
Unisys Corporation, B-400340.9; B-400340.10, July 27, 2010.
DIGEST:
Protest challenging agency's source selection decision is denied where record shows, contrary to protester's assertion, that agency did not give undue weight to a risk identified by the evaluators in connection with protester's proposal, and that source selection decision was otherwise adequately documented and reasonable.
System Engineering International, Inc., B-402754, July 20, 2010.
DIGEST:
In a best value procurement for maintenance services, protest is sustained where the record shows that the agency performed a tradeoff between two higher-rated, higher-priced quotations, but did not consider, in its tradeoff decision, the lower prices submitted by other lower-rated vendors, whose quotations were nonetheless found to be technically acceptable.
SNAP, Inc., B-402746, July 16, 2010.
DIGEST:
Agency properly rejected proposal that included identifying information, where solicitation explicitly required that all identifying information be redacted from proposals.
Woodcrest Ace Hardware-MSC Industrial Supply Company, B-401417.4; B-401417.5, July 12, 2010.
DIGEST:
1. Agency reasonably concluded that team member under proposal for western region that previously had been issued blanket purchase agreement (BPA) for eastern region would be responsible for supplying more than 50 percent of hardware items in western region, and that team therefore was not eligible to receive purchase agreement for western region under terms of solicitation
2. Agency provided protester with meaningful discussions where it informed protester of proposal deficiency that would render it ineligible to receive blanket purchase agreement, and provided opportunity to submit revised proposal.
Alalamiah Technology Group, B-402707.2, June 29, 2010.
DIGEST:
Protest that agency improperly rejected the protester's proposal as late is denied where the record shows that the proposal was received by email after the closing time for receipt of proposals, and the agency properly determined that no exception would permit evaluation of the late proposal.
Matter of: Greystones Consulting Group, Inc., B-402835, June 28, 2010.
DIGEST:
Where contract award under a solicitation set aside for competition among small businesses under the Small Business Administration's section 8(a) program was made to an offeror found to be other than small, and where no small business offeror was eligible for award, there is no basis to object to the agency's decision not to terminate contract immediately, in light of agency's need for uninterrupted services and agency's plan to promptly conduct a new competition.
JXM, Inc., B-402643, June 25, 2010.
DIGEST:
1. Protest that agency improperly issued a sole-source contract to an Alaska Native Corporation under the Small Business Administration's 8(a) program, after canceling an earlier competitive 8(a) solicitation, is denied where agency's requirement had substantially increased, the agency reasonably described the procurement as a new requirement, and the SBA properly accepted the requirement for sole-source award.
2. Protest that agency improperly bundled requirements for hospital environmental services is denied, where the protester has not alleged sufficient facts to show that it was precluded from competition by the alleged improper bundling, or that requirements were consolidated or unsuitable for award to small businesses.
JRS Management, B-402650.2, June 25, 2010.
DIGEST:
1. Protest that a solicitation requirement that the contractor have prior experience in a correctional setting is unduly restrictive is denied where the agency establishes that the requirement is reasonably related to the agency's needs.
2. Request for quotations seeking a fixed price for services does not impose an unreasonable risk upon vendors, where the solicitation does not have an unlimited scope of work and provides sufficient information upon which vendors can base their price quotations.
Florida State College at Jacksonville, B-402656, June 24, 2010.
DIGEST:
Protest alleging that a task order for training support services is outside the scope of the SeaPort Enhanced (Seaport-E) multiple-award, indefinite-delivery/indefinite-quantity contracts is denied, since the Seaport-E contracts included technical training support.
JLT Group, Inc., B-402603.2, June 30, 2010.
DIGEST:
Provisions in solicitation for leased space requiring indoor parking and 9-foot ceilings are unobjectionable where record establishes that requirements are reasonably necessary to meet agency's needs.
Brican Inc., B-402602, June 17, 2010.
DIGEST:
Protest is sustained where the agency evaluated the awardee's and the protester's proposals unequally by crediting the awardee for the experience and past performance of a specialty subcontractor, but not similarly crediting the protester, which proposed the same subcontractor.
ATR Logistic Company LLC, B-402606, June 15, 2010.
DIGEST:
Agency properly rejected the protester's low bid, where, although the protester acknowledged an amendment to the solicitation, it used the original bidding schedule that did not include pricing for contract line items added by the amendment.
Stephen Lucas Construction, LLC, B-402654, June 9, 2010.
DIGEST:
Awardee's bid was reasonably and properly considered for award where record established that the hand-carried bid was received by the agency prior to the time set for bid opening.
Emergent BioSolutions Inc., B-402576, June 8, 2010.
DIGEST:
Protest that modification of contract for advanced development, testing, and production of anthrax vaccine was outside the scope of the original contract is denied where modification did not substantially alter the scope of work anticipated by the underlying solicitation.
Wackenhut Services, Inc., B-402550.2, June 7, 2010.
DIGEST:
Agency failed to evaluate the awardee's proposal under the management approach factor in accordance with the solicitation when it considered the awardee's proposed approach, which was prohibited by the solicitation, as a benefit that exceeded the solicitation requirements, and the agency disparately evaluated proposals.
Combined Effort, Inc., B-402573, June 4, 2010.
DIGEST:
Although the Small Business Administration (SBA) has since changed its interpretation of the applicable regulation, contracting agency--consistent with SBA's interpretation of its regulations at the time this award was to be made--properly rejected protester's offer under a solicitation set aside for service-disabled veteran-owned small business concerns (SDVOSBC) where SBA had determined that the protester did not qualify as an SDVOSBC with regard to another solicitation, and this determination remained in effect at the time the agency rejected the offer.
JER 370 Third Street, LLC, B-402025.2; B-402541, June 1, 2010.
DIGEST:
Protest of agency decision to cancel solicitation and resolicit the requirement is sustained where record fails to demonstrate reasonable basis for contracting officer's conclusion that competition under the original solicitation was inadequate.
Powersolv, Inc., B-402534; B-402534.2, June 1, 2010.
DIGEST:
1. Protest challenging the agency's evaluation of the protester's proposed project manager is sustained where the agency's evaluation was inconsistent with the solicitation.
2. Protest challenging the agency's selection decision is sustained where the contemporaneous record does not show that the agency meaningfully considered price in the decision, and the agency's arguments in support of its decision are neither supported by the record nor reasonable.
Gonzales-McCaulley Investment Group, Inc., B-402544, May 28, 2010.
DIGEST:
1. Protest that past performance evaluation was unreasonable is denied where, even though one weakness was erroneously attributed to protester's proposal, record shows that rating would remain no higher than acceptable due to reasonably assigned deficiency based on protester's limited experience performing similar services with the procuring agency.
2. Protest that evaluation under technical approach factor was unreasonable is denied where, even if protester's proposal received highest available rating under the factor, its rating would not be superior to successful vendor's, and protester's price was significantly higher than successful vendor's; protester therefore was not competitively prejudiced by alleged evaluation errors
Contrack International, Inc.. B-401871.5, B-401871.6, B-401871.7, May 24, 2010.
DIGEST:
Protest that the agency's evaluation of the awardee's past performance was unreasonable is sustained where the agency did not consider relevant adverse information, of which the agency was aware, for the awardee.
Crewzers Fire Crew Transport, Inc., B-402530; B-402530.2, May 17, 2010.
DIGEST:
1. Agency's issuance of a solicitation for crew carrier bus services, which provides for the selection of vendors for the establishment of blanket purchase agreements on a low-priced, technically acceptable basis, rather than on a best value basis, is unobjectionable, given the agency's broad discretion to determine its needs and the best way to meet them.
2. Provisions in a solicitation for the establishment of blanket purchase agreements for crew carrier bus services that allow for the establishment of one blanket purchase agreement at one geographic area for each piece of equipment offered and do not allow for the establishment of multiple blanket purchase agreements at multiple locations for the same piece of equipment, are unobjectionable, where the agency has reasonably explained its need for such provisions.
DGR Associates, Inc., B-402494, May 14, 2010.
DIGEST:
Given the unambiguous language of the applicable statutes regarding the Historically Underutilized Business Zone (HUBZone) and 8(a) programs, contracting agency, before proceeding with an 8(a) set-aside, must first reasonably consider whether the conditions for a HUBZone set-aside exist, and, if they do, the agency must proceed with a HUBZone set-aside.
Vetcorp, Inc., B-402519, May 14, 2010.
DIGEST:
1. In a commercial item acquisition under FAR subpart 12.6 where price was the only factor for award, and where all four offerors submitted the same price, the agency reasonably looked to the guidance at FAR § 14.408-6, Equal Low Bids, to determine the award priority among equally low-priced small business concerns.
2. Protest that the agency should have provided the protester with an evaluation preference as a Historically Underutilized Business Zone (HUBZone) small business concern is denied, where the Small Business Act does not permit the application of this preference against small business concerns.
Bilfinger Berger AG Sede Secondaria Italiana, B-402496, May 13, 2010.
DIGEST:
Protest challenging negative responsibility determination is denied where agency—relying on information that protester and debarred firm were related companies that previously had performed contracts using each other's resources and that protester would make use of debarred firm's resources in performing contract under Italian licensing system—reasonably determined that debarred firm would participate in contract performance.
Nutriom, LLC, B-402511, May 11, 2010.
DIGEST:
Protest that contracting agency improperly exercised a contract option is denied where agency reasonably determined that exercising the option was the most advantageous means of satisfying the agency's needs.
Del-Jen Education & Training Group, B-401787.3, May 4, 2010.
DIGEST:
Protest that agency improperly permitted original awardee to continue performance during agency's corrective action following protest of award is denied; where there was a need for continued performance under protested contract, agency properly permitted awardee to continue performance (after any applicable stay was lifted) pending implementation of corrective action, and any competitive advantage gained as a result of continued performance is not an improper advantage for which agency is required to compensate.
Freedom Scientific, Inc., B-401173.3, May 4, 2010.
DIGEST:
1. General solicitation provisions mandating that the “contractor” comply with the requirements of federal, state, and local laws, codes and regulations do not require that an offeror demonstrate compliance prior to award; compliance with applicable federal, state or local requirements is a performance requirement that may be satisfied during contract performance.
2. Protest challenging evaluation of awardee's proposal is denied where record shows that agency evaluated proposal in accordance with the solicitation criteria, and that its conclusions were reasonable.
Ewing Construction Co., Inc., B-401887.3; B-401887.4, April 26, 2010.
DIGEST:
Agency conducted prejudicially misleading discussions with the protester where, in taking corrective action in response to the protester's prior protest, the agency reevaluated an aspect of the protester's proposal as constituting a deficiency that rendered the proposal ineligible for award under the solicitation's stated evaluation scheme, and while that aspect of the protester's proposal had been previously identified during discussions as a significant weakness, under the solicitation's stated evaluation scheme this would result in the proposal being downgraded, but not rendered ineligible for award.
Corners Construction, B-402465, April 23, 2010.
DIGEST:
Department of Veterans Affairs' (VA) determination that vendor not listed in VA database of eligible service-disabled, veteran-owned small business concerns on date of award was not eligible for award was unobjectionable where determination was consistent with VA's applicable statute and regulations.
FAS Support Services, LLC, B-402464; B-402464.2; B-402464.3, April 21, 2010.
DIGEST:
Firm's challenge to an agency's refusal to reinstate the protester into an on-going competition after the lifting of the firm's suspension from contracting with the federal government is denied, where the record shows that the agency reasonably concluded that reinstatement would cause unacceptable delay to the procurement.
Ocean Ships, Inc., B-401526.4, April 21, 2010.
DIGEST:
1. Protest that agency's inadvertent disclosure of protester's price information and discussion questions resulted in unfair competition is denied where record shows information was limited in scope and does not demonstrate competitive harm.
2. Protest that protester's proposal should have been assigned maximum evaluation rating under socio-economic factor based on protester's status as small business is denied; factor encompassed more than small business status and agency reasonably evaluated protester's proposal based upon protester's failure to specifically identify any other small businesses or minority institutions that would perform the contract.
Sletten Companies/Sletten Construction Company, B-402422, April 21, 2010.
DIGEST:
Protest challenging the evaluation of the protester's proposal and the agency's selection decision is denied, where record shows that the protester's proposal failed to meet material requirements of the solicitation and was technically unacceptable.
J2A2 JV, LLC, B-401663.4, April 19, 2010.
DIGEST:
Protest that awardee does not meet solicitation's definitive responsibility criterion requiring at least 5 years experience as a general contractor is sustained where record demonstrates that general contractor does not have the requisite experience, and solicitation language may not reasonably be interpreted as permitting use of a subcontractor's experience to satisfy the requirement.
Keystone Sealift Services, Inc., B-401526.3, April
13, 2010.
DIGEST: Protest that agency unreasonably failed
to consider offeror's conversion and re-flagging experience under
maintenance and repair (M&R) evaluation subfactor, and that it otherwise
unreasonably downgraded proposal for specific weaknesses under other
subfactors, is denied, where proposal lacked detail on conversion/
re-flagging experience in M&R section, and evaluation record shows
agency in fact did not downgrade proposal for other specific weaknesses
identified by protester.
InnovaTech, Inc., B-402415, April 8, 2010.
DIGEST:
1. Protest challenging agency's evaluation of protester's technical quotation is denied where record establishes that evaluation was reasonable, consistent with the stated evaluation criteria, and adequately documented.
2. Price/technical tradeoff was proper where source selection official reasonably identified relevant technical distinctions between vendors' competing quotations and adequately documented her conclusion that higher technically-rated quotation represented the best value to the government despite higher price.
DTV Transition Group, Inc.--Costs, B-401466.2, April 7, 2010.
DIGEST:
Claim for costs is denied where protester fails to adequately document its claim and aggregates allowable and unallowable costs such that the allowable costs cannot be determined on the basis of the record.
CFS-INC, JV, B-401809.2 March 31, 2010.
DIGEST:
Where severe snowstorms closed the government in Washington D.C. on a day when proposals were scheduled to be received, the agency reasonably received proposals on the next day that the Government was open and resumed its normal processes, as authorized by Federal Acquisition Regulation § 52.212-1(f)(4) (Instructions to Offerors--Commercial Items (June 2008); the fact that a delayed arrival/unscheduled leave policy for government employees was authorized for that day did not mean normal government processes had not resumed.
Irving Burton Associates, Inc., B-401983.3, March 29, 2010.
DIGEST:
1. Protest challenging agency's evaluation of awardee's proposal is sustained where record fails to demonstrate reasonable basis for evaluators' conclusion that awardee had complied with solicitation requirements for a transition plan and for identification of project milestones.
2. Protest challenging agency evaluation of protester's proposal is sustained where record fails to demonstrate reasonable basis for evaluators' findings pertaining to lack of detail in protester's proposal.
Superior Gunite, B-402392.2, March 29, 2010.
DIGEST:
Protest of the agency's rejection of the protester's proposal as technically unacceptable is denied, where the protester failed to submit a complete technical proposal.
Eagle Home Medical Corporation, B-402387, March 29, 2010.
DIGEST:
Protest is sustained where agency failed to comply with the final decision of the Small Business Administration's Office of Hearings and Appeals (OHA), in which the OHA reversed the North American Industry Classification System (NAICS) code assigned by the contracting officer and the contracting officer did not amend the solicitation to reflect the NAICS code that the OHA had determined was appropriate for this procurement, as required by applicable regulations.
MFM Lamey Group, LLC, B-402377, March 25, 2010.
DIGEST:
1. Procurements of supplies and services by the Overseas Private Investment Corporation (OPIC), a wholly-owned government corporation which is identified as a federal agency under the Competition in Contracting Act of 1984 (CICA), are subject to GAO's bid protest jurisdiction.
2. OPIC's procurement of planning and logistical support services is subject to the procurement procedures of the Federal Property and Administrative Services Act of 1949, as amended by CICA, and the Federal Acquisition Regulation.
3. Protest that the agency unreasonably attributed to the awardee past performance that should actually have been attributed to the protester (where the protester and awardee are successor firms to another entity) is denied where the record shows that the agency's evaluation of the awardee's past performance was based upon that firm's performance since the split of the two firms.
FN Manufacturing, LLC, B-402059.4; B-402059.5, March 22, 2010.
DIGEST:
Agency's evaluation of awardee's past performance as relevant based on comparative complexity of awardee's past performance references was reasonable and consistent with the terms of the solicitation which afforded the agency the discretion to consider “the degree to which contracts are of a comparable complexity, size or value to the proposed effort” in determining relevance.
DynaLantic Corporation, B-402326, March 15, 2010.
DIGEST:
1. Small Business Administration (SBA) decision finding that awardee is a small business concern and a manufacturer for purposes of its status as a small business under the protested procurement is binding on GAO because the SBA has conclusive authority to determine small business size status for federal procurements.
2. Protest that awardee's proposal would not comply with the solicitation's limitation on subcontracting is denied where the proposal did not show that the awardee took exception to the requirement.
3. Agency's evaluation of the protester's and the awardee's technical proposals was reasonable and supported the conclusion that the awardee's proposal was technically superior to the protester's.
Rapiscan Systems, Inc., B-401773.2; B-401773.3, March 15, 2010.
DIGEST:
Where solicitation limited competition to vendors holding Federal Supply Schedule (FSS) contract for required items, and successful vendor's FSS contract did not include all required items, issuance of purchase order was improper; while non-FSS micro-purchase ($3,000) items properly may be purchased under an FSS solicitation, that was not the case here, since, while non-FSS items were priced at $0, quotation stated that price of non-FSS items was included in FSS item prices.
DynCorp International LLC, B-402349, March 15, 2010.
DIGEST:
Protest that task order requests for proposals (TORP) are outside the scope of multiple-award indefinite-delivery/indefinite-quantity (ID/IQ) contracts is sustained, where the ID/IQ contracts were limited to providing counter-narcoterrorism support services worldwide, and the TORPs sought mentoring, training, facilities, and logistics support services for the Ministry of the Interior and Afghan National Police in general law enforcement and counter-insurgency activities, which were not reasonably contemplated under the ID/IQ contracts.
Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture, B-401679.4; B-401679.5; B-401679.6; B-401679.7, March 10, 2010.
DIGEST:
1. Protest is sustained where agency failed to consider past performance questionnaires it received regarding the protester's performance on its past performance references. Such information was “too close at hand” for the agency to ignore.
2. Protest arguing that performance of awardees on their incumbent contracts was “too close at hand” for the agency to have ignored is denied where the record indicates that the agency did not in fact maintain any information regarding the performance of the incumbent contractors.
Energy Systems Group, B-402324, February 26, 2010 .
DIGEST:
Protest challenging potential offeror's exclusion from competition on the basis of an organizational conflict of interest (OCI) is denied where the agency reasonably concluded that the protester's preparation of a report that was used to prepare a statement of work for a competitive solicitation created a biased ground rules OCI.
B.L. Harbert-Brasfield & Gorrie, JV, B-402229, February 16, 2010.
DIGEST:
1. Protest that agency unreasonably determined that awardee did not have
an “unequal access to information” organizational conflict
of interest is sustained where the record shows that the awardee's
design subcontractor, through the firm that was negotiating to purchase
it, and in fact did purchase it shortly after contract award, had access
to competitively useful, non-public information.
2. Protest that agency unreasonably determined that awardee did
not have a “biased ground rules” organizational conflict of
interest is sustained where the record shows that the firm that was in
negotiations to purchase, and ultimately did purchase, the
awardee's design subcontractor, provided procurement development
services to the agency that put it in a position to affect the
competition in favor of the acquired subcontractor.
McCarthy/Hunt, JV, B-402229.2, February 16, 2010.
DIGEST:
1. Protest that agency unreasonably determined that awardee did not have an “unequal access to information” organizational conflict of interest is sustained where the record shows that the awardee's design subcontractor, through the firm that was negotiating to purchase it, and in fact did purchase it shortly after contract award, had access to competitively useful, non-public information.
2. Protest that agency unreasonably determined that awardee did not have a “biased ground rules” organizational conflict of interest is sustained where the record shows that the firm that was in negotiations to purchase, and ultimately did purchase, the awardee's design subcontractor, provided procurement development services to the agency that put it in a position to affect the competition in favor of the acquired subcontractor.
3. Protest that agency unreasonably determined that the awardee did not have an “impaired objectivity” organizational conflict of interest is denied where the record demonstrates a lack of prejudice to the protester.
KAES Enterprises, LLC--Protest and Costs B-402050.4 February 12, 2010.
DIGEST:
1. Protest of cancellation of solicitation is denied where agency determined that its needs had changed, such that solicitation no longer met its needs, and protester failed to show otherwise.
2. Request that GAO recommend reimbursement of costs of filing and pursuing protest is granted with regard to argument that protester's proposal improperly was excluded from competitive range without consideration of price; GAO considers that protest ground clearly meritorious, as evidenced by advice from GAO attorney during alternative dispute resolution conference that protest likely would be sustained on that ground.
Space Exploration Technologies Corporation, B-402186, February 1, 2010.
DIGEST:
1. Agency reasonably concluded, under the Commercial Space Act of 1998, 42 U.S.C. § 14701 et seq. (2006), that cost-effective commercial alternatives to use of intercontinental ballistic missile assets for launch services were not available.
2. The Commercial Space Act of 1998 does not require notice to Congress of conversion of an intercontinental ballistic missile for space launch services prior to issuance of delivery order to perform such work.
ZAFER Construction Company, B-401871.4, February 1, 2010.
DIGEST:
Protest challenging agency's corrective action, which included terminating the awarded contract and allowing all offerors whose proposals were in the competitive range to submit a revised proposal, is denied where the agency reasonably concluded that offerors should be given the opportunity to submit completely revised proposals because the time lapse since proposals were first submitted suggests that the original price proposals may no longer accurately reflect the cost of the project.
Eiden Systems Corporation, B-401997.2, January 28, 2010.
DIGEST:
1. Protest that vendors in Federal Supply Schedule procurement based their quotations on different interpretations of the solicitation requirements regarding key personnel is denied where protester fails to demonstrate that it was prejudiced as a result of any ambiguity in the solicitation.
2. Protest challenging evaluation of quotations is denied where record shows that agency's evaluation was reasonable and consistent with the solicitation.
JND Thomas Company, Inc. B-402240 January 28, 2010.
DIGEST:
Protest that intended awardee's bid is impermissibly unbalanced--due to alleged overstated prices for excavation/dredging line items and understated prices for related re-handling of material items--is denied where agency conducted analysis of pricing and concluded that there was no significant price risk in accepting bid.
Federal Express Corporation B-401876.2, January 26, 2010.
DIGEST:
1. Where solicitation established multiple “tiers” with regard to potential shipping volume that could occur, and the record establishes that the agency considered the offerors' proposed prices under each tier, the agency properly focused its price evaluation on offerors' pricing applicable to the shipping volume the agency expected to experience.
2. Agency reasonably complied with solicitation provisions regarding quantification of protester's no-charge value-added services, where it viewed the awardee's proposed prices for the same or similar services as establishing the quantified value for such services and, with regard to a limited number of services that exceeded the solicitation requirements, and were proposed only by the protester, the agency effectively assigned a value of $0.
3. In making its best value determination, the contracting officer properly declined to apply a threshold of savings that a non-incumbent offeror was required to surpass in order to be selected for award.
4. Where offerors' proposals were rated equal with regard to non-price evaluation factors, protester's assertion that a proper evaluation would have decreased, but not eliminated, the awardee's price advantage fails to state a valid basis for protest.
Ball Aerospace & Technologies Corporation, B-402148, January 25, 2010.
DIGEST:
Protest challenging agency's evaluation of awardee's price and technical quotes is dismissed in part and denied in part where the protester did not timely challenge the terms of the solicitation prior to the time for receipt of initial quotations, and the evaluation was otherwise consistent with the evaluation scheme.
Cahaba Safeguard Administrators, LLC B-401842.2. January 25, 2010.
DIGEST:
1. Protest is sustained where agency failed to reasonably consider plan proposed by awardee to mitigate its impaired objectivity organizational conflicts of interest.
2. Agency's exchanges with offeror regarding its proposed mitigation strategy to address organizational conflicts of interest were not discussions such that the agency was required to reopen discussions with all offerors.
C2C Solutions, Inc. B-401106.5 January 25, 2010.
DIGEST:
Protest is sustained where agency failed to reasonably consider plan proposed by awardee to mitigate its impaired objectivity organizational conflicts of interest.
Allied Technology Group, Inc., B-402135; B-402135.2, January 21, 2010.
DIGEST:
1. Protest that agency improperly conducted discussions with awardee is denied where the record demonstrates that the agency properly limited its exchanges with the awardee to permissible clarifications.
2. Protester's quotation submitted in response to a solicitation issued for a solution to automate the agency's personnel recruitment and hiring processes that took various exceptions to material terms and conditions of the solicitation was reasonably found unacceptable by the agency.
3. Protester is not an interested party to challenge the agency's price and technical evaluations and subsequent source selection determination where protester would be ineligible for selection even if protest of evaluation were sustained.
Perot Systems Government Services, Inc., B-402138, January 21, 2010.
DIGEST:
Protest that agency improperly rejected quotation in Federal Supply Schedule acquisition conducted under Federal Acquisition Regulation (FAR) part 8.4 is denied where protester submitted prices that were unpublished rates and not approved as fair and reasonable by the General Services Administration, as required under FAR §§ 8.402(b) and 8.404(d).
General Dynamics One Source, LLC; Unisys Corporation, B-400340.5; B-400340.6, January 20, 2010.
DIGEST:
1. Transportation Security Administration's (TSA) challenge to GAO's jurisdiction to review protest--based on agency's position that it initiated phase I of acquisition prior to effective date of GAO's jurisdiction over TSA protests--is denied where record shows that, although phase I was for purpose of down-selecting firms to compete under phase II, agency abandoned phase I results and engaged in all acquisition activities under phase II, which was initiated after effective date.
2. Protest challenging agency's evaluation of awardee's proposal for price realism is sustained, where record shows that agency failed to evaluate disparity between staffing offered in awardee's technical proposal and price proposal, and also failed to evaluate awardee's ability to hire incumbent's employees (as it proposed) given relatively low labor rates in its price proposal.
3. Agency unreasonably accepted awardee's proposal with incentive fee lower than amount specified in solicitation where solicitation reasonably led protesters to understand that specified fee was mandatory; agency should either have amended solicitation or engaged in discussions to advise all firms that different incentive fee could be proposed.
AINS, Inc., B-400760.4; B-400760.5, January 19, 2010.
DIGEST:
1. Agency failed to conduct meaningful discussions with protester where it did not reasonably advise the protester of agency's real concern with protester's quotation-- that evaluators considered its project schedule to be too short. Agency's request during discussions that protester submit a new project schedule as part of its final revised quotation did not reasonably convey to the protester that the evaluators viewed its proposed schedule as too aggressive, particularly given that a period of over a year had elapsed between submission of initial quotations and submission of final revised quotations.
2. Protest challenging agency evaluation of quotations received in response to solicitation for establishment of a blanket purchase agreement for an automated Freedom of Information Act system and associated services is sustained where record fails to demonstrate that the evaluation was reasonable and even-handed.
LaBarge Products, Inc., B-402280, January 19, 2010.
DIGEST:
1. Protester's challenge to the issuance of a delivery order valued under $10 million-- and hence outside the jurisdiction of GAO's bid protest forum to hear protests involving task and delivery orders--is dismissed.
2. Protester's contention that a delivery order was outside the scope of the underlying indefinite-delivery/indefinite-quantity (ID/IQ) contract against which the order was issued--and hence is eligible for consideration under the statutory exemption to the bar on our jurisdiction available when a protester alleges that the order increased the scope, period, or maximum value of the ID/IQ contract under which the order is issued--is dismissed where the protester itself holds one of the underlying ID/IQ contracts; this exemption is not for aggrieved competitors for the issuance of the order, but for other entities, who, because they do not hold one of the underlying ID/IQ contracts, were not allowed to compete for what is, in essence, a new procurement which improperly circumvented the competition requirements of the Competition in Contracting Act of 1984.
Overseas Lease Group, Inc., B-402111, January 19, 2010.
DIGEST:
Contract modification requiring lease and maintenance for “unarmored” vehicles was within scope of contract calling for lease and maintenance of both “non-tactical” and “up-armored” vehicles; while protester argues that “non-tactical” vehicles can be armored, solicitation's differentiating between “non-tactical” and “up-armored” vehicles was sufficient to put protester on notice that term “non-tactical” was intended to refer to unarmored vehicles.
American Security Programs, Inc. B-402069; B-402069.2, January 15, 2010.
DIGEST:
Protest that vendor is ineligible to receive a task order under Federal Supply Schedule (FSS) procurement is sustained where certain required services are outside the scope of the vendor's FSS contract.
Dixon Group, Inc.;
Command Decisions Systems and Solutions, Inc., B-402118; B-402118.2; B-402118.3; B-402118.4;
B-402118.5, January 15, 2010.
DIGEST: 1. Where solicitation provided that the past
performance of proposed subcontractors would be evaluated, agency properly downgraded
protester's proposal under the past performance evaluation factor based on the decision of
protester's proposed subcontractor to suspend performance under a prior contract.
2.
Agency conducted meaningful discussions with protester where it notified the protester that it was
considering negative past performance information regarding its proposed subcontractor and protester
responded by acknowledging that the subcontractor was communicating directly with the agency
regarding that matter.
3. Contracting officer reasonably determined that, except for past
performance, protester's and awardee's proposals were equal with regard to non-cost
evaluation factors, and that protester's negative past performance rating outweighed its
slight price advantage.
4. Where solicitation required performance of cost realism analysis,
agency's discussion of areas in protester's cost proposal that appeared unrealistically
low were not misleading or improper.
McKean Defense Group--Information Technology, LLC, B-401702.2, January 11, 2010.
DIGEST:
Protest challenging agency's
corrective action, which included opening discussions with all offerors in the competitive range, is
denied where the agency reasonably concluded that in addition to correcting the flawed cost realism
evaluation, discussions should be opened with the offerors, rather than proceeding with award on the
initial proposals.
PMO Partnership
Joint Venture, B-401973.3; B-401973.5, January 14, 2010.
DIGEST: Agency improperly
rejected the proposal of a joint venture offeror for a cost- reimbursement contract because the
indirect cost rate structure included in the joint venture's accounting system was considered
unacceptable, where the agency has provided no supportable or reasonable bases for its determination
and unreasonably failed to consider a revised indirect cost rate that the agency specifically
requested from the joint venture prior to award. [See also McKissack+Delcan JV II, B-401973.2;
B-401973.4, January 13, 2010.]
Kiewit Texas Construction L.P., B-402090; B-402090.2, January 12, 2010.
DIGEST: Protest of agency's rejection of proposal as technically unacceptable for
failure to demonstrate ability to schedule and accomplish timely performance is denied where record
shows evaluation was reasonable and consistent with solicitation's terms.
Alsalam Aircraft Company,
B-401298.4, January 8, 2010.
DIGEST: Protest challenging the
reevaluation—after corrective action in response to an earlier protest—of an
awardee's proposed transition approach is denied where the agency reasonably concluded that
the approach could be achieved within the time required by the solicitation, even though the
approach was inconsistent with solicitation guidance indicating that such an approach would not
likely be successful; protester cannot claim to have been prejudiced by the agency's revised
views about the solicitation guidance because there is no reason to think, based on the record, that
the protester would have offered a different approach had it known of the agency's revised
views.
TJ's
Marine Construction LLC, B-402227 January 7, 2010.
DIGEST: Where an invitation for
bids required the submission of a bid guarantee, agency properly rejected protester's bid as
nonresponsive where protester's bid bond contained a copy of the surety agent's
signature.
C&B
Construction, Inc. B-401988.2 January 6, 2010.
DIGEST: 1. The limit on GAO's
bid protest jurisdiction at 41 U.S.C. § 253j(e) to review protests of orders under task or
delivery order contracts only where the order is valued in excess of $10 million, does not apply to
a protest challenging the issuance of task order valued under $10 million where the task order was
issued under a blanket purchase agreement (BPA), since a BPA is not a task or delivery order
contract.
2. Protest challenging task order issued to higher-rated, but higher-priced, vendor
is sustained where the contemporaneous evaluation record consists of numerical scores assigned to
each vendor's quotation, and lacks any information to show a basis for those scores, or a
reasoned basis for any tradeoff judgments made in the source selection.
Baron Services, Inc.,
B-402109, December 24, 2009.
DIGEST: Government Accountability Office will not
consider protest of an award of subcontract as “by” the government, where record shows
that prime contractor conducted the acquisition, including drafting solicitation and evaluation
criteria, receipt and evaluation of proposals, and selection of subcontractor.
Excel Building & Development
Corporation, B-401955, December 23, 2009.
DIGEST: Where an invitation for bids
required the submission of a bid guarantee, agency properly rejected protester's bid as
nonresponsive where protester's bid bond contained a copy of the surety agent's
signature.
TMM Investments, Ltd., B-402016, December 23, 2009.
DIGEST:
Agency conducted meaningful discussions with the protester concerning its proposed room sizes where protester was informed that it should clarify its room sizes in accordance with the solicitation.
AMEC Earth & Environmental, Inc., B-401961; B-401961.2, December 22, 2009.
DIGEST:
1. Protest challenging adequacy of discussions with protester is sustained where the record shows that, by asking specific questions regarding the protester's proposed management software tool, the agency did not convey the true nature of its concern--that the proposed software tool was generally inappropriate for the project and increased the risk of performance.
2. Under solicitation which required offerors to identify environmental issues and complications related to performing work at a particular site, agency improperly evaluated offers based on different understandings of the solicitation requirements where the agency did not inform offerors that it did not consider the site to be a wetland, but the protester reasonably concluded (from publicly available information) that the site could be considered a wetland, and the agency evaluated its proposal on that basis, while at the same time evaluating other offerors' proposals on the assumption that the site was not a wetland; as a result, agency's evaluation was contrary to the fundamental principle that a solicitation must provide for the submission of proposals based on a common understanding of the agency's requirements.
DME Corporation, B-401924; B-401924.2, December 22, 2009.
DIGEST:
1. Agency's determination that awardee's proposal was technically superior to protester's properly reflects the agency's consideration of matters that were reasonably encompassed within the solicitation's stated evaluation factors.
2. Protester's various arguments regarding the agency's judgments and ratings constitute mere disagreement with those judgments, and provide no basis for sustaining the protest.
3. Protest that awardee improperly obtained protester's proprietary information from protester's former employee will not be reviewed where protester failed to comply with the statutory 14-day reporting requirement regarding an alleged procurement integrity violation.
Milani Construction, LLC, B-401942, December 22, 2009.
DIGEST:
1. Under solicitation calling for award of fixed-price contract, protest challenging agency's reliance in best value tradeoff on conclusion that protester's proposed price is unrealistically low is sustained where solicitation lacked any evaluation criteria that reasonably would have put offerors on notice that agency intended to consider realism of offerors' prices as reflecting lack of understanding or risk associated with the proposal.
2. Protest challenging evaluation of offerors' technical proposals is denied where agency's evaluation is reasonable and supported by the record.
Coastal Environments, Inc. B-401889 December 18, 2009.
DIGEST:
Protest is sustained where the record shows that, in making an award on initial proposals, the agency conducted a tradeoff between the two highest-rated, highest- priced proposals, but did not consider in its tradeoff decision the lower prices offered by other lower-rated offerors, whose proposals were nonetheless rated technically acceptable and assessed as low risk.
Perini Management
Services, Inc. B-404261; B-404261.2; B-404261.3; B-404261.4 December 17, 2010.
DIGEST: In a procurement covered by the Percy Amendment, 22 U.S.C. § 302 (2002),
protest of agency's determination that awardee qualified for a 10-percent price preference as
an American-owned firm is denied, where the agency reasonably considered the awardee's
construction experience performed outside the United States to be similar to the work required under
the solicitation.
Lockheed Martin Systems Integration-Owego; Sikorsky
Aircraft Company--Modification of Recommendation B-299145.7;
B-299145.8, December 15, 2009.
DIGEST: Requests that
recommended corrective action be modified to include reimbursement of
proposal preparation costs--based on fact that agency ultimately
canceled solicitation--is denied where agency undertook implementation
of recommended corrective action (by reopening competition, amending
solicitation, conducting discussions, and requesting and evaluating
revised proposals), and there is no showing that cancellation was
improper.
Navistar Defense, LLC; BAE Systems, Tactical Vehicle Systems LP, B-401865; B-401865.2; B-401865.3; B-401865.4; B-401865.5; B-401865.6; B-401865.7, December 14, 2009.
DIGEST:
1. Protest challenging evaluation of awardee's technical proposal is sustained where agency did not reasonably apply a solicitation criterion which stated that existing production capabilities will be viewed as having less risk than those that do not currently exist.
2. Protest challenging evaluation of protester's past performance is sustained where the agency cannot produce a record that demonstrates the basis for the evaluation.
3. Protest challenging evaluation of awardee's proposed price is denied where the depth and detail of the agency's price realism analysis was a matter within its discretion, and the record shows that the evaluation was reasonable.
Gas Turbine Engines, Inc. B-401868.2, December 14, 2009.
DIGEST:
In a negotiated procurement where award was to be made on the basis of low price, agency did not conduct meaningful discussions where the agency sent identical letters to protester and other competitive-range offerors that did not inform protester that the agency viewed its proposed price to be unreasonably high; nonetheless, protest is denied where the record does not establish a reasonable possibility that the protester was prejudiced by the lack of meaningful discussions.
Velos, Inc., B-400500.8; B-400500.9, December 14, 2009.
DIGEST:
1. Source selection decision, which concluded that the awardee's proposal for providing software was technically superior to the protester's proposal because of one aspect of the software, was unreasonable where the agency's technical evaluation panel had determined that this aspect of the software did not change the panel's determination that the proposals were technically equal and the source selection decision was substantially based on the evaluation of a consultant (not a panel member), who only considered the offerors' responses to a discussion question on this point and did not consider existing relevant information included in the panel's evaluation report and the offerors' proposals.
2. Performance risk assigned to the protester's proposal for failing to provide a more current Dun & Bradstreet (D&B) report was unreasonable where the contracting officer did not question the financial viability of the protester or the accuracy of the information in the report and only relied on the currency of the date on the D&B report to assign the rating.
3. Contracting officer's decision not to evaluate the protester's alternate technical and price proposals contained in its final proposal revisions (FPR) was reasonable where the agency expressly advised offerors in the request for FPR that it would not consider any revisions to the technical proposals or price, except for matters relating to software license and escrow provision.
BW JV1, LLC B-401841 December 4, 2009.
DIGEST:
Agency properly rejected bid of a joint venture that submitted a bid bond that states that it was executed by a corporation, which was one of the joint venture members, and the joint venture agreement provided that both joint venture members were required to execute the bid bond.
IAP-Leopardo Construction, Inc. B-401923 December 2, 2009.
DIGEST: Protest challenging agency's decision to allow correction of low bidder's mistake of misplacing a decimal point when entering two subcontractor quotes is denied because the agency reasonably determined that there was clear and convincing evidence of the mistake.
Philips Healthcare Informatics B-400733.8; B-400733.11; B-400733.13, December 2, 2009.
DIGEST:
Protester is not an interested party to maintain protest challenging proposal evaluation where it did not offer a firm fixed-price proposal as required by the solicitation; protester would be ineligible for award even if protest of evaluation were sustained.
Port of Bellingham, B-401837, December 2, 2009.
DIGEST:
1. Agency had no reasonable basis to determine that awardee's proposed pier was located outside a designated floodplain area and therefore complied with the solicitation's limitations regarding lease of property located within a base floodplain.
2. Where awardee's proposed pier construction was within a designated floodplain area, agency failed to properly consider whether there was any practicable alternative to selecting awardee's proposal, as was required by the terms of the solicitation.
Enterprise Information System B-401037.5; B-401037.6 December 1, 2009.
DIGEST:
1.Protest that statement by agency during discussions--that price below representative current contract price may create performance risk--misled protester into not lowering its price in revised proposal is denied; statement did not prohibit offerors from proposing a price below specified level but, rather, provided offerors with opportunity to explain how they would be able to perform at price below that level.
2.Protester is not interested party for purposes of challenging evaluation of awardee's proposal where record shows that, even if protest were sustained, an intervening offeror, not protester, would be next in line for award.
Honeywell Technology Solutions, Inc. B-400771.6, November 23, 2009.
DIGEST:
Agency decision to limit corrective action to the area of past performance is unobjectionable where it is adequate to remedy the procurement impropriety at issue.
Bruce Bancroft--Agency Tender Official; Sam
Rodriquez--Designated Employee Agent, B-400404.7; B-400404.8; B-400404.9;
B-400404.10; B-400404.11, November 17, 2009.
DIGEST:
Protest challenging evaluation of agency tender in public-private
competition under Office of Management and Budget Circular A-76 is
sustained where the record establishes that the agency's evaluation of
the private sector offeror's staffing plan was not adequately
documented, and the protester was prejudiced by the error.
Washington-Harris Group B-401794; B-401794.2, November 16, 2009.
DIGEST:
Protest challenging service-disabled veteran-owned small business (SDVOSB) awardee's ability to perform more than 50 percent of the contract requirements is denied because, although the solicitation stated that SDVOSB concerns would receive an evaluation preference, the solicitation was not set aside for SDVOSB offerors; thus, the Federal Acquisition Regulation provisions which state that SDVOSB prime contractors must perform more than 50 percent of a contract's requirements do not apply to this solicitation.
The Analysis Group, LLC B-401726; B-401726.2, November 13, 2009.
DIGEST:
1. Where agency allowed successful vendor to make material revision that made its quotation acceptable, but did not provide protester similar opportunity to revise its quotation, agency improperly engaged in discussions only with successful vendor, and protest on that ground is sustained.
2. Protest that successful vendor has “impaired objectivity” organizational conflict of interest (OCI) is sustained where record (1) shows that successful vendor's advice and assistance could lead to agency's procurement of other products and services offered by successful vendor, and (2) does not show that agency adequately considered possibility of “impaired objectivity” OCI, or whether such a potential OCI could be avoided, neutralized or mitigated.
Light-Pod, Inc. B-401739; B-401739.2, November 12, 2009.
DIGEST:
Where record shows that contracting agency reasonably determined small business protester's proposal technically unacceptable on the basis of factors not related to responsibility, referral to Small Business Administration for Certificate of Competency review was not required, even though agency also found the proposal unacceptable based on responsibility-related considerations.
Science Applications International Corporation, B-401773, November 10, 2009.
DIGEST:
Where solicitation limited competition to vendors holding Federal Supply Schedule contract for required items, issuance of purchase order with items not included on successful vendor's FSS contract was improper.
Trison Construction, Inc. B-401537.2 November 9, 2009.
DIGEST:
Agency reasonably limited competition for renovation services to holders of indefinite-delivery, indefinite-quantity, multiple-award, task-order contracts, where the record shows that this acquisition approach was necessary to meet the agency's urgent requirements.
Alsalam Aircraft Company--Costs B-401298.3, November 5, 2009.
DIGEST:
1. Protester is entitled to reimbursement of costs of filing and pursuing protest where agency did not take corrective action in response to a protest until after submission of agency report, and does not dispute that the protest grounds were clearly meritorious.
2. For a procurement conducted under the Foreign Military Sales program, neither the Competition in Contracting Act, nor the Arms Export Control Act, bars GAO from recommending that the agency reimburse a successful protester's costs of filing and pursuing a protest, or bars the agency from making such reimbursement.
All Seasons Apparel, Inc. B-401805; B-401805.2 November 4, 2009.
DIGEST:
Agency's cancellation of solicitation for Army combat shirts, which was set aside for Historically Underutilized Business Zone (HUBZone) small business concerns, is reasonable, where cancellation was due to disagreement between GAO and Executive Branch on interpretation of authorizing statutes for small business programs, agency was faced with threat of litigation, and another procurement vehicle was available to meet at least part of the agency's needs while the agency decides how best to meet its remaining needs.
Health Net Federal Services, LLC, B-401652.3; B-401652.5, November 4, 2009.
DIGEST:
1. Protest is sustained where the agency credited the awardee with past performance of its parent and corporate affiliates, yet record did not establish which entities were involved with performing the prior contracts submitted by the awardee, nor did it establish the roles that the various entities would have in awardee's performance of the contract.
2. Agency's past performance evaluation of the awardee was flawed where the record shows that, although it gave awardee the highest past performance rating, agency failed, as contemplated by the solicitation, to consider the fact that awardee's past performance references were very small in relation to the size of the contract to be awarded.
3. Price realism evaluation was flawed where it did not reasonably consider whether the awardee's staffing, as related to its price/cost proposal, reflected a lack of understanding of the agency's technical requirements or presented technical risk.
4. Agency failed to consider risk associated with awardee's proposed plan to hire large percentages of the incumbent workforce, which the agency considered to be a
beneficial approach, where the agency did not consider awardee's ability to hire the incumbent workforce with lower compensation rates.
5. Protest challenging agency evaluation of protester's proposal in procurement for TRICARE managed health care support services is sustained where the record shows that the agency did not consider the network provider discounts associated with protester's existing TRICARE network, in accordance with the solicitation.
6. Protest that awardee's use of a former high-level government employee in preparing its proposal created an appearance of impropriety based on the unfair competitive advantage stemming from the individual's access to non-public proprietary and source selection sensitive information is sustained where the contracting officer never considered the matter--because the awardee did not bring it to his attention--and the record shows that the individual had access to non-public proprietary information concerning the protester's performance of the incumbent contract, which appears relevant to the challenged procurement.
Humana Military Healthcare Services B-401652.2; B-401652.4; B-401652.6, October 28, 2009.
DIGEST:
Protest of award of contract for T-3 TRICARE managed health care support services for the South Region is sustained where evaluation did not adequately account for the network provider discounts associated with protester's existing TRICARE network.
RBC Bearings Incorporated B-401661; B-401661.2, October 27, 2009,
DIGEST:
Protest of a sole-source contract award justified on the basis of urgency is sustained where the protester's pursuit of source approval to compete for purchases of helicopter swashplate bearings for more than 9 years, combined with continuing requirement for these parts, show that the urgent need to limit competition here was caused by a failure of advance planning.
General Dynamics--Ordnance & Tactical Systems B-401658; B-401658.2, October 26, 2009.
DIGEST:
1. Protest that agency improperly failed to conduct price realism evaluation of awardee's proposed price is denied where record shows that agency, in fact, conducted such an evaluation, and reasonably determined that awardee's prices were realistic.
2. Protest that awardee's prices were impermissibly unbalanced is denied where prices were virtually identical for all quantity ranges of essentially identical units being purchased, and record fails to establish that awardee's unit prices were overstated or understated.
3. Agency did not conduct unequal discussions with protester and awardee where record shows that agency discussed all concerns relating to each firm's proposal; fact that agency did not discuss price with protester is unobjectionable where record does not show that agency found its proposed prices unreasonable.
4. Agency's decision to select lower-rated, lower-priced proposal for award, even though technical considerations were more important than price, was unobjectionable where tradeoff is fully supported by record.
Software Engineering Services, Inc., B-401645, October 23, 2009.
DIGEST:
1. Protester's assertions that agency improperly rated its proposal “Marginal” with regard to non-cost/price evaluation factors constitutes mere disagreement with the agency's judgment and does not provide a basis for sustaining the protest.
2. Protest based on an alleged conflict of interest created by awardee's proposed use of a subcontractor, who is also the prime contractor in another phase of the program, is denied where the solicitation specifically provides that the subcontractor's involvement in both phases of the program is not precluded, and agency specifically considered the various tasks contemplated under both program phases and determined that no conflict of interest was created.
Frank A. Bloomer--Agency Tender Official, B-401482.2; B-401482.3, October 19, 2009.
DIGEST:
Protest challenging a public-private competition between an agency tender and a private sector proposal is sustained where: (1) the agency unreasonably accepted the private-sector offeror's revised fringe benefit ratios in its cost realism analysis; (2) the record provides no reasonable basis for the agency to accept the private- sector offeror's unsupported assumption that the firm could perform a significant portion of the workload 10 percent more efficiently; and (3) the agency unreasonably allowed the private-sector offeror to omit the labor cost associated with the material supply function from its cost proposal, and these errors prejudiced the protester.
Telephonics Corporation B-401647; B-401647.2, October 16, 2009.
DIGEST:
Protest challenging exclusion of protester's proposal from revised competitive range is denied where proposal was both lower rated under technical factor and significantly higher priced than the two proposals included in competitive range; agency reasonably found it had no reasonable chance of being selected for award.
A P Logistics, LLC, B-401600, October 14, 2009.
DIGEST:
In a negotiated procurement that required the submission of a small business subcontracting plan, which was not considered as part of the technical evaluation, protest that the agency did not negotiate the acceptability of the protester's subcontracting plan is denied, where the agency identified its concerns with the protester's plan during discussions and the protester failed to adequately address those concerns in its revised proposal.
Aleut Facilities Support Services, LLC B-401925, October 13, 2009,
DIGEST:
GAO will generally not review agency's decision to cancel a solicitation to perform the work in-house because decision whether to perform work in-house is generally a matter of executive branch policy.
DMS-All Star Joint Venture B-310932.6; B-310932.7, October 9, 2009.
DIGEST:
1.Protest that agency's price evaluation of awardee's low fixed-price was not in accordance with the solicitation criteria is denied where the record shows that the agency reasonably determined that awardee's price was reasonable and realistically reflected the awardee's understanding of the complexity and risk associated with the requirement.
2. Protest that agency failed to conduct meaningful discussions is denied where agency was not required to hold discussions regarding protester's indirect labor rates, or its fuel, maintenance and insurance costs for vehicles, where these rates and costs were not considered a significant weakness or deficiency and did not prevent the protester from having a reasonable opportunity for award.
Bering Straits Technical Services, LLC B-401560.3; B-401560.4, October 7, 2009.
DIGEST:
1. Agency reasonably evaluated protester's proposal as good, rather than excellent, under technical approach factor where offer contained weaknesses indicating a lack of understanding including proposal of services under incorrect work area, start of services in base year when not required until option years, and lack of clarity on required inspections.
2. Evaluation of protester's past performance as neutral was reasonable where only past performance information submitted concerned protester's parent firm and affiliates, and agency reasonably found that proposal failed to demonstrate that resources of those entities would affect contract performance.
3. Agency reasonably assigned risk to protester's proposal based on low fixed burden rate for indefinite-quantity items, where it determined that proposed rate was insufficient to profitably perform the work, and proposal failed to explain how protester could realize sufficient revenue by performing work more efficiently than estimated standards.
4. In fixed-price procurement, awardee's failure to provide price information called for by solicitation for purposes of assessing offerors' understanding of requirement did not preclude award, where agency was able to calculate the missing informationfrom other aspects of awardee's price proposal and reasonably concluded the awardee understood contract requirements.
Outdoor Venture Corporation, B-401628, October 2, 2009.
DIGEST:
Protest that agency improperly obtained items outside the scope of a multiple-award indefinite-delivery/indefinite-quantity contract is denied where the item is reasonably encompassed by the contract at issue.
Armed Forces Hospitality, LLC B-298978.2; B-298978.3 October 1, 2009.
DIGEST:
1. Protest jurisdiction of the Government Accountability Office (GAO) extends to protest of a no-cost contractual agreement for the provision of lodging services to transient soldiers, as part of the Department of the Army's privatization of Army lodging program, because the contract concerns a procurement for services by a federal agency and results in a benefit to the government.
2. Protest challenging agency's alleged modification of a contract as an improper relaxation of requirements is denied where there was no change to the scope of work anticipated by the underlying solicitation.
AMI-ACEPEX, Joint Venture B-401560 September 30, 2009.
DIGEST:
1. Where past performance and experience evaluations were based in part on relevance—similarity in size, scope, and complexity—agency reasonably established size threshold for relevance at approximately one-half annual value of solicited work, and reasonably rated protester no higher than satisfactory for experience and past performance based on single project above threshold, despite high rating on that project from past performance reference.
2. Agency reasonably evaluated protester's proposal as satisfactory under technical approach factor where proposal failed to address a required position and lacked discussion of specific risks, and agency had concerns with performance risk where price proposal indicated lack of available capital funds.
3. Agency properly considered past performance and experience record of awardee's parent firm and affiliates where awardee's proposal demonstrated that resources of those entities would affect performance and solicitation did not prohibit consideration of parent/affiliate information.
TMI Management Systems, Inc. B-401530, September 28, 2009.
DIGEST:
Agency's misclassification of a procurement for facilities support services on the Federal Business Opportunities Internet website under a “miscellaneous” product classification code improperly deprived the protester of an opportunity to respond to the agency's solicitation and was not consistent with the agency's obligation to use reasonable methods to obtain full and open competition.
Caddell Construction Company, Inc. B-401596; B-401597; B-401598, September 21, 2009.
DIGEST:
The Omnibus Diplomatic Security and Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established statutory qualification requirements for construction firms seeking to build a U.S. embassy, including a requirement that an entity seeking contracts for diplomatic construction projects over $10 million must have performed construction services “similar in complexity, type of construction, and value to the project being bid.” Agency's determination that vendor satisfied this requirement is unreasonable where vendor's projects were not similar in complexity or value.
T-C Transcription, Inc. B-401470, September 16, 2009.
DIGEST:
Protest challenging the award of contracts for transcription services at multiple locations is sustained where the record shows that: (1) the evaluation of the protester's proposal under the most important technical factor was internally inconsistent and unreasonable; (2) the agency relied on a single overall adjectival rating and on prices in making its selection decision, and the overall rating failed to capture the differences between the relative ratings of the offerors' proposals, or to reflect a reasonable conclusion that proposals with the same overall rating were technically equal; and (3) the agency tradeoff decision included only the two awardees and did not consider the protester for award, even at locations where the protester's proposal was rated higher than the awardee's proposal.
Ashland Sales & Service Company B-401481 September 15, 2009.
DIGEST:
In implementing the section 827(a) of Title VIII of Division A of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181 (appearing at 10 U.S.C.A. § 2410n and note), which restricts noncompetitive purchases of product categories from Federal Prison Industries (FPI) by the Department of Defense (DOD) for those categories where FPI has been found to have a significant market share in DOD, DOD acted reasonably in establishing an effective date of 30 days from DOD's issuance of an amended list of product categories for which FPI has a significant market share.
Major Contracting Services, Inc., B-401472, September 14, 2009.
DIGEST:
Agency improperly extended a contract on a sole-source basis where it did not establish that only the incumbent could provide the services and the agency could have avoided the urgency that ultimately led to the sole-source award through advance procurement planning.
OSC Solutions, Inc. B-401498 September 14, 2009.
DIGEST:
Protest challenging the cancellation of a request for quotations (RFQ) and issuance of orders on a sole-source basis to a non-profit agency under the authority of the Javits-Wagner-O'Day Act is sustained where the acquired items are not on the procurement list maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled, so that the sole-source procurement was improper and therefore the cancellation of the RFQ was not reasonable.
Golight Inc. B-401866, September 10, 2009.
DIGEST:
Protest of award that was filed more than 10 calendar days after receipt during business hours of the agency's email notification of award is untimely; for purposes of our timeliness rules, the mechanical receipt of an email during regular business hours constitutes notice of basis for protest.
CES Industries, Inc. B-401427 September 1, 2009.
DIGEST:
1. Protest that agency improperly failed to make sole-source award to a service- disabled veteran-owned small business concern and impermissibly competed the acquisition on an unrestricted basis is dismissed where the protest was filed after award.
2. Protest alleging bias against protester and favoritism toward awardee is denied where record fails to support the protester's allegations.
FedSys, Inc. B-401453, September 8, 2009.
DIGEST:
1. Protest challenging agency's cost realism analysis is denied where the agency reasonably adjusted the protester's proposed costs to account for its failure to propose the correct number of labor hours, as required by the solicitation.
2. Protest challenging agency's technical evaluation is denied where the record shows that even if the agency's identification of a minor weakness in the protester's proposal was unreasonable, the conclusion did not materially affect the award decision.
ESCO Marine, Inc. B-401438, September 4, 2009.
DIGEST:
1. Where, in connection with task order for dismantling ships, offerors are required to sell the scrap resulting from the ship dismantling, are permitted to retain the scrap sale proceeds, and are required to offset their proposed prices by the scrap sale proceeds, the determination of whether the task order is “valued” in excess of $10 million--as part of a determination of GAO's jurisdiction to review a protest of the task order placed under an indefinite-delivery/indefinite-quantity contract--is not limited to consideration of offerors' proposed prices but properly includes consideration of estimated ship scrap values.
2. Protest challenging the evaluation of technical proposals is denied where the record establishes that the agency's evaluation was reasonable, consistent with the stated evaluation criteria, and adequately documented.
3. Affirmative determination of awardee's financial responsibility under task order for ship dismantling services was not reasonable where, notwithstanding the fact that the awardee's proposal expressly represented that it planned to tow and dismantle three ships simultaneously, the contracting officer nevertheless based his determination of adequate financial resources on the awardee incurring the towing and dismantling costs sequentially.
L-3 Services, Inc. B-400134.11; B-400134.12, September 3, 2009.
DIGEST:
1. Protest that agency unreasonably determined that the awardee did not have a “biased ground rules” organizational conflict of interest is sustained where the record shows that the awardee's subcontractor provided procurement development services that put it in a position to affect the subsequent competition in its favor.
2. Protest that agency unreasonably determined that awardee did not have an “unequal access to information” organizational conflict of interest is sustained where the record shows that the awardee's subcontractor had access to competitively useful, non-public information, and the drafts of the mitigation plans intended to prevent the disclosure of that information were not furnished to the agency until after the conclusion of the performance of the work covered by those plans.
3. Protest that agency unreasonably determined that the awardee did not have an “impaired objectivity” organizational conflict of interest is denied where the relationships between the awardee's subcontractor and the firm that was its prime contractor on a prior task order are too attenuated to support such an allegation.
Cashman Dredging and Marine Contracting Co. LLP,
B-401547, August 31, 2009.
DIGEST: Protest arguing
that agency improperly permitted correction of low bidder's mistake of
omitting a single digit from the unit price for one line item is denied
because the correct amount was shown in the extended price for that
line, the extended prices summed to the bid total, and because the
handwritten copy of the bid also reflected the corrected price.
Electronic Vision Access Solutions B-401473, August
25, 2009.
DIGEST: 1. Agency reasonably found
awardee's proposed system to be commercially available where it
was of a type customarily used by, and had been sold to, the general
public, in accordance with the Federal Acquisition Regulation definition
incorporated by the solicitation, as amended.
2. Protest that
awardee's proposal was technically unacceptable, because the
awardee did not propose a Braille study function, is denied where the
solicitation did not require such a function.
Viking Inc.--USA B-401528, August 25, 2009.
DIGEST:
Where protester failed to furnish, and agency officials were otherwise unable to gain access to, documentation demonstrating that protester's product had previously been approved as an acceptable alternate to specified product, agency properly sought data package for the product from the protester and rejected its quotation when protester failed to furnish a complete package.
Northrop Grumman Information Technology, Inc.,
B-400134.10, August 18, 2009.
DIGEST: 1. Protest that
Air Force failed to properly evaluate the awardee's proposal and
assess its proposal risk is sustained where, contrary to the evaluation
scheme announced in the solicitation, the agency failed to evaluate
staffing under all of the Mission Capability subfactors.
2.
Protest that agency improperly evaluated proposals is sustained where
the solicitation stated that they would be evaluated on “the
extent to which” they exceeded a requirement, and proposals that
were substantially different were nevertheless rated the same.
3.
Protest of agency's decision not to consider revised proposals in
the reevaluation following corrective action is untimely when filed
after the issuance of the new award decision, where protester knew or
should have known prior to that award decision of the agency's
intent not to consider proposal revisions.
ALJUCAR, LLC, B-401249.4, August 17, 2009.
DIGEST: Protest alleging that agency deviated from
solicitation's stated evaluation scheme in evaluating price
proposals is denied where protester failed to show that it was
competitively prejudiced by any alleged deviations.
Glenn
Defense Marine-Asia PTE, Ltd. B-401480 August 17, 2009.
DIGEST: Protest of the rejection of the protester's
quotation is denied, where the solicitation required the contractor to
satisfy business licensing requirements in the Commonwealth of the
Northern Mariana Islands and where the agency was informed by the
Northern Mariana Islands that the protester's quoted business
arrangement would not satisfy the Island's licensing requirements.
Healthcare Resolution Services, Inc., B-400826.4, August 13, 2009.
DIGEST:
Protest challenging source selection authority's (SSA) selection of lower-priced proposal based on determination that protester's and awardee's proposals were technically equal is denied where the record shows that, in reconsidering his selection of the protester's proposal for award based on proposal strengths noted by the technical evaluation panel, the SSA reasonably concluded that the strengths noted by the evaluators did not reflect a substantial difference between the proposals and did not warrant the payment of the price premium associated with the protester's proposal.
Argon ST, Inc., B-401387, August 6,
2009.
DIGEST: 1. Protest that agency improperly found
proposal
unacceptable is denied where record shows that proposal never
demonstrated--initially, during discussions, or in final proposal
revision--compliance with material solicitation requirement.
2.
Protest that agency misled protester during discussions is denied where
there was no reasonable basis for protester to assume, based on
agency's silence in subsequent discussions, that its proposal was
acceptable or that it should submit information in a manner inconsistent
with express requirements of solicitation.
Commercial Design Group, Inc., B-400923.4, August
6, 2009.
DIGEST: 1. Where solicitation provided for award
to offeror submitting lowest-priced, technically acceptable proposal,
protest that agency improperly conducted discussions with offerors other
than protester is denied where protester's proposal had already
been found technically acceptable and protester was given the
opportunity, like all other offerors, to submit a revised proposal after
discussions had concluded.
2. Protest challenging evaluation of
proposals is denied where the record establishes that the agency's
evaluation was reasonable and consistent with the solicitation.
First Coast Service Options, Inc., B-401429, July 31, 2009.
DIGEST:
Where performance of more than one-third of the contract requirements created a conflict of interest for the protester, agency reasonably rejected protester's final revised proposal that, for the first time, offered to perform the conflicted requirements by relying on a “firewalled subcontractor,” but failed to meaningfully address the cost and technical impacts associated with this significant proposal revision.
Lakeshore Engineering Services,
B-401434, July 24, 2009.
DIGEST: In a negotiated
procurement that required offerors to submit a portion of cost/price
proposals electronically, agency's elimination of proposal from
the competitive range is reasonable where the record shows that the
protester electronically sent, but the agency did not receive, a portion
of the protester's cost/price proposal.
Subject: Department of Defense-Retired Military Officers
as Media Analysts, B-316443, July 21, 2009.
Summary
Section 1056 of the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009 directs the Comptroller General to issue a legal
opinion to Congress on whether the Department of Defense violated
appropriations prohibitions on publicity or propaganda activities by
offering special access to prominent persons in the private sector who
serve as media analysts. Pub. L. No. 110-417, § 1056(c), 122 Stat.
4356, 4610--11 (Oct. 14, 2008). Department of Defense (DOD)
appropriations acts for fiscal years 2002 through 2008 provide,
“No part of any appropriation contained in this Act shall be used
for publicity or propaganda purposes not authorized by the
Congress.” See, e.g., Pub. L. No. 110-116, § 8001, 121 Stat.
1295, 1313 (Nov. 13, 2007). This opinion addresses whether DOD's
funding of public affairs activities involving retired military officers
(RMO) who served as media analysts violated the prohibition. ...
“However, as we discuss below, and based on the record before us
in this case, we conclude that DOD's public affairs outreach
program to RMOs did not violate the prohibition.”
Kuhana-Spectrum, B-401270, July 20, 2009.
DIGEST:
Agency reasonably found that the past performance of the protester represented a moderate risk based upon documented and undisputed performance problems under the predecessor and other very relevant contracts, notwithstanding numerous instances of reported successful performance under other contracts.
Public Communications Services, Inc., B-400058;
B-400058.3, July 18, 2008.
DIGEST: 1. Government
Accountability Office has jurisdiction to hear protest of the award of a
no-cost contract for provision of phone services to detainees in the
custody of the Bureau of Immigration and Customs Enforcement because the
contract concerns a procurement for services by a federal agency and
results in a benefit to the government.
2. Protest challenging the
evaluation of offerors' prices is sustained where the solicitation
required offerors to propose eight international calling rates, but the
agency evaluated only one rate as a surrogate for the others without a
reasonable basis to do so.
3. Protest challenging the evaluation
of protester's technical proposal is sustained where the
agency's identification of technical deficiencies was not
reasonable because certain features viewed as missing from
protester's proposal were not required by the solicitation, and
because the record shows that the offerors were not evaluated equally.
4. Protest alleging that awardee made material misrepresentations
concerning its proposal and in connection with a Small Business
Administration size status protest is denied where the record does not
show that misrepresentations were made.
GC&E Systems Group, Inc., B-401315; B-401315.2, July
9, 2009.
DIGEST: Protest that agency misled protester into
increasing its staffing and, consequently, its price, when it provided
vendors with government's minimum estimated staffing is denied
where agency specifically advised offerors that estimate was just that,
and that it was vendor's responsibility to determine adequate
staffing.
Controlled Systems, B-401208.2, July 8, 2009.
DIGEST: Protest that a quotation contains conflicting
delivery terms and should have been found technically unacceptable
because it did not conform to the solicitation's requirement for
delivery to destination is denied, where the awardee's quotation
included pricing for delivery to destination, the agency determined that
the inclusion of a conflicting delivery term was a minor error, and the
purchase order issued to the awardee provided for delivery to
destination at the price quoted.
New Dynamics Corporation, B-401272, July 8, 2009.
DIGEST: Protest of agency's decision to retain
custodial services in-house based on results of a standard
public-private competition conducted pursuant to Office of Management
and Budget (OMB) Circular No. A-76 is sustained where the agency failed
to reasonably consider whether agency tender's material and supply
costs were realistic, as required by the solicitation and OMB Circular
A-76.
Library of Congress-Obligation of
Guaranteed Minimums for Indefinite-Delivery, Indefinite-Quantity
Contracts under the FEDLINK Program, B-318046, July 7, 2009.
DIGEST: The Library of Congress uses indefinite-delivery,
indefinite-quantity (IDIQ) contracts, against which agencies place
orders for library and information products and services, in support of
its Federal Library and Information Network (FEDLINK). FEDLINK is a
voluntary program, and the Library states that it cannot accurately
anticipate use of an IDIQ contract. The Library proposes using a
standard amount of $500 as the guaranteed minimum for these contracts
regardless of the maximum ordering limitations or total contract value,
which amount would be obligated at the time it awards the IDIQ contract.
To provide adequate consideration for a binding IDIQ contract, an agency
must establish a guaranteed minimum that is more than a nominal amount
and reflects the amount the agency is fairly certain to order. In the
absence of reliable historical data indicating that a $500 guaranteed
minimum for a particular IDIQ contract is too high or too low, we have
no basis to object to the use of $500 as a guaranteed minimum.
Holloway & Company, PLLC--Costs,
B-311342.5, July 6, 2009.
DIGEST: Request for
recommendation for reimbursement of protest costs is dismissed where the
protester initially filed its claim with the contracting agency; the
agency agreed to reimbursement of a portion of the claim; the protester
then asked the agency to reconsider its denial of the rest of the claim;
and, after more than 8 months had passed without a response from the
agency, the protester then filed a request for a determination of the
amount of reimbursement at GAO. Delay in filing at GAO until more than 8
months had passed without receiving a response from the contracting
agency (and with no attempt to follow up on its request with the agency)
constitutes a failure to diligently pursue the claim.
Rosemary Livingston--Agency Tender Official,
B-401102.2, July 6, 2009.
DIGEST: Protest challenging
evaluation of agency tender in public-private competition under Office
of Management and Budget Circular A-76 is sustained where the record
contains inconsistent statements by the agency in its contemporaneous
evaluation and inadequate documentation of the agency's findings
regarding the tender's shortcomings.
Small Business Administration--Reconsideration,
B-401057.2, July 6, 2009.
DIGEST: 1. Request for
reconsideration from the Small Business Administration (SBA), arguing
that our Office exceeded its statutory grant of authority to decide bid
protests when we concluded in Mission
Critical Solutions, B-401057, May 4, 2009, 2009 CPD ¶ 93, that
set-asides under the Historically Underutilized Business Zone (HUBZone)
program are mandatory where the enumerated conditions of the HUBZone
statute are met, is denied where, despite the SBA's contentions to
the contrary, our decision did not “invalidate” the
SBA's conflicting regulation, and the decision, and the
recommendation within it, were consistent with our statutory
jurisdiction.
2. Request for reconsideration of prior decision
sustaining protest is denied where newly raised information fails to
show that our prior decision contains any errors of fact or law.
Natural Resources Conservation
Service-Obligating Orders with GSA's AutoChoice Summer Program,
B-317249, July 1, 2009.
DIGEST: The General Services
Administration (GSA) instructs agencies to obligate current year
appropriations for orders of next year model motor vehicles submitted
through GSA's AutoChoice Summer Program, even though such orders
cannot be finalized until the next fiscal year when vendors first make
available the requisite information on next year models. The Natural
Resources Conservation Service requested an advance decision on whether
orders submitted through GSA DIGESTs AutoChoice Summer Program
constitute a valid obligation of the current fiscal year. We conclude
that they do not, because, until finalized in October, they are
tentative and incomplete.
Denali Commission-Anti-Lobbying Restrictions,
B-317821, June 30, 2009.
DIGEST: Anti-lobbying
provisions prohibit Commissioners and their personal staff as well as
agency officials from using appropriated funds to engage in grassroots
lobbying by encouraging interest groups to contact Members of Congress
and their staff regarding Denali's reauthorization. The Byrd
Amendment prohibits Commissioners and their personal staff, in their
role as grantees, from using grant funds to lobby Members of Congress
and their staff in connection with the making of a grant. Commissioners
and their personal staff may be reimbursed for travel expenses incurred
while conducting the official business of the agency.
Carahsoft Technology Corporation, B-401169;
B-401169.2,June 29, 2009.
DIGEST: Protest challenging
an order under a Federal Supply Schedule contract for faceted search
capability software pursuant to a competition conducted under Federal
Acquisition Regulation subpart 8.4 is sustained where the agency
unreasonably issued an order on the basis of a quotation that failed to
meet one of the minimum technical specifications of the solicitation.
Public Communications Services,
Inc.--Costs, B-400058.4, June 25, 2009.
DIGEST: 1.
Reimbursement of attorneys' fees sought by a successful small
business protester is recommended, notwithstanding agency's
argument that the fees are unreasonable because they are inconsistent
with conference report language found in the legislative history of the
Federal Acquisition Streamlining Act, which states that the statutory
cap on hourly rates for attorneys' fees that can be reimbursed for
successful large business protesters should serve as a
“benchmark” for reviewing the otherwise reasonable hourly
rates for attorneys' fees incurred by successful small business
protesters. The benchmark is one among several factors to be considered
in evaluating the reasonableness of attorney fees and does not, under
the circumstances here, show that the requested fees are unreasonable.
2. Agency's argument that the attorneys' fees sought
by a successful small business protester are unreasonable because the
protester used a private law firm, and because, in the agency's
view, billings by private law firms are inherently unreliable, does not
provide a basis for our Office to deny a request that we recommend
reimbursement of such costs, when the record shows that the hours
incurred, and rates charged, are adequately documented and reflect
customary costs for similar work.
Brooks Range Contract Services, Inc., B-401231, June
23, 2009.
DIGEST: 1. Protest that agency improperly
included oral presentation in evaluation is denied; where oral
presentations were to become part of quotation and were to cover
information encompassed by evaluation factors, it was implicit that
content of presentations would be evaluated.
2. Protest that
agency improperly failed to perform price-technical tradeoff under
“best value” evaluation scheme is denied where task order
was issued to vendor that submitted highest rated and lowest priced
quotation; accordingly, no tradeoff was required.
Caddell Construction Company, Inc., B-401281, June
23, 2009.
DIGEST: Post-award protest challenging
awardee's eligibility for award as a “United States
person” is untimely, where, before the submission of proposals,
the agency prequalified firms as United States persons and posted a list
of prequalified firms on FedBizOpps and where the protester knew, prior
to the submission of proposals, the basis of its allegations that the
awardee did not satisfy the requirement to be a United States person.
TFab Manufacturing, LLC, B-401190,
June 18, 2009.
DIGEST: Protest challenging propriety of
solicitation provision--stating that offerors must meet requirements
under Limitations on Subcontracting (LOS) clause separately for services
and supply portions of work under solicitation--is sustained where
provision is inconsistent with Small Business Act, which provides for
application of either services or supply portion of LOS clause, but not
both.
AINS, Inc., B-400760.2; B-400760.3,
June 12, 2009.
DIGEST: Protest challenging agency
evaluation of quotations received in response to solicitation for
establishment of a blanket purchase agreement is sustained where record
fails to demonstrate that the evaluation was reasonable.
Commercial Design Group, Inc.--Costs, B-400923.3,
June 10, 2009.
DIGEST: Protest is clearly meritorious and
reimbursement of costs of filing and pursuing protest is recommended
where reasonable agency inquiry into initial protest allegations would
have revealed insufficient basis for technical evaluation results
related to awardee's proposed technical personnel.
Bernard Humbles--Designated Employee Agent,
B-401349, June 8, 2009.
DIGEST: Protest filed by
Designated Employee Agent challenging agency's decision to
contract for headstone setting services without conducting a
public-private competition is dismissed where the protester represents a
group of employees whose positions are not at risk as a consequence of
the contemplated contracting decision.
Northrop Grumman Information Technology,
Inc., B-401198; B-401198.2, June 2, 2009.
DIGEST:
Agency reasonably found that awardee's proposal complied with
solicitation provision calling for nearby performance facility, even
though it proposed to have only management personnel at that facility,
where solicitation only required management--not all--personnel to be
located at nearby facility.
Core Tech International Corporation--Costs,
B-400047.3, June 2, 2009.
DIGEST: Request that GAO
recommend reimbursement of attorneys' fees at a rate higher than
the statutory cap of $150 per hour based on increase in cost of living
is granted where claim filed with agency presented reasonable basis for
adjustment.
Ashbury International Group, Inc., B-401123;
B-401123.2, June 1, 2009.
DIGEST: 1. Protest that
agency misevaluated awardee's proposal is sustained where record
shows that, while solicitation provided that agency would conduct
extensive testing on submitted product samples, it failed to conduct
testing on awardee's product, as revised following discussions,
and instead accepted awardee's unsubstantiated representation that
it would provide product that meets solicitation requirements.
2.
Protest that agency failed to engage in meaningful discussions with
protester is sustained, where record shows that agency downgraded
protester's proposal for failure to include information that was
not called for in solicitation, the information was not the subject of
discussions, and weakness assigned to protester's proposal
ultimately was the sole technical discriminator between proposals;
agency either should have amended solicitation to reflect changed
requirements, or conveyed new requirements to protester during
discussions.
Northern Light Productions, B-401182, June 1,
2009.
DIGEST: Protest that an agency's inclusion of
data rights requirements in the solicitation's evaluation scheme
precluded an agency determination that the protester's proposal
was unacceptable on the basis that it took exception to those
requirements is denied where the data rights requirements are a material
term of a solicitation and the record shows that the protester's
proposal took exception to those requirements.
Financial Crimes Enforcement
Network-Obligations under a Cost-Reimbursement, Nonseverable Services
Contract, B-317139, June 1, 2009.
DIGEST: A
nonseverable services contract that is not separated for performance by
fiscal year may not be funded on an incremental basis without statutory
authority. Failure to obligate the estimated cost (or ceiling) of a
nonseverable cost-reimbursement contract at the time of award violated
the bona fide needs rule.
Contract
modifications to a cost-reimbursement contract increasing original
ceiling are chargeable to appropriations available when the
modifications were approved by the contracting officer. The actual date
the agency records the obligation in its books is irrelevant to the
determination of when the obligation arises and what fiscal year
appropriation to charge.
A provision
in an annual appropriations act designating that a portion of a lump-sum
amount “shall be available for” a specific project does not
preclude the use of other available appropriations for the project.
Stateside Associates, Inc., B-400670.2;
B-400670.3, May 28, 2009.
DIGEST: 1. In solicitation
for monitoring developing legislation, where performance objectives
clearly encompassed awardee's proposed use of case law data
holdings, agency reasonably assigned evaluated strength for that aspect
of awardee's proposal, even though solicitation did not specify
that type of research.
2. Agency reasonably assessed evaluated
weakness in protester's proposal where experience under
protester's incumbent contract reflected users' need to
access [deleted] protester's proposed websites--rather than a
single website--in order to obtain full benefit of features such as
search capabilities.
3. Where protester was provided opportunity
to explain past performance issue during performance of ongoing task
order, agency was not required to provide protester with another
opportunity to address the matter in discussions.
4. Protest that
agency improperly assigned single, overall adjectival rating, which
allegedly gave undue weight to only factor where awardee's
proposal had more strengths than protester's, is denied, since
record shows that award decision was based not on adjectival ratings,
but on relative strengths and weaknesses of protester's and
awardee's proposals.
Wartsila Defense, Inc., B-401224, May 26, 2009.
DIGEST: Protest that agency improperly rejected
protester's fixed-price proposal in research and development
procurement is denied where the record shows that the agency reasonably
determined that award of a cost-type contract was required.
Academy Facilities Management--Advisory Opinion,
B-401094.3, May 21, 2009.
DIGEST: 1. Contracting
agency did not engage in misleading discussions where record shows that
it accurately advised protester of specific instances where its line
item prices were overstated in comparison to the government estimate.
2. Where solicitation contemplated award of fixed-price contract,
price realism analysis was reasonable where, consistent with the
solicitation methodology, agency compared proposed prices to government
estimate, other proposed prices, and reviewed separate cost elements.
3. Protest allegation that awardee enjoyed an unfair competitive
advantage by having employed a former government employee as a
consultant as part of proposal preparation is denied where record
contains no evidence that the government employee had access to
sensitive business information regarding protester's performance
of the incumbent contract.
Engineering Management & Integration, Inc., B-400356.4;
B-400356.5, May 21, 2009.
DIGEST: Where solicitation
instructed offerors that their proposed staffing plans should at a
minimum indicate the percentage of their staffs with third party
certification, and protester identified in its proposal the number of
its staff members holding third party certification, protester's
failure to express the proposed staff numbers also as a percentage of
total staff may not reasonably be viewed as a deficiency since the
information that protester did furnish in fact provided a better
understanding of its proposed staffing.
Kuwait Leaders General Trading & Contracting Company,
B-401015.2, May 21, 2009.
DIGEST: Agency properly
excluded protester from competition where, although firm's
ineligibility may not have been clear from solicitation, agency had
statutory authority to limit competition and executed determination and
finding citing that authority, making it clear that it intended to limit
competition in a manner that excluded protester; GAO will not recommend
that agency undertake useless act of amending solicitation to make clear
that protester is ineligible to compete.
Med-South, Inc., B-401214, May 20, 2009.
DIGEST: Agency's decision to set aside a procurement
for small businesses is reasonable where the agency performed market
research that demonstrated a reasonable likelihood that the agency would
receive offers from two or more responsible contractors at a fair and
reasonable price, the agency consulted with the Office of the Small
Disadvantaged Business Utilization, and the agency received three offers
from small businesses in response to the solicitation.
Ahtna Support and Training Services, LLC,
B-400947.2, May 15, 2009.
DIGEST: Protest is sustained
where the agency evaluated the awardee and the protester unequally by
crediting the awardee with the experience of its subcontractor, but not
similarly crediting the protester with the experience of its
subcontractor, even though the agency viewed both subcontractors as
having relevant experience.
Spectrum Systems, Inc., B-401130, May 13, 2009.
DIGEST: 1. Agency properly accepted a quotation that
complied with the solicitation's requirements, where there was no
significant countervailing evidence reasonably known to the agency
evaluators that should have created doubt as to whether the vendor will
or can comply with the solicitation's requirements; whether the
vendor, whose quotation agreed without exception to furnish a product in
accordance with the terms of the solicitation, actually delivers a
product compliant with the terms of the solicitation is a matter of
contract administration, which is for consideration by the contracting
agency, rather than GAO.
2. Agency, in calculating the
vendors' proposed prices and in its best value analysis, properly
did not perform a life cycle cost analysis regarding the solicited
software and associated maintenance, where the solicitation did not
provide for the performance of a life cycle cost analysis.
American K-9 Detection Services, Inc., B-400464.6,
May 5, 2009.
DIGEST: In implementing corrective action in
response to a protest, agency improperly limited discussions to
requesting information to show that a proposed key position complied
with the solicitation requirements, where the discussions did not
provide the protester with the opportunity to become more competitive
through meaningful discussions by allowing it to address significant
weaknesses or deficiencies found in its proposal.
Messier-Bugatti, Safran Group, B-401064, May 5,
2009.
DIGEST: Protest that specification requirement for
lock-ring, demountable flange wheel design as part of retrofit systems
for C-130 aircraft unduly restricts competition, improperly precluding
protester from offering a tie-bolt, split-rim wheel design, is denied
where agency reasonably determined that tie-bolt wheel will require
significantly more time to maintain than a lock-ring wheel, such that it
does not meet agency need for wheel design permitting efficient
maintenance.
Government Acquisitions, Inc., B-401048; B-401048.2;
B-401048.3, May 4, 2009.
DIGEST: 1. Agency reasonably
evaluated protester's proposal as containing various weaknesses
and deficiencies, including rating the proposal as
“Unacceptable” with regard to protester's proposed
management plan, where record shows that protester's proposal
failed to comply with solicitation requirements and the
protester's complaints constitute mere disagreement with the
agency's judgments.
2. Agency reasonably rated
awardee's proposal as “Acceptable” with regard to past
performance where record established that awardee has performed various
prior contracts of similar size, scope and complexity.
3. Where
agency has not retained individual evaluator notes or worksheets,
protest that evaluation record is inadequate is denied where the
agency's consensus evaluation report contains sufficient detail to
establish that the agency's judgments were reasonable.
Mission Critical Solutions, B-401057, May 4, 2009.
DIGEST: Protest is sustained where contracting agency did
not consider whether two or more qualified Historically Underutilized
Business Zone (HUBZone) small businesses could be expected to submit
offers and whether award could be made at a fair market price, as
required by the HUBZone statute, 15 U.S.C. § 657a, prior to
deciding to award contract to an Alaska Native Corporation on a
sole-source basis.
National Transportation Safety Board-Application of
Section 1072 of the Federal Acquisition Streamlining Act (41 U.S.C.
§ 254c) to Real Property Leases, B-316860, April 29, 200.
DIGEST: Statutory language authorizing the National
Transportation Safety Board to “enter into such contracts, leases,
cooperative agreements, and other transactions as may be
necessary” to carry out its functions and duties permits the
agency to enter into leases of real property. The 1994 recodification of
that provision omitting the word “leases” did not change the
provision's meaning.
Under 41 U.S.C. § 254c, the phrase
“acquisition of property” includes leases of real property.
Accordingly, agencies with authority to lease real property may enter
into contracts for up to 5 years for the lease of real property using
fiscal year appropriations if the conditions of 41 U.S.C. § 254c
are met.
Petro Star, Inc., B-401108 , April 29, 2009.
DIGEST: Awardee's challenge to the amount of its
contract price to supply military fuel requirements is dismissed because
it raises a matter of contract administration over which we do not have
jurisdiction
Southern Scrap Material Company, B-401059, April 29,
2009.
DIGEST: Protest that liquidated damages provision in
solicitation for ship sale/dismantlement is improper because agency
profits from sales program, and thus suffers no loss from breach, is
denied where agency reasonably determined that it will suffer damages as
a result of delayed performance; fact that program under which contract
is issued generates revenue is irrelevant to propriety of provision.
National Science Foundation-Potential
Antideficiency Act Violation by the National Science Board Office,
B-317413 , April 24, 2009.
DIGEST: The National
Science Board Office's (NSBO) fiscal year 2006 appropriation is
not available to fund cost overruns incurred during performance of a
contract that was settled by a modification to the contract in fiscal
year 2007. This settlement represents a new obligation properly
chargeable to fiscal year 2007. NSBO can correct this improper recording
through an account adjustment by deobligating the amounts that were
improperly charged to fiscal year 2006 appropriations and charging these
amounts to the fiscal year 2007 appropriation. If after NSBO adjusts its
accounts it has insufficient funds in its fiscal year 2007
appropriation, it should report an Antideficiency Act violation in
accordance with 31 U.S.C. § 1351.
AHNTECH, Inc., B-401092, April 22, 2009.
DIGEST: Small Business Administration (SBA) properly accepted
requirement for operations, maintenance and support of an Air Force
range into the 8(a) program without determining whether acceptance would
have an adverse impact on an existing small business that had been
performing similar services at the range where based on the record there
is no reason to object to the SBA and the Air Force decision that the
services to be obtained under the 8(a) program constituted a new
requirement.
PlanetSpace, Inc., B-401016; B-401016.2, April 22,
2009.
DIGEST: 1. Protest is denied in procurement for
commercial resupply services for International Space Station where
source selection authority reasonably determined that outstanding and
very good past performance of protester's proposed subcontractors
did not warrant an overall significant strength where protester itself
lacked significant relevant past performance and technical expertise,
leaving subcontractors responsible for technical performance and
approximately [REDACTED]% of overall contract effort.
2. Protest
is denied in procurement for commercial resupply services for
International Space Station where agency reasonably ascertained
significant financial risk to the government from protester's
proposal under fixed-price prime contract to subcontract technical
performance and approximately [REDACTED]% of overall contract effort;
significant development and integration work, the risk and cost of which
was underestimated, was to be performed by subcontracting on a cost
basis; protester's business case, although reflecting additional
unrealistically optimistic assumptions, nevertheless assumed that cost
of performing would exceed contract payments until last year of
contract; protester had limited contract management resources; and
protester, a recently organized entity, proposed to finance performance
using only minimal internal financial resources, depending instead on
debt financing and obtaining additional investment for nearly all of
performance costs.
B-317636 April 21, 2009 Subject: Severable Services Contracts This responds to your request for our legal opinion on whether 10 U.S.C. § 2410a and 41 U.S.C. § 253l restrict a federal agency using multiple year or no-year appropriations to contracts for periods of performance no longer than 1 year. Both of these provisions permit agencies to enter into severable services contracts that cross fiscal years for up to 1 year and obligate the appropriations current at the time the agencies enter into the contract. In our opinion, these statutory provisions do not restrict to 1 year the contract periods of severable services contracts funded by no-year appropriations or by multiple year appropriations.
FPM Remediations, Inc., B-401017.2, April 16, 2009.DIGEST: Protest that agency improperly failed to consider protester for award of a small business contract is dismissed where the solicitation anticipated awards in multiple small business subcategories, and additional awards for up to three remaining small businesses, and where the protester initially received award of a Historically Underutilized Business Zone (HUBZone) contract, and hence was not considered for one of the remaining small business awards; the fact that the protester was subsequently decertified as a qualified HUBZone small business concern in no way renders the agency's earlier small business awards improper--if anything, the protester's failure to receive a small business award resulted from its inaccurate representation that it was eligible for a HUBZone award, not from any violation of procurement law or regulation by the agency.
George G. Sharp, Inc., B-401077;
B-401077.2, April 15, 2009.
DIGEST: 1. Agency
reasonably determined that indication in quotation that successful
vendor would hire incumbent personnel and that it and team member had
corporate resources and qualified personnel to meet requirements
satisfied solicitation requirement that vendors confirm ability to have
requisite personnel at time of issuance of task order.
2.
Agency's evaluation of successful vendor's proposed project
manager (PM) and alternate was unobjectionable where agency based
evaluation primarily on resume detailing proposed PM's
qualifications, and also gave credit for alternate candidate based on
information from outside quotation.
3. Agency reasonably evaluated
successful vendor's and team member's experience and past
performance as superior where quotation and past performance reference
response demonstrated relevant experience and overall superior past
performance.
RTI Technologies, LLC, B-401075, April 15, 2009.
DIGEST: Protest is untimely under GAO's Bid Protest
Regulations, where a protest on the same grounds was initially filed at
the agency and denied, and filed with GAO more than 10 days after
receipt of the denial; the protester's receipt of a required
debriefing after receipt of the denial of the agency-level protest does
not toll or provide an exception to our timeliness rules where an
agency-level protest was filed.
Precision Mold & Tool , B-400452.4; B-400452.5,
April 14, 2009.
DIGEST: Agency's evaluation of
offerors' “quality” and “delivery” past
performance was reasonable, where solicitation advised offerors that
past performance would be evaluated based on information listed in Past
Performance Information Retrieval System--Statistical Reporting (PPIRS),
offerors were given an opportunity to correct inaccuracies in PPIRS
records, and the agency confirmed the validity of negative past
performance; agency's decision not to select protester's
lower-priced proposal was reasonable given its poor record of delivery
performance and the agency's rational decision that
awardee's superior performance record was worth the additional
cost.
Report to Congress on Bid Protests
Involving Defense Procurements, B-401197 April 9,
2009.
Digest: This report responds to the direction from the
Committee on Armed Services, House of Representatives, contained in the
report on the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009, Pub. L. No. 110-417 (2008) (H.R. Rep. No. 110-652, at
394-95, May 16, 2008). The committee directed the Comptroller General of
the United States to review bid protests filed with the Government
Accountability Office (GAO) during the last 5 years associated with
procurement actions by the Department of Defense (DOD). The committee
requested that we assess the extent to which bid protests may be
increasing, the extent to which frivolous and improper protests may be
increasing, and the causes of any identified increases. The committee
further directed the Comptroller General to provide recommendations
regarding actions that Congress, or the executive branch, could take to
disincentivize frivolous and improper bid protests on the part of
industry.
Solutions Lucid Group, LLC, B-400967, April 2,
2009.
DIGEST: Protest challenging agency's decision
not to solicit a quotation from the protester is sustained where the
record shows that the agency knew that the protester was interested in
competing and did not have a reasonable basis to question the
protester's ability to perform.
Armorworks Enterprises, LLC, B-400394.3, March 31,
2009.
DIGEST: Protest challenging agency's body
armor testing, which is based on findings contained in a Department of
Defense Inspector General Report, is dismissed where the findings
contained in the report do not reasonably support a conclusion that the
protester suffered any prejudice in the testing of its body armor, which
ultimately failed testing.
Savannah River Tank Closure, LLC, B-400953; B-400953.2;
B-400953.3, March 30, 2009..
DIGEST: In a procurement
for liquid waste remediation, agency reasonably selected technically
superior but higher priced proposal for award, where awardee's
technical approach for tank cleaning was significantly superior to the
protester's less feasible approach, the awardee's proposal
exceeded the requirements of the solicitation to a much larger degree
than did the protester's in several technical areas, and the
awardee demonstrated proposal superiority under nearly all of the
evaluation factors.
RN
Expertise, Inc., B-401020, March 27, 2009.
DIGEST:
Agency's decision to cancel solicitation and obtain its
requirements through an interagency agreement is not objectionable where
it is based on reasonable conclusion that utilizing the interagency
agreement would result in substantial cost savings as compared with an
award under the canceled solicitation.
LIS, Inc., B-400646.2; B-400646.3, March 25, 2009.
DIGEST:
Protest is sustained in a negotiated procurement, where solicitation required best-value evaluation and agency failed to document or adequately explain how awardee's proposal overcame significant weaknesses identified in the initial evaluation, and failed to document or adequately explain its assessment of the relative merits of the proposals or perform a comparative assessment of proposals when making the source selection.
Triple Canopy, Inc.--Costs, B-310566.9; B-400437.4,
March 25, 2009.
DIGEST: Where agency took corrective
action following submission of an agency report responding to the
protests, request that Government Accountability Office recommend
reimbursement of protest costs is denied where protest grounds, though
potentially meritorious, were not clearly meritorious--that is, the
protest allegations presented close questions regarding their merit.
B-317450 March 23, 2009.
Subject:
Antideficiency Act-Applicability to Statutory Prohibitions on the Use of
Appropriations. Interesting opinion wherein the GAO disagrees with
the Office of Legal Counsel on the requirement to report Antideficiency
Act violations to Congress.
Pegasus Global Strategic Solutions, LLC, B-400422.3,
March 24, 2009.
DIGEST: Protest challenging agency's
justification and approval for the sole source modification of a
contract on an urgency basis for upgraded counter improvised explosive
device electronic warfare systems is denied, where agency reasonably
determined from market research and testing that only the contract
holder could meet its urgent requirements.
Pond Security Group Italia JV--Costs, B-400149.2,
March 19, 2009.
DIGEST: Agency's contention that
protester was not prejudiced by solicitation defect (and protest thus
was not clearly meritorious for purposes of determining whether
reimbursement of protest costs is appropriate) because protester failed
to submit a compliant proposal even after the solicitation was amended
to address the protested defect is without merit since prejudice in the
context of a protest alleging a solicitation defect is not based on
post-protest developments, but rather on whether the alleged defect
affected the protester's ability to compete at the time the
protest was pending.
Core Tech International Corporation--Costs,
B-400047.2, March 11, 2009.
DIGEST: Reimbursement of
costs of filing and pursuing protest is recommended where a reasonable
agency inquiry into protest allegations would have shown that agency had
failed to reasonably evaluate awardee's past performance and
experience, and had conducted disparate, unequal discussions, but agency
delayed taking corrective action until after submission of agency report
responding to allegations and GAO conducted "outcome prediction"
alternative dispute resolution.
Alatech Healthcare LLC, B-400925; B-400925.2, March 9,
2009.
DIGEST: Government Accountability Office will not
consider protest of an award of subcontract as “by” the
government, where record shows that prime contractor had extensive
involvement in conducting acquisition, including drafting of
solicitation, receipt and evaluation of proposals and selection of
successful concerns.
ACCESS Systems, Inc., B-400623.3, March 4, 2009.
DIGEST: Protest is sustained in a competition for the
issuance, on a best-value basis, of a task order to a higher-priced
vendor under 8(a) Streamlined Technology Acquisition Resources for
Services (STARS) government-wide acquisition contract, where the record
does not show meaningful consideration of price in the agency's
selection of the higher-price quotation, nor identify the superior
capabilities of the awardee's quotation that would justify paying
the price premium associated with that quotation.
Futurecom, Inc., B-400730.2, February 23, 2009.
DIGEST: Past performance provision in solicitation that
limits past performance references to those performed within the past 3
years is consistent with Federal Acquisition Regulation (FAR) §
15.305(a)(2)(i), which requires that the currency of past performance be
evaluated, and is not unduly restrictive of competition, particularly
given the requirement in FAR § 15.305(a)(2)(iv) that offerors with
no current or relevant past performance may not be evaluated favorably
or unfavorably on past performance.
Kellogg Brown & Root Services, Inc., B-400787.2;
B-400861, February 23, 2009.
DIGEST: Agency's
disqualification of the protester from further participation in two task
order competitions for combat support services issued under an
indefinite-delivery/ indefinite-quantity contract was reasonable, where
an employee of the protester improperly accessed source selection
sensitive and proprietary information, and the protester, in response to
a request from the agency that the employee be isolated from the two
open task order competitions for which the improperly accessed
proprietary information would be competitively useful, refused to do so.
Arc-Tech, Inc., B-400325.3, February
19, 2009.
DIGEST: Agency may not exclude from the
competitive range a proposal that has not been determined technically
unacceptable without taking into account the proposal's price.
Northrop Grumman Space and Missile Systems
Corporation; Textron Marine & Land Systems Corporation B-400837;
B-400837.2; B-400837.3; B-400837.4; B-400837.5, February 17,
2009.
DIGEST: 1. Protest of agency evaluation of system
maturity of offerors' proposed joint light tactical vehicle
configurations is denied; agency reasonably determined that awardees had
previously constructed and tested demonstrators or prototypes that were
sufficiently representative of proposed configurations such that risk
awardees would be unable to meet demanding performance schedule was
materially reduced.
2. Agency reasonably determined that
incorporated joint venture awardee satisfied requirement for Cost
Accounting Standards disclosure statement where proposal included
disclosure statements originally submitted by, and concerning cost
accounting systems of, joint venture members/subcontractors; proposal
indicated that all costs to be billed under contract would be incurred
and accounted for by joint venture members/subcontractors, with no
allowance for any costs to be incurred and accounted for at joint
venture level; and proposal delineated overall share in cost of
performance and specific roles to be filled by each joint venture
member/subcontractor.
Kellogg Brown & Root Services, Inc., B-400614.3 ,
February 10, 2009.
DIGEST: Agency reasonably determined
that the protester's proposal, submitted in response to a
competitive solicitation for a task order for combat support services
issued under an indefinite-delivery/indefinite-quantity contract, was
unacceptable, and reasonably excluded the proposal from the task order
competition, where the proposal included an assumption regarding the
agency's provision of force protection to contractor employees
that, considered most favorably to the protester, rendered the proposal
ambiguous with regard to its acceptance of the solicitation's
material provisions regarding force protection.
Advanced Scientific Applications, Inc., B-400312.2,
February 5, 2009.
DIGEST: Protest that the solicitation for
Federal Supply Schedule (FSS) contract is defective because it includes
a standard contract cancellation clause set forth in General Services
Administration (GSA) Federal Acquisition Regulation Supplement §
552.238-73, is denied where the protester has not shown that the clause
exceeds the authority of the GSA in establishing FSS contracts, or
otherwise conflicts with statute or regulation.
Computer Cite, B-400830, February 3, 2009.
DIGEST: 1. Protest that award is improper because
awardee's parent company is not registered in the Central
Contractor Registration (CCR) database is denied since there is no
requirement in the Federal Acquisition Regulation that a potential
contractor's parent company be registered in the CCR.
2.
Protest that the agency improperly used an unstated evaluation criterion
is denied where the statement that gave rise to this protest ground was
made by a different contracting officer, in connection with a different
procurement than the one at issue in the protest.
3. Protest that
agency improperly evaluated protester's proposal for performance
confidence is denied where the record shows that, even if the
protester's proposal had received the highest possible rating for
performance confidence, the proposal would still have been rated no
higher than another lower-priced proposal, and therefore there was no
competitive prejudice to the protester.
e-Management Consultants, Inc.; Centech Group, Inc.,
B-400585.2; B-400585.3, February 3, 2009.
DIGEST: 1.
Agency reasonably cancelled solicitation based on concerns, supported by
the record, that the primary author of the solicitation's
statement of work and evaluation factors had a conflict of interest with
regard to one offeror.
2. GAO is not authorized to consider a
protest challenging the award of a task order valued at less than $10
million where the protest does not assert that the order increases the
scope, period, or maximum value of the contract under which the order
was issued.
Abba International, Inc. et al., B-311225.4,
February 2, 2009.
DIGEST: 1. Pursuant to the bid protest
authority granted GAO under the Competition in Contracting Act of 1984,
GAO will consider a protest of the terms of a request for competitive
rate tenders for transportation services, even though they are not
subject to the Federal Acquisition Regulations, where the responses will
form the basis for placement of government bills of lading for the
services; however, GAO will not consider issues relating to the
agency's decision not to include certain traffic channels in the
request for rate tenders since this involves the exercise of the
agency's business judgment and executive branch policy.
2.
As a general rule, solicitations must contain sufficient information to
allow offerors to compete intelligently and on a relatively equal basis,
although there is no requirement that a solicitation contain such detail
as to completely eliminate all risk or remove all uncertainty from the
mind of every prospective offeror.
Honeywell Technology Solutions, Inc., B-400771;
B-400771.2, January 27, 2009.
DIGEST: 1. Post-closing
time protest that awardee has an impermissible organizational conflict
of interest (OCI) is untimely where (1) solicitation was issued on an
unrestricted basis, (2) protester was aware of the underlying facts
giving rise to the potential OCI (and knew awardee was participating in
the procurement), and (3) in response to protester's inquiry,
agency specifically informed protester that it did not believe awardee
had an impermissible OCI.
2. Protest that awardee gained an unfair
competitive advantage through its retention of a former agency official
as a consultant will not be reviewed where the protester did not timely
report the underlying alleged procurement integrity provision violation
to the contracting agency within 14 days after the protester first
discovered the possible violation, as required by GAO's Bid
Protest Regulations.
3. Contracting agency engaged in meaningful
discussions where the agency advised protester of specific weaknesses
regarding its technical proposal; agency was not required to also afford
the protester an opportunity to cure proposal defects first introduced
either in response to discussions or in a post-discussion proposal
revision.
4. Protest challenging the evaluation of offerors'
technical proposals is denied where the record establishes that the
agency's evaluation was reasonable and consistent with the
evaluation criteria.
5. Protest challenging the agency's
cost realism evaluation of awardee's proposed staffing levels is
denied where the record demonstrates that the agency's conclusions
were reasonable.
6. Protest challenging the evaluation of
offerors' past performance is sustained where the record
establishes that the agency's evaluation was not reasonable or
consistent with the stated evaluation criteria.
SMARTnet, Inc., B-400651.2, January 27,
2009.
DIGEST: Protest against solicitation requirement
that telecommunications equipment be certified by the Joint
Interoperability Test Command at the time of submission of quotations is
sustained where the record does not establish that the requirement for
such certification at the time of quotation submission is necessary to
meet the agency's needs.
OPTIMUS Corporation, B-400777, January 26, 2009.
DIGEST 1. Protest asserting that General Services
Administration (GSA) contracting officials improperly rescored
quotations after technical evaluation was performed by requiring
activity (Indian Health Service) evaluators is denied where record shows
that GSA officials were adjusting numeric scores to more accurately
reflect evaluation criteria and source selection plan evaluation
standards, and made adjustments only after reviewing quotations and
initial evaluation results.
2. Protest that agency misevaluated
quotations is denied where record shows that evaluation was reasonable
and consistent with terms of solicitation and standards generally
applicable to negotiated procurements.
3. Agency's request
for vendor price reductions in Federal Supply Schedule acquisition
conducted under Federal Acquisition Regulation (FAR) part 8.4 did not
constitute discussions, and therefore did not trigger agency obligation
to engage in meaningful discussions, as would be required in a
negotiated acquisition conducted pursuant to FAR part 15; FAR part 8.4
expressly requires agencies to seek price reductions in specified
circumstances.
Critical Process Filtration, Inc., B-400746, B-400747,
B-400750, B-400751, B-400752, B-400785, January 22, 2009.
DIGEST: 1. Protester's contentions that three agency
procurements for brand-name filters improperly limit competition are
denied where the record shows that the agency is procuring the
brand-name items using simplified acquisition procedures and has
adequately justified the use of its brand-name approach under the
procedures applicable to simplified acquisitions.
2.
Protester's contention that a fourth agency procurement for
brand-name filters improperly limits competition is sustained where the
procurement history information set forth in the solicitation shows that
the value of the requirement is likely to exceed the applicable
simplified acquisition threshold of $100,000; accordingly, the
streamlined procedures applicable to simplified acquisitions cannot be
used for this requirement.
Gary Johnson -- Designated Employee Agent, B-310910.3,
January 21, 2009.
DIGEST: Designated Employee Agent is not
an interested party to protest actions other than agency's final
selection of the source of performance with regard to a public-private
competition conducted pursuant to Office of Management and Budget
Circular A-76 that was initiated prior to January 28, 2008.
Tiger Truck, LLC, B-400685, January 14, 2009.
DIGEST: In a procurement covered by the Trade Agreements Act
(TAA), protest of an award to a vendor whose quotation identified
products that were not TAA-compliant is sustained, where the agency
failed to follow required evaluation procedures for TAA procurements,
improperly failed to ascertain whether the products identified by the
protester were TAA-compliant, and did not conduct meaningful discussions
with the protester even though the agency regarded the protester's
quoted price as unreasonably high.
Granite Construction Company, B-400706, January 14,
2009.
DIGEST: Protest challenging evaluation of
protester's technical proposal as unacceptable is denied where
record demonstrates agency reasonably concluded that protester's
offered small business subcontracting plan did not meet the
solicitation's subcontracting requirements or provide sufficient
rationale supporting its lower goals; protester's arguments amount
to mere disagreement with agency's conclusions.
DBI Waste Systems, Inc., B-400687; B-400687.2, January
12, 2009.
DIGEST: 1. Protest that agency's publishing
of notice of solicitation on government-wide point of entry was
inadequate because protester lacks internet access is denied; potential
offerors are on constructive notice of solicitation notice published on
GPE.
2. Protest that awardee's proposal was ineligible for
award because it did not acknowledge solicitation amendment is denied
where record establishes that amendment was immaterial; failure to
acknowledge immaterial amendment was properly waived by agency.
Marinette Marine Corporation,
B-400697; B-400697.2; B-400697.3, January 12, 2009.
DIGEST: 1. Protester's proposal submitted in response
to a solicitation issued by the Coast Guard for Fast Response Cutters,
B-Class (FRC-B) was reasonably evaluated under an evaluation subfactor
as “unsatisfactory,” and subsequently determined to be
ineligible for award, where the “unsatisfactory” rating was
due to the proposed FRC-B, as set forth in the proposal, failing to meet
a material solicitation requirement regarding the stability of the
vessel.
2. Awardee's proposal submitted in response to a
solicitation issued by the Coast Guard for Fast Response Cutters,
B-Class (FRC-B) was reasonably evaluated under an evaluation subfactor
as “satisfactory” where certain evaluated weaknesses
concerning the structure of the vessel were reasonably found by the
agency not to materially affect the compliance of the proposal with the
solicitation's requirements.
3. Agency reasonably evaluated
the awardee's past performance as “marginal” with
“low risk,” notwithstanding the awardee's
unsatisfactory performance on a relevant contract, where the
awardee's past performance on contracts that were reasonably found
to be more relevant was “excellent” or “very
good,” and the agency reasonably accounted for the contract with
the unsatisfactory past performance in the evaluation and award
selection.
4. Price reasonableness evaluation conducted under a
solicitation for the design and construction of a vessel is
unobjectionable where the agency's evaluation took into account
the specifics of the vessels being offered in determining that the
awardee's proposed price was reasonable.
5. Assistance
provided to the awardee during the proposal preparation process by an
entity that also assisted the contracting agency in the evaluation of
proposals did not create a significant “impaired
objectivity” organizational conflict of interest that had to be
avoided, neutralized, or mitigated, where the record reflects that the
entity also provided advice to the protester during the proposal
preparation process; any potential benefit to the entity is speculative
and too remote to establish a significant conflict of interest; and the
record otherwise reflects that there is no reasonable possibility of
prejudice, as evidenced by the fact that the entity, in evaluating
proposals, was more critical of the awardee's proposal than it was
of the protester's proposal.
Cambridge Systems, Inc., B-400680;
B-400680.3, January 8, 2009.
DIGEST: Agency's
decision to establish a revised competitive range and conduct
discussions with small business concerns whose proposals were deemed the
most highly rated rather than withdraw the set-aside and reissue the
solicitation on an unrestricted basis was reasonable under the
circumstances; the exclusion of technically marginal proposals from the
competitive range, while permissible, is not required.
PWC
Logistics Services Company, B-400660, January 6, 2009.
DIGEST: 1. Agency properly issued waiver in accordance with
Federal Acquisition Regulation § 12.302(c), for commercial item
solicitation requirements that may be inconsistent with customary
commercial practice, where agency reasonably found that requirements
subject to waiver were legitimate agency needs.
2. Solicitation is
defective for failure to adequately identify bases for proposal
evaluation, as required by Competition in Contracting Act of 1984, 10
U.S.C. 2305(a), where the solicitation divides requirement for food
distribution into two geographic zones, with estimated value of one
nearly five times that of the other, expresses intent to award each zone
to different offeror, but fails to state factors that will be applied to
determine which zone will be awarded to offeror whose proposal is found
most advantageous for both zones.
Spaltudaq Corp., B-400650; B-400650.2, January 6, 2009 Protest that agency unreasonably discontinued negotiations under a Broad Agency Announcement is denied, where the agency reasonably determined, after four months of negotiations, that the parties could not reach agreement on contract terms concerning intellectual property rights.
Nortel Government Solutions, Inc.,
B-299522.5; B-299522.6, December 30, 2008.
DIGEST:
Where offeror will be required to review and provide input on designs
proposed by itself under separate contract with same agency, agency
unreasonably failed to determine the extent of offeror's
organizational conflict of interest (OCI) and unreasonably concluded
that offeror's mitigation plan was acceptable, where it did not
avoid, mitigate, or neutralize the OCI and instead relied on
agency's existing process that made government responsible for
final decisions.
USGC Inc., B-400184.2; B-400184.3; B-400184.4, December
24, 2008.
DIGEST: 1. Agency's exchanges with the
vendors in a procurement conducted under the Federal Supply Schedule,
and the evaluation of the vendor responses to those exchanges, were fair
and equitable.
2. Agency's selection of lower-priced,
highest technically rated quotation in a procurement conducted under the
Federal Supply Schedule was reasonable, consistent with the stated
evaluation criteria, and adequately documented.
Raytheon Company-Integrated Defense Systems, B-400610;
B-400618; B-400619, December 22, 2008.
DIGEST:
Sole-source awards of follow-on contracts for the continued development
of a sophisticated weapon system are unobjectionable where the agency
reasonably determined that award to any other source would be likely to
cause unacceptable delays in fulfilling the agency's requirements.
Datamaxx Group, Inc., B-400582, December
18, 2008.
DIGEST: Protest that agency improperly proposes
to issue a task order under an indefinite-delivery/indefinite-quantity
contract without considering a small business set-aside is dismissed as
untimely where the protest was filed after the closing date for
submission of proposals under the solicitation for the
indefinite-delivery/indefinite-quantity contract, and the solicitation
provided clear notice that its scope included the services under the
task order.
Major Contracting Services, Inc., B-400737.2, December
17, 2008.
DIGEST: Corrective action (consisting of
terminating the protested award, canceling the solicitation, issuing a
new solicitation, obtaining proposals, and making a new selection
decision) taken by an agency in response to a prior protest is
reasonable where the agency needs to evaluate offerors' ability to
meet contract specifications but the solicitation failed to require
offerors to submit technical proposals.
Hart Security Limited, B-400796.2, December 16,
2008.
DIGEST: 1. Where solicitation amendment provided
that a successful offeror must hold a facility security clearance in
order to perform the solicitation requirements, and protester submitted
a proposal responding to those requirements, protester's
post-closing-date protest challenging the agency's amendment of
the solicitation is not timely filed.
2. Even if protest were
timely filed, protester's complaint that agency delayed
identification of the facility clearance requirement for 6 weeks
following initial solicitation publication fails to state a basis for
protest.
Mill City Partnership, B-400712, December 16, 2008.
DIGEST: Bid of a joint venture, which submitted a bid bond in
the name of only one of the corporations forming the joint venture, was
properly rejected by the agency as nonresponsive.
Orbital Sciences Corporation, B-400589; B-400589.2, December 15, 2008. NAVAIR procurement. Orbital argues that award to ATK is precluded by a conflict of interest arising out of ATK's employment of a former NAVAIR official. GAO dismisses the protest finding that Orbital knew of the alleged possibility of a Procurement Integrity Act violation more than six months prior to filing the protest and that both GAO regulations and the Act require notice to the CO within 14 days
Madison Services, Inc., B-400615,
December 11, 2008.
DIGEST: 1. Small Business
Administration's (SBA) decision to accept requirements into its
8(a) program, notwithstanding the fact that the solicitations for the
requirements previously had been issued as small business set-asides, is
unobjectionable where SBA concluded that the relevant procurement
history supported the view that the initial small business set-asides
were issued in error and therefore justified the application of the
“extraordinary circumstances” provision under SBA's
regulations.
2. SBA properly accepted requirements into the 8(a)
program without first determining whether doing so would have an adverse
impact on existing small business concerns where the requirements
qualified as new under SBA's regulations.
Detica, B-400523; B-400523.2 December 2, 2008.
DIGEST: 1. Protest that successful vendor has an
impermissible “biased ground rules” type of organizational
conflict of interest is denied, where record shows that, contrary to
protester's assertion, former agency official working for
successful vendor did not participate in planning the acquisition or
preparing the solicitation.
2. Protest that agency evaluator was
biased in favor of successful vendor is denied where protester presents
no evidence to support its assertion and record shows that evaluator in
question rated protester's and successful vendor's
quotations consistently.
3. Protest challenging agency's
technical evaluation of protester's quotation is denied where
record supports agency's evaluation conclusions, including its
criticisms of protester's quotation.
4. Protest challenging
agency's selection decision is denied where record reflects
reasoned judgment of source selection official, and selection was
consistent with terms of solicitation.
Nordic Air, Inc., B-400540 , November 26, 2008.
DIGEST: Protest of agency's award to firm that offered
products that have not been assigned the national stock numbers (NSN)
referenced in solicitation is denied where solicitation referenced NSNs
for illustrative purposes to describe types of required items, along
with list of salient characteristics of the items, and encouraged
offerors to propose alternative terms and commercial items to meet
solicitation's requirements.
Sallie Mae, Inc., B-400486 November 21, 2008.
DIGEST: Protest that modification of contract for management
of student loans to include the servicing of loans the government will
acquire pursuant to recent legislation is denied where protester fails
to demonstrate that contract, as originally awarded, did not contemplate
the servicing of the type of loans to be acquired.
Major Contracting Services, Inc., B-400616, November
20, 2008.
DIGEST: Where an awardee was found to be
ineligible for service-disabled veteran-owned small business concern
(SDVOSBC) status by the Small Business Administration (SBA) and the
SBA's Office of Hearings and Appeals based on a timely status
protest filed after award under an SDVOSBC set-aside, the agency was not
required to terminate the contract under the SBA's applicable
regulations.
Advant-EDGE Solutions, Inc., B-400367.2, November 12,
2008 .
DIGEST: 1. Where solicitation did not require
offeror itself to possess specific licenses and permits, agency properly
evaluated licenses and permits issued in name of awardee's
subcontractor.
2. Evaluation of protester's proposal was
unobjectionable where, due to weakness associated with
“sharps” exchange program, agency reasonably evaluated
proposal as satisfactory and, although it experienced difficulty in
contacting protester's past performance references, reasonably
evaluated past performance as low risk.
Coffman Specialties, Inc. B-400706.2, November 12,
2008.
DIGEST: Protest based on speculation is dismissed
because the protester failed to state sufficient legal and factual
grounds for protest as a direct result of not making a timely request
for a post-award debriefing.
VT Griffin Services, Inc., B-299869.2, November 10,
2008.
DIGEST: 1. Protester's challenge to the
evaluation of its key personnel experience is denied where the resume
for a proposed individual did not list employment that demonstrated
compliance with the minimum experience requirements.
2.
Protester's challenge to the evaluation of its staffing plan is
denied where agency reasonably determined that the protester did not
propose sufficient higher-skilled personnel, and also reasonably
determined that the proposal's cross-utilization staffing approach
did not address this weakness.
Bay Area Travel, Inc.; Cruise Ventures, Inc.;
Tzell-AirTrak Travel Group, Inc., B-400442; B-400442.2; B-400442.3;
B-400547; B-400547.2; B-400547.3; B-400564; B-400564.2; B-400564.3,
November 5, 2008.
DIGEST: 1. GAO will review the issuance
of task and delivery order in excess of $10,000,000 under
indefinite-delivery/indefinite-quantity contracts to ensure that the
“enhanced competition” requirements of the National Defense
Authorization Act are met and to ensure that the evaluation is in accord
with the solicitation and applicable procurement laws and regulations.
2. Protests challenging the issuance of three task orders for
travel services are denied where the agency evaluated proposals
consistent with the evaluation criteria stated in the solicitation and
reasonably selected the higher technically rated, higher priced
proposals.
Celadon Laboratories, Inc.--Costs, B-298533.2. November
7, 2008.
DIGEST: 1. Proposal preparation costs should not
be reimbursed to the extent that the claimed hours are excessive.
2. Hourly rates for individuals may not be the basis for reimbursement
of proposal preparation costs where the rates include profit.
Maryland State Department of Education, B-400583;
B-400583.2, November 7, 2008.
DIGEST: Government
Accountability Office will not consider protest by state licensing
agency (SLA) challenging the elimination of its proposal from the
competitive range under a solicitation issued pursuant to the
Randolph-Sheppard Act (RSA) because mandatory binding arbitration
procedures by the Department of Education are provided for under the RSA
to resolve the SLA's complaint. [Good discussion of Kentucky, Educ. Cabinet,
Dept. for the Blind v. U.S., 424 F.3d 1222 (Fed. Cir. 2005), which
addressed jurisdiction of RSA protests.]
Asia Resource Partners K.K., B-400552,
November 5, 2008.
DIGEST: Protest arguing that agency
acted improperly when it excluded offeror from competition for contracts
at the base where the wife of the offeror's president serves as a
contracting officer is denied because the agency decision was a
reasonable attempt to avoid the appearance of impropriety.
Bruce Bancroft--Agency Tender Official; Sam
Rodriquez--Designated Employee Agent, B-400404.2; B-400404.3;
B-400404.5, October 31, 2008.
DIGEST: Agency tender
official and designated employee agent are not interested parties to
protest agency actions other than final selection of the source of
performance with regard to a pending public-private competition being
conducted pursuant to Office of Management and Budget Circular A-76 that
was initiated prior to January 28, 2008.
Triple Canopy, Inc., B-310566.4, October 30, 2008.
DIGEST: 1. Pursuant to the National Defense Authorization Act
of 2008, which authorizes protests of task orders valued in excess of
$10 million, this Office's consideration of such protests will
include an assessment of whether a procuring agency's source
selection decision was reasonably consistent with the terms of the
underlying solicitation and applicable procurement laws and regulations.
2. Where, prior to the submission of proposals, the agency
expressly advised offerors that it would not require contractors to
obtain facilities security clearances to perform task order
requirements, protest that awardee was ineligible for task order award
on the basis that it does not hold a facilities clearance is essentially
an untimely challenge to the terms of the solicitation.
3. Protest
that agency failed to reasonably evaluate the past performance of
protester and awardee is denied where agency's past performance
evaluation record is consistent with solicitation's definition of
relevant past performance, contains adequate contemporaneous
documentation supporting the agency's assessments, and the
opinions of protester's personnel regarding the awardee's
prior performance provide no credible basis to question the
reasonableness of the agency's assessments.
Turner Consulting Group, Inc., B-400421, October 29,
2008 .
DIGEST: Where a request for quotations contains a
late submission clause and provides for the electronic submission of
quotations, an agency reasonably rejected protester's quotation as
late where there was no evidence that the quotation was received by the
time specified for the submission of quotations.
Seaborn Health Care, Inc., B-400429, October 27,
2008.
DIGEST: Protest is sustained in Federal Supply
Schedule (FSS) acquisition where request for quotations (RFQ) requires
that competing vendors offer non-FSS services (specific on-site
supervisory personnel) as part of their quotations, since non-FSS
products and services may not be purchased using FSS procedures.
T-L-C Systems, B-400369 . October 23,
2008.
DIGEST: Protest that agency improperly awarded fire
alarm contract on sole-source basis is denied where agency has shown
that immediate replacement of 51 failed fire alarms was necessary to
prevent serious injury to property or loss of life, and the agency
procured the only alarms compatible with the agency's current
central alarm receiver.
Optelec U.S., Inc.. B-400349; B-400349.2, October 16,
2008.
DIGEST: Protest that failure to submit timely
response to solicitation resulted from agency's failure to provide
timely notice of solicitation is denied where agency advised protester
that solicitation would be posted on FedBizOpps website, and protester
then failed to avail itself of all reasonable means to view solicitation
when it was posted.
Aegis Defence Services Limited, B-400093.4; B-400093.5,
October 16, 2008.
DIGEST: 1. Protest that agency
misevaluated awardee and protester under experience and past performance
factors by downgrading protester based on its limited experience in
Afghanistan, and by giving awardee credit for experience of its
subcontractors, including contracts performed in Afghanistan, is denied
where agency judgments were reasonable and consistent with terms of
solicitation.
2. Protest that agency improperly disregarded risk
posed by awardee's low price is denied where record demonstrated
that agency had compared individual fixed price line items to government
estimate and to prices offered by competitors, identified those where
there were significant differences, and documented the agency's
basis for concluding that the awardee's prices were reasonable.
Fintrac, Inc., B-311462.2; B-311462.3,
October 14, 2008.
DIGEST: 1. Protest challenging
agency's revision to scoring methodology used to evaluate
offerors' technical proposals is denied where the revision
reasonably addressed an error in the agency's prior scoring
methodology.
2. Protest challenging agency's evaluation of
offerors' technical and cost proposals is denied where the record
supports the reasonableness of the evaluations.
Delex Systems, Inc., B-400403, October 8, 2008.
DIGEST: 1. The set-aside provisions of Federal Acquisition
Regulation (FAR) § 19.502-2(b) apply to competitions for task and
delivery orders issued under multiple-award contracts.
2. Protest
is sustained where agency failed to comply with the set-aside provisions
of FAR § 19.502-2(b), when issuing, on an unrestricted basis, the
solicitation for a delivery order under multiple-award contracts.
3. Protest alleging that agency erred in concluding that it had no
reasonable expectation of receiving offers from two small businesses is
sustained where the record shows that the agency's set-aside
determination is not adequately supported by the record.
Burchick Construction Company, B-400342, October 6,
2008.
DIGEST: Agency failed to conduct meaningful
discussions in a negotiated procurement, where discussions conducted
with offerors were limited to cost proposals and did not identify
significant weaknesses or deficiencies that the agency had identified in
the protester's technical proposal.
Information Ventures, Inc., B-299361.2;
B-299361.3, October 1, 2008.
DIGEST: 1. Agency's
evaluation of the protester's proposal, submitted in response to a
solicitation for the management of chemical and biological databases,
was reasonable and in accordance with the solicitation's
evaluation criteria, where the protester's proposal was downgraded
because, among other things, one of the proposed key personnel lacked
certain experience and training, and where the protester's initial
proposal and final proposal revision stated that certain details
regarding the protester's proposed approach were not provided
because of what the protester viewed as informational deficiencies in
the solicitation, and that this information would be provided during
contract performance.
2. Discussions conducted by the agency were
meaningful where they identified the evaluated deficiencies and
significant weaknesses in the protester's proposal; there is no
requirement that discussions be all encompassing, or that an agency, in
identifying the deficiencies and significant weakness in a proposal,
also identify possible solutions to those deficiencies and significant
weaknesses.
Simont S.p.A., B-400481, October 1, 2008.
DIGEST: Protest is denied where invitation for bids required
submission of a bid guarantee, the protester failed to submit a bid
guarantee, and the agency rejected the bid, notwithstanding the
confusion regarding the agency's intent to delete a conflicting
mislabeled bid guarantee provision, and the protester's claim that
the omission of a bid guarantee was in good faith.
Helicopter Transport Services LLC, B-400295;
B-400295.2, September 29, 2008.
DIGEST: 1. Protest
that agency improperly evaluated proposals under one of four technical
factors on a pass/fail basis is sustained where the solicitation, by
stating that the four technical factors were listed in descending order
of importance and calling for a price/technical tradeoff, contemplated
that each technical factor would be evaluated qualitatively.
2.
Protest that agency improperly evaluated protester's past
performance is sustained where the record contains no contemporaneous
documentation of the oral discussion that the agency states provided the
basis for the evaluation, and the evaluators relied on unidentified
written documents.
PR Newswire Association, LLC, B-400430, September 26,
2008.
DIGEST: Agency was not required to provide actual
notice of solicitation to incumbent contractor; posting of solicitation
on FedBizOpps Internet site provided constructive notice to all
potential offerors, including protester.
FitNet Purchasing Alliance, B-400553, September 24,
2008.
DIGEST: Protest alleging solicitation impropriety is
dismissed as untimely where protest was not considered to have been
filed with GAO until after the time set for receipt of quotations.
Armorworks Enterprises, LLC, B-400394;
B-400394.2, September 23, 2008.
DIGEST: 1. Protest
allegations challenging agency's methodology for testing body
armor are dismissed as untimely where the alleged problems were apparent
from the face of the solicitation and the protester failed to raise its
concerns prior to the time set for receipt of proposals.
2. To be
timely, challenge to solicitation amendment, issued after initial
proposals had been submitted and which did not provide offerors with an
opportunity to submit revised proposals, should have been filed within
10 days of the issuance of the amendment.
Gentex Corporation, B-400328; B-400328.2, September 23,
2008.
DIGEST: 1. Where it was apparent, prior to closing
time for receipt of proposals, that Federal Prison Industries (FPI)--a
federally-owned corporation--was a potential competitor in supply
procurement, protest that agency should have provided for cost analysis
under Office of Management and Budget Circular A-76, based on notice of
award to FPI, is untimely; protest concerns a solicitation impropriety,
and therefore should have been filed prior to the closing time for
receipt of proposals.
2. Agency reasonably evaluated
awardee's proposal as satisfactory, despite catastrophic hardware
failure in one ballistics test, where it concluded that correction of
deficiency was simple and solicitation defined satisfactory rating as
including deficiencies that will require preventative corrective action
in production.
3. Agency reasonably evaluated awardee's and
protester's past performance/ experience as satisfactory where
protester had performed more helmet contracts than awardee, including
current version, but had never produced required new version of helmet,
which included more stringent testing requirements, and awardee had
produced similar helmets.
International Business & Technical Consultants, Inc.,
B-310424.2; B-310424.3; B-310424.4, September 23, 2008.
DIGEST: 1. Protest challenging agency's evaluation of
protester's technical proposal is denied where record demonstrates
that evaluation was reasonable and consistent with stated evaluation
criteria.
2. Protest that agency failed to hold meaningful
discussions with protester is denied where record shows that discussions
either were adequate to lead protester into areas of its proposal with
which agency was concerned, or that allegations concern minor weaknesses
that agency was not required to discuss.
3. Raising limited
cost-related questions with awardee during second round of discussions,
while requesting protester's revised proposal without further
questions, did not constitute improper disparate discussions; agency
conducted detailed initial discussions with both offerors and found
revised proposals acceptable, and only remaining questions concerned
matters unique to awardee's cost proposal.
BAE Systems San Diego Ship Repair, B-400350, September
22, 2008.
DIGEST: Requirement in invitation for bid for
drydock and repair of a Coast Guard cutter that work be done at
“Contractor's facility” did not render nonresponsive
the bid of awardee, which proposed to perform the work at a Navy-owned
drydocking facility under a use agreement between the awardee and the
Navy, in the absence of an IFB provision that precluded the use of
government-owned drydocking facilities.
International Program Group, Inc., B-400278; B-400308,
September 19, 2008.
DIGEST: 1. Given the unambiguous
language of the applicable statutes regarding the Historically
Underutilized Business Zone (HUBZone) and service-disabled veteran-owned
small business concern (SDVOSBC) programs, contracting agency, before
proceeding with an SDVOSBC set-aside, must first reasonably consider
whether the conditions for a HUBZone set-aside exist, and, if they do,
agency must proceed with a HUBZone set-aside.
2. Protests
challenging agency's decision to acquire services through SDVOSBC
set-asides are sustained where the agency failed to reasonably consider
the possibility of a HUBZone small business set-aside, by failing to
make a reasonable inquiry into the availability of HUBZone small
businesses.
Radiation Oncology Group of WNY, PC, B-310354.2;
B-310354.3, September 18, 2008.
DIGEST: 1. Protest is
sustained where agency permitted awardee to submit additional support
for technical proposal after deadline for submission of final proposal
revisions; agency's acceptance of information violated
solicitation's late proposal clause and constituted improper
discussions with a single offeror.
2. Contracting officer's
conclusion that protester's and awardee's proposals were
technically equal was unreasonable, and protest is sustained, where
determination lacks adequate supporting explanation or documentation.
Richard Bowers & Company, B-400276,
September 12, 2008.
DIGEST: Protest challenging
solicitation requirement for a minimum building floor plate of 18,000
square feet as unduly restrictive of competition is denied where agency
demonstrates a reasonable basis for the requirement.
AT&T Government Solutions, Inc., B-400216, August 28,
2008.
DIGEST: Protest of firm's elimination from
competition due to perceived organizational conflict of interest (OCI)
is sustained where agency failed to evaluate protester's proposed
mitigation plan, failed to consider whether protester would actually be
in a position to evaluate its own products, and did not give protester
notice of and an opportunity to respond to OCI findings prior to
firm's disqualification.
Hendry Corporation, B-400224.2, August 25, 2008.
DIGEST: Protest challenging contracting officer's
affirmative determination of responsibility regarding the awardee is
dismissed where the assertion on which the protest is basedÑfailure to
consider allegedly poor business performance by principal members of the
awardee during their association with a previous firmÑdoes not
constitute the type of information that, by its nature, would be
expected to have a strong bearing on whether the awardee should be found
responsible, as required under Government Accountability Office (GAO)
Bid Protest Regulations for GAO review of such a protest.
ASRC Research & Technology Solutions, LLC, B-400217;
B-400217.2, August 21, 2008.
DIGEST: 1. Protest is
sustained where agency unreasonably concluded that the protester's
proposed plan for capturing incumbent personnel presented significant
technical risk. The agency's technical evaluation in this regard
stemmed from its determination, in the context of the agency's
cost evaluation, that the protester's weighted average direct
labor rates were too low to successfully capture incumbent employees.
This conclusion, however, was based upon the premise that the
agency's own unweighted average direct labor rates were a better
reflection of the cost of the incumbent workforce, a premise not
supported by the record.
2. Agency's evaluation of the
awardee's past performance was unreasonable since the agency did
not consider the substantial difference in size between the
awardee's past performance references and the size of the
contemplated contract, as required by the solicitation.
Ahntech-Korea Company, Ltd., B-400145.2, August 18,
2008.
DIGEST: Protest that agency improperly evaluated
protester's experience is denied where record shows agency
properly determined that protester did not have 3 years of relevant
experience, as required by solicitation, and experience of
protester's parent company could not properly be considered
because proposal did not establish that parent company's resources
were committed to contract performance.
Domain Name Alliance Registry, B-310803.2, August 18,
2008.
DIGEST: 1. Protest arguing that the agency could not
properly complete a reevaluation, pursuant to an earlier corrective
action, without holding discussions with the protester, and allowing it
to submit a revised proposal, is dismissed as untimely where the
protester waited until the second award decision to challenge the lack
of opportunity for discussions, despite the fact that the agency's
actions--from the time it initiated the corrective action until the
second award decision--clearly indicated that the agency did not
contemplate holding discussions.
2. Protester challenging
agency's evaluation of offerors' quotes is denied where the
record supports the reasonableness of the evaluations.
Labatt Food Service, Inc., B-310939.6, August 18,
2008.
DIGEST: 1. Protest that the agency improperly
rejected the protester's proposal due to the late acknowledgement
of an amendment is denied where the solicitation stated that the
deadline in the solicitation would be used to assess whether submissions
were late, and the record establishes that the proposal did not meet the
deadline in the solicitation.
2. Notwithstanding that each of the
offerors submitted its proposal by a method not permitted by the
solicitation, protest that agency was required to reject all
offerors' proposals as late is denied; the protester has failed to
show how it was prejudiced by the agency's failure to enforce the
method of submission requirement.
G.
Koprowski, B-400215, August 12, 2008.
DIGEST: Protest
that solicitation for medical research services requiring the work to be
performed on-site at agency violates statute barring agencies from
discouraging government contractors from allowing their employees to
telecommute is denied where the record shows that the agency reasonably
determined that on-site performance was necessary to meet its needs
because, among other reasons, the contractor will need to use highly
specialized government equipment located on-site to conduct the
research, as well as interact with research subjects and other
government personnel.
Lockheed Martin MS2 Tactical Systems, B-400135;
B-400135.2, August 8, 2008.
DIGEST: Agency reasonably
determined, in procurement for unmanned maritime surveillance aircraft,
that awardee had significant advantage over protester with respect to
past performance where: protester's subcontractor, responsible for
approximately 50 percent of contract effort, had recent past performance
history of being unable to resolve staffing and resource issues,
resulting in adverse cost and schedule performance on very relevant
contracts for unmanned aircraft; record did not demonstrate that
protester's subcontractor had implemented systemic improvement
that resulted in improved performance; while operating division of the
awardee also had performance problems on very relevant contracts for
unmanned aircraft, many had been addressed through systemic improvement;
and overall performance of awardee's team on most evaluated
contract efforts was rated better than satisfactory, while the overall
performance of protester's team on 11 of 26 contract efforts was
only marginal.
Carahsoft Technologies Corporation and Avue Technologies
Corporation, B-400405, August 4, 2008.
DIGEST:
Pursuant to statutory and regulatory limitations on this Office's
jurisdiction to hear protests challenging Transportation Security
Administration (TSA) procurements, this Office will not consider a
protest challenging a TSA procurement conducted in connection with a
solicitation issued prior to June 23, 2008.
John Gage--Designated Employee Agent, B-400379,
August 4, 2008.
DIGEST: Pursuant to statutory and
regulatory limitations on this Office's jurisdiction to hear
protests challenging Transportation Security Administration (TSA)
procurements, this Office will not consider a protest challenging a TSA
procurement conducted in connection with a solicitation issued prior to
June 23, 2008.
Gary M. Williamson--Agency Tender Official, B-400153,
August 1, 2008.
DIGEST: Agency tender official is not an
interested party to protest agency actions other than final selection of
the source of performance with regard to a pending public-private
competition, to be conducted pursuant to Office of Management and Budget
Circular No. A-76, that was initiated prior to enactment of the National
Defense Authorization Act of 2008.
Exec Plaza, LLC, B-400107; B-400107.2, August 1,
2008.
DIGEST: Protest challenging terms of a solicitation
for lease of office space that apply only to the incumbent lessor is
denied where the agency demonstrates that the requirements are
reasonable, despite imposing unequal burdens on the protester.
ECI Defense Group, B-400177; B-400177.2, July 25,
2008.
DIGEST: 1. Offeror's failure to acknowledge a
material amendment to a request for proposals which significantly
altered the government's guaranteed minimum quantity renders the
proposal unacceptable.
2. Protester is not an interested party to
maintain protest challenging proposal evaluation where it did not
acknowledge material amendment; protester would be ineligible for award
even if protest of evaluation were sustained.
Environmental Protection Agency; CGI Federal,
Inc.--Reconsiderations, B-299504.3; B-299504.4, July 23, 2008.
DIGEST: GAO will not grant request to vacate protest decision
based on subsequent developments where the parties requesting such
action have not demonstrated that newly-disclosed information has
rendered the decision as issued invalid, or that the public interest
would be served by vacating the decision.
Systems Research and Applications Corporation,
B-400227, July 21, 2008.
DIGEST: Where protest
challenges the issuance of a task order that occurred prior to the
effective date of the provision of the National Defense Authorization
Act of Fiscal Year 2008 that provides statutory authority for this
Office to review protests challenging task orders, the applicable
provisions of the Federal Acquisition Streamlining Act of 1994 preclude
this Office's consideration of the protest
Advanced Seal Technology, Inc., B-400088; B-400089,
July 14, 2008.
DIGEST: Protests challenging agency's
decision to proceed with procurements for an item requiring source
approval on the basis that the protester was deprived of a reasonable
opportunity to requalify its alternate item is denied where the
protester was notified of its removal as an approved source and the
reasons for the removal before the challenged solicitations were issued;
contracting agency need not delay a proposed procurement while a vendor
pursues qualification of its product.
Aquaterra Contracting, Inc., B-400065, July 14,
2008.
DIGEST: Protest of agency's rejection of bid
as late is denied where bidder's failure to address and label its
bid package as instructed by the solicitation was paramount cause of its
late arrival to bid opening location.
L-3
Communications EOTech, Inc., B-311453; B-311453.2, July 14, 2008.
DIGEST: Protester's challenge to the exclusion of its
proposal from the competitive range based on the failure of its bid
sample during testing to satisfy an “essential criteria” is
denied, where the solicitation advised offerors that the failure to
satisfy an “essential criteria” would result in elimination
of the proposal from the competition, the agency's testing method
was reasonable and consistent with the solicitation instructions, and
the protester's complaint about the test failure was related to
its inadequately written proposal.
Colliers International, B-400173, July 3, 2008.
DIGEST: Protest that agency improperly obtained services
outside scope of multiple-award indefinite-delivery/indefinite-quantity
contract is denied where the services were reasonably encompassed by the
contract at issue.
New Jersey & H Street, LLC, B-311314.3, June 30,
2008.
DIGEST: 1. Protest is sustained where agency
credited awardee's proposed building with availability of certain
future amenities based solely on promise in offer, without requiring
supporting evidence that amenities would exist, which was required by
solicitation; agency essentially relaxed evidence requirement only for
awardee, without providing protester with opportunity to propose
amenities under relaxed standard.
2. Protest that agency failed to
engage in meaningful discussions is sustained where agency failed to
raise during discussions significant weaknesses associated with access
to amenities in or near protester's proposed office building.
Precision Lift, Inc., B-310540.4, June
26, 2008.
DIGEST: 1. Agency reasonably determined that the
awardee's quotation complied with the solicitation's
requirement that a commercial, non-developmental item be provided, where
the awardee's offered item has been previously offered for sale to
the general public, although none have been sold.
2.
Agency's evaluation of quotations is reasonable, where the record
of the technical evaluation evidences that the agency reasonably
determined that the awardee's quoted item was technically superior
to that quoted by the protester, and the record of the past performance
evaluation evidences that the agency reasonably determined that previous
contracts performed by the awardee were for items similar to those
sought in this procurement.
Master Lock Company, LLC, B-309982.2, June 24, 2008.
DIGEST: 1. Protest is sustained where agency's
evaluation of awardee's proposal as “neutral” under
two evaluation factors resulted in those factors not being considered in
the tradeoff determination, which was inconsistent with
solicitation's award criteria.
2. Protest is denied where
agency reasonably relied on awardee's representations regarding
compliance with the Trade Agreements Act.
Global Solutions Network, Inc., B-298682.3;
B-298682.4, June 23, 2008.
DIGEST: 1. Protest is
denied where agency evaluation of proposals was reasonable and conformed
to solicitation in most respects, and protester was not competitively
prejudiced by agency evaluation either of past performance information
submitted after deadline in solicitation, or additional pages in resume
for awardee's key personnel.
2. Protest that awardee's
price was unreasonably low is denied where the awardee's price was
significantly lower than the government estimate, but was considered
reasonable given the agency's receipt of a similar price from a
third, highly-rated, offeror.
Trammell Crow Company, B-311314.2, June 20, 2008.
DIGEST: 1. Protest is sustained where agency improperly
credited awardee's proposed building with availability of certain
future amenities; while solicitation required third party evidence that
amenities “will exist” by date of occupancy, awardee only
provided in its proposal its own commitment that it would provide the
amenities in its building by occupancy date.
2. Protest that
agency failed to engage in meaningful discussions with the protester is
sustained where agency failed to raise significant weaknesses associated
with protester's key personnel during discussions.
DIT-MCO International Corporation, B-311403, June 18,
2008.
DIGEST: Protest that agency failed to conduct an
adequate best value analysis is denied where award was made to the lower
priced of two technically equal proposals and the protester does not
timely challenge either the underlying technical or price evaluations;
in a negotiated procurement with a best value evaluation award
methodology, where selection officials reasonably regard proposals as
being essentially equal technically, price properly may become the
determining factor in making award, notwithstanding that the
solicitation assigned price less importance than technical
factor.[Historical note. I first ran across this company in 1962 when
working on the Atlas missile program. DITMCO then stood for the Drive-In
Theatre Manufacturing Company, see http://www.ditmco.com/history.
asp, -JAW]
The
Boeing Company File: B-311344; B-311344.3; B-311344.4; B-311344.6;
B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008.
DIGEST: 1. Protest is sustained, where the agency, in making
the award decision, did not assess the relative merits of the proposals
in accordance with the evaluation criteria identified in the
solicitation, which provided for a relative order of importance for the
various technical requirements, and where the agency did not take into
account the fact that one of the proposals offered to satisfy more
“trade space” technical requirements than the other
proposal, even though the solicitation expressly requested offerors to
satisfy as many of these technical requirements as possible.
2.
Protest is sustained, where the agency violated the solicitation's
evaluation provision that “no consideration will be provided for
exceeding [key performance parameter] KPP objectives” when it
recognized as a key discriminator the fact that the awardee proposed to
exceed a KPP objective relating to aerial refueling to a greater degree
than the protester.
3. Protest is sustained, where the record does
not demonstrate the reasonableness of the agency's determination
that the awardee's proposed aerial refueling tanker could refuel
all current Air Force fixed-wing tanker-compatible receiver aircraft in
accordance with current Air Force procedures, as required by the
solicitation.
4. Protest is sustained, where the agency conducted
misleading and unequal discussions with the protester, where the agency
informed the protester that it had fully satisfied a KPP objective
relating to operational utility, but later determined that the protester
only partially met this objective, without advising the offeror of this
change in its assessment and while continuing to conduct discussions
with the awardee relating to its satisfaction of the same KPP objective.
5. Protest is sustained, where the agency unreasonably determined
that the awardee's refusal to agree to the specific solicitation
requirement that it plan and support the agency to achieve initial
organic depot-level maintenance within 2 years after delivery of the
first full-rate production aircraft was an “administrative
oversight,” and improperly made award, despite this clear
exception to a material solicitation requirement.
6. Protest is
sustained, where the agency's evaluation of military construction
costs in calculating the offerors' most probable life cycle costs
for their proposed aircraft was unreasonable, where the evaluation did
not account for the offerors' specific proposals, and where the
calculation of military construction costs based on a notional
(hypothetical) plan was not reasonably supported.
7. Protest is
sustained, where the agency improperly added costs to an element of cost
(non-recurring engineering costs) in calculating the protester's
most probable life cycle costs to account for risk associated with the
protester's failure to satisfactorily explain the basis for how it
priced this cost element, where the agency did not determine that the
protester's proposed costs for that element were unrealistically
low.
8. Protest is sustained, where the agency's use of a
“Monte Carlo” simulation model to determine the
protester's probable cost of non-recurring engineering associated
with the system demonstration and development portion of the acquisition
was unreasonable, where the model's inputs concerned total weapons
systems at an overall program level and there is no indication that this
is a reliable predictor of anticipated growth of the protester's
non-recurring engineering costs. Page 2 B-311344 et al.
9.
Protester is not required to file a “defensive protest” when
during the procurement it is apprised of an agency's evaluation
judgments with which it disagrees or where it believes the evaluation is
inconsistent with the solicitation's evaluation scheme, because
GAO's Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2) (2008),
require that where the protest involves a procurement conducted on the
basis of competitive proposals under which a debriefing is requested
and, when requested, is required, these protest grounds can only be
raised after the offered debriefing.
10. While an agency, in an
appropriate case, may request under GAO's Bid Protest Regulations,
4 C.F.R. § 21.3(d) (2008), that a protester provide specific
relevant documents, of which the agency is aware and does not itself
possess, this does not allow for “wide-open” document
requests by an agency of broad categories of documents.
Pemco Aeroplex, Inc., B-310372.3, June 13, 2008 1. In
responding to this Office's prior decision that sustained a
previous protest and recommended that the agency perform and document a
price realism and proposal risk analysis as contemplated by the
solicitation, the agency was not required to reopen discussions with
offerors to perform the necessary analysis.
2. Agency's
record documenting its various judgments and analysis regarding the
impact of awardee's final proposal revisions reasonably supports
the agency's conclusions with regard to price realism and proposal
risk and complies with solicitation requirements.
Canon USA, Inc., B-311254.2, June 10, 2008.
DIGEST: Protest that contracting agency improperly cancelled
an order under a Federal Supply Schedule (FSS) blanket purchase
agreement is denied where the protester's FSS contract expired
before the order was issued.
Consolidated Engineering Services, Inc., B-311313,
June 10, 2008.
DIGEST: 1. Protest is sustained where
agency's evaluation of offerors' experience relied on
factors not identified in the solicitation and on distinctions between
offerors' experience that were not supported by the record.
2. Protest is sustained where source selection decision was based on a
flawed technical evaluation, and also considered an undisclosed
evaluation criterion of transition risk in assuming that any
non-incumbent contractor would likely cause mistakes in performance that
would result in costs for the agency.
Al Qabandi United Company; American General Trading &
Contracting--Costs, B-310600.3; B-310600.4, June 5, 2008.
DIGEST: Reimbursement of costs of filing and pursuing
protests is recommended where a reasonable agency inquiry into initial
protest allegations would have shown that agency had failed to conduct
price realism evaluation required by solicitation, but agency delayed
taking corrective action until after submission of the agency report.
Advanced Seal Technology, Inc., B-311308, June 5,
2008.
DIGEST: Protest that offeror was deprived of a
reasonable opportunity to qualify its alternate item is denied where,
although the procuring agency failed to promptly notify offeror of
deficiencies in its item, the record shows that the offeror did not
suffer competitive prejudice as a result.
SKE
International, Inc., B-311383; B-311383.2, June 5, 2008.
DIGEST: 1. Evaluation of protester's technical proposal
was unobjectionable where agency reasonably found weaknesses associated
with firm's timeliness of performance because of minor schedule
delays in connection with some prior contracts; corporate experience,
based on limited information regarding task orders; and management
approach, based on questions regarding organizational structure and
limited job order contract experience of key personnel.
2. Agency
reasonably evaluated awardee's past performance as very good
notwithstanding some poor rating responses in limited areas of two
Construction Contractor Appraisal Support System (CCASS) reports, where
firm's rating was otherwise based on 5 past performance
questionnaires and 11 other CCASS reports, all of which contained a
significant majority of excellent, outstanding, and above average
ratings.
Superlative Technologies, Inc., B-310489.4, June 3,
2008.
DIGEST: 1. Agency's cancellation of
solicitation, based on a potential “unfair advantage”
provided to one or more of the offerors as a result of the
agency's communications with and disclosure of information to the
various offerors, cannot be reasonably reconciled with the
agency's subsequent sole-source contract award to a team comprised
of one of the offerors with whom the various communications occurred and
to whom the information was disclosed, absent the agency's
determination and creation of documentation regarding the substance of
the communications with and the specific information disclosed to the
various offerors.
2. Where agency has canceled a solicitation on
the basis of concerns regarding procurement integrity violations and/or
organizational conflicts of interest, and subsequently reopened the
procurement under another contract vehicle, the agency must comply with
Federal Acquisition Regulation requirements regarding identifying and
resolving procurement integrity issues and/or organizational conflicts
of interest.
Bill Henson--Designated Employee Agent, B-400060,
June 2, 2008.
DIGEST: Protest filed by Designated Employee
Agent alleging that Department of Labor's (DOL) planned
reorganization of certain services constitutes an improper
implementation of the “most efficient organization”
following public-private competition is dismissed; protester has
standing only to challenge agency actions related to conduct of a
public-private competition, or agency decision to convert a function to
private sector performance without such a competition, and not to
challenge agency actions regarding implementation of results of a
public-private competition.
Professional Performance Development Group, Inc.,
B-311273; B-311273.2, June 2, 2008.
DIGEST:
Protester's proposal was reasonably evaluated by the contracting
agency as technically unacceptable and excluded from the competitive
range, where the proposal contained numerous informational deficiencies
and the agency reasonably determined that discussions would not likely
improve the proposal such that it would have a reasonable chance for
award.
Masai Technologies Corporation, B-400106, May 27,
2008.
DIGEST: 1. Protest filed within 10 days of
contracting officer's letter resolving a timely agency-level
protest, but after the closing time for submission of quotations, is
untimely where the issue protested at GAO is different from the issues
raised in the timely agency-level protest.
2. Protester's
e-mail to officials in agency small business office, which suggested
that a procurement could be set aside for small businesses, was not an
agency-level protest, and a subsequent protest at GAO raising that
issue, filed after the closing time for submission of quotations, is
therefore untimely.
National Science Foundation-Disposition of False Claims
Act Recoveries. B-310725, May 20, 2008.
DIGEST: The
Inspector General (IG) for the National Science Foundation (NSF) may not
credit to the IG appropriation amounts recovered pursuant to the False
Claims Act that represent investigative costs incurred by the office.
Recovery of these costs cannot be characterized as a repayment of an
appropriation-the narrow exception to the miscellaneous receipts rule,
31 U.S.C. § 3302(b). Congress appropriates a specific amount to the
IG for costs to carry out its duties under the Inspector General Act of
1978, including investigations of payments made pursuant to a false
claim. Crediting the IG appropriation with these amounts recovered for
investigative costs without specific statutory authority would violate
the miscellaneous receipts statute and constitute an improper
augmentation of the IG appropriation.
Mark Whetstone-Designated Employee Agent, B-311327,
May 20, 2008.
DIGEST: Protest that agency is improperly
converting a publicly performed function to a privately performed
function without first conducting a public/private competition is
dismissed where agency is acquiring the services in question through the
exercise of an optional line item under a preexisting contract; the
statute requiring agencies to conduct public/private competitions and
providing designated employee agents standing to protest such
competitions is, by its terms, inapplicable to acquisitions publicly
announced prior to enactment of the statute.
Carahsoft Technology Corporation; Allied Technology
Group, B-311241; B-311241.2, May 16, 2008.
DIGEST:
Protests are sustained where, in a competition for human resources
services Federal Supply Schedule contracts, the contemporaneous record
fails to adequately document the basis for the agency's decision
to exclude compensation management services from the awards made to the
protesters, and the agency's explanation of its reasoning, in its
responses to the protests, is inconsistent with the limited
contemporaneous record.
MCT JV, B-311245.2; B-311245.4, May 16, 2008.
DIGEST: 1. Where, due to concerns about their negative effect
on contract performance, the solicitation instructed offerors not to
propose unrealistically low costs, and the awardee capped its indirect
rates at levels that the agency concluded were significantly below its
costs, protest is sustained because the agency failed to consider
performance risk associated with the awardee's decision to cap its
indirect rates.
2. Discussions with protester regarding allocation
of labor hours in its cost proposal were not meaningful where the
discussions did not communicate that the agency was concerned about the
protester's inconsistent allocation of labor hours between its
technical proposal and cost proposal.
United Way of the National Capital Area, B-311235,
May 16, 2008.
DIGEST: Government Accountability Office
does not have jurisdiction to hear protest of the signing of a
memorandum of understanding under a competition conducted by a Local
Fund Campaign Committee of the Combined Federal Campaign, because, while
this action would appear to be a procurement of services for the benefit
of the government, a Local Fund Campaign Committee is not a federal
agency.
Alanna Orr, B-310966.2, May 14, 2008.
DIGEST: Protest that successful quotation did not include
adequate technical proposal, that agency improperly provided sample
quality control program to successful vendor, and that successful vendor
submitted plagiarized technical documents is denied where stated
evaluation factors included only price and past performance; since
evaluation of vendors' technical proposals, including quality
control program and technical documents, was not a factor in evaluation,
allegations regarding technical proposal do not provide a basis for
challenging selection decision.
Joint Venture Penauille/BMAR & Associates, LLC, B-311200;
B-311200.2, May 12, 2008.
DIGEST: Protest challenging
price evaluation is sustained, where the procuring agency unreasonably
determined that the protester'rsquo;s lower-priced line items for
a small portion of the work created an “extremely high”
performance risk and based its decision on an erroneous belief that the
contractor could reject work that was ordered.
Mark Whetstone--Designated Employee Agent, B-311284,
May 9, 2008.
DIGEST: Protest filed by Designated Employee
Agent challenging agency's decision to issue a solicitation for
processing a backlog of Freedom of Information Act requests without
conducting a public-private competition is dismissed where the protester
represents a class of employees whose positions are not at risk as a
consequence of a contract awarded under the solicitation.
Rhonda Podojil--Agency Tender Official, B-311310, May
9, 2008.
DIGEST: Protest by agency tender official (ATO)
challenging result of competition conducted pursuant to OMB Circular
A-76 is dismissed as untimely where the ATO filed the protest more than
10 days after the ATO knew or should have known the basis of protest.
While debriefing exception to timeliness rules applies to A-76
competitions conducted on the basis of competitive proposals, protest
nevertheless is untimely because the ATO did not timely request a
debriefing--a predicate to invoking the exception.
Lisa Hartman-Designated Employee Agent, B-311247, May
6, 2008.
DIGEST: Protest filed by a Designated Employee
Agent alleging that a public-private competition under Office of
Management and Budget Circular A-76 is required before the agency can
award a contract for ground maintenance services which are currently
being provided by 7 civilian employees (who also perform other
functions, and none of whom will lose their jobs here) is denied because
the Circular does not require issuance of a solicitation in the case of
a function as small as this, and because recently-enacted changes to the
Office of Federal Procurement Policy Act, 41 U.S.C. § 403, do not
impose cost comparison requirements on conversions of functions
performed by fewer than 10 employees.
Tip
Top Construction Corporation, B-311305, May 2, 2008.
DIGEST: Protest that agency improperly rejected bid as
nonresponsive for lack of a valid bid bond is denied where the
contracting officer reasonably determined that the assets pledged by the
surety, which were incapable of being placed in escrow, were
unacceptable.
Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania
Medical Equipment & Supplies, Inc.; Chronic Care Pharmaceutical
Services, LLC; Wound Management Technologies, Inc., B-311423;
B-311423.2; B-311423.3; B-311423.4; B-311423.5, May 1, 2008.
DIGEST: Pursuant to title 18 of the Social Security Act (42
U.S.C. §§ 1395-1395hhh), Government Accountability Office
lacks jurisdiction over protests of awards made by Centers for Medicare
& Medicaid Services, Department of Health and Human Services under the
agency's Competitive Acquisition Program.
Wyle Laboratories, Inc., B-311123, April 29,
2008.
DIGEST: 1. Agency source selection evaluation
board's (SSEB) rejection of a lower-level evaluation team's
assessment of risk regarding the awardee's proposal is reasonably
supported by the record, and the source selection authority's
(SSA) reliance on the SSEB rating, rather than the rating of the
lower-level evaluation team, was reasonable.
2. Agency's
cost realism evaluation reasonably relied on the agency's estimate
of labor rates where that estimate reflected the protester's own
proposed rates for the predecessor contract, escalated to account for
the passage of time, and the protester's contract manager advised
agency personnel that the government's estimate of labor rates
were “still good.”
3. Where SSA considered all of the
evaluation record, including the reports of the various evaluation teams
and the SSEB, which identified and described the various evaluated
strengths and weaknesses of both offerors' proposals, the
SSA's ultimate conclusion that the protester's higher-rated,
higher-priced proposal did not represent the best value for the
government was adequately documented and reasonably supported by the
evaluation record.
Burns and Roe Services Corporation--Costs,
B-310828.2, April 28, 2008.
DIGEST: In recommending
reimbursement of protest costs, GAO will not sever successful issues
from unsuccessful issues--but rather recommends reimbursement for all
issues raised--where issues are interconnected and based on common
factual underpinnings.
Savannah River Alliance, LLC, B-311126, B-311126.2,
B-311126.3, B-311126.4, April 25, 2008.
DIGEST: 1.
Agency's selection of higher-priced, higher-rated proposal for
award is reasonable, where the key discriminator between proposals was
under the key personnel factor, which was one of the most heavily
weighted factors in the evaluation and was “critical” to
successful performance, and where the agency reasonably concluded that
awardee's superior key personnel were worth the additional price;
protester's disagreement with the evaluation of multiple other
factors and subfactors does not render the evaluation unreasonable.
2. Allegation that a key personnel reference had a personal conflict
of interest that tainted the evaluation of key personnel is denied,
where the reference was provided by the offeror and did not have an
official role in the procurement, and the information provided by the
reference had no impact on the evaluation.
3. Allegation that
organizational conflicts of interest exist due to the employment of
several of the awardee's key personnel is denied, where any
conflict, if it exists, is personal to the employees, and not the
organization, and is too speculative to impute to their employers.
Marshall Company, Ltd., B-311196, April 23, 2008.
DIGEST: Agency's evaluation of option pricing is
unobjectionable where the record does not evidence “reasonable
certainty” that funding is not available or that options will not
be exercised.
Singleton Enterprises- GMT Mechanical, A Joint Venture,
B-311343, April 23, 2008.
DIGEST: Agency properly
rejected bid of joint venture under a solicitation set aside for
service-disabled veteran-owned small business concerns (SDVOSBC), where
the Small Business Administration had determined with regard to another
solicitation that the joint venture did not qualify as an SDVOSBC and
this determination, which had been affirmed by the SBA's Office of
Hearings and Appeals, remained in force and effect when the agency
rejected the joint venture's bid.
Forest Service-Light Refreshments for National Trails
Day, B-310023, April 17, 2008.
DIGEST: U.S. Forest
Service appropriations are not available to provide light refreshments
for attendees of National Trails Day events. Appropriations are not
available to pay for food unless specifically authorized, or unless the
agency can demonstrate that such expenditures are an essential,
constituent part of accomplishing an authorized agency function. Neither
of these conditions is present in this case. Providing light
refreshments to attendees of Trails Day does not contribute materially
to the accomplishment of an agency function.
Gloria Kortum--Designated Employee Agent, B-311266,
April 15, 2008.
DIGEST: Protest objecting that agency
intended to convert performance of home oxygen services to contractor
performance in violation of law is dismissed as academic where agency
currently has no plan to convert to contractor performance, and will
consider whether to include the services at issue in a forthcoming
solicitation.
Clark E. Myatt, Agency Tender Official, B-311234.2,
April 15, 2008.
DIGEST: Where the agency tender official
protested the terms of a solicitation issued for purposes of conducting
a public-private competition pursuant to Office of Management and Budget
Circular A-76, and the agency states that no acceptable private sector
offers were received in response to the solicitation, there is no
prejudice to the protester from the solicitation provisions at issue,
since Circular A-76 requires that the agency either revise and reissue
the solicitation, or implement the agency tender.
ManTech International Corporation, B-311074, April
15, 2008.
DIGEST: Protest by incumbent contractor that
evaluation of offerors' proposed approaches to phase-in at start
of contract failed to account for incumbency advantage is denied where
agency recognized that incumbent protester's policies and
incentives, reflected in 95 percent employee retention rate, had a high
probability of maintaining incumbent workforce, thereby significantly
reducing transition risk and warranting a significant strength, and also
reasonably determined that awardee offered an exceptional strategy, with
many incentives for incumbent employee retention, in support of plan to
recruit [REDACTED] percent of incumbent workforce, thereby also
warranting a significant strength.
Native American Industrial Distributors, Inc.,
B-310737.3; B-310737.4; B-310737.5, April 15, 2008.
DIGEST: 1. Protest that agency unreasonably made award of a
contract under a Buy Indian Act set-aside because there are no American
Indians holding management positions in the company is denied where the
solicitation did not impose a specific test for eligibility for award,
and the agency reasonably interpreted the Buy Indian Act as allowing the
company to qualify for award, since the company is a wholly-owned
subsidiary of an Alaska Native Corporation pursuant to the Alaska Native
Claims Settlement Act.
2. Protest that agency improperly selected
for award proposal that failed to provide letters of commitment for key
personnel is sustained where solicitation specifically required offerors
to submit letters of commitment for all key personnel.
Re-Engineered Business Solutions, Inc., B-310301.5,
April 4, 2008.
DIGEST: Corrective action, taken by
contracting agency in response to prior protests, of amending a
solicitation and requesting revised proposals, is unobjectionable where
the solicitation provided for the award of a cost reimbursement
contract, but erroneously requested the offerors submit price (rather
than cost) proposals and provided for a price (rather than cost realism)
evaluation.
In
and Out Valet Co., B-311141, April 3, 2008.
DIGEST:
The Department of Veterans Affairs has statutory authority to make a
sole-source award to a service-disabled veteran-owned small business
(SDVOSB) concern where the anticipated award price exceeds the
simplified acquisition threshold but does not exceed $5 million, the
SDVOSB is determined to be a responsible source, and the contracting
officer has determined that award can be made at a fair and reasonable
price.[Authority is at Sec. 502 of Pub Law 109-461]
Potomac Electric Corporation, B-311060, April 2,
2008.
DIGEST: Under a request for proposals (RFP) for
motors, which did not request a technical proposal or descriptive
literature, a proposal including a cover letter stating that the offeror
is proposing a motor that is a “FIT, FORM and FUNCTION replacement
of the motor described” in the RFP renders the proposal's
blanket offer to comply with the specifications ambiguous, such that the
proposal was properly rejected as unacceptable.
General Atomics Aeronautical Systems, Inc., B-311004;
B-311004.2, March 28, 2008.
DIGEST: Protest against
exclusion of protester's proposal from competitive range (leaving
only one proposal in the range) in procurement for airborne radar is
denied where agency reasonably determined that (1) protester's
proposal failed to satisfy solicitation requirement to substantiate
compliance with specifications and/or took exception to required levels
of performance, and (2) some of the deficiencies resulted from
fundamental limitations on performance of protester's proposed
radar system, or otherwise would require a major rewrite to correct.
Harris Enterprises, Inc., B-311143, March 27,
2008.
DIGEST: In solicitation for warehouse support
services, requirement that awardee be registered as ISO-9001:2000
compliant is unobjectionable where agency reasonably determined that
contractor meeting strict quality assurance standards will best be able
to meet agency's need for handling of security sensitive items,
including personally identifiable information.
Singleton Enterprises-GMT Mechanical, Joint
Venture--Costs, B-310454.3, March 27, 2008.
DIGEST:
Protester's request that the Government Accountability Office
recommend reimbursement of costs is denied where the agency did not file
a report in response to a protest that was clearly meritorious, but
instead, 2 days after the report was due, announced its intention to
take corrective action; thus the corrective action was reasonably
prompt, since the protester was not required to incur the costs of
beginning to draft comments in answer to an agency report.
Fedcar Company, Ltd., B-310980; B-310980.2;
B-310980.3, March 25, 2008.
DIGEST: 1. Where an agency
bases its source selection decision for the award of a lease on
incorrectly calculated costs, the source selection is not reasonably
based.
2. Source selection document that only discusses strengths
of awardee's higher-rated, higher-priced proposal but not its
weaknesses, or the strengths and the weaknesses found in
protester's slightly lower-rated, lower-priced proposal does not
reasonably justify tradeoff decision.
3. A purported acceptance of
a lease offer by the General Services Administration that is conditioned
on the offeror's assent to terms additional to, or different from,
those offered is not an acceptance, but a counteroffer, and does not
create a binding lease contract.
Colson Services Corporation, B-310971; B-310971.2;
B-310971.3, March 21, 2008.
DIGEST: 1. Protest
challenging source selection decision is denied where source selection
authority recognized that solicitation requirements not addressed by
protester in its technical proposal had been satisfactorily addressed in
protester's business proposal.
2. Request for clarification
of whether proposed rebate amounts had been offered on a monthly or an
annual basis did not constitute discussions where offerors were not
given the opportunity to revise their rebate amounts.
Evans Security Solutions, Inc., B-311035, March 19,
2008.
DIGEST: 1. Protester is not an interested party for
purposes of challenging the agency's ability to perform the
requirements of the solicitation where the record shows that, even if
the protest were sustained on this ground, an intervening offeror would
be next in line for award.
2. Protest that agency improperly
failed to give “priority” to the protester as a small
business, surplus labor area concern is denied where the agency
regulations at issue contain no such requirement.
3. Protest that
the awardee's and the protester's proposals should have
received comparable technical scores because they offered the same
equipment is denied where the solicitation lists several factors to be
considered in the technical evaluation, of which equipment offered is
but one.
4. Allegations that the agency failed to make the
solicitation requirements sufficiently favorable to small businesses are
untimely where made after the solicitation closing date.
Eisenhower Real Estate Holdings, LLC, B-310941, March
18, 2008.
DIGEST: Protest of reasonableness of
agency's cost-benefit analysis that served as basis for agency
determination that government cannot expect to recover through
competition substantial relocation or duplication costs involved in
award of lease to other than incumbent lessor is denied where record
shows cost-benefit analysis was reasonably based, and protester provides
no persuasive support for assertion that a lease for its property would
provide cost savings exceeding agency's relocation or duplication
costs.
FlowSense, LLC, B-310904, March 10, 2008.
DIGEST: 1. Protest that agency improperly passed over
protester, a service-disabled veteran-owned small business (SDVOSB), in
order to award contract to 8(a) firm is denied where agency reasonably
determined that neither protester nor other SDVOSBs were viable
potential offerors.
2. Protest that awardee and protester were
similarly situated firms, and that agency thus unreasonably determined
that awardee could perform the work while protester could not, is denied
where agency determined that awardee had capability to perform based on
its prior performance of contracts for agency.
Strong Environmental, Inc., B-311005, March 10,
2008.
DIGEST: Use by Library of Congress of cooperative
agreement instead of contract for disposal and recycling of cassette
tape players is denied where the applicable regulations do not require
use of a contract for the requirement.
Ceres Environmental Services, Inc., B-310902, March
3, 2008.
DIGEST: Protest that the agency improperly used
negotiated procedures instead of sealed bidding procedures to solicit
proposals to construct a drainage canal is denied where the agency
reasonably concluded that the importance of completing the project
justified an accelerated construction schedule and, as a consequence,
necessitated consideration of non-price factors in selecting a proposal.
Karrar Systems Corporation, B-310661.3; B-310661.4,
March 3, 2008.
DIGEST: 1. Protest that agency unreasonably
rated awardee's technical proposal acceptable despite eight
weaknesses and only three strengths is denied where determination of
acceptability was not based solely on number of strengths versus
weaknesses and protester does not argue that awardee's proposal
did not satisfy any of the criteria agency applied.
2. Assertion
that protester's proposal should have been rated good rather than
acceptable under one management subfactor is denied where record
demonstrates that evaluators reasonably assigned acceptable rating and,
in any case, conclusion that awardee's proposal was superior under
management factor was based, not solely on adjectival ratings under
subfactors, but on source selection official's consideration of
underlying strengths and weaknesses of protester's and
awardee's proposals.
3. Protest that “best
value” determination was unreasonable is denied where, in
determining that protester's technically superior proposal was not
worth a 30 percent price premium, source selection official specifically
considered proposals' ratings under each factor and subfactor,
weight accorded each factor, and proposals' underlying strengths
and weaknesses.
4. Protest that awardee's proposal to
recruit spouses of transferred government personnel created improper
conflict of interest due to potential for unduly favorable consideration
from evaluators is denied where proposal was general in nature and did
not identify individuals that could be affected, and there is no other
evidence or reason to believe that evaluators were unduly influenced.
DRS C3 Systems, LLC, B-310825; B-310825.2, February
26, 2008.
DIGEST: 1. Protest alleging that firm had
developed governmentwide standard applicable to the item being procured,
thereby having an unfair informational advantage over other competitors,
is denied where record establishes that firm did not have a role in
developing the relevant governmentwide standard.
2. A competitive
advantage that derives from an offeror's previous performance
under a government contract is not an unfair competitive advantage that
agency is required to neutralize.
3. Contracting agency engaged in
meaningful discussions where agency advised protester of specific
weaknesses regarding lack of a selected software architecture approach;
agency was not required to also afford the protester an opportunity to
cure proposal defects first introduced either in response to discussions
or in a post-discussion proposal revision.
4. Protest challenging
the evaluation of technical proposals is denied where the record
establishes that the agency's evaluation was reasonable and
consistent with the evaluation criteria.
5. Protest that past
performance evaluation was unreasonable is sustained where record shows
that: the findings in the agency evaluation report were not consistent
with the information upon which the findings were based; the agency
evaluators could not remember whether they evaluated and gave proper
consideration to adverse past performance information regarding the
awardee; and the agency did not properly assess the relevance of the
offeror's prior contracts.
Para Scientific Company, B-310976, February 25,
2008.
DIGEST: Protester's contention that a
procurement must be set aside for small business concerns is dismissed
where, during the course of the protest, the Small Business
Administration concluded that the protester does not qualify as a small
business under the applicable North American Industrial Classification
System code; under these circumstances, the protester is not an
interested party for the purposes of arguing that the procurement must
be set aside.
IBV, Ltd., B-311244, February 21, 2008.
DIGEST: Decision to set aside procurement for small business
participation instead of service-disabled veteran-owned small business
concerns (SDVOSBC) was unobjectionable where, prior to making decision,
contracting officer concluded that agency would not receive fair market
price in offers from SDVOSBCs and conclusion was confirmed when all
SDVOSBC proposals received, including protester's, significantly
exceeded agency's estimate and prices proposed by non-SDVOSBCs.
Accumark, Inc., B-310814, February 13, 2008.
DIGEST: 1. Protest that agency unreasonably found that
awardee's prices were realistic under a fixed-price contract is
denied where record shows agency based its determination on a comparison
of all offerors' prices to one another and to the government
estimate, and all prices received were within a narrow range.
2.
Protest that agency should have rejected awardee's proposal for
offering unbalanced prices is denied where awardee's price was low
overall and, to extent that its prices for one element of contract were
high in comparison to other offerors' prices and government
estimate, record shows estimated quantity for that element was
reasonably accurate; thus, based on the record, there is little risk
that award will not result in lowest cost to government.
Klinge Corporation. B-309930.2, February 13,
2008.
DIGEST: Protest that awardee's proposed large
field refrigeration system (LFRS) did not meet requirements of Trade
Agreements Act is denied where agency, after requesting further
information from awardee, reasonably determined that components of
awardee's LFRS would be substantially transformed in U.S. and thus
qualify as a U.S.-made end product.
NHIC Corporation, B-310801; B-310801.2, February 12,
2008.
DIGEST: Protest challenging cost realism analysis is
denied, where agency performed a comprehensive analysis of all major
cost elements and relied on subject matter experts to reasonably
determine that proposed costs were consistent with each offeror's
technical approach and were realistic for the work to be performed.
Tiger Truck LLC, B-310759; B-310759.2, February 7,
2008.
DIGEST: 1. Protest that successful vendor did not
furnish a quotation for utility trucks with features requested by the
agency such as E-85 (ethanol) engines and automatic transmissions is
denied where it was clear from the successful vendor's quotation
that it was offering trucks with the specified features.
2. Where
request for quotations required past performance references from
customers who had purchased vehicles of “the same or similar makes
and models” as those solicited, vendors were not restricted to
submitting references from customers who had previously purchased
vehicles identical to those solicited.
Global Computer Enterprises, Inc., B-310823; B-310823.2;
B-310823.4, January 31, 2008.
DIGEST 1. Protest challenging
the issuance of modifications to a task order under an
indefinite-delivery/indefinite-quantity (ID/IQ) contract as being beyond
the scope of the task order is dismissed; Government Accountability
Office lacks jurisdiction to consider whether a modification is beyond
the scope of the task order.
2. Protest that the agency improperly
bundled work requirements previously performed by separate small
businesses by means of the modification of an ID/IQ task order being
performed by a small business is dismissed given the statutory bar on
protests concerning the issuance of task orders.
Data Integrators, Inc., B-310928, January 31,
2008.
DIGEST: Protest that agency improperly issued
purchase order to vendor whose quotation was received after the deadline
for submission of quotations is sustained, where solicitation
incorporated by reference late quotation provision expressly providing
that quotations must be received by deadline to be considered.
T. F. Boyle Transportation, Inc., B-310708;
B-310708.2, January 29, 2008.
DIGEST: 1. Provision in
solicitation that required offeror to demonstrate its capability of
passing a Department of Energy Office of Transportation “Motor
Carrier Evaluation Program” audit did not constitute a definitive
responsibility criterion because it does not contain specific and
objective standards.
2. Protest challenging affirmative
responsibility determination is denied where the protester's
allegations do not establish that the contracting officer failed to
consider available relevant information.
Daylight Tree Service & Equipment, LLC, B-310808,
January 29, 2008.
DIGEST: Protest that the agency
improperly considered the past performance of another company in
evaluating protester is denied where the two companies shared the same
address, telephone number, and point of contact, and where the protester
included contacts from contracts performed by the affiliated company in
its references.
Rocketplane Kistler, B-310741, January 28, 2008.
DIGEST: The National Aeronautics and Space Administration
could use a Space Act agreement under that agency's “other
transactions” authority, and was not required to use a procurement
contract, for the development and demonstration of a space
transportation system, where the principal purpose of the announcement
was not to acquire goods or services for the direct benefit of the
agency, but to stimulate a public purpose authorized by law.
IVI
Corp., B-310766, January 23, 2008.
DIGEST: 1. Under
brand name or equal procurement, the contracting agency's
determination regarding whether an offered product is acceptable will
not be disturbed unless it is unreasonable.
2. Offer of an
“equal” product under brand name or equal solicitation was
properly rejected where the technical information provided to the
contracting agency failed to demonstrate that the “equal”
product met all of the salient characteristics set forth in the
solicitation.
Group GPS Multimedia, B-310716, January 22, 2008.
DIGEST: 1. Awardee's proposal submitted in response to
a solicitation for audio-visual products and services was reasonably
evaluated, where the agency reasonably considered the awardee's
proposed approach consistent with the evaluation factors set forth in
the solicitation.
2. Awardee's proposal that included a
particular labor category to perform service contract work was not
legally objectionable where the proposal, submitted in response to a
solicitation that provided for the award of a fixed-price contract, did
not violate any solicitation provisions; contention that the use of the
proposed labor category would violate the Service Contract Act will not
be considered by GAO because it is a matter for consideration by the
Department of Labor and whether contract requirements are met during the
performance of the contract is a matter of contract administration.
World Communications Center,
Inc.--Costs, B-310398.4, January 16, 2008.
DIGEST: GAO
recommends that agency reimburse protester's costs of filing and
pursuing earlier protests where agency does not contest the
protester's request, and where the record shows that the agency
did not take prompt corrective action in the face of a clearly
meritorious protest.
PWC
Logistics Services Company KSC(c), B-310559, January 11, 2008
DECISION PWC Logistics Services Company KSC(c) protests the
award of a contract to Anham, LLC, under request for proposals (RFP) No.
W91GXZ-07-R-0011, issued by the Joint Contracting
Command--Iraq/Afghanistan, for the operation and maintenance of two
wholesale distribution center warehouse and staging area operations. The
protester argues that the agency's evaluation and selection of
Anham's proposal for award were unreasonable.
We dismiss the
protest because of a violation of the terms of the GAO protective order
issued in connection with this protest and other actions by the
protester inconsistent with the integrity of GAO's bid protest
process.
Singleton Enterprises-GMT Mechanical, A Joint Venture,
B-310552, January 10, 2008.
DIGEST: Protest of
agency's rejection of firm's bid as nonresponsive under a
solicitation set aside for service-disabled veteran-owned small business
concerns (SDVOSBC) is sustained because the matter does not involve the
responsiveness of the bid; rather, the protest involves the question of
the status of the bidder as an eligible SDVOSBC, a matter within the
exclusive authority of the Small Business Administration, not the
procuring agency.
IMLCORP LLC; Wattre Corporation, B-310582; B-310582.2;
B-310582.3; B-310582.4; B-310582.5, January 9, 2008.
DIGEST: Protests challenging the testing methodology employed
by an agency in product sample testing is denied, where the solicitation
did not specify a particular testing methodology and the protesters have
failed to show that the agency's test was an unreasonable method
of assessing how well the firms' products would meet the
agency's needs.
Gap
Solutions, Inc., B-310564, January 4, 2008.
DIGEST:
Protest that agency's point scoring scheme was not sufficiently
sensitive to highlight the distinctions among technical proposals is
denied where record shows source selection decision was based on
detailed narrative evaluation materials that reflected relative
strengths and weaknesses of competing proposals, and protester raises no
substantive challenge to agency's evaluation findings; point
scores are merely guides to intelligent decision making and, absent a
legitimate challenge to agency's underlying substantive findings,
there is no basis to object to evaluation on basis of the point scoring.
Superlative Technologies, Inc., B-310489;
B-310489.2, January 4, 2008.
DIGEST: Agency did not
have a reasonable basis for canceling solicitation where agency states
that cancellation was necessitated by the agency's disclosure of
source selection information, which the agency believed gave an
“unfair advantage” to at least one offeror, and where the
agency subsequently awarded a sole-source contract to a contracting team
that included the same contractor to whom the source selection
information was disclosed.
Utility Tool & Trailer, Inc., B-310535, January 3,
2008.
DIGEST: Protest challenging an agency's
selection of an offeror with lower-rated delivery schedule and
lower-priced proposal is denied where the agency reasonably decided that
the price premium involved in selecting the protester's
higher-priced proposal to obtain the benefit of that proposal's
slightly more favorable delivery schedule was not justified.
Team BOS/Naples--Gemmo S.p.A./DelJen, B-298865.3,
December 28, 2007.
DIGEST: 1. Protest challenging
evaluation of offerors' technical and price proposals is denied
where agency's evaluation was reasonable and supported by the
record.
2. Protest challenging the adequacy and reasonableness of
the agency's source selection decision is denied where the record
supports the source selection authority's explanation that certain
errors in the selection decision did not affect underlying rationale.
Comprehensive Health Services, Inc.,
B-310553, December 27, 2007.
DIGEST: 1. Evaluation of
protester's technical proposal was unobjectionable where, after
discussions, agency reasonably determined that protester failed to
correct identified weaknesses in technical approach; in particular,
downgrading based on loss of proposed subcontractor after proposal
submission was reasonable where loss of subcontractor reasonably was
found to significantly impact protester's ability to provide
certain health care specialists.
2. Agency reasonably determined
that awardee's loss of proposed subcontractor after proposal
submission did not warrant downgrading proposal--despite assessing
weakness and revising strength associated with subcontractor in initial
evaluation--where agency reasonably concluded that loss of subcontractor
was not significant in light of awardee's substantial other
proposed resources.
3. Agency provided meaningful discussions
where, in response to failure of protester's initial proposal to
address all statement of work requirements, it asked protester to
describe and more fully explain identified processes, thereby leading
protester into areas of its proposal that required amplification.
4. Agency's evaluation of awardee's price as reasonable
was unobjectionable where evaluation was based on comparison of prices
received and comparison of individual line item prices to independent
government cost estimates (IGCE) for low and high ranges of estimated
costs, and awardee's price--though higher than average IGCE--was
lower than high range IGCE.
Pemco Aeroplex, Inc., B-310372, December 27,
2007.
DIGEST: 1. Protest challenging the agency's
past performance evaluation is denied where agency considered all
reasonably available relevant past performance information and, based on
consideration of that information, made confidence assessments that were
not unreasonable.
2. Protest that agency was required to assign a
“Blue/Exceptional” rating for any mission capability
subfactor in which protester's proposal contained an evaluated
strength is denied where solicitation stated that proposals containing
one or more evaluated strengths could properly receive either
“Blue/Exceptional” or “Green/Acceptable”
ratings.
3. Where solicitation required that agency perform a
price realism analysis and risk assessment, and identified the
particular data that would be considered, including [deleted], protest
is sustained given the absence of any agency documentation reflecting
the required analysis of the awardee's final proposal revisions,
which reflected [deleted] that appear to conflict with the
agency's internal [deleted] projections. 4. Protest based on
alleged conflicts of interest and an alleged violation of procurement
integrity provisions is denied where record does not support the
protester's allegations.
KAR Contracting, LLC, B-310454; B-310537, December
19, 2007.
DIGEST: Protests challenging an agency's
decision that the protester is ineligible for the award of two
construction projects are denied where the agency reasonably concluded
that these awards would create the appearance of an impropriety because
of the protester's founder's role in both projects while a
government employee, including serving as the contracting
officer's technical representative, and participating in the
preparation of construction drawings.
Command Management Services, Inc., B-310261;
B-310261.2, December 14, 2007.
DIGEST: 1. Protest
challenging agency's evaluation of technical proposals is denied
where the record establishes that the evaluation was reasonable and
consistent with the evaluation criteria.
2. Agency reasonably
found that discrepancy in name of entity appearing in the proposal was a
mere clerical error where the differences in the name from the entity to
which award was made are minor and the data universal numbering system
number and address matched that of the entity which received the award.
B-158766, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2007, December 10, 2007
Nilson Van & Storage, Inc., B-310485, December 10,
2007.
DIGEST: Protest that contracting officer improperly
determined awardee to be responsible, notwithstanding awardee's
failure to supply all information requested by solicitation regarding
previous performance of comparable contracts, is dismissed, where
information request did not constitute definitive responsibility
criterion, and there is no evidence raising serious concern that
contracting officer ignored relevant responsibility information.
Essan Metallix Corporation, B-310357,
December 7, 2007.
DIGEST: An agency may properly exclude a
defaulted contractor from the competition for the reprocurement of the
work remaining under the terminated contract.
RKR Joint Venture, LLC--Costs, B-299856.2, December
7, 2007.
DIGEST: Where record reasonably supports
agency's determination that cancellation of a protested
procurement was necessary because, due to the passage of time, the
solicitation no longer reflected the agency's actual requirements,
we do not view cancellation as corrective action taken in response to a
protest and, accordingly, do not recommend reimbursement of protest
costs.
Cornell Companies, Inc., B-310548,
December 3, 2007.
DIGEST: 1. Assessment of a weakness
against the protester's proposal was not improper where the
considerations on which the assessment was based were encompassed by the
evaluation criteria.
2. Assessed weakness was not required to be
raised in discussions where the weakness was not considered significant,
and did not prevent the proposal from meeting the solicitation
requirements or having a reasonable chance of award.
Qualicon Corporation, B-309989.2, December 3,
2007.
DIGEST: Protest alleging that agency deviated from
solicitation's stated evaluation scheme in evaluating bids is
denied where protester has not demonstrated a reasonable possibility
that it was prejudiced by any deviation.
B-308968, November 27, 2007, The Honorable Barbara A.
Mikulski, United States Senate
Subject: No-Cost Contracts for
Event Planning Services
This opinion responds to your letter of
January 26, 2007, requesting that we “clarify the suitability of
using no-cost contracts to obtain conference, event and trade show
planning services.” Specifically, you asked us to review a model
contract supplied to us by National Conference Services, Inc.'s
(NCSI) counsel. Letter from Antonio R. Franco and Jonathan T. Williams,
Piliero Mazza, to Thomas H. Armstrong, Assistant General Counsel, GAO,
Re: No Cost Contract for Conference Services, Jan. 23, 2007 (NCSI
Letter). In its model contract, NCSI offers to provide conference
planning services with no financial obligation to the government; NCSI
would recoup its costs by charging exhibitors, sponsors, and attendees
of the conference. Id.
We conclude that the NCSI
contract is a valid, binding no-cost contract that agencies may utilize
to obtain conference planning services without violating the voluntary
services prohibition of the Antideficiency Act, 31 U.S.C. § 1342.
Because of the terms and conditions of the NCSI contract, an agency
would incur no financial liability and NCSI would have no expectation of
payment from the government. Before engaging in no-cost contracts,
however, agencies should address several considerations to balance the
financial flexibility of no-cost contracts with achievement of agency
objectives in hosting a conference.
Charles Kendall & Partners, Ltd., B-310093, November
26, 2007.
DIGEST: In a negotiated procurement which
provided for award on the basis of a price/delivery/small business
participation tradeoff, protest challenging the selection of the
high-priced proposal is denied, where, consistent with the
solicitation's evaluation factors, the source selection authority
considered the awardee's offer of a shorter delivery schedule, and
concluded that faster deliveries outweighed the protester's price
advantage; this kind of conclusion is well within the discretion given
selection officials to make tradeoff decisions.
Firestorm Wildland Fire Suppression, Inc., B-310136,
November 26, 2007.
DIGEST: Evaluation of awardee's
past performance was reasonable, notwithstanding protester's
identification of alleged negative information concerning awardee, where
agency did not have personal knowledge of some of the information, and
fully considered information of which it was aware.
Eggs & Bacon, Inc., B-310066, November 20, 2007.
DIGEST: Protest challenging source selection of higher-rated,
higher-priced proposal over lower-rated, lower-priced proposal is denied
where the agency's determination was based upon a reasonable
evaluation consistent with the evaluation scheme that gave greater
weight to non-price factors.
NAC International, Inc., B-310065, November 21,
2007.
DIGEST: 1. The Tennessee Valley Authority (TVA),
while a federal agency subject to GAO's bid protest jurisdiction
under the Competition in Contracting Act (CICA), has its own statute,
the TVA Act, which governs the agency's procurement procedures; as
a result, the TVA is not subject to CICA's requirement to obtain
“full and open competition” and is not required to comply
with the Federal Acquisition Regulation.
2. Protest challenging
terms of solicitation as unduly restrictive is denied where agency had
reasonable basis to conclude it would receive proposals that satisfied
the agency's statutory requirement to obtain “adequate
competition.”
AT&T Corp., B-299542.3; B-299542.4, November 16,
2007.
DIGEST: 1. Agency's discussions with protester
were not meaningful where the agency found the protester's
staffing plan contained significant weaknesses but failed to
sufficiently identify the scope of the agency's concerns in
discussions.
2. Protest challenging the evaluation of
awardee's management approach proposal (specifically, its proposed
staffing plan) is sustained where the agency subsequently reached
conclusions that differed from the underlying evaluation findings, and
provided no explanation for the inconsistency.
3. Protest
challenging the evaluation of offerors' technical proposals is
denied where the record establishes that the agency's evaluation
was reasonable and consistent with the evaluation criteria.
4.
Protest challenging the evaluation of the protester's past
performance is denied where the record establishes that the
agency's evaluation was reasonable and consistent with the stated
evaluation criteria.
Doyon-American Mechanical, JV; NAJV, LLC, B-310003;
B-310003.2, November 15, 2007.
DIGEST: Where
solicitation provided that evaluation of an offeror's experience
would be based on the offeror's submission of previously performed
projects, and specifically provided that only projects for which the
offeror or a primary teaming partner was the prime contractor should be
submitted, the awardees' submission of projects that were
performed by the awardees' parent/affiliate corporations, and the
agency's reliance on such projects in evaluating the
awardees' experience, was improper.
Subject: Department of Energy-Report of Antideficiency
Act Violation, B-308715, November 13, 2007
Introduction:
The Antideficiency Act requires agencies to report violations of
the Act to Congress and the President and transmit copies of those
reports to the Comptroller General at the same time. 31 U.S.C.
§§ 1351, 1517(b). The purpose of this letter is to advise you
that the Department of Energy (DOE) violated the Antideficiency Act in
fiscal years 2006 and 2007 but has not reported the violations as
required by the Act and by Office of Management and Budget (OMB)
Circular No. A-11.1
The Protective Group, Inc., B-310018, November 13,
2007.
DIGEST: Agency determination not to set aside body
armor procurement for small businesses was proper where record shows
agency was familiar with body armor marketplace, and responses from
firms participating in “industry day” conference with agency
demonstrated that it was not likely to receive proposals from at least
two responsible small businesses capable of meeting the unique
requirements of the solicitation
ITT Industries Space Systems, LLC, B-309964;
B-309964.2, November 9, 2007.
DIGEST: 1. Protest
challenging evaluation of proposals and source selection decision is
denied where record demonstrates that the evaluation was reasonable and
consistent with the solicitation, and protester's arguments amount
to mere disagreement with agency's conclusions.
2.
Agency's failure to address Defense Contract Audit Agency
qualification of audit results regarding awardee's cost proposal
due to awardee's noncompliance with cost accounting standards was
not prejudicial where agency demonstrated that awardee's
noncompliance would not result in any increased costs to the government.
Nautical Engineering, Inc., B-309955,
November 7, 2007.
DIGEST: 1. Protest challenging
consolidation of requirements previously provided under separate small
contracts as improper bundling under the Small Business Act is denied
where agency reasonably demonstrates that measurably substantial
benefits to the government justify the consolidation.
2. Protest
challenging consolidation of requirements as a violation of the
Competition in Contracting Act is denied where agency demonstrates that
the consolidation is reasonable.
Earl Industries, LLC, B-309996; B-309996.4, November
5, 2007.
DIGEST: 1. Protest is sustained in a negotiated
procurement for award on a “best value” basis where the
source selection authority (SSA) did not reasonably assess the
protester's evaluated superior technical merit in the SSA's
cost/technical tradeoff assessment.
2. Protest is sustained in a
negotiated procurement for the award of a cost-reimbursement contract,
where the agency in its cost realism assessment accepted the awardee's
work allocation in its cost proposal, but that allocation was
inconsistent with the firm's allocation of work in its technical
proposal.
3. Protest is sustained in a negotiated procurement for
the award of a cost-reimbursement contract, where the agency in its cost
realism assessment applied the protester's historic division-wide
composite labor rate rather than the protester's proposed labor rate to
perform the solicitation's notional work package and the agency did not
consider the protester's explanation during discussions that the firm's
division-wide rate included labor categories that the protester would
not use in performing in accordance with its proposed technical approach
to meeting the notional work package.
Gonzales-McCaulley Investment Group, Inc.,
B-299936.2, November 5, 2007.
DIGEST: 1. Agency's
decision to cancel a solicitation, after a protest was filed, due to a
lack of valid delegated procurement authority, was essentially
pretextual when no other solicitations issued under the invalid
delegation were cancelled.
2. Agency did not have a reasonable
basis to rescind the selection of a vendor for providing training
classes under the Government Employees Training Act based on its belief
that the vendor plagiarized certain material from another vendor and
included this material in its quotation, which the agency found
indicated a lack of independent knowledge of the course material that
rendered the quotation unacceptable, where the agency did not reasonably
investigate its concerns, the record contains evidence that the vendor
properly obtained this material from the agency and reasonably used it
in its quotation, and the vendor's quotation contained information that
was not plagiarized that was relevant to its knowledge of the course
material.
FitNet Purchasing Alliance, B-309911, November 2,
2007.
DIGEST: Protest challenging an agency's decision not
to set aside for small businesses an order under the Federal Supply
Schedule (FSS) program valued at approximately $12,000 is dismissed
where the protester does not hold an FSS contract, and therefore is not
an interested party to pursue this matter.
VRC, Inc., B-310100, November 2, 2007.
DIGEST: Protest that contracting agency should not have
disqualified the protester because of an organizational conflict of
interest (OCI) is denied where the agency reasonably found that an OCI
existed based on the fact that an individual employed by a company with
ownership ties to the protester was assigned to work in the
agency's contracting office in connection with the procurement at
issue.
Executive Protective Security Service,
Inc., B-299954.3, October 22, 2007.
DIGEST: Protest
challenging agency's determination under the authority of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §
5150, regarding eligibility of firm selected to receive task order is
sustained where the agency unreasonably concluded that the firm was
doing business primarily in the designated set-aside location.
CAMSS Shelters, B-309784; B-309784.2,
October 19, 2007.
DIGEST: 1. Protest challenging the
rejection of a quotation as unacceptable is denied where the quotation
submitted in response to a solicitation for shelters on
brand-name-or-equal basis was properly found not to meet the
solicitation's salient characteristics.
2. Protest alleging
that the awardee's brand name product does not meet the salient
characteristics in the solicitation is dismissed as untimely; any
alleged inconsistency between a brand name item and the salient
characteristics used to define an “or equal” product must be
protested prior to the closing time for receipt of offers, or in this
case, quotations.
Al Long Ford--Costs, B-297807.2, October 18,
2007.
DIGEST: Protester's request for recommendation that
it be reimbursed its proposal preparation and protest costs is denied
where protester failed to submit an adequately documented claim in a
timely manner and failed to make a reasonable attempt to reach an
agreement with the agency prior to filing at Government Accountability
Office.
Integrated Concepts & Research Corporation, B-309803,
October 15, 2007.
DIGEST: 1. Agency was not required to
advise protester during discussions that its total proposed cost was not
competitive since the protester's evaluated cost was not so high
as to be unreasonable or unacceptable for award.
2. Protest that
award was tainted by organizational conflicts of interest is denied
where the record does not support allegations that the awardee
participated in the drafting of the statement of work or had access to
non-public information that would have provided a competitive advantage.
Central Texas College, B-309947, October 12, 2007.
DIGEST: 1. Agency properly could make award on basis of
initial proposals where solicitation advised offerors of this
possibility and contracting officer's decision not to engage in
discussions was reasonable.
2. Protest challenging agency's
rejection of protester's proposal because the protester submitted an
unacceptable subcontracting plan is denied where the solicitation
specifically stated that the quality and completeness of the
subcontracting plan would be evaluated, and advised that no award would
be made to an offeror whose proposal did not include an acceptable
subcontracting plan.
GlassLock, Inc., B-299931; B-299931.2, October 10,
2007.
DIGEST: 1. Under a solicitation for competitive
quotations issued under the Federal Supply Schedule program that only
provided for vendors to submit prior experience/past performance
references for the past 5 years, an agency improperly considered and
awarded strengths, based on information provided by the successful
vendor with its quotation, for projects that were completed more than 5
years ago.
2. Agency failed to evaluate quotations reasonably or
in accordance with the solicitation where strengths relating to the
successful vendor's experience and past performance were assigned
under the project plan/schedule technical factor, which did not
encompass evaluation of the vendor's experience and past
performance, and where the solicitation contained a separate evaluation
factor for experience/past performance under which the successful vendor
received consideration for its experience/past performance.
3.
Under solicitation for competitive quotations issued under the Federal
Supply Schedule program that provided for a tradeoff analysis with
technical factors being more important than price, agency improperly
based issuance of an order on the lowest-priced, technically acceptable
quotation.
AlliedBarton Security Services LLC, B-299978; B-299978.3;
B-299978.4, October 9, 2007.
DIGEST: 1. Protest
challenging agency's eligibility determination under the authority of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42
U.S.C. § 5150, is denied where the agency reasonably concluded that
the protester was not a firm residing or doing business primarily in the
designated set-aside location.
2. Protester is not an interested
party for purposes of challenging the successful vendor's eligibility
for receipt of a task order where the record shows that, even if the
protest were sustained on this ground, an intervening vendor would be
next in line for selection.
Contingency Management Group, LLC; IAP Worldwide
Services, Inc., B-309752; B-309752.2; B-309752.3; B-309752.4;
B-309752.5; B-309752.6; B-309752.7 October 5, 2007.
DIGEST: 1. Agency's favorable evaluation of an
awardee's proposal, submitted in response to a solicitation for
logistics support on a global basis, was unreasonable and evidenced
unequal treatment, where the proposal stated that it was predicated upon
assumptions that expressly differed from the assumptions set forth in
the solicitation's scenario on which proposals were to be based,
and there is nothing in the contemporaneous evaluation record indicating
that the agency considered, or was even aware of, the proposal's
stated assumptions.
2. Agency's favorable evaluation of an
awardee's proposal was unreasonable and evidenced unequal
treatment, where the agency misunderstood an aspect of the proposed
technical approach, and the agency had criticized and assessed a
weakness in evaluating another offeror's proposal because it
included a similar technical approach.
3. Agency's
evaluation of an awardee's business systems under a management
evaluation factor as “outstanding” is of concern, where the
agency's evaluation does not adequately account for negative
comments by the Defense Contract Audit Agency that were provided to the
procuring agency as part of the proposal evaluation.
4.
Agency's evaluation of proposals under the technical factor that
considered the percentages set forth in the offerors' proposals of
host country nationals, third country nationals, and U.S.
citizens/expatriates proposed to perform the work was unreasonable,
where the record provides unsupported, or inconsistent and alternative,
explanations regarding what percentages should be considered acceptable
or as weaknesses or strengths.
Chenega Federal Systems, LLC, B-299310.2, September
28, 2007.
DIGEST: 1. Protest that agency conducted
misleading cost discussions is denied where record shows that agency
provided protester with detailed information during discussions relating
to evaluation of its cost proposal, and protester's response to that
information shows that it independently analyzed the information and
formed its own business judgments regarding how to respond to the
agency's information.
2. Protest that awardee had an impermissible
organizational conflict of interest (OCI) is denied where protester
previously raised the same assertion, agency conducted a detailed
investigation and concluded that no OCI existed, and protester offers no
evidence in support of its position; protester's mere suspicion of an
OCI in light of agency's detailed investigation, without more, is
inadequate to establish that OCI exists.
Navarro Research and Engineering, Inc., B-299981;
B-299981.3, September 28, 2007.
DIGEST: 1. Where
solicitation contemplated award of fixed-price contract, price realism
analysis was reasonable where agency compared proposed prices to
government estimate and other proposed prices, and ensured that prices
reflected specified labor categories and hours specified by RFP.
2. Protest that awardee's proposal unreasonably received evaluation
credit for exceeding solicitation requirements is denied; where
solicitation provides for award on best value basis, agency reasonably
may assess as a proposal advantage degree to which proposal exceeds
minimum solicitation requirements.
3. Protest that awardee
received improper competitive advantage due to status as incumbent
contractor is denied; agency is not required to discount competitive
advantage gained by virtue of performance as incumbent contractor.
Raytheon Company, Space and Airborne Systems,
B-298626.2, B-298626.3, September 27, 2007.
DIGEST: 1.
Solicitation reasonably put protester on notice that performance of the
solicitation's aircraft “service ceiling” threshold
capabilities would be considered in evaluation of proposals.
2.
Agency was reasonably concerned with protester's proposed approach to
performing “service ceiling” aircraft threshold capabilities
in that the approach involved protester's application of a “new
operational mode” relying on [deleted].
3. Agency reasonably
evaluated protester's proposal as “marginal” under the air
vehicle subfactor, and as creating “high performance risk,”
where protester failed to provide data from engine manufacturer
addressing the impact of protester's “new operational mode.”
4. Protester's assertion that awardee's proposal contemplated use
of [deleted] similar to that of the protester's is without merit where
record shows that awardee's aircraft was able to perform threshold
capabilities without [deleted], that use of [deleted] was relied on by
awardee to expedite task performance, and that awardee's proposed use of
[deleted] was consistent with the existing manufacturer documentation
for the aircraft engines.
5. Agency properly assigned only
adjectival ratings to offerors' life cycle costs where solicitation
expressly advised offerors that comparison of numerical cost values
associated with life cycle costs would not be a “driver” in
the source selection decision.
KIC
Development, LLC, B-309869, September 26, 2007.
DIGEST: Allegation that awardee's prior contracts were not
sufficiently similar in dollar value to work being solicited to be
deemed relevant under past performance evaluation factor is denied where
solicitation did not contain dollar threshold for relevance and past
performance evaluation was otherwise reasonable and consistent with
solicitation.
Bighorn Lumber Company, Inc., B-299906, September 25,
2007.
DIGEST: An agency may not correct an obvious mistake
if the bidder's intended bid amount is neither ascertainable from the
face of the bid nor supported by clear and convincing evidence.
FitNet Purchasing Alliance, B-310031, September 21,
2007.
DIGEST: Protest challenging the cancellation of a
reverse auction solicitation, and the decision to reissue the
solicitation limited to Federal Supply Schedule vendors is dismissed in
part, and denied in part, where the record shows that the protester was
not in line for award of the canceled solicitation, and is therefore not
an interested party to challenge the cancellation decision, and where
the agency acted properly in reissuing the solicitation limited to
Federal Supply Schedule vendors.
General Dynamics Information Technology, B-299873,
September 19, 2007.
DIGEST: Protest that agency
misevaluated cost proposals is sustained where agency failed to use
higher of numerous inconsistent proposed rates in calculating
awardee's proposed total evaluated price, as expressly provided by
solicitation, such that source selection decision was based on
consideration of materially understated differential between
protester's and awardee's evaluated prices.
Zolon Tech, Inc., B-299904.2, September 18, 2007.
DIGEST: 1. Agency reasonably assessed weaknesses in
evaluation of protester's experience as to core technology, where firm
intended to rely on experienced consultant instead of contractor
personnel, and as to management system, where firm's initial quotation
did not address the system and oral presentation/revised quotation
included only limited reference to it.
2. Price evaluation that
determined protester's prices to be unrealistic was unobjectionable
where based on both firm's low revised draft task order price, as
compared to government estimate, and sample of firm's loaded labor
rates, which were significantly lower than those of incumbent
contractors.
3. Agency determination that small business's
unrealistically low price represented high risk, and decision to make
award to vendor with technically superior, higher-priced quotation were
part of a comparative best value evaluation, not a responsibility
determination requiring referral to the Small Business Administration.
National Labor Relations BoardÑFunding of Subscription
Contracts, B-309530, September 17, 2007.
DIGEST: The
National Labor Relations Board (NLRB) did not violate the bona fide
needs rule when, in September 2006, it obligated fiscal year (FY) 2006
funds for five Web site database subscription renewals that it needed to
have in place on October 1, 2006, the first day of FY 2007. Even though
delivery of the renewed subscriptions would occur entirely in FY 2007,
to ensure continued receipt of the subscriptions, NLRB reasonably
determined that the renewal orders needed to be placed in FY 2006,
before the expiration of the existing subscriptions on September 30,
2006. However, NLRB violated the bona fide needs rule when it obligated
FY 2006 funds to renew two Web site database subscriptions that were not
due to expire until October 31, 2006. These subscription renewals were a
bona fide need of FY 2007, and NLRB should have purchased these
subscriptions using its FY 2007 appropriation.
Harris Corporation, B-299864; B-299864.2 B-299864.3,
September 14, 2007.
DIGEST: Protest of award of contract
under downselect competition for naval satellite communications terminal
is denied where agency reasonably determined that testing of awardee's
prototype demonstrated that it met nearly all of the hardware and
software specification requirements, while protester's prototype failed
to satisfy many specification requirements, such that a significant
amount of work that had been scheduled for completion in initial
development phase had not been accomplished by protester, resulting in a
medium to high risk in event of award to protester.
Synergetics, Inc., B-299904, September 14, 2007.
DIGEST: 1. Where solicitation allowed for consideration of
past performance of services the same or similar to those being
procured, agency reasonably gave approximately equal evaluation credit
to protester for its incumbent performance as subcontractor and to
non-incumbent awardee based on contracts of similar size with procuring
agency and other federal agencies, and proposal of key personnel with
relevant technical expertise and knowledge.
2. In unrestricted
competition under Federal Supply Schedule (FSS), vendor considered to be
small disadvantaged business (SDB) at time of its FSS contract award did
not misrepresent itself as SDB—even though it had since exited
from SDB program and had an application pending for
recertification—where solicitation only contemplated consideration
of SDB status at the time of award of its FSS contract.
3. Price
evaluation was unobjectionable where agency did not consider protester's
proposal of additional, but undefined, discounts that were not in
accordance with solicitation pricing requirements.
4. Where
underlying evaluation record confirms agency's finding of no significant
difference in technical quality between protester's and awardee's
equally-rated quotations, source selection authority reasonably
concluded that awardee's lower-priced quotation represented “best
value” to the government.
Accent Service Company, Inc., B-299888 September 14,
2007.
DIGEST: Protest is denied where agency properly
concluded that agency employee had not violated procurement integrity
provisions by escorting representatives of a potential competitor on a
site visit, which included a brief stop at the office of the protester's
on-site manager, and a limited disclosure to the visitors about the
firm's incumbent contract staffing.
Alpha Genesis, Inc., B-299859, September 12, 2007.
DIGEST: 1. Protest challenging agency's technical evaluations
is denied where the record supports the reasonableness of the
evaluations and does not support the protester's allegation regarding
inadequate discussions.
2. Protest that awardee's proposal
contains material contingencies that make it improper for the agency to
accept it is denied, where the record shows that the alleged
contingencies concern a lease that the contractor was to obtain
post-contract award and the acquisition of leased property for which the
awardee had obtained a letter of commitment.
MASAI Technologies Corporation, B-298880.3,
B-298880.4, September 10, 2007.
DIGEST: 1. Agency
reasonably determined that protester's proposal failed to comply with
solicitation requirements regarding personnel qualifications, properly
evaluating protester's proposal as [deleted] under that evaluation
factor.
2. Agency's review of protester's and awardee's prior
activities to assess whether potential conflicts of interest existed
reasonably supports agency's conclusion that awardee did not have an
unfair competitive advantage.
Kemron Environmental Services, Inc., B-299880,
September 7, 2007.
DIGEST: Protest that agency's
inadvertent disclosure of protester's price information, which was
limited in scope, resulted in unfair competition is denied where record
does not demonstrate that protester was competitively harmed.
Systems Research and Applications Corporation; Booz Allen
Hamilton, Inc. File: B-299818; B-299818.2; B-299818.3; B-299818.4
Date: September 6, 2007.
DIGEST: 1. Admission of a
consultant to a GAO protective order was appropriate, over the objection
that the consultant once held a position with the protester and that the
consultant's daughter was currently employed by the protester,
where the record shows that the consultant had no continuing interest in
the protester and the consultant's daughter held a relatively
low-level position with the protester in a division that was unrelated
to the work to be performed under the protested contract.
2.
Protest is sustained in a negotiated procurement for award on a
“best value” basis, which provided for evaluation of the
degree to which offerors' proposals met or exceeded requirements,
where the agency failed to qualitatively assess the merits of the
offerors' differing approaches.
Lockheed Martin Systems Integration-Owego; Sikorsky
Aircraft Company, B-299145.5; B-299145.6, August 30, 2007.
DIGEST: Protest is sustained where agency amended
solicitation after prior sustained protest to eliminate consideration of
the unique aspects of the proposed helicopters (including maintenance
requirements) in calculating certain aspects of the evaluated Most
Probable Life Cycle Cost, substituting a subjective consideration of
potential maintenance efficiencies for the prior direct impact upon
evaluated cost, but nevertheless precluded offerors from generally
revising their proposals; it is fundamental that, where an agency
revises the criteria against which offers are to be evaluated or
otherwise materially changes the solicitation's evaluation scheme,
offerors must be given a reasonable opportunity to respond to the
revised criteria or evaluation scheme.
The Salvation Army Community Corrections Program--Costs,
B-298866.3, August 29, 2007.
DIGEST: 1. Government
Accountability Office (GAO) recommends that protester be reimbursed the
costs of filing and pursuing a protest where the agency unduly delayed
taking corrective action in response to clearly meritorious protest.
2. In determining whether claimed protest costs should be severed, GAO
generally considers all issues concerning the evaluation of proposals to
be intertwined--and thus not severable--and therefore generally will
recommend reimbursement of the costs associated with both successful and
unsuccessful evaluation challenges.
Council for Adult & Experiential Learning,
B-299798.2, August 28, 2007.
DIGEST: Post-award
challenges to solicitation terms are dismissed as untimely and
challenges to agency's evaluation of proposals are denied because they
are based on untimely allegations and fail to specifically identify
flaws with the agency's evaluation.
National Park Service-Special Park Use Fees, B-307319
Date: August 23, 2007 .
DIGEST: The National Park Service
(NPS) may set special park use fees based on market value when it is
acting under business-type conditions, but it may not double charge for
costs by setting a two-part fee in which one part is based on market
value and the other based on costs. Both the Independent Offices
Appropriations Act (IOAA) of 1952, codified at 31 U.S.C. § 9701,
and section 3a of title 16 of the United States Code authorize NPS to
charge a user fee. When providing commercial goods, services, or
resources, NPS may charge a fee based on market value under the IOAA
and, under section 3a, calculate its actual costs, deduct that amount
from the fee collected, and credit that amount to the current NPS
appropriation. Any fees collected in excess of costs must be deposited
into the miscellaneous receipts of the Treasury. Alternatively, NPS may
choose to set special park use fees to recover only its actual costs and
retain those under section 3a
S4,
Inc., B-299817; B-299817.2, August 23, 2007.
DIGEST:
1. Protest is denied where agency evaluation of past performance, and
ultimate selection of awardee's lower-priced proposal was reasonable,
and consistent with stated evaluation criteria.
2. Protest is
denied where agency properly proceeded with award notwithstanding
absence of applicable North American Industry Classification System
(NAICS) code from awardee's entries in the Online Representations and
Certifications Application (ORCA) system because other information
posted there confirmed that awardee represented itself to be small under
applicable size standard.
Interagency Agreements-Use of an Interagency Agreement
between the Counterintelligence Field Activity, Department of Defense,
and GovWorks to Obtain Office Space, B-309181, August 17, 2007.
DIGEST: Without a delegation from the General Services
Administration or independent statutory authority to enter into a lease,
neither GovWorks (a Department of the Interior franchise fund) nor the
Counterintelligence Field Activity (CIFA) of the Department of Defense
(DOD) had authority to obtain office space through a third-party lease.
Unless ratified by an appropriate government official, the agreement for
office space is unenforceable against the government. GovWorks and CIFA
cannot circumvent federal statutory and regulatory requirements on
leasing by bundling the lease agreement in a contract for services.
Without ratification, all payments made under this third-party lease are
improper payments, and DOD and GovWorks should take appropriate action
to resolve them.
There is no
evidence to suggest that CIFA violated the Antideficiency Act. Although
CIFA and GovWorks entered into an agreement to obtain office space
through a third-party lease without requisite authority, CIFA does have
an appropriation that is otherwise available for the purpose of leasing
office space-the Operation and Maintenance, Defense-wide appropriation.
CIFA recorded these costs as obligations of this appropriation and
transferred funds to GovWorks to pay for them. There is no indication,
however, that CIFA recorded or transferred amounts in excess of or in
advance of the appropriation. The conclusion that neither CIFA nor
GovWorks violated the Antideficiency Act does not diminish or excuse
CIFA's and GovWorks's disregard of federal statutes and policy,
involving the government in an unauthorized transaction and millions of
dollars of improper payments.
PWC
Logistics Services, Inc., B-299820; B-299820.3, August 14, .
DIGEST: 1. Protest that agency applied unstated environmental
risk management plan factor in its evaluation of management proposals is
denied where record shows that agency provided all offerors identical
information during discussions that effectively amended the evaluation
criteria of the solicitation.
2. Protest that agency failed to
provide protester discussions relating to the adequacy of its
environmental risk management plan is denied where record shows (1)
agency only assigned protester's proposal a minor weakness in the
area--and therefore was not required to discuss the matter--and (2)
agency, in fact, afforded protester discussions relating to this aspect
of its proposal.
3. Protest relating to reasonableness of the
agency's evaluation of protester's and awardee's proposals in the area
of environmental risk management plan is denied where record supports
agency's conclusions that there were qualitative distinctions between
the proposals in this area.
4. Protest relating to the agency's
finding that awardee's proposal offered superior past performance is
denied where record shows that agency had a reasonable basis for finding
the awardee's past performance more relevant than that of other
offerors', and the protester's assertions relating to awardee's past
performance are based on factually incorrect assumptions.
5.
Protest relating to the reasonableness of agency's price evaluation is
denied where record shows that agency's evaluation was reasonable and
consistent with the terms of the solicitation.
Lockheed Martin Maritime Systems & Sensors, B-299766;
B-299766.2, August 10, 2007.
DIGEST: Protest is
sustained where solicitation provided for tow-off testing of prototype
arrays according to a procedure in which each offeror was explicitly
permitted to participate in installation and check-out of its prototype,
and then granted a single opportunity to repair any failure of its
prototype immediately prior to towed testing, but the agency did not
notify the protester that its prototype had already failed before
arrival at the testing site, and did not allow the protester to repair
its prototype, and as a result, the agency was unable to evaluate
significant aspects of the performance of the protester's array.
XTec, Inc., B-299744.2; B-299744.3, August 6,
2007.
DIGEST: Even assuming that protester's
interpretation of solicitation issued under the Federal Supply Schedule
program for a contractor managed “end-to-end” solution
meeting government-wide federal identification card requirements is
reasonable and required all products and services within a vendor's
end-to-end solution to be listed on the agency's Approved Product List
at the time price submissions were due, protester failed to establish
that it was prejudiced by the agency's alleged waiver of this
requirement where the protester's proposal was lower-rated technically
and higher priced and the protester only generally asserted that had it
known of the agency's interpretation, it could have substituted products
and reduced its price.
K9
Operations, Inc., B-299923, August 6, 2007.
DIGEST:
Where solicitation did not impose specific requirement that proposed
facility have overnight parking approved by city, agency properly made
award without regard to whether awardee's facility had such approval.
Hawkeye Glove Manufacturing, Inc., B-299741, August
2, 2007.
DIGEST: Where solicitation divided requirement
for gloves into two portions—one set aside for small business and
the other unrestricted—and stated that agency intended to make
multiple awards, agency nevertheless was not required to make multiple
awards; agency properly awarded both portions of requirement to offeror
whose proposal received highest technical score and offered lowest total
price.
Business Consulting Associates, LLC, B-299758.2,
August 1, 2007.
DIGEST: 1. Agency reasonably concluded
that the protester's and awardee's proposals were “technically
equivalent,” such that price became the discriminator in the award
selection. 2. Protest that agency unreasonably accepted the awardee's
mitigation plan for a potential “impaired objectivity”
organizational conflict of interest (OCI) is denied, where only one of
the team members (a subcontractor) had a potential OCI, only a small
portion of the work was affected, and the agency reasonably determined
that awardee's plan to transfer the affected work to the other team
member (the prime contractor awardee), which was fully capable of
performing the work independently of the team member with an OCI, was
acceptable.
Carson Helicopter Services, Inc., B-299720;
B-299720.2, July 30, 2007.
DIGEST: On a solicitation
for aerial wildland fire suppression services to be awarded to the
offeror submitting the low-priced, technically acceptable proposal under
which technical proposals showing compliance with specifications were
required, the agency unreasonably determined that the awardee's proposed
helicopter met the payload requirements, based upon statements in the
proposal indicating compliance, where the proposal also contained
information that should reasonably have created doubt to an evaluator
familiar with helicopters whether the helicopter in fact satisfied the
requirements.
Panacea Consulting, Inc., B-299307.4; B-299308.4,
July 27, 2007.
DIGEST: Protest that agency's evaluation
and source selection decisions are unreasonable is sustained where
record lacks any meaningful explanation for evaluation scores and source
selection decisions.
OfficeMax, Inc., B-299340.2, July 19, 2007.
DIGEST: 1. Agency reasonably determined that vendor's
quotation was technically unacceptable where it failed to comply with a
mandatory solicitation requirement.
2. Protest that agency failed
to provide meaningful discussions is denied where protester cannot
establish prejudice because the record shows that protester's ordering
systems for office supplies did not comply with a mandatory solicitation
requirement, and shows that the protester did not plan to become
compliant.
Outdoor Venture Corporation; Applied Companies, B-299675;
B-299676, July 19, 2007.
DIGEST: 1. Contention that a
consolidated procurement violates the bundling provisions of the Small
Business Act, 15 U.S.C. § 631(j)(3) (2000), is denied where the
record shows that all of the requirements covered by the solicitation
were already being procured as a single system.
2. Protest that
agency's bundling of requirements violated the Competition in
Contracting Act of 1984, 10 U.S.C. § 2305(a)(1) (2000), as amended,
is denied where the agency has established in the record that its
consolidated approach is needed to satisfy its needs, and the protester
has not shown that the approach will not provide the benefits claimed,
or is unreasonable.
Expired Funds and Interagency Agreements between GovWorks
and the Department of Defense, B-308944, July 17, 2007.
DIGEST: GovWorks, a Department of the Interior franchise
fund, entered into four contracts on behalf of the Department of Defense
(DOD). With one exception, the Military Interdepartmental Purchase
Requests (MIPRs) used to finance these contracts did not identify the
specific items or services that DOD wanted GovWorks to acquire on its
behalf. Lacking the necessary specificity as to the items or services
ordered, these MIPRs did not properly obligate DOD's appropriation.
Accordingly, in fiscal year 2005, when GovWorks used these funds for
three of the four contracts, GovWorks improperly used prior year funds.
Axiom Resource Management, Inc., B-298870.3;
B-298870.4, July 12, 2007.
DIGEST: Contracting agency
reasonably determined that the issuance of a task order to a vendor to
provide program management support services to the TRICARE Acquisitions
Directorate did not create an impermissible organizational conflict of
interest (OCI) where the agency reviewed both existing and future
support requirements, and concluded that no OCI exists for current
support contracts, that any potential future OCIs can be mitigated and
that the awardee here will be barred from competing as a prime
contractor or subcontractor on future support contracts to provide
healthcare benefits directly to TRICARE benefit recipients.
Forest City Military Communities, LLC, B-299577, June
29, 2007.
DIGEST: 1. Protest challenging the agency's use
of an arbitrary “plug number” in evaluating the awardee's
proposed cost is denied where the protester's own calculation of the
awardee's cost demonstrates that there was no likelihood of prejudice.
DIGEST: 2. Protester's supplemental challenges to the
agency's evaluation of its proposal are dismissed as untimely where the
protester could have, but did not, raise the arguments in its initial
protest based on information made available to the protester during its
debriefing.
Meeks Disposal Corporation, B-299576; B-299576.2,
June 28, 2007.
DIGEST: Protest that agency unreasonably
determined that protester's proposal was unacceptable under technical
approach/management factor is denied where the solicitation required
that the proposals include a description of the methods and procedures
the offeror would use to recruit and retain experienced personnel and
managers, but protester provided only a brief and general statement on
the subject.
INDUS Technology, Inc., B-297800.13, June 25,
2007.
DIGEST: Agency reasonably excluded offeror's
proposals from competition where the cover letters accompanying the
proposals provided for an acceptance period of 180 days, and the
solicitation required a minimum acceptance period of 350 days and
specifically stated that proposals providing less than the minimum
acceptance period would be rejected.
Kellogg Brown & Root Services, Inc., B-298694.7,
June 22, 2007.
DIGEST: Protest that agency conducted an
unreasonable technical evaluation of the protester's proposal is denied,
where the agency provided a comprehensive, detailed record that fully
supports the agency's assessment of strengths and weaknesses in the
protester's proposal and demonstrates that the agency conducted the
evaluation consistent with the solicitation's evaluation criteria.
HealthStar VA, PLLC, B-299737, June 22, 2007.
DIGEST: It is the offeror's burden to submit an adequately
written proposal; an offeror, including an incumbent contractor, must
furnish, within its proposal, all information that was requested or
necessary to demonstrate its capabilities in response to the
solicitation.
Camnetics Mfg. Corporation, B-299738, June 21,
2007.
DIGEST: Agency reasonably rejected protester's
quotation offering surplus parts where the surplus parts had been
determined by the agency to be defective, and the protester did not show
that this determination was unreasonable.
Government Telecommunications, Inc., B-299542.2,
June 21, 2007.
DIGEST: Protest challenging contracting
agency's evaluation of protester's proposal and exclusion of proposal
from competitive range is denied where agency's evaluation and
competitive range determination were reasonable and in accordance with
the solicitation evaluation criteria.
B-308603 June 18,
2007 The Honorable Robert C. Byrd Chairman, Committee on Appropriations
United States Senate The Honorable John Conyers, Jr. Chairman, Committee
on the Judiciary United States House of Representatives Subject:
Presidential Signing Statements Accompanying the Fiscal Year 2006
Appropriatons Acts
This letter responds to your request that we
examine the fiscal year 2006 appropriations acts and the President's
accompanying signing statements to identify the provisions in the acts
to which the President took exception and to determine how the President
executed those provisions.
Caddell Construction Company, Inc., B-298949.2, June
15, 2007.
DIGEST: The Omnibus Diplomatic Security and
Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established
statutory qualification requirements for construction firms seeking to
build a U.S. embassy, including a requirement that contractors must have
achieved a total business volume equal to or greater than the value of
the project being bid in 3 years of the 5-year period before the
solicitation issuance date. Where the agency's determination that an
awardee has met this requirement is inconsistent with the ordinary
meaning of the words of the statute, has the effect of “reading
out“ portions of the statute, and is inconsistent with the
statute's legislative history, the awardee is not eligible for award,
and the protest is sustained.
Engineered Electric Company d/b/a DRS Fermont,
B-295126.4, June 14, 2007.
DIGEST: Protest that agency
improperly relaxed specification for fuel efficiency in acquisition of
mobile generators is denied where agency relaxed specification based on
determination that no offerors were able to meet prior, more stringent
requirements; fact that protester claims now to be able to meet more
stringent specification does not require that agency use more stringent
specification, since relaxed specification meets agency's needs and
enhances competition.
Medical Matrix, LP, B-299526; B-299526.2, June 12,
2007.
DIGEST: 1. Protest challenging reasonableness of
agency's past performance evaluation is denied where challenge is based
on assumption that awardee had not previously performed requirements
called for in solicitation, which is not supported by record.
2.
Protest alleging that agency improperly failed to consider past
performance in connection with its evaluation of proposals under
technical evaluation criteria is denied where evaluation scheme included
separate technical and past performance evaluation criteria, and did not
provide for evaluation of past performance under technical criteria.
3. Protest that agency failed to recognize that awardee's proposed
price was unrealistically low as compared to protester's is denied where
record shows that, although protester was incumbent contractor,
solicitation called for work not previously performed by protester;
price disparity between protester's and awardee's proposals is
attributable to this component of the requirement; and awardee has
previous experience performing this aspect of the requirement, which
agency recognized as basis for price disparity.
Avue Technologies Corp.; Carahsoft Technology Corp.,
B-298380.4, June 11, 2007.
DIGEST: Proposals submitted
in response to a solicitation issued for a solution to automate the
Department of Homeland Security's personnel recruitment and hiring
processes that did not include an adequate explanation, as requested by
the solicitation, of the proposals' compliance with the
solicitation's minimum mandatory requirements concerning
intellectual property/data rights were reasonably found unacceptable by
the agency.
Head Inc., B-299523, June 8, 2007.
DIGEST: Protest that agency failed to conduct meaningful
discussions with protester by not raising concerns about what was, in
essence, an alternate proposal to compress the construction schedule for
this effort from 38 months to 11 months, with no supporting
documentation, is denied where the protester offered the compressed
construction schedule in a two-sentence response to the solicitation's
call for “betterments,” which were defined as components or
systems that would exceed the solicitation's stated minimums, and the
agency reasonably elected to view the response as inconsistent with the
kind of improvements sought by the solicitation, and did not raise the
matter during otherwise appropriate discussions, or consider it further
in any way.
T
Square Logistics Services Corporation, Inc.--Costs, B-297790.6, June
7, 2007.
DIGEST: 1. Protester's opposition to, and GAO's
denial of, agency's request for “outcome prediction”
alternate dispute resolution (ADR) cannot serve as basis to disallow
otherwise reasonable protest costs.
2. Protest costs that GAO
recommended be reimbursed need not be allocated between issue for which
GAO attorney indicated during “outcome prediction” ADR that
the likely outcome would be a sustained protest and the other issues
raised by the protester, where the issues are interconnected and based
on common factual underpinnings.
3. Agency's generalized
objections to attorneys' hours in claim for protest costs do not provide
basis to justify denying adequately documented claim showing claimed
hours were reasonable and in pursuit of the protest.
4.
Protester's costs incurred questioning agency's proposed corrective
action prior to GAO's disposition of protest based on agency's proposed
corrective action are allowable protest costs.
5. In situations
where GAO recommends that protest costs be reimbursed, protester's costs
of preparing request to GAO for a recommendation that its protest costs
be reimbursed because of unduly delayed agency corrective action on a
clearly meritorious protest are allowable protest costs.
6.
Attorney fee $150 cap contained in Competition in Contracting Act, 31
U.S.C. § 3554(c)(2)(B) (2000), is not applicable to attorneys' fees
paid by small business protester.
7. Protester should be
reimbursed its costs of pursuing claim for costs at GAO where the agency
took no steps for 6 months to consider the claim when it was pending
there and for the first time in its report on the claim provided
non-meritorious arguments denying the bulk of the protester's claim.
IBM Corporation, B-299504; B-299504.2, June 4,
2007.
DIGEST: 1. Protest challenging agency's
evaluation of offerors' price and cost proposals is sustained
where agency improperly adjusted upward portions of protester's
fixed-price proposal.
2. Protest alleging unreasonable technical
evaluation is denied where record supports agency's evaluation of
protester's personnel approach.
3. Protest alleging
misleading discussions is denied where protester unreasonably relied on
oral advice allegedly provided by agency during discussions which
deviated from solicitation instructions.
Basic Concepts, Inc., B-299545, May 31, 2007.
DIGEST: Contracting agency's decision to satisfy its
immediate requirements for hazardous spill containment units using a
contract awarded under the Small Business Administration's section 8(a)
business development program, while completing an ongoing competition
reserved for small businesses, is unobjectionable where acquiring the
items using the 8(a) program does not violate any statute or regulation.
Interagency Agreements-Obligation of Funds under an
Indefinite Delivery, Indefinite Quantity Contract, B-308969, May 31,
2007.
DIGEST: The Department of the Interior, National
Business Center, awarded a 1-year indefinite delivery, indefinite
quantity contract (IDIQ) on behalf of the Department of Defense (DOD),
having a period of performance from July 1, 2003, to June 30, 2004. The
contract required the government to purchase a minimum of $1 million in
services from the contractor. The entire minimum amount applicable to
the IDIQ contract should have been obligated against fiscal year 2003
funds; however, Interior and DOD only charged $45,000 to the proper
fiscal year appropriation. Accordingly, Interior and DOD should adjust
their accounts to correct the improper obligation.
Apptis, Inc., B-299457; B-299457.2; B-299457.3, May
23, 2007.
DIGEST: 1. Post-closing time protest that
evaluator who is not a government employee has an impermissible conflict
of interest is untimely where the solicitation informed offerors of the
agency's intent to use the evaluator and the protester was aware
of the factual basis of the evaluator's alleged conflict of
interest prior to closing time.
2. Agency's evaluation of
offerors' “proof of concept” demonstrations cannot be
determined to be reasonable where the record lacks adequate
documentation supporting the evaluators' findings.
3.
Agency's consideration of an offeror's record of past
performance as part of assessing technical approach risk was improper
where past performance was not relevant and reasonably related to
technical approach risk as defined in the solicitation.
4.
Agency's discussions with protester were not meaningful where the
agency found significant weaknesses in the protester's proposal
but failed to identify them during discussions and give the firm the
opportunity to comment on adverse past performance information to which
it previously had not had an opportunity to respond.
5. Protest
challenging agency's price and past performance evaluation is
denied where the record establishes that the evaluation was reasonable
and consistent with the stated evaluation criteria.
Forensic Quality Services-International, B-299723,
May 23, 2007.
DIGEST: Protest against sole-source award
from protester who also submitted a timely expression of interest to the
procuring agency's presolicitation notice of intent to conduct a
sole-source procurement is premature where the agency has not rejected
the protester's response nor determined to proceed with the sole-source
procurement.
Lockmasters Security Institute, Inc., B-299456, May
21, 2007.
DIGEST: 1. Challenge to agency's limitation of
competition under a request for quotations (RFQ) to vendors who held a
particular General Services Administration (GSA) Federal Supply Schedule
(FSS) contract is denied where agency had a reasonable basis for its
decision to seek quotations under that schedule.
2. Agency does
not unreasonably limit competition where it issues an RFQ under a
different GSA FSS contract than the schedule under which the incumbent
contractor had been providing the agency's requirements.
Phoenix Management, Inc., B-299477, May 16, 2007.
DIGEST: Protest is denied where the agency reasonably found
the protester's proposal did not adequately explain protester's approach
to utilizing staff to ensure that multiple tasks of performance work
statement would be performed according to stated standards (without
disrupting the performance of other tasks), and where the agency had
provided comments during discussions that reasonably alerted the
protester to that concern, but the revised proposal failed to alleviate
the agency's concern.
M.Braun, Inc., B-298935.2, May 21, 2007.
DIGEST: An agency is not permitted to consider a late
quotation, where the solicitation contained a late submission provision
that limited the agency's consideration of late quotations, and no
exception to the provision applied.
Battelle Memorial Institute, B-299533, May 14,
2007.
DIGEST: Agency's decision to exclude protester's
proposal from competition for failing to include option year pricing was
reasonable, where the solication required that proposals contain this
pricing and provided for award without discussions; agency was not
required to allow protester to correct mistake because, although the
omission was evident on the face of the proposal, the protester's
intended pricing for the option years was not apparent.
Midland Supply, Inc., B-298720.3, May 14, 2007.
DIGEST: Under solicitation providing for award to offeror
whose proposal is found to be the most advantageous to the government
based on past performance, delivery, and price, protest challenging
selection decision is sustained where the record shows that the best
value determination mischaracterized the relative quality of the
offerors' on-time delivery records, a key factor in the selection
decision.
Computer Sciences Corporation; Unisys Corporation;
Northrop Grumman Information Technology, Inc.; IBM Business Consulting
Services--Federal File: B-298494.2; B-298494.3; B-298494.4; B-298494.5;
B-298494.6; B-298494.7; B-298494.8; B-298494.9; B-298494.10;
B-298494.11; B-298494.12; B-298494.13; B-298494.14 Date: May 10,
2007.
DIGEST: In a negotiated procurement, an agency's
exchanges with offerors with respect to their proposed subcontracting
plans were discussions, where the solicitation provided for the
comparative assessment of the merits of the plans as part of the
agency's technical evaluation, a number of the offerors' subcontracting
plans were assessed as being unacceptable, and the offerors made
material revisions in their plans in response to the exchanges with the
agency that made them acceptable.
Northwest Heritage Consultants, B-299547, May 10,
2007.
DIGEST: Agency properly declined to accept
Architect-Engineer Qualifications Statements submitted after closing
date for such submissions where there is no evidence that improper
government action caused the United States Postal Service's failure to
make timely delivery of the submissions to the agency.
Rothe Computer Solutions, LLC d/b/a Rohmann Joint
Venture, B-299452, May 9, 2007.
DIGEST: Small
Business Administration properly accepted requirement for visual
information services for the Air Force Academy into the 8(a) business
development program for award on a competitive basis without determining
whether acceptance of the requirement into the 8(a) program would have
an adverse impact on an existing small business after reasonably
determining that the services qualified as a new requirement.
EBSCO Publishing, Inc.--Costs, B-298918.4, May 7,
2007.
DIGEST: GAO recommends that agency reimburse
protester's costs of filing and pursuing earlier protest--and recommends
adjusting the $150 per hour statutory cap on attorneys' fees at 31
U.S.C. § 3554(c)(2)(B) (2000) to reflect an increase in the cost of
living as measured by the applicable consumer price index--where the
agency does not oppose either the increase in the maximum rate, or the
amount claimed.
Weidlinger Associates, Inc., B-299433; B-299433.2,
May 7, 2007.
DIGEST: 1. Agency properly evaluated
awardee's technical/management approach as “exceptional,”
and protester's as “acceptable,” where awardee's proposed
approach offered evaluated strengths that exceeded the solicitation
requirements and protester's proposed approach met, but did not exceed,
the requirements.
2. Agency properly considered all of the past
performance information submitted by protester, including information
submitted prior to solicitation amendment that revised and provided
additional detail regarding past performance evaluation criteria.
3. Agency properly concluded that protester's proposal did not offer
the lowest evaluated cost/price where solicitation provided that the
proposed costs for two sample tasks would constitute the evaluated
cost/price, and protester's proposal for the sample tasks offered higher
costs than the awardee's proposal.
CIGNA Government
Services, LLC, B-401062.2; B-401062.3, May 6, 2009.
DIGEST: 1. Agency failed to
conduct meaningful discussions where, after discussions had concluded, it determined that certain of
the protester's proposed costs, which were set forth in the protester's initial and
final revised proposals, were understated in comparison with those proposed by other offerors, and
the agency adjusted the most probable cost estimate associated with the protester's costs
upwards rather than reopening discussions to allow the protester an opportunity to address the
issue.
2. Agency's consideration of the awardee's proposed subcontractor's
past performance in its evaluation of the awardee's proposal under the solicitation's
past performance factor was not reasonable where the solicitation provided for the consideration of
the past performance of “significant” or “critical” subcontractors, and the
record does not evidence that the subcontractor could properly be considered “critical” or
“significant,” given that the costs associated with the subcontractor's performance total
[DELETED] percent of the total costs associated with the awardee's performance of the
contract.
3. The agency's evaluation of the protester's proposal and source
selection for one of the awards contemplated under the solicitation cannot be considered reasonable
where the protester, in response to the same solicitation but for a different award, submitted
another proposal that did not materially differ from the proposal at issue here, the proposal at
issue here received less favorable ratings, and no attempt was made by the source selection board or
the source selection authority during the simultaneous source selections to understand why the
ratings differed.
Dellew Corporation, B-299408, May 1, 2007.
DIGEST: Although as a general matter a contracting agency has
broad discretion with regard to the scheduling of site visits, the
agency's exercise of that discretion was unreasonable where the
protester was unable to attend a timely requested site visit because the
agency first informed the protester only one day before the date and
time of the site visit that the site visit had been scheduled and
unreasonably declined the protester's reasonable request for a later
site visit to allow that firm a meaningful opportunity to compete.
TVI Corporation, B-297849, April 19, 2006.
DIGEST: 1. Agency's evaluation of protester's proposal as
moderate risk--rather than as an unknown risk--under past performance
factor was unreasonable, where protester tendered a large amount of past
performance information, almost all of which the agency determined to be
either not recent or not relevant; solicitation required agency to
assign an unknown risk rating where offeror tendered “little or
no” recent, relevant past performance information.
2. Agency
improperly rated awardee's proposal neutral--instead of downgrading
it--under small business participation factor, where record shows that
awardee did not meet criteria established in solicitation for assignment
of neutral rating, and did not offer meaningful small business
participation plan.
Small Business Administration-Reconsideration,
B-298364.8, April 17, 2007
DECISION The Small Business
Administration (SBA) asks that we reconsider our decision in TYBRIN Corp., B-298364.6, B-298364.7, Mar.13,2007,
in which we sustained TYBRIN's protest of the award of a contract to The
CENTECH GROUP under request for proposals (RFP) No.
FA930o-04-R-0040,issued by the Department of the Air Force, for advisory
and assistance services to support the Aerospace Research, Development,
Test and Evaluation activities at the Air Force Flight Test Center,
Edwards Air Force Base, California. We deny the request for
reconsideration.
B-308715, Department of Energy--Title XVII Loan Guarantee
Program, April 20, 2007.
DIGEST: 1. Section 1702(b)(2)
of the Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594,
1117-18 (Aug. 8, 2005), confers upon the Department of Energy
independent authority to make loan guarantees, notwithstanding the
requirements imposed by the Federal Credit Reform Act of 1990 (FCRA),
Pub. L. No. 101-508, title XIII, subtitle B, sect. 13201, 104 Stat 1388,
1388-610 (Nov. 5, 1990), codified at 2 U.S.C. sect. 661c.
2. The
Department of Energy violated 42 U.S.C. sect. 7278 by expending
appropriated funds to implement a new loan guarantee program authorized
by title XVII of the Energy Policy Act of 2005, Pub. L. No. 109-58, 119
Stat. 594, 1117-22 (Aug. 8, 2005). Section 7278 prohibits the Department
from using funds made available to it under any Energy and Water
Development Appropriations Act to "implement or finance" any loan
guarantee program unless specific provision is made for the program in
an appropriations act. At the time, there was no such provision for
title XVII and the Department used funds appropriated to it for other
purposes by two Energy and Water Development Appropriations Acts. These
activities also violated the purpose statute, 31 U.S.C. sect. 1301(a),
and the Antideficiency Act, 31 U.S.C. sect. 1341(a).
Department of Agriculture-Cooperative Agreement for Use
of Aircraft, B-308010, April 20, 2007.
DIGEST: The
Animal and Plant Health Inspection Service (APHIS), a division in the
U.S. Department of Agriculture, did not violate the bona fide needs rule
when it used fiscal year 2000 funds to facilitate purchase of an
aircraft as part of a cooperative agreement. APHIS had the authority to
enter into a cooperative agreement with Wyoming Woolgrowers Association
(WWGA), but made the payments prior to a written cooperative agreement.
We do not endorse APHIS's actions in expending federal funds prior to
executing a cooperative agreement and remind APHIS of its duty to
protect government funds from potential loss.
LexisNexis, Inc., B-299381, April 17, 2007.
DIGEST: 1. Protest that agency unreasonably found the
protester's proposal unacceptable is denied where the record shows that
the agency's decision was reasonable.
2. Protest that agency
showed favoritism toward awardee by relaxing technical requirements is
denied where the record shows that the agency deleted the requirements
only after ascertaining that they were already being supplied, through
other means, to the end user, and the agency allowed the protester to
substitute products to meet certain other technical requirements.
3. Protest that agency failed to make available a material amendment
to the solicitation is denied where the record shows that agency posted
the amendment to the FedBizOpps website via a hyperlink to another
agency website.
Alliance Detective & Security Service, Inc.,
B-299342, April 13, 2007.
DIGEST: In the absence of
any countervailing reasons, agency should not exercise options under
contracts set aside for small business concerns, where award was
improperly made before referring pre-award size protests to the Small
Business Administration (SBA) and to a firm that has been determined to
be other than a small business by the SBA, and where the agency lifted a
stay on contract performance, even though performance was not to
commence for 3 months, it had been apprised of the SBA size protest, and
all evidence indicated that the awardee was a large business.
International Filter Manufacturing, Inc., B-299407,
April 10, 2007.
DIGEST: Protest that agency should have
issued a solicitation for part kits as a set-aside for historically
underutilized business zone (HUBZone) small business concerns is denied,
where the acquisition was below the simplified acquisition threshold and
thus was not required to be set aside for HUBZone small business
concerns; in any case, the agency's market research did not reveal that
the agency could reasonably anticipate receiving offers from two or more
HUBZone small business concerns.
Greenleaf Construction Company, Inc., B-293105.21;
B-293105.22; B-293105.23, April 4, 2007.
DIGEST:
Protest asserting organizational conflict of interest is denied where
contracting officer reasonably determined that owner of management and
marketing (M&M) services contractor in Ohio had sold interest in closing
agent contractor for Ohio, the activities of which the M&M contractor
will oversee; mere fact that M&M owner initially was reluctant to forego
further compensation for his interest in closing agent did not require
contracting officer to question the veracity and reliability of
notarized documents that indicated that there had been a complete
cessation of any continuing financial ties between M&M owner and closing
agent.
Shirlington Limousine & Transportation,
Inc., B-299241.2, March 30, 2007.
DIGEST: Protest
challenging agency's rejection of the protester's proposal as late is
denied where the late receipt of the proposal was not caused by the
agency and the government did not have receipt and control of the
proposal at the government installation designated for receipt of
proposals prior to the submission deadline.
Sikorsky Aircraft Company; Lockheed Martin Systems
Integration-Owego--Request for Reconsideration, B-299145.4, March
29, 2007.
DIGEST: Agency reasonably determined that
protester's recent, seriously deficient performance on a highly relevant
contract for a similar aircraft warranted a past performance rating of
little confidence, notwithstanding that protester also had very good
performance on another highly relevant contract.
L-3
Communications Titan Corporation, B-299317; B-299317.2; B-299317.3,
March 29, 2007.
DIGEST: 1. Evaluation record fails to
reasonably support the agency's conclusion that protester's proposal of
[deleted] linguists is more likely to create shortfalls against the
solicitation's requirements to fill 7,217 linguist positions than
awardee's proposal of [deleted] linguists.
2. Where solicitation
established specific evaluation benchmarks for evaluation of offerors'
experience, and provided for comparative assessments against those
benchmarks, an agency may not substitute a previously unidentified
“threshold of sufficiency” as an evaluation benchmark
against which proposals are evaluated on a pass/fail basis.
3.
Evaluation scheme which effectively penalizes one offeror for proposing
[deleted] and effectively rewards a competing offeror for proposing
[deleted] fails to comply with Federal Acquisition Regulation
requirement that evaluation factors must support meaningful comparison
and discrimination between and among competing proposals.
MCS Portable Restroom Service, B-299291, March 28,
2007.
DIGEST: 1. Procuring agency is required to make
reasonable efforts to ascertain whether an acquisition is suitable for a
set-aside for service-disabled veteran-owned small business concerns
(SDVOSBC) before it can proceed with a small business set-aside.
2. Procuring agency has the discretion to make a sole-source award to
an SDVOSBC if the contracting officer does not have a reasonable
expectation that two or more SDVOSBCs would submit bids for the work.
Johnson Controls Security Systems, LLC, B-296490.3;
B-296490.4; B-296490.5, March 23, 2007.
DIGEST: 1.
Protest that agency improperly failed to consider awardee's past
performance as incumbent contractor on solicited requirement is
sustained where solicitation called for evaluation of past performance,
and agency had actual knowledge of awardee's performance.
2.
Agency's finding that awardee's staffing offered advantages as compared
to protester's staffing was unreasonable where there is no indication in
record that agency considered fact that protester proposed to staff
contract [deleted], which would appear to diminish the significance of
awardee's identified advantages.
Southwest Research Institute, B-299042.2, March 23,
2007.
DIGEST: Cancellation of request for quotations (RFQ)
was unobjectionable where agency reasonably determined that evaluation
scheme did not reflect its needs, and that revising scheme would lead to
enhanced competition.
GPA-Buffer, LP, B-298953.2, March 21, 2007.
DIGEST: Request for reimbursement of protest costs is denied
where record fails to establish that the agency delayed taking
corrective action in the face of clearly meritorious protest.
L-3
Communications Corporation, BT Fuze Products Division, B-299227;
B-299227.2, March 14, 2007.
DIGEST: In a negotiated
procurement which provides for award on the basis of a cost/technical
tradeoff, a protest challenging the agency's evaluation and source
selection decision is denied, where the record establishes the
reasonableness of the the agency's judgment that the awardee's superior
approach, understanding, and level of expertise outweighed the
protester's price advantage.
TYBRIN Corporation, B-298364.6; B-298364.7, March
13, 2007.
DIGEST: Agency's award of a contract under a
solicitation set aside for small businesses was improper where the
awardee's proposal as submitted clearly did not meet the material
solicitation requirement that at least 50 percent of the cost of
contract performance incurred for personnel be expended for employees of
the small business awardee, notwithstanding the United States Small
Business Administration's (SBA) issuance of a Certificate of Competency
to the small business awardee because SBA found that the awardee would
be able to comply with the subcontracting limitation during the
performance of the contract.
Shirlington Limousine & Transport, Inc., B-299241,
March 13, 2007.
DIGEST: 1. Protest that solicitation
requirements that secured storage facility contain an electronic access
control system, that the contractor supply sedans, and that all shuttle
buses be equipped with wheel chair lifts are unduly restrictive of
competition is denied where the record establishes that requirement was
reasonably designed to ensure that the government's needs would be met.
2. Protest challenging agency decision not to set aside
procurement for Historically Underutilized Business Zone (HUBZone) small
businesses is denied where the decision was based on sufficient facts to
establish reasonableness of agency's conclusion that there was not a
reasonable expectation that offers would be received from two or more
HUBZone business concerns.
SourceLink Ohio, LLC, B-299258, March 12, 2007.
DIGEST: Protest challenging the rejection of bid by
Government Printing Office as nonresponsive, under an invitation for
bids to produce and mail beneficiary notices, for failure to submit with
the bid a Data Use Agreement--an agreement which requires the contractor
to establish and maintain administrative, technical and physical
safeguards to protect the confidentiality of the data controlled by
Centers for Medicare and Medicaid Services (CMS) needed to perform the
contract and which procedurally calls for CMS's approval prior to
agreement execution and the dissemination of CMS's data--is sustained
because this is a matter concerning the bidder's responsibility, not the
responsiveness of the bid.
Geo-Seis Helicopters, Inc., B-299175; B-299175.2,
March 5, 2007.
DIGEST: 1. Where awardee's final proposal
revision (FPR) was received after closing time, it was unobjectionable
for contracting officer to extend closing time to provide awardee
another opportunity to timely submit its FPR; agency properly may extend
closing time under these circumstances where extension is intended to
enhance competition.
2. Price/technical tradeoff was reasonable
where record demonstrates that, based on consideration of evaluation
documents, source selection authority concluded that awardee's and
protester's proposals were technically equal, and that protester's
superior past performance was not sufficient to offset awardee's lower
price. [But see the July 30, 2007,
GEO-SEIS HELICOPTERS, INC. v. THE UNITED STATES and PRESIDENTIAL
AIRWAYS, INC, decision by the COFC which essentially overrules this
late proposal decision.-jaw]
Mathews Associates, Inc., B-299305, March 5,
2007.
DIGEST: Protester's contention that agency
unreasonably refused to evaluate its proposal is denied where the
solicitation clearly indicated that any page of an offeror's proposal
that exceeded the margin, font, or total page limits would not be
evaluated, and there is no dispute that the protester's proposal
exceeded the solicitation's margin limits on every page.
Vaden Industries, Inc., B-299338, March 5, 2007.
DIGEST: Protest challenging solicitation performance and
payment bond requirements is denied where agency's need for such
requirements is reasonably supported by the record.
IBM Global Business Services, B-298833.4; B-298833.5,
March 1, 2007.
DIGEST: In procurement for system
integrator to deploy commercial off-the-shelf software product suite and
change management techniques, quotation was reasonably evaluated as high
risk where vendor intended to involve too few government personnel in
change management process to accomplish important change management
activities; protester's defense of its ratio of government personnel to
contractor consultants is undercut by fact that ratio was significantly
lower than that in typical commercial implementations.
Frontier Systems Integrators, LLC, B-298872.3,
February 28, 2007.
DIGEST: 1. Agency reasonably decided
not to attribute to the awardee the past performance information of its
parent company where awardee's proposal indicated that parent's role was
limited to providing administrative support functions and reflected that
it would have no role in performing the actual security guard functions
required by the agency. 2. Protest that awardee's proposal should have
been rated “unacceptable” for failing to comply with
solicitation requirement that offerors submit “at least”
three relevant past performance questionnaires is denied where past
performance was evaluated according to a pass/fail evaluation scheme and
was therefore ultimately a matter of responsibility and the protester
did not challenge the agency's affirmative determination of
responsibility with respect to the awardee.
Sikorsky Aircraft Company; Lockheed Martin Systems
Integration-Owego, B-299145; B-299145.2; B-299145.3, February 26,
2007.
DIGEST: Protest is sustained where (1) solicitation
for combat search and rescue aircraft provided that cost/price would be
calculated on the basis of Most Probable Life Cycle Cost, including both
contract and operations and support (O&S) costs, (2) solicitation
requested detailed information quantifying required maintenance for
proposed aircraft, and (3) agency nevertheless normalized cost of
maintenance when calculating O&S costs, thereby ignoring potentially
lower cost of asserted low maintenance helicopters; once offerors are
informed of criteria against which proposals will be evaluated and award
made, agency must adhere to those criteria.
James C. Trump, B-299370, February 20, 2007.
DIGEST: Protester serving as agency tender official, who
filed protest on behalf of federal employees challenging the outcome of
a public-private competition under Office of Management and Budget
Circular A-76, is not an interested party with standing to pursue a
protest at the Government Accountability Office where the public-private
competition at issue was initiated prior to January 26, 2005.
Operational Resource Consultants, Inc., B-299131.1;
B-299131.2, February 16, 2007.
DIGEST: 1. Protest that
award was tainted by organizational conflicts of interest is denied
where the record does not support allegations that the awardee
participated in the drafting of the statement of work or had access to
non-public information that would have provided a competitive advantage.
2. Protest challenging agency's evaluation of vendor's technical
and price quotations is denied where the record supports the
reasonableness of the agency's evaluations, and does not support the
protester's allegations regarding inadequate discussions.
Bio-Rad Laboratories, Inc., B-297553, February 15,
2006.
DIGEST: 1. Where a solicitation failed to disclose
the relative weight of the listed subfactors of the primary technical
factor, the subfactors should have been considered approximately equal
in weight, even though the procurement was intended to be conducted
using Federal Acquisition Regulation (FAR) Part 13 simplified
acquisition procedures and FAR § 13.106-1(a)(2) states that the
relative importance of evaluation factors and subfactors need not be
disclosed in a solicitation, because the solicitation did not indicate
that the acquisition was being conducted under FAR Part 13 and the
acquisition was conducted in a manner that was not distinguishable from
a negotiated acquisition conducted under FAR Part 15, which requires
that the relative weights of the evaluation factors and subfactors be
stated in the solicitation.
2. Agency's selection of a proposal
for award was unreasonable where the solicitation was silent as to the
relative weights of the subfactors of the primary technical evaluation
factor, and the agency, rather than treating the subfactors as equal in
weight in evaluating the relative merits of the competing proposals,
considered the subfactors as listed in descending order of importance.
3. Agency failed to evaluate proposals reasonably or in accordance
with the terms of the solicitation's past performance and organizational
experience evaluation factor where the undocumented and conclusory
evaluation evidences that the agency did not meaningfully evaluate the
organizational experience component of this factor.
4. Agency's
evaluation of the large business awardee's proposal as
“neutral” or “satisfactory” under the
solicitation's evaluation factor considering the participation of small
disadvantaged businesses and other types of small businesses was
unreasonable and inconsistent with the solicitation, where the proposal
stated that there would not be any such participation in contract
performance.
Para Scientific Company, B-299046.2, February 13,
2007.
DIGEST: In a procurement conducted under simplified
acquisition procedures, agency's determination that it was in the best
interests of the government to make a single award under to the vendor
that submitted the lowest total-priced quotation for all 22 items listed
in a request for quotations for laboratory supplies was unreasonable
where the record demonstrates that a second award to the protester for 6
of the requested items would have resulted in a lower aggregate cost to
the government and there is nothing in the record to suggest that such
an award would not have been in the government's best interests.
Synectic Solutions, Inc., B-299086, February 7,
2007.
DIGEST: 1. Protest challenging agency's technical
and price evaluations is denied where the record supports the
reasonableness of the evaluations.
2. Protest challenging agency's
determination not to conduct discussions is denied where the
solicitation advised offerors that the agency intended to make award
without conducting discussions, and the record establishes that the
agency had a reasonable basis for making its source selection decision.
Alutiiq Global Solutions, B-299088;
B-299088.2, February 6, 2007.
DIGEST: 1. Protest is
denied where there is no evidence that the contracting officer ignored
relevant information in making affirmative determinations of
responsibility regarding the awardees.
2. Protest allegation
challenging agency's evaluation of protester's proposal is denied where
the alleged evaluation error did not result in competitive prejudice to
protester.
3. Protester is not an interested party to challenge
evaluation of awardee's proposal where record shows that another firm,
not the protester, would be in line for award if protester's challenge
were sustained, and protester does not challenge evaluation of the other
firm's proposal.
Global Analytic Information Technology Services, Inc.,
B-298840.2, February 6, 2007.
DIGEST: 1. Agency
improperly downgraded protester's proposal for failing to include
information showing methods for achieving cost or time savings, where
such a consideration was not a stated basis for evaluation.
2.
Protest that agency improperly engaged in discussions solely with
awardee is sustained where awardee was permitted to submit required
price escalation rate after conclusion of its oral presentation,
notwithstanding agency's specific instructions that such pricing
information be furnished at outset of oral presentation.
SEI Group, Inc., B-299108, February 6, 2007.
DIGEST: Protest challenging cancellation of solicitation is
denied where the record supports the agency's assertion that by
canceling the solicitation the agency could save money, enhance
competition, and increase its purchasing flexibility.
ITT Electronic Systems, Radar Systems--Gilfillan,
B-299150; B-299150.2; B-299150.3; B-299150.4; B-299150.5, February
2, 2007.
DIGEST: Protest challenging award of a
sole-source contract based on alleged changes to the agency's
requirements, which served as the basis for the sole-source
determination, is premature where the agency has not finalized any
changes to its requirements and there have been no modifications to the
sole-source contract reflecting any of the changed requirements alleged
by the protester.
OK Produce; Coast Citrus Distributors, B-299058;
B-299058.2, February 2, 2007.
DIGEST: 1. Protests of
evaluation of proposals and source selection are denied where record
shows agency's evaluation and awards were reasonable and consistent with
the solicitation's terms; protesters' mere disagreement with the
agency's evaluation and selection does not show they are unreasonable.
2. Protests that awardee obtained an unfair competitive advantage
by hiring as a consultant a former government employee who had served as
a technical evaluator for a previous procurement are denied where record
shows the individual did not assist in the preparation of the
solicitation and that there is no reason to believe inside information
was shared with the awardee.
Hydroid LLC, B-299072, January 31, 2007.
DIGEST: In small business set-aside, agency's acceptance of
firm's claimed entitlement to small business status under
“nonmanufacturer rule” was unreasonable where agency should
have known firm's claimed status was questionable, and therefore should
have challenged its status before Small Business Administration.
Continental Staffing, Inc., B-299054, January 29,
2007.
DIGEST: 1. Protester's contention that
solicitation's cascading set-aside clause violates certain set-aside
provisions in the Federal Acquisition Regulation is untimely when first
raised after award; the alleged solicitation impropriety was clear from
the face of the solicitation, and the protester was required, under our
Bid Protest Regulations, to raise this issue prior to the time set for
the submission of offers.
2. Contention by protester, a
service-disabled veteran-owned small business (SDVOSB), that, under
terms of the solicitation's cascading set-aside clause, agency should
have made award in the SDVOSB tier is denied where agency reasonably
decided that the condition for making award at that tier--receipt of
adequate competition among SDVOSB firms--had not been met given that
four of the five proposals submitted by SDVOSBs were found unacceptable
for taking exception to the solicitation's limitations on subcontracting
clause.
Global Communications Solutions, Inc.,
B-299044; B-299044.2, January 29, 2007.
DIGEST:
Protest is sustained where agency had no authority to use small purchase
procedures to acquire a commercial item because the anticipated contract
value was in excess of $5 million, contrary to applicable regulation
limiting use of these procedures to purchases at or below $5 million.
Freedom Lift Corporation, B-298772.2,
January 25, 2007.
DIGEST: 1. Contracting officer did not
act inconsistently in selecting lower-rated, lower-priced item for award
under one line item and higher-rated, higher-priced item for award under
another where price/technical trade-off considerations pertaining to the
two line items were distinct.
2. Under solicitation for
wheelchair/scooter lifts to be installed in motor vehicles used by
mobility-impaired veterans, protest that specification requiring that
lifts be capable of lifting 350 pounds should be interpreted as
requiring that lifts be capable of lifting 350 pounds on majority of
vehicles owned by mobility-impaired veterans is denied where
solicitation contained no language indicating that compliance with
specification was required in a majority--or in any specific
percentage--of vehicles.
Alaska Structures, Inc.--Costs, B-298575.4, January
22, 2007.
DIGEST: 1. Protester is not entitled to
reimbursement of the costs of filing and pursuing its protest where the
agency decides to take corrective action in response to the protest, and
the protest was not clearly meritorious.
2. Request for
recommendation for reimbursement of protest costs relating to earlier
protest which led to corrective action is denied where the record
provides no support for protester's allegation that the issue which the
agency's corrective action did not address was clearly meritorious.
L-3 Communications Corporation, B-299014;
B-299014.2, January 16, 2007.
DIGEST: In a negotiated
procurement that provides for award on the basis of a cost/technical
tradeoff, protest that an agency unreasonably downgraded the protester's
offer to exceed the technical requirements is denied, where, in
accordance with the stated evaluation scheme, the agency credited the
protester's offer to exceed the requirements but concluded that the
risks associated with the protester's offer did not outweigh its slight
price advantage.
Northrop Grumman Systems Corporation, B-298954;
B-298954.2; B-298954.3, January 12, 2007.
DIGEST:
Protest that agency failed to adequately account in the evaluation and
best value determination for protester's offer of an enhancement
(greater coverage) to required target acquisition counter fire radar is
denied where the agency assigned a significant strength to protester's
proposal on account of the proposed enhancement, but also assigned a
significant strength to the awardee's proposal on account of the fact
that its proposed radar was based on an actual prototype radar, and thus
was more likely than the protester's unbuilt design to meet the
solicitation's stringent delivery schedule; having reasonably determined
that the protester's proposal was not superior to the awardee's proposal
with respect to technical approach, the agency reasonably concluded that
the awardee's advantages with respect to supportability and a lower
cost/price warranted finding that the proposal represented the best
value.
Gear Wizzard, Inc., B-298993, January 11, 2007.
DIGEST: Protest that agency improperly rejected protester's
proposal for failure to meet approved source requirement is denied
where, although protester proposed the part of an approved source,
additional information developed by agency showed that part was to be
manufactured by [DELETED] that was not contemplated by agency's source
approval.
Caddell Construction Company, Inc., B-298949,
January 10, 2007.
DIGEST: Protest that Department of State
improperly made award to a company that is not a “United States
person” as required by the Omnibus Diplomatic Security and
Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), is sustained
where record shows that agency improperly prequalified the awardee as a
“United States person” based on the awardee having a de
facto joint venture relationship with its parent company, when the
awardee specifically certified that it was neither a formal nor a de
facto joint venture.
Allmond & Company, B-298946, January 9, 2007.
DIGEST: When conducting a procurement under the Federal
Supply Schedule (FSS) program, contracting agency satisfies applicable
statutory and regulatory competition requirements when it solicits
quotations from at least three FSS contractors able to meet the agency's
needs; the agency is not required to solicit the incumbent FSS
contractor to participate in the competition.
Raith Engineering and Manufacturing Company, W.L.L.,
B-298333.3, January 9, 2007.
DIGEST: Protest to the
Government Accountability Office will not be considered where it is
preceded by an initial agency-level protest that was untimely filed more
than 10 days after the protester was given a debriefing.
3SG
Corporation, B-298957, January 5, 2007.
DIGEST: Agency
improperly rejected a quotation for failing to comply with a
solicitation requirement that the services be performed at the agency's
facility, where the quotation expressly stated that the firm would
perform the services at the agency's facility, and the agency's
interpretation of other terms of the quotation as taking exception with
this requirement was unreasonable.[Rejected quotation was $27,302.50 and
awardee's was $102,615!-jaw]
Magellan Health Services, B-298912, January 5,
2007.
DIGEST: 1. Protest challenging agency's evaluation
of technical proposals is denied where the record establishes that the
evaluation was reasonable and consistent with the evaluation criteria.
2. Agency's cost realism evaluation of awardee's proposal was
unreasonable where agency failed to take into account cost adjustments
made by its own cost analyst to awardee's proposal, and instead utilized
awardee's proposed costs as the basis for its source selection decision.
3. Agency's cost realism evaluation of awardee's proposal was
improper where, although knowing that awardee had proposed to recruit
the incumbent workforce and match all existing salaries but had also
failed to propose direct labor rates consistent with existing salaries,
agency failed to adjust awardee's proposed labor rates as part of its
cost realism evaluation.
4. Protest challenging adequacy of
agency's “best value” source selection decision is sustained
where there is insufficient information and analysis in the record,
which includes both a contemporaneous source selection document and a
post-protest statement, to determine that the selection official's key
conclusion of technical equality, notwithstanding the higher technical
rating assigned to the protester's proposal, was reasonable.
Joint Venture Penauillie Italia S.p.A.; Cofathec S.p.A.;
SEB.CO S.a.s.; CO.PEL.S.a.s., B-298865; B-298865.2, January 3,
2007.
DIGEST: Protest challenging agency's rejection of
protester's proposal as incomplete is denied where the proposal lacked
required information regarding option year pricing, and the agency was
not legally required to allow the protester to revise its proposal.
Barnes Aerospace Group, B-298864; B-298864.2,
December 26, 2006.
DIGEST: 1. Protester's contention that
the agency unreasonably delayed acting on the protester's request to
become an approved source is denied where the record shows that the
delay was not unreasonable.
2. Protest challenging sole-source
procurement justified on the ground that only one source is available is
sustained where the record shows that the presolicitation notice
generated an expression of interest from a second source that has made
significant progress towards becoming an approved source under the
agency's source approval rules, and the remaining time required for
approval is not long; as a result, a sole-source award, without
considering the viability of the second source as part of the
justification and approval process, is improper.
3. Protest is
sustained where the record shows that the agency treated offerors
unequally with respect to the application of its qualification
requirements by requiring that a source seeking approval follow
qualification rules while ignoring requalification requirements in those
same rules for a previously approved source.
Smiths Detection, Inc., B-298838, B-298838.2,
December 22, 2006.
DIGEST: 1. Protest that agency's
evaluation and source selection decision (SSD) were flawed is denied
where the record shows that the agency's evaluation and SSD were
reasonable and consistent with the solicitation's evaluation factors.
2. Source selection authority (SSA) performed a reasonable
cost/technical tradeoff in determining that the awardees' proposals
represented the best value, where the SSA's judgment, based upon the
results of a reasonable, documented technical evaluation, demonstrates
the SSA's understanding of the evaluated strengths and weaknesses of the
respective proposals, and shows a reasonable weighing of the offerors'
respective technical and cost advantages consistent with the
solicitation's evaluation criteria.
3. Discussions were meaningful
where the discussions led the protester into the areas of its proposal
that required improvement or further clarification.
4. Agency's
cost evaluation was reasonable even though agency did not verify each
and every item of an offeror's proposed costs in conducting its cost
realism analysis since the cost evaluation was the result of the
agency's exercise of informed judgment.
ViroMed Laboratories, B-298931, December 20, 2006.
DIGEST: Protest that agency failed to conduct adequate market
research to determine appropriateness of small business set-aside by
failing to verify the representations of small business offerors
regarding their capabilities is denied; in the absence of evidence that
small business sources had misrepresented their capabilities, it was
reasonable for the contracting officer to rely upon these
representations in making set-aside determination.
Palmetto GBA, LLC, B-299154, December 19, 2006.
DIGEST: Protest challenging issuance of a task order under a
multiple-award indefinite-delivery/indefinite-quantity contract is
dismissed where the task order does not foreclose vendors' opportunity
to compete for future orders under the contract, and therefore the
issuance of the order does not constitute a “downselection”
and is not subject to GAO's bid protest jurisdiction.
Exploration Partners, LLC, B-298804, December 19,
2006.
DIGEST: Under the Competition in Contracting Act of
1984 and GAO's Bid Protest Regulations, GAO will not review the issuance
of Space Act agreements pursuant to agency's “other
transactions” authority, because the issuance of the Space Act
agreements pursuant to that authority was not tantamount to the award of
contracts for the procurement of goods and services and was, therefore,
outside GAO's bid protest jurisdiction; GAO will review, however, a
timely protest that an agency improperly used a non-procurement
instrument, such as an “other transactions” instrument,
where a procurement contract was required.
Partnership for Response and Recovery, B-298443.4,
December 18, 2006.
DIGEST: Agency is not required to limit
discussions and revised proposals in taking corrective action in
response to protest where it found discussions and evaluation were
inadequate and new requirements have been added to the solicitation.
Tessa Structures, LLC, B-298835,
December 14, 2006.
DIGEST: Agency's rejection of
protester's bid based on determination that protester could not perform
in the number of days specified in its bid constituted a finding of
nonresponsibility—rather than one of nonresponsiveness, as
characterized by the agency—which, because protester was a small
business, had to be referred to Small Business Administration for
certificate of competency review.
AllWorld Language Consultants, Inc., B-298831,
December 14, 2006.
DIGEST: 1. Protest that awardee in
fixed-price sealed bid acquisition submitted unrealistically low prices
is dismissed, since question of whether a firm's pricing is too low does
not involve the responsiveness of the firm's bid, but rather the firm's
responsibility; agency, in making award, made an affirmative
determination of responsibility, which is not for consideration under
our Bid Protest Regulations except in circumstances not alleged by
protester.
2. Protest that firm's bid was nonresponsive because it
included incorrectly calculated overtime rates is denied where record
shows that miscalculation amounted to waivable minor informality.
Reconsideration Request by Guldmann, B-298585.4, December 13, 2006. GAO reconsiders its dismissal as untimely of a request for reconsideration after discovering that the request was in fact in the GAO email system prior to the closing time. [But see a contrary result when a submittal was made to a contracting office in Symetrics Industries, LLC, B-298759- jaw]
Management Solutions, L.C. d/b/a EssTech
Engineering, B-298883; B-298883.2, December 13, 2006.
DIGEST: Cancellation of request for proposals (RFP) was
reasonable where, after issuance of the RFP, the agency determined that
it was required to satisfy its requirement from Federal Prison
Industries under Federal Acquisition Regulation ¶ 8.602.
Leader Communications Inc., B-298734; B-298734.2,
December 7, 2006.
DIGEST: 1. Agency reasonably determined
that the award of a contract for business support services to a firm
currently performing a contract for acquisition support services did not
create an organizational conflict of interest.
2. Agency's
evaluation of the protester's proposal submitted in response to a
solicitation for business support services was reasonable where the
agency's evaluated criticisms of the protester's proposal were
consistent with terms of the solicitation and the record.
ALATEC Inc., B-298730, December 4, 2006.
DIGEST: Where the Small Business Administration (SBA)
determined, in response to a timely size protest, that the awardee under
a procurement set aside for small businesses was other than small after
the 10-day period during which the SBA was required to issue the size
determination and the agency, therefore, proceeded with award, and there
was a stay of contract performance because of a protest to GAO, during
which the SBA Office of Hearings and Appeals affirmed that the awardee
was other than small, the agency, in the absence of any legitimate
countervailing reasons for not taking such action, should have
terminated the large business's contract, since to allow the
continuation of the contract award by a large business in such
circumstances would be inconsistent with the integrity of the
procurement system and the Small Business Act.
Relm Wireless Corporation, B-298715, December 4,
200.
DIGEST: Protest that agency improperly obtained
products outside scope of multiple-award
indefinite-delivery/indefinite-quantity contracts is denied where the
product was reasonably encompassed by the contracts at issue.
Logan, LLC, B-294974.6, December 1, 2006.
DIGEST: 1. Statutory requirement to obtain maximum
practicable competition in simplified acquisitions is met where agency
uses competitive procedures in establishing blanket purchase agreements
(BPA) with multiple vendors; under those circumstances, there is no
requirement that the agency conduct a further competition among the BPA
holders in connection with each individual purchase order subsequently
issued under the BPAs.
2. Challenge to agency's decisions made
after competitive establishment of BPAs regarding whether and how to
place orders with specific BPA holders concerns administration of the
BPAs, an issue not for review in a bid protest before the Government
Accountability Office.
Squires Timber Company B-298859, December 1, 2006.
DIGEST: Protester's high timber sale bid was improperly
rejected based on discrepancy between minimum advertised rate for
particular species of timber and rate actually bid; since discrepancy is
clearly negligible, protester's bid is responsive and pricing defect may
be corrected as minor informality.
Metcalf & Eddy Services, Inc., B-298421.2;
B-298421.3, November 29, 2006.
DIGEST: Protest
challenging agency's evaluation of protester's presentation is denied
where record shows that evaluation was consistent with terms of
solicitation and instructions provided to competitors.
Midland Supply, Inc., B-298720; B-298720.2, November
29, 2006.
DIGEST: Under solicitation providing for award
to offeror whose proposal is found to be the most advantageous to the
government based on past performance, delivery, and price, selection of
lower technically rated, lower-priced proposal is improper where the
record shows that selection decision was based on a mechanical
comparison of offerors' total point scores and lacks any documentation
indicating that a price/technical tradeoff was made.
Overlook Systems Technologies, Inc., B-298099.4;
B-298099.5, November 28, 2006.
DIGEST: 1. Protester's
contention that the agency failed to adequately mitigate the risk of
organizational conflicts of interest (OCI) associated with the selection
of the awardee is denied where the record shows that: the contracting
officer reasonably concluded that the risk of a conflict of interest in
this procurement is not great; the agency requested a detailed OCI
mitigation plan from the awardee and sought additional information
about, and modifications to, the plan; and the contracting officer
reasonably concluded, after performing a detailed analysis, that the
modified plan--together with certain steps designed to increase agency
oversight of the contractor--was sufficient to protect the government's
interest.
2. Protester's contention that the agency improperly
held discussions with only the awardee while exchanging information
about the adequacy of the awardee's plan to mitigate the risk of an OCI,
and thus should have held discussions with the protester as well, is
denied; a contracting officer's consideration of whether a contractor is
eligible for award despite an OCI is analogous to a responsibility
determination, and the exchanges here--like a request for information
that relates to an offeror's responsibility, rather than proposal
evaluation--did not constitute discussions.
2B Brokers et al., B-298651, November 27, 2006.
DIGEST: Protest that solicitation for the Defense
Transportation Coordination Initiative that consolidated transportation
coordination and freight transportation services was unduly restrictive
of competition and was an impermissible bundling of requirements under
the Small Business Act is denied, where the agency reasonably determined
that consolidation would result in substantial cost savings and
efficiencies and was necessary to meet the agency's needs.
General Electrodynamics Corporation, B-298698;
B-298698.2, November 27, 2006.
DIGEST: Under
solicitation for digital aircraft weighing scales, requirement that the
scales not utilize hydraulic components or mechanical load sensing
devices, which excludes protester's product, is not unduly restrictive
of competition where the record supports the reasonableness of the
agency's determination that scales utilizing fully electronic load cells
are necessary to meet its needs
Lockheed Martin Aeronautics Company, B-298626,
November 21, 2006.
DIGEST: 1. Agency reasonably concluded
that protester's proposal failed to comply with solicitation
requirements where solicitation required that certain mandatory
capabilities be “embodied” in aircraft and required delivery
of first aircraft 12 months after award, but protester's proposal
provided that it would not deliver aircraft equipped with the mandatory
requirements until more than 4 years after award.
2. Agency
meaningfully advised protester that its proposal failed to comply with
solicitation's mandatory requirements when it asked protester how it
intended to provide the mandatory requirements by the time of first
aircraft delivery.
3. Agency reasonably limited its evaluation of
offerors' production capability to the criterion identified in the
solicitation.
Kellogg Brown & Root Services, Inc., B-298694;
B-298694.2; B-298694.3, November 16, 2006.
DIGEST: 1.
Agency did not perform a reasonable cost realism evaluation when it
deleted a certain element of cost from awardee's proposed indirect costs
because other offerors accounted for this element as a direct cost; this
evaluation did not result in a reasonable assessment of the probable
cost of performing the contract associated with the awardee's proposal,
given that the adjustment was inconsistent with Cost Accounting
Standards 401 and 402 and the firm's cost accounting practices, to which
the firm was obligated to adhere in performing the contract.
2.
Protest of evaluation of protester's proposed contingency plan is
sustained where the protester provided detailed arguments why the
evaluation was unreasonable, which were consistent with the record, and
the agency did not explain why the evaluation was reasonable in light of
those arguments.
eFedBudget Corporation, B-298627, November 15,
2006.
DIGEST: 1. Agency reasonably concluded that
protester is not an acceptable source to perform a contract for
maintenance and support of contracting agency's software system, where
the record shows that use of proprietary software belonging to the
incumbent contractor, and currently unavailable to any other firm, is
necessary for successful performance of the contract.
2. Protest
of proposed sole-source award is sustained where the record shows that
the agency did not satisfy its obligation to engage in reasonable
advance planning and to promote competition.
Avue Technologies Corp., Carahsoft Technology Corp.,
B-298380.3. November 15, 2006.
DIGEST: 1. Clauses
pertaining to data rights included in a solicitation issued for a
solution to automate the agency's personnel recruitment and hiring
processes do not violate applicable regulations where they only seek to
protect the government's rights in government data pertaining to the
government's personnel recruitment and hiring processes.
2.
Solicitation providing for the award of a fixed-price,
indefinite-delivery, indefinite-quantity contract for a solution to
automate the agency's personnel recruitment and hiring processes, which
requests that offerors provide fixed prices and provides for the
evaluation of those prices, reasonably considers cost to the government;
the fact that the solicitation does not also provide for the evaluation
of other collateral agency personnel cost savings that the protesters
claim will be achieved through the use of its automated service is
unobjectionable.
Omega Systems, Inc., B-298767, November 6, 2006.
DIGEST: Protester's assertion that its proposal should be
considered for award despite late final proposal revision (FPR) because
it was “otherwise successful proposal that makes its terms more
favorable to the government,” is denied where record shows agency
had determined prior to FPR request that protester's proposed price was
not reasonable; protester's proposal thus was not “otherwise
successful proposal.”
Celadon Laboratories, Inc., B-298533, November 1,
2006.
DIGEST: Agency failed to determine whether the
evaluators of the protester's proposal under a Small Business Innovation
Research program solicitation had a conflict of interest, where the
evaluators were employed by firms that promote a type of technology that
assertedly is directly challenged by the type of technology offered in
the protester's proposal.
Miramar Construction, Inc., B-298609, October 31,
2006.
DIGEST: Contracting agency's determination to permit
bidder to upwardly correct its apparent low bid lacks a reasonable basis
where bidder's explanation for alleged mistake is illogical and raises
questions as to whether a mistake occurred, and where agency's
determination fails to address these questions and relies on
mischaracterizations of the bidder's explanation.
Maden Technologies, B-298543.2, October 30, 2006.
DIGEST: 1. Agency reasonably concluded that potential for
conflict of interest stemming from awardee's proposed use of a
subcontractor who had served as an evaluator for the agency in
connection with a previous procurement was mitigated where the
subcontractor had signed a non-disclosure agreement in connection with
her performance as an evaluator and the agency reasonably found that the
subcontractor did not aid the awardee in preparing its proposal other
than to submit a subcontract proposal.
2. Protest alleging
“bait and switch” where awardee requested permission from
the agency to substitute nine personnel after award is denied where the
record does not establish that the awardee knowingly or negligently
misrepresented its intent to furnish the nine individuals for whom
substitution was sought.
STG, Inc., B-298543; B-298543.3, October 30,
2006.
DIGEST: 1. Protest alleging “bait and
switch” where awardee requested permission from the agency to
substitute nine personnel after award is denied where the record does
not establish that the awardee knowingly or negligently misrepresented
its intent to furnish the nine individuals for whom substitution was
sought.
2. Protest challenging proposal evaluation and source
selection is denied where record shows evaluation and award decision
were reasonable and consistent with solicitation's evaluation terms and
applicable procurement rules.
SunEdison, LLC, B-298583; B-298583.2, October 30,
2006.
DIGEST: Where solicitation required offerors to
propose fixed prices and offeror proposed pricing contingent upon
“successful completion” of an agreement with a third party,
the offer was conditional and should not have been considered for award
Singleton Enterprises, B-298576, October 30, 2006.
DIGEST: Solicitation provision stating that under the
solicitation's past performance evaluation factor the agency would
evaluate the “offeror's actions under previously awarded
contracts” created a latent ambiguity where in addition to the
agency's intended meaning that only the offeror's corporate past
performance would be considered, the solicitation was reasonably read by
the protester as providing for the evaluation of the past performance of
the proposed subcontractors that will perform major or critical aspects
of the work required.
Brian X. Scott, B-298568, October 26, 2006.
DIGEST: Protest is denied where the protester's proposal was
properly eliminated from competitive range because, among other reasons,
the proposal requested addition of an advance payment term to the
contract, and acknowledged that without the advance payment the
protester could not perform, and the protester's objections to
contracting officer's affirmative responsibility determination did not
show a failure to consider available relevant information.
Multimax, Inc.; NCI Information Systems, Inc.; BAE
Systems Information Technology LLC; Northrop Grumman Information
Technology, Inc.; Pragmatics, Inc., B-298249.6, B-298249.7, B-298249.8,
B-298249.9, B-298249.10, B-298249.11, B-298249.12, B-298249.13,
B-298249.14, B-298249.15, B-298249.16, B-298249.17, B-298249.18,
B-298249.19, B-298249.20, October 24, 2006.
DIGEST:
Where agency identified certain proposed hourly labor rates as
significantly higher than independent g