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.
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.
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.
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.
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.
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.
2. 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.
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.
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 government cost estimate (IGCE) labor rates, offerors reasonably deduced--incorrectly, as record shows--that rates not identified were not significantly higher than IGCE rates, which led offerors to leave those rates unchanged in their final proposal revisions; discussions therefore were misleading and protest is sustained on that basis.
MD Helicopters, Inc.; AgustaWestland, Inc., B-298502; B-298502.2; B-298502.3; B-298502.4; B-298502.5, October 23, 2006.
DIGEST:
1. In a best value negotiated procurement for Light Utility Helicopters, protest of a lower technically rated, higher-priced offeror is denied, where the detailed evaluation record evidences that the evaluators performed a comprehensive and thorough evaluation of each offeror's proposal and reasonably determined that the protester's proposal was technically inferior and did not provide the best value to the government.
2. In a best value negotiated procurement for Light Utility Helicopters, protest of a higher technically rated, higher-priced offeror is denied, where the source selection authority considered the significant strengths and weaknesses of each offeror's proposal, and reasonably determined that the protester's higher technically rated proposal was not worth the additional $800 million over the awardee's $3.9 billion proposal.
University of Dayton Research Institute--Costs, B-296946.7, October 23, 2006.
DIGEST:
1. Protester may be reimbursed for its protest expenses only to the extent that they are adequately supported by documentation reflecting the costs incurred.
2. Protester is not entitled to recover costs associated with deciding whether to protest, or costs associated with a settlement.
3. Protester is not entitled to reimbursement for time spent pursuing its claim for costs, where delay in the agency's consideration of claim was caused by protester's inability or unwillingness to perfect its claim.
Symetrics Industries, LLC, B-298759, October 16, 2006.
DIGEST: A proposal revision submitted to the contracting officer's e-mail address as provided for by the agency but after the deadline established for receipt of proposal revisions cannot be accepted under Federal Acquisition Regulation § 52.215-1(c)(3)--which states the circumstances where late proposals or proposal revisions can be considered--even though the proposal revision was received prior to the deadline by the government server at the initial point of entry that serviced the e-mail address.
Eagle Home Medical Corporation, B-298478, October 13, 2006.
DIGEST:
Contracting agency reasonably rejected protester's proposal based on determination that its low price was unreasonably high where price was 39 percent higher than government estimate, which was primarily based on price of recently negotiated contract extension with incumbent contractor.
Technical Support Services, B-298527, October 12, 2006.
DIGEST:
Where protester's small business size status was challenged in protest to Small Business Administration (SBA), and SBA did not issue size determination within 10 days after filing, but ultimately it determined that protester did not qualify as small business, agency properly proceeded with award to another small business offeror, and was not required by applicable regulations to terminate that contract in order to make award to protester when SBA subsequently reversed size determination on appeal.
Advanced Technology Systems, Inc., B-296493.6, October 6, 2006.
DIGEST:
1. An ordering agency is not required to perform a responsibility determination when placing a task or delivery order under a Federal Supply Schedule (FSS) contract, since the General Services Administration performed a responsibility determination at the time of award of the underlying contract.
2. When ordering services priced at hourly rates from vendors holding FSS contracts, and when a statement of work is required, an agency is required under Federal Acquisition Regulation § 8.405-2(d) to consider a vendor's proposed level of effort and labor mix in its selection decision.
3. Protest challenging the agency's evaluation of the awardee's proposed level of effort and labor mix is sustained where the agency failed to sufficiently document its determination that the awardee's proposed level of effort and labor mix were acceptable.
Joint Systems, Inc., B-298573, October 6, 2006.
DIGEST:
Where request for quotations (RFQ) for thumbdrives required vendors to submit an image of a thumbdrive with a write-protect switch to demonstrate compliance with RFQ requirements pertaining to the switch, agency reasonably rejected protester's quotation, which did not include an image of the switch, as unacceptable.
Kearney & Company, B-298436.2, October 4, 2006.
DIGEST:
Agency reasonably rejected protester's quotation as technically unacceptable where quotation failed to provide technical/management information for team member under planned teaming arrangement, making it impossible for agency to fully evaluate quotation.
Advanced Technology Systems, Inc., B-296493.5, September 26, 2006.
DIGEST:
1. 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.
2. Protest challenging the evaluation of vendors' past performance is denied where the record establishes that the agency's evaluation was reasonable and consistent with the stated evaluation criteria.
3. An agency's unreasonable conclusions regarding the awardee's proposed staffing levels did not prejudice the protester since these conclusions were not a material element in the agency's determination that the awardee's higher technically rated, higher-priced quotation represented the best value to the government.
Alion Science & Technology Corporation, B-297022.4; B-297022.5, September 26, 2006.
DIGEST:
Where agency previously failed to meaningfully consider potential conflicts of interest created by awardee's contract performance of electromagnetic spectrum engineering services that could affect awardee's other spectrum-related interests, agency's corrective actions adequately remedied the prior procurement flaws, where the agency performed and documented its review of the spectrum-related products and services produced or provided by the awardee and the awardee's competitors, identified the awardee's customers of spectrum-related products and services, considered the impact that performance of the contract requirements may have on awardee's spectrum-related interests, and reasonably concluded that awardee's plan to perform conflicted portions of the contract requirements through use of “firewalled” subcontractors will adequately avoid, neutralize, or mitigate the potential conflicts of interest with minimal impact on performance quality. [See earlier sustained protest-jaw]
A-P-T Research, Inc.--Costs, B-298352.3, September 28, 2006.
DIGEST:
Reimbursement of the costs of filing and pursuing a protest is not recommended where the agency took corrective action but had reasons unrelated to the protest for taking the corrective action as well as a defensible legal position based upon its argument that the protester was not prejudiced by any errors the agency may have made in its evaluation of the protester's proposal, and the protest was thus not clearly meritorious.
Staab Construction Corp., B-298454, September 26, 2006.
DIGEST:
An agency is not required to award items for which prices were solicited under an invitation for bids (IFB), where there was no language in the IFB that required the award of all bid items and there was only sufficient funding to award one item.
Bausch & Lomb, Inc., B-298444, September 21, 2006.
DIGEST:
Agency's sole-source order of ophthalmology equipment based on unusual and compelling urgency was improper where the awardee was determined to be the only responsible source, yet the capabilities of the equipment of other interested firms were not considered.
Crown Title Corporation, B-298426, September 21, 2006.
DIGEST:
Agency's award to offeror that submitted lower-rated, lower-priced proposal in a best value procurement is proper where the source selection was based on a reasonable determination that the substantial price premium associated with protester's higher-rated, higher-priced proposal was not justified given the level of technical competence available at the lower price.
Family Entertainment Services, Inc., B-298047.3, September 20, 2006.
DIGEST:
1. Protest that the agency's evaluation of the protester's past performance was unreasonable is sustained where the record evidences that the protester and awardee were not treated equally with regard to the agency's efforts to contact past performance references, and the record does not provide a reasonable explanation for the agency's conclusions regarding the protester's past performance, including what if any impact the agency's receipt of contract performance assessment reports had on its evaluation.
2. Agency reasonably considered the past performance information set forth in the awardee's proposal where the solicitation provided for the consideration of past performance information regarding predecessor companies and key personnel, the awardee's proposal explained the relationship between it and the firm that had performed the contracts described, and nothing in the record is inconsistent with the awardee's representations; however, the agency failed to evaluate the awardee's past performance in accordance with the terms of the solicitation where there is no evidence that the agency, when rating the awardee's past performance, took into account the solicitation's provision that past performance information concerning predecessor companies and key personnel would not be as highly rated as past performance information for the principal offeror.
Advanced Systems Development, Inc., B-298411; B-298411.2, September 19, 2006.
DIGEST:
1. Protester's contention that the agency conducted flawed discussions regarding price is sustained where (1) the agency corrected an error in the awardee's pricing; (2) the agency concluded that the awardee's price, as corrected, violated the solicitation's price target; (3) the agency advised the awardee in discussions that its price violated the solicitation's price target, though it did not, but never disclosed the upward adjustment it had made to correct the pricing error; (4) the awardee lowered its price in its final proposal, but repeated the pricing error it had made before; and (5) the agency selected that offeror for award after concluding that its significant price advantage offered the best value to the government. Thus, the record, as a whole, shows that the flawed discussions led the awardee to significantly lower its price, and the selection decision turned on the price differential between awardee and the protester.
2. Protester's contention that the agency failed to evaluate price proposals for completeness is sustained where the record shows that: (1) the solicitation expressly advised that price proposals would be assessed for completeness, including an assessment of the traceability of price estimates, and required that offerors submit detailed pricing data showing the traceability of those estimates in a work breakdown structure; (2) the agency never performed the completeness review; and (3) it is reasonable to conclude that, had it not been compelled to structure its proposal to comply with this solicitation requirement, the protester
could have employed a different approach to structuring its proposal which could have resulted in a lower price.
3. Protester's contention that the evaluation of technical proposals was unreasonable is sustained where the record shows that the evaluation deviated from the stated evaluation criteria under one of the technical subfactors.
National Labor Relations Board-Improper Obligation of Severable Services Contract, B-308026, September 14, 2006.
DIGEST:
The National Labor Relations Board (NLRB), which improperly obligated its fiscal year 2005 appropriation for severable services commencing in fiscal year 2006, may not remedy the improper obligation by modifying the contract's period of performance to a previous fiscal year. NLRB's expired appropriations are available only to adjust obligations properly incurred during fiscal year 2005. NLRB must adjust its accounts to record the obligation against its fiscal year 2006 appropriation.
State Justice Institute-Newsletter Advertising Charges, B-307317, September 13, 2006
.
DIGEST:
The State Justice Institute (Institute) may retain a fee for the use of advertising space in its semiannual newsletter. Congress established the Institute as a private, nonprofit corporation. 42 U.S.C. § 10702(a). Although the Institute has many aspects of a federal agency, its authorizing statute states that “[e]xcept as otherwise specifically provided . . . the Institute shall not be considered a department, agency, or instrumentality of the Federal Government.” 42 U.S.C. § 10704(c)(1). Nothing in the Institute's authorizing legislation explicitly or implicitly requires application of the miscellaneous receipts statute, which states that all money received “for the government” must be deposited in the Treasury. 31 U.S.C. § 3302(b). Thus, the Institute is not subject to the miscellaneous receipts statute. Certain legal and policy considerations may inform the Institute's choices regarding advertising it carries in its newsletter.
The Arora Group, Inc., B-297838.3, September 12, 2006.
DIGEST:
Where the agency reasonably evaluated proposals in accordance with the terms of the solicitation and where the solicitation provided for award on the basis of the most advantageous proposal, the agency reasonably selected for award a higher technically rated, lower priced proposal.
Murray-Benjamin Electric Company, LP, B-298481, September 7, 2006.
DIGEST:
1. Protest that procurement violates agency's obligation to place
orders under various contracts held by protester concerns matter of
contract administration, which Government Accountability Office will not
review.
2. Agency is not required to order supplies under non-mandatory
Federal Supply Schedule (FSS) contract, and where it is in
agency's best interests--including need to establish “best
value” among potential offerors--agency may compete its
requirements among commercial sources of supply instead of under
non-mandatory FSS.
Armor Group International Training, Inc., B-298401, August 31, 2006.
DIGEST:
Protest challenging a solicitation's geographic restriction is denied, where the restriction is reasonably found to be necessary for the agency to meet its needs.
Skyline ULTD, Inc., B-297800.3, August 22, 2006.
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 monitor changes in foreign travel danger
area status and promptly coordinate such changes with contracting agency.
Dismas Charities, B-298390, August 21, 2006.
DIGEST:
Protest of agency's evaluation of proposals and source selection is denied where the evaluation and award decision were reasonable and consistent with the solicitation's evaluation terms.
PAI Corporation, B-298349, August 18, 2006.
DIGEST:
1. Protest that agency was biased against the protester is denied where record contains no evidence of bias.
2. Protest that agency unreasonably evaluated protester's proposal is denied where record demonstrates that evaluation was reasonable and in accordance with stated evaluation criteria.
3. Protest that agency failed to hold meaningful discussions with protester regarding significant weaknesses or deficiencies in protester's proposal is denied where items protester asserts should have been discussed either were discussed adequately, or were not significant weaknesses or deficiencies, and therefore were not required to be discussed.
Brian X. Scott, B-298370; B-298490, August 18, 2006.
DIGEST: Solicitations for cargo transportation and security services and for base security services in Iraq will not result in an award that violates the Anti-Pinkerton Act or Department of Defense policies regarding contractor personnel because the services required under the resultant contract are guard and protective services, and not “quasi-military armed forces” activities.
BAE Technical Services, Inc.--Costs, B-296699.3, August 11, 2006
DIGEST:
1. GAO does not recommend reimbursement of costs incurred in filing and pursuing unsuccessful protest issues where issues are readily severable from successful issues, i.e., are based on different core facts and legal theory.
2. Where information submitted to support claim for reimbursement of costs is not detailed enough to establish how much of the claimed amount was incurred in pursuit of successful, versus unsuccessful, protest issues, use of “page counting” method--estimate based on the number of pages in protester's submissions devoted to particular issues--is reasonable approach to determining costs to be reimbursed.
Ball Aerospace & Technologies Corp., B-298522, August 11, 2006.
DIGEST:
Protest complaining that selection of the awardee's proposal under a procurement in 2001 was the result of the source selection authority
' s (SSA) bias in favor of the awardee is dismissed as untimely, where (1) protester initially challenged the agency's award decision in a protest filed with GAO in 2001 and withdrew its protest after reviewing the evaluation record, which showed that evaluation ratings had been changed in a way that appeared to favor the awardee; and (2) the SSA publicly admitted in 2004 to being biased in favor of the awardee as result of favors that she had received. The later issuance in 2006 of a report by the Department of Defense Inspector General that confirmed that the SSA's bias extended to the procurement at issue in this protest does not provide an independent basis for a timely protest, where the protester knew or should have known the basis of its protest allegation after the SSA's 2004 admission of bias in favor of the awardee.
Intercon Associates, Inc., B-298282; B-298282.2, August 10, 2006.
DIGEST:
Protest of agency's evaluation of proposals is sustained where record shows that agency, in evaluating protester's proposal and making its source selection decision, relied upon numerous unreasonable or unsupported evaluated weaknesses regarding the protester's proposal.
Serco, Inc., B-298266, August 9, 2006.
DIGEST:
Protest is sustained where the agency rejected the awardee's rationale for proposed staffing levels under sample tasks, which led the agency, as part of a cost realism analysis, to more than double the hours proposed by the awardee to correspond with the government estimate, but the contemporaneous record did not demonstrate that the agency, in light of its cost realism adjustment, reviewed the awardee's understanding of the contract requirements, as required by the solicitation.
MadahCom, Inc., B-298277, August 7, 2006.
DIGEST:
Solicitation requirements requiring compliance with specific radio frequency standard and minimum transmission range for equipment are unduly restrictive of competition where agency fails to provide reasonable basis for their inclusion in the solicitation.
Lakota Technical Solutions, Inc., B-298297, August 4, 2006.
DIGEST:
1. Protest alleging that firm that developed technical data package (TDP) for item to be procured has an unfair informational advantage over other competitors is denied where record establishes that TDP contained sufficient information to permit prospective offerors to formulate proposals.
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.
Alfa Consult S.A., B-298164.2; B-298288, August 3, 2006.
DIGEST:
Protest that agency's proposed corrective action--terminating protester's contract, amending solicitation and accepting revised offers--in response to protest from unsuccessful offeror is unnecessary and improper, is denied where agency reasonably concluded that solicitation was unclear regarding whether award would be based on “best value” or low cost/technical acceptability, and that this deficiency could have affected outcome of original competition.
Fabritech, Inc., B-298247; B-298247.2, July 27, 2006.
DIGEST:
Protest challenging rejection of small business protester's offer on the ground that the agency's decision constituted a nonresponsibility determination that should have been referred to the Small Business Administration is sustained where the basis of the agency's determination--that protester would be unable to obtain the required parts--relates directly to the firm's capability to perform the contract.
East-West Industries, Inc., B-297391.2; B-297391.3, July 19, 2006.
DIGEST:
1. Evaluation of protester's proposal under past performance evaluation factor was unobjectionable where agency reasonably concluded that only one of four prior contracts was of a magnitude and complexity essentially the same as the solicitation's, and thus met the solicitation's definition of very relevant; two of the remaining contracts were reasonably evaluated as only relevant and semi-relevant due to lesser magnitudes of effort, and the fourth contract was reasonably evaluated as not relevant because it was completely unrelated to the solicitation's work.
2. Evaluation of awardee's past performance and risk was reasonable, notwithstanding protester's identification of alleged quality, safety, and delivery issues, where contracting officials did not have personal knowledge of majority of the issues, and fully considered those of which they were aware in finding no negative impact on awardee's past performance rating.
PPG-CMS-PSI JV, B-298239; B-298239.2, July 19, 2006.
DIGEST:
Protest arguing that agency's evaluation of proposals under solicitation set aside for service-disabled veteran-owned (SDVO) small business concerns was improper because the agency allegedly selected for award firms that were not valid small businesses or qualified SDVO small business concerns is dismissed; protest ultimately involves the question of the status of the awardees as eligible small business and SDVO small business concerns, matters within the exclusive statutory authority of the Small Business Administration.
SI International, SEIT, Inc., B-297381.5; B-297381.6, July 19, 2006.
DIGEST:
1. In a competition conducted among vendors holding General Services Administration (GSA) Federal Supply Schedule (FSS) contracts, agency reasonably found that both the awardee and protester met the solicitation's requirements for an “emergency plan,” where both plans adequately addressed the objectives and requirements of the solicitation and both vendors included the price for the plan in their quotations.
2. Discussions that were part of the agency's implementation of limited corrective action were not unfair, where the issues raised during discussions reasonably addressed the procurement flaws identified by GAO in a prior protest, and the agency raised with the vendors areas of weakness in their quotations; agency was not required to raise with the protester features that were identified as strengths, even where the agency considered them only to be of “limited value.”
3. Source selection decision was reasonable, where agency selected the lower priced quotation between two vendors whose quotations were reasonably found to be technically equal.
King Construction Company, Inc., B-298276, July 17, 2006
DIGEST:
Protest challenging terms of solicitation for lease of build-to-suit office space as unduly restrictive of competition is denied where agency demonstrates a reasonable basis for required approach.
Tarheel Specialties, Inc., B-298197; B-298197.2, July 17, 2006.
DIGEST:
Protest of issuance of a task order to a vendor for support services pursuant to its General Services Administration Federal Supply Schedule (FSS) contract is sustained where the contracting agency improperly determined that the services called for under the task order were within the scope of the vendor's FSS contract.
Veteran Enterprise Technology Services, LLC,
B-298201.2, July 13, 2006.
DIGEST: Agency is not
required to terminate contract awarded under service-disabled
veteran-owned (SDVO) small business set-aside, despite Small Business
Administration's determination in response to SDVO protest that
awardee was not an SDVO concern, where agency awarded contract after
making a reasonable urgency determination, as allowed by the Federal
Acquisition Regulation.
WareOnEarth Communications, Inc., B-298408, July 11, 2006.
DIGEST:
Protest challenging agency's issuance of amendments changing basis of price evaluation is dismissed as untimely where protest was not filed before the time set for receipt of revised proposals
The Ideal Solution, LLC, B-298300, July 10, 2006.
DIGEST:
Protest that awardee, as the incumbent contractor, had an unfair competitive advantage because only it knew that additional funding would be provided to reimburse certain expenses is denied where the agency's award selection was based upon the vendors' proposed fixed rates and the solicitation informed vendors that expenses under line item two would be reimbursed at actual costs plus general and administrative rates and fixed profit rates up to a not-to-exceed amount, which was to be determined at the time of award.
Capps Shoe Company, Inc., B-298196; B-298196.2, July 6, 2006.
DIGEST:
Protester's delivery performance, which evidenced significant delinquencies, was reasonably found marginal by the agency.
TPL, Inc., B-297136.10; B-297136.11, June 29, 2006.
DIGEST:
1. A conflict of interest does not exist merely because the same contracting agency or contracting agency employees both prepare an offeror's past performance reference and perform the evaluation of offerors' proposals.
2. Protest challenging the evaluation of the protester's past performance is denied where the record establishes that the agency's evaluation was reasonable and in accord with the stated evaluation criteria.
3. 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; a source selection official's decision not to accept the findings and ratings of agency evaluators is unobjectionable if otherwise supported by the record.
4. Price/technical tradeoff was reasonable where source selection official identified technical distinctions between competing proposals and specifically determined that higher technically rated proposal represented best value despite higher cost.
5. Protest that the contracting agency was biased against the protester and conducted the procurement in bad faith is denied where the record does not contain any evidence of bias or bad faith on the part of the agency.
[Why would an agency have small business utilization as the most important evaluation
factor and then evaluate it on a pass/fail basis?-jaw]
Capitol Supply, Inc., B-298123; B-298123.2; B-298123.3, June 28, 2006.
DIGEST:
Proposal preparation instructions included in a commercial item solicitation for furniture and furnishings that require the submission of presentation boards which include photographs (rather than line drawings or renderings) of 90 percent of the items offered are reasonably based and not overly burdensome, where the solicitation is for commercial items, requires the submission of current catalogs as well as sample items, and the agency amended the solicitation to include the protested requirement because of the difficulties it encountered in evaluating submissions that included more than a limited number of line drawings and renderings.
Systems Research and Applications Corporation, B-298107; B-298107.2, June 26, 2006.
DIGEST:
Under a solicitation that contemplated up to 10 awards under which the agency made 7 awards, agency's determination to not make an additional award to the protester, whose proposal was lower technically rated and higher priced than the comparable awardees' proposals, was a reasonable exercise of sound business judgment consistent with the solicitation's evaluation scheme.
Magnum Medical Personnel, A Joint Venture, B-297687.2, June 20, 2006.
DIGEST:
Protest is sustained where the agency did not reasonably evaluate in accordance with the terms of a multiple-award solicitation the proposals of the protester and an awardee and where the protester, the lowest priced offeror, was competitively prejudiced by the agency's flawed evaluation.
American Floor Consultants, Inc., B-294530.7, June 15, 2006.
DIGEST:
Agency's evaluation of protester's past performance record is denied where agency reasonably determined that the past performance references were incomplete or not relevant.
Paramount Group, Inc., B-298082, June 15, 2006.
DIGEST: Protest challenging solicitation's terms as
unduly restrictive of competition is denied where agency demonstrates a
reasonable basis for required approach to lease of office space and
information provided in the solicitation is adequate to allow for
submission of offers.
University of Dayton Research Institute, B-296946.6, June 15, 2006.
DIGEST:
Agency's communications with awardees following submission of initial proposals, during which awardees made multiple changes to the evaluated rates on which the agency's source selection decision was based, constituted discussions and required that the agency establish a competitive range and conduct discussions with all competitive range offerors.
GC Services Limited Partnership, B-298102; B-298102.3, June 14, 2006.
DIGEST:
Protester's challenge to agency's technical evaluation of its quotation in response to solicitation for private debt collection services is denied where the record shows that the agency's evaluation was reasonable and consistent with the terms of the solicitation.
Intercon Associates, Inc.--Costs, B-296697.2, June 14, 2006.
DIGEST:
1. GAO does not recommend reimbursement of costs incurred in filing and pursuing unsuccessful protest issue where issue is readily severable from successful issue, i.e., is based on different set of facts and legal theory.
2. Agency's use of a “page counting” method, that is, counting pages in protest brief that discussed successful protest issue, is a reasonable approach to determining amount of protest costs to be reimbursed, in absence of more probative evidence.
Haworth Inc., B-297053.4, June 7, 2006.
DIGEST:
1. Protest that agency unreasonably rejected protester's quotation for failing to timely include all quoted items under its Federal Supply Schedule (FSS) contract is denied where agency advised firms that it required all quoted items to be included under FSS contract by a specific date, and protester failed to ensure that all of its quoted items were in fact included under its FSS contract by that date.
2. Protest assertion raised initially in protester's comments is dismissed as untimely where record shows that protester had all necessary information to raise argument at time initial protest was filed.
Forest Service-Surface Water Management Fees, B-306666, June 5, 2006.
DIGEST:
Appropriated funds are not available to pay surface water management fees assessed by King County, Washington, against national forest lands and other Forest Service properties because those fees constitute a tax. The federal government is constitutionally immune from state and local taxation. Although section 313(a) of the Clean Water Act, 33 U.S.C. § 1323(a), waives sovereign immunity from certain state and local environmental regulations and fees, it does not waive immunity from taxation. Such a waiver must clearly and expressly confer the privilege of taxing the federal government.
IPlus, Inc., B-298020; B-298020.2, June 5, 2006.
DIGEST:
1. Agency's post-proposal submission exchanges with awardee regarding price proposal were clarifications rather than discussions where the errors corrected were obvious on the face of the awardee's proposal. Other exchanges with awardee that may have resulted in discussions were not prejudicial to protester.
2. Agency reasonably considered experience and past performance of both prime and subcontractor who were participants in Small Business Administration 8(a) mentor-protégé program.
Bristol Group, Inc.--Union Station Venture, B-298110, June 2, 2006.
DIGEST:
In solicitation for leased space, requirement that offered building be located within 2,500 walkable linear feet of various amenities is not unduly restrictive; requirement is reasonably aimed at ensuring that tenant federal employees will be able to walk to and from eating establishments and conduct other errands within the time allotted for lunch.
National Mediation Board-Compensating
Neutral Arbitrators Appointed to Grievance Adjustment Boards Under the
Railway Labor Act, B-305484, June 2, 2006.
DIGESTS:
(1) The National Mediation Board (NMB) incurs an obligation when it appoints a neutral arbitrator to a grievance adjustment board to hear a specific case or a specified group of related cases. To comply with the Antideficiency Act, NMB must have an appropriation available to cover the estimated costs of the arbitrator at the time it incurs the obligation. 31 U.S.C. § 1341(a). Because NMB does not control the number of days an arbitrator will work before submitting an award, NMB should record an obligation based on its best estimate of the costs of paying the arbitrator and adjust the obligation up or down as more information becomes available. NMB should liquidate the obligation from the appropriation current at the time NMB incurs the obligation, notwithstanding that the arbitrator's performance may extend into the next fiscal year. To the extent we indicated in two prior decisions, B-217475, Dec. 24, 1986, and B-217475, May 5, 1986, that NMB may record obligations monthly based on the anticipated expenditures it approves in monthly compensation requests, they are overruled.
(2) An availability of funds clause is not sufficient to protect NMB from violating the Antideficiency Act. The obligation to pay an arbitrator arises at the time of appointment in the full amount of the liability incurred, and NMB must have an appropriation available at that time to pay the full cost.
(3) Pending cases to which NMB has not yet appointed an arbitrator constitute a contingent liability of NMB. Contingent liabilities are not recordable as obligations until the contingency actually materializes.
(4) NMB will violate the Antideficiency Act if it appoints an arbitrator to a new or existing board and incurs an obligation in excess of its apportionment or any other subdivision of funds as specified in its administrative fund control regulations. If NMB does not have an administrative fund control system, it should work with the Office of Management and Budget to establish one.
(5) NMB does not incur an obligation to pay a neutral arbitrator when the parties to a grievance enter into an agreement to form a Special Board of Adjustment or Public Law Board. NMB may anticipate eventually appointing an arbitrator to hear these cases, but it is the appointment of the arbitrator by an authorized NMB official, not the organization of the Special Board of Adjustment or Public Law Board, that is the obligating event for NMB.
(6) When NMB appoints an arbitrator to a Special Board of Adjustment or a Public Law Board, the appointment does not constitute an open-ended contract to pay the arbitrator for cases referred to the Special Board of Adjustment or the Public Law Board subsequent to the appointment. The addition of a new case constitutes a new arbitrator appointment and a new obligation.
Veolia Water North America Operating Services, LLC, B-291307.5; B-298017, May 19, 2006.
DIGEST:
1. In negotiated procurements for privatization of utility system assets, protester has not shown that the agency erred in determining that 10 U.S.C. § 2688(f)(2) prohibited the conveyance of utility assets under a proposed scheme in which the protester would contract to operate and maintain the utility system assets and would not retain title in the assets, but would simultaneously transfer title in the assets to an unrelated third party which the agency was required to acknowledge as the primary obligor for the purchase price of the assets.
2. Protest requesting GAO's recommendation based upon a promissory estoppel theory of detrimental reliance by the protester upon alleged actions of the agency that are not grounded upon an asserted statutory or regulatory violation will not be considered because the Competition in Contracting Act of 1984 only authorizes GAO to decide bid protests concerning alleged violations of a procurement statute or regulation.
CHE Consulting, Inc., B-297534.4, May 17, 2006.
DIGEST:
Protest is denied where agency record provides reasonable basis for requirement in solicitation for critical maintenance services that each vendor demonstrate in its quotation how it would obtain support from the original equipment manufacturer in the event that the vendor' s remedial maintenance efforts for a malfunctioning unit were not successful within the service standard specified in the solicitation.
Knowledge Connections, Inc., B-297986, May 18, 2006.
DIGEST:
Protest alleging that request for proposals (RFP) for travel management services that gives offerors the option to use any electronic travel reservation system to interface with the General Services Administration' s eTravel System (eTS) improperly favors offerors using a particular electronic travel reservation system developed and owned by the eTS contractor is denied where the RFP does not restrict offerors to that specific system and any alleged competitive advantage results from a firm' s prior contracts and not from improper or unfair agency action.
American Printing House for the Blind, Inc., B-298011, May 15, 2006.
DIGEST:
1. Under invitation for bids (IFB) for production of books on tape that provided for multiple awards and limited the number of titles to be awarded to an individual bidder to 500, award of a contract for less than 500 titles to a bidder, which will also be performing work on one aspect of 1,000 additional titles as a subcontractor to two other awardees, was not contrary to 500-title limitation.
2. Allegation that bidders falsely certified to having arrived at their prices independently is a matter for contracting officer's consideration in determining bidder responsibility not subject to Government Accountability Office's review.
NCR Government Systems LLC, B-297959; B-297959.2, May 12, 2006.
DIGEST:
1. Protest challenging agency's acceptance of a late revision to awardee's proposal is denied where the agency reasonably accepted revision as a modification to an otherwise successful proposal.
2. Protest challenging agency's evaluation of compliance of awardee's proposed equipment with solicitation requirements is denied where awardee stated that equipment met requirements and its proposal provided no reason for agency to conclude otherwise.
3. Protest challenging agency's technical evaluation of proposals is denied where agency reasonably distinguished between offerors' proposals and protester was not otherwise prejudiced by the evaluation.
Del-Jen International Corporation, B-297960, May 5, 2006.
DIGEST:
In a negotiated procurement that provided for a pass/fail technical evaluation and a tradeoff between past performance and price, with past performance being significantly more important than price, agency reasonably awarded a contract to the higher-priced offeror where the agency found, based upon the protester' s performance of its incumbent contract, that the protester presented more performance risk than the awardee.
CIGNA Government Services, LLC, B-297915, May 4, 2006.
DIGEST:
Agency's cost realism analysis of awardee's proposed cost/price was reasonable where agency considered specific cost elements of the proposed cost/price, comparing the cost/price proposed for those elements with historical costs incurred by both the awardee and other contractors in performing similar activities.
CIGNA Government Services, LLC, B-297915.2, May 4, 2006.
DIGEST:
Agency's communications with awardee following submission of final revised proposals, during which awardee made various changes to its final proposal submission, including changes to the total level of effort awardee represented it would provide under the contract, constituted discussions and required that the agency similarly conduct discussions with the protester.
Metro Machine Corporation, B-297879.2, May 3, 2006.
DIGEST:
Agency's cost realism evaluation of awardee's proposal was unreasonable where the awardee proposed to perform the solicitation requirements under a teaming arrangement whereby its proposed team members would perform almost [deleted] of the production work under the contract, but the agency failed to consider the impact of the team members' higher rates in determining the awardee's probable cost of performance under the contract
Client Network Services, Inc., B-297994, April 28, 2006.
DIGEST:
Agency reasonably downgraded protester's proposal under staffing factor evaluation where proposal did not meet solicitation's formatting requirements with respect to page limits and font size; offerors are required to prepare their proposals within format limitations established in solicitation, and assume risk that proposal pages beyond limits will not be evaluated or that proposal will otherwise be downgraded.
Procurement Provisions in Appropriations Acts, B-306050, April 28,
2006.
DIGEST:
Legislation such as the Competition in Contracting Act and the Federal
Acquisition Streamlining Act established a comprehensive acquisition
framework to accommodate the needs of individual agencies while
maximizing uniformity across the federal government. In response to
congressional request, GAO has identified and summarized
procurement-related provisions in several major annual appropriations
acts for fiscal years 2001 through 2005.
Department of the Army; ITT Federal Services International Corporation--Costs, B-296783.4; B-296783.5, April 26, 2006.
DIGEST:
1. Where successful protester's claim for attorneys' fees includes request for reimbursement at hourly rate above generally applicable $150 statutory limit based on increase in cost of living, higher rate paid should be based on the consumer price index for all items rather than the index for legal services.
2. Reimbursement of protest costs associated with use of consultant is limited to highest rate of pay for a federal employee (GS-15, step 10), even where consultant billed at higher rate.
T Square Logistics Services Corporation--Costs, B-297790.4, April 26, 2006.
DIGEST:
1. Government Accountability Office recommends that protester be reimbursed the reasonable costs of filing and pursuing protests where the agency unduly delayed taking corrective action in response to protests which were clearly meritorious as indicated by the fact that the corrective action was in response to “outcome prediction” alternative dispute resolution conducted by GAO attorney after the agency report has been filed.
2. Where agency downgrades the protester's past performance to “little confidence” because it lacks experience in several functional areas covered by the solicitation and this directly resulted in a higher priced proposal being selected for award, and agency conducts discussions but does not mention to the protester this evaluated lack of experience, the agency has failed to conduct meaningful discussions.
ManTech Security Technologies Corporation, B-297133.3, April 24, 2006.
DIGEST:
1. Protester was not prejudiced by the fact that another unsuccessful offeror was permitted to have more than 10 persons attend the oral presentation, which was assertedly in violation of the terms of the solicitation, where the awardee had only 10 persons attend the oral presentation.
2. Agency was not required to discuss relative weaknesses in the protester's highly rated proposal that materialized as a result of oral presentations based on a comparative evaluation of the proposals by the agency, finding that the awardee's proposal had a superior technical approach.
3. Protest against evaluation and source selection is denied where the record evidences that the procuring agency reasonably evaluated proposals consistent with the RFP's evaluation criteria.
Nicholson/Soletanche Joint Venture, B-297011.3; B-297011.4, April 20, 2006.
DIGEST:
Protest is denied where the agency reasonably evaluated proposals in accordance with the terms of the solicitation and where the solicitation provided that the combined technical evaluation factors were significantly more important than price, the agency reasonably selected for award a higher technically rated, slightly higher priced proposal.
Saturn Landscape Plus, Inc., B-297450.3, April 18, 2006.
DIGEST:
Protest challenging certain agency decisions as improper because they allegedly were made in bad faith is denied where the record shows that there is no basis to question the propriety of the challenged decisions; specifically, the record shows that the agency reasonably decided to cancel the initial solicitation and issue a revised solicitation to reflect reduced option periods and changed evaluation factors, and the agency properly decided to set the procurement aside for Historically Underutilized Business Zone (HUBZone) firms based on the reasonable expectation of receiving two or more offers from HUBZone firms and making award at a fair market price.
Starlight Corporation, Inc. B-297904.2, April 14, 2006.
DIGEST:
Agency had reasonable basis for canceling request for proposals for aircraft services where solicitation was ambiguous with regard to the experience required resulting in possible prejudice to the competition and where one of the reasonable interpretations of the experience requirement overstated the agency's actual needs.
Low & Associates, Inc., B-297444.2, April 13, 2006.
DIGEST:
Agency is required to perform its evaluation and make its source selection decision on the basis of the criteria and requirements stated in the solicitation, and may not alter or relax those criteria and requirements without amending the solicitation and permitting all contractors an opportunity to compete on an equal basis.
Knowledge Connections, Inc., B-298172, April 12, 2006.
DIGEST:
GAO has no jurisdiction to consider protest of solicitation for services issued by the Transportation Security Administration since that agency is subject to the Federal Aviation Administration's Acquisition Management System that is expressly exempted from GAO's bid protest jurisdiction.
Al Long Ford, B-297807, April 12, 2006.
DIGEST:
Where, after discussions had concluded, agency identified concerns pertaining to the achievability of protester's proposed delivery schedule that should have been apparent to the agency prior to discussions, discussions should have been reopened since proposed delivery schedule was an area that had to be addressed in order for the protester to be in line for award.
Lawrence C. Drake, B-298143, April 7, 2006.
DIGEST:
President of the affected local chapter of the American Federation of Government Employees is not an “interested party” for the purposes of filing and pursuing a protest regarding certain actions taken by the Department of Labor with regard to a cost comparison study to be conducted pursuant to Office of Management Budget Circular A-76
University Research Company, LLC, B-294358.8; B-294358.9; B-294358.10, April 6, 2006.
DIGEST:
1. Protester's contention that agency performed an unreasonable technical evaluation when it elected not to revise previous evaluation scores as a result of corrective action limited to receiving revised proposals addressing only reproduction services is denied where the evaluation approach was consistent with the solicitation's evaluation scheme.
2. Protester's challenge to agency's decision to make an upward adjustment to the protester's proposed costs is denied where the record shows that the adjustment was reasonably tailored to address a unique feature in the protester's cost proposal, and that if the adjustment had not been made, there was a risk that the predictive value of the cost evaluation would have been undermined.
PDS Consultants, Inc., B-297890, April 4, 2006.
DIGEST:
Protest alleging that award was improper because awardee would not supply goods that complied with Buy American Act is denied, where submission of offer constituted agreement to supply domestic end item, and agency had no information indicating otherwise.
Project Resources, Inc., B-297968, March 31, 2006.
DIGEST:
Where the record shows that the agency lost the protester's proposal, a protest of the agency's evaluation and award decision is nevertheless denied because the record does not demonstrate a systemic failure in the agency's proposal receipt process.
BAE Systems Norfolk Ship Repair Inc., B-297879, March 29, 2006.
DIGEST:
1. Where solicitation for award of a cost-plus-award-fee contract required offerors to base their cost proposals on sample work items and further required offerors to use government estimates for labor hours and material costs for the sample work items unless offerors supported proposed deviations to the estimates by “clear and compelling” evidence, agency reasonably concluded that protester's proposed deviations, supported by non-binding fixed-price quotes for the sample work items, failed to meet the “clear and compelling” evidentiary standard.
2. Agency's assignment of same overall adjectival rating to protester's and awardee's proposals despite protester's slightly higher past performance rating was reasonable where past performance was the least important technical factor and the record reflects that the agency reasonably considered the underlying substantive differences between the protester's and the awardee's proposals in making its technical and best value assessments.
3. Protester's argument that its proposal should have been more highly rated under management capability factor because it received the highest possible rating under the past performance factor is unwarranted because the two factors at issue had different bases for evaluation.
Yardney Technical Products, Inc.--Costs, B-297648.3, March 28, 2006.
DIGEST:
Protest was not clearly meritorious, and reimbursement of protest costs following agency corrective action therefore is not warranted, where additional record development and substantial further analysis would have been required to resolve protest.
B-303920, Clarence Maddox - Relief of Liability for Improper
Payments for Bottled Water, March 21, 2006.
To find “good faith” as
used in the relief statute requires that there be no doubt regarding,
nor reason to doubt, the propriety of the payments. Since the record
states that the payments for employee bottled water came from a
different account than that for juror bottled water, and vouchers for
the improper purchases indicate that each purchase was funded by
that different, non-juror, account, we find that reasonable
examination of the vouchers should have identified the water
being purchased as other than for jurors. We therefore cannot
conclude that he had no reason to doubt the propriety of the payments.
Allied Protection Services, Inc., B-297825, March 23, 2006.
DIGEST:
Solicitation requirement that offerors have a secret facility clearance prior to the due date for proposals, and agency's decision that it will not sponsor potential offerors for the required security clearance, do not unduly restrict competition where the record shows that the requirement and the agency's decision not to sponsor are reasonably related to the agency's need to ensure that contract performance begins as scheduled.
OMNI Government Services, LP, B-297240.2; B-297240.3; B-297240.4 March 22, 2006.
DIGEST:
Protest is denied where agency reasonably determined that revised requirement for multimedia and visual information services would result in a price differential exceeding 25 percent of the cost of the incumbent contract and, therefore, in accordance with the regulations implementing the Small Business Administration's (SBA) section 8(a) program, the proposed contract constituted a new requirement that could be submitted for performance under the SBA's 8(a) program, notwithstanding the incumbent small business contractor's interest in competing for the work.
Global Analytic Information Technology Services, Inc., B-297200.3, March 21, 2006.
DIGEST:
Where agency initially set Federal Supply Schedule (FSS) procurement aside for small businesses, but subsequently decided to conduct purchase on non-set-aside basis, agency's elimination of set-aside was unobjectionable; small business set-aside requirments(sic) do not apply to FSS purchases.
Goodway Graphics of Virginia, Inc.; NPC, Inc.; P.A.
Hutchison Co., B-297789, March 21, 2006.
DIGEST: Where
Government Printing Office (GPO) failed to comply with its policies
regarding compilation of a bidders list and publication of an invitation
for bids (IFB), GPO reasonably determined that it had a compelling
reason to cancel the IFB after bid opening and resolicit its
requirements.
AshBritt Inc., B-297889; B-297889.2, March 20, 2006.
DIGEST:
1. Protester's contention that an agency improperly included a Mississippi set-aside in a solicitation for cleanup efforts in Mississippi associated with damage resulting from Hurricane Katrina is denied where a provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. § 5150, requires the agency to provide a preference in debris removal contracts to firms residing, or primarily doing business, in the area affected by a major disaster, and a review of the statute and its legislative history does not show that the use of a set-aside to provide that preference, or the decision to provide the preference only to firms residing, or primarily doing business, in Mississippi--to the exclusion of firms located in other states affected by the same natural disaster--was an abuse of the agency's discretion to implement the statute's scheme.
2. Contention that a Justification and Approval (J&A) does not properly support an agency's decision to limit a competition for debris cleanup under the Stafford Act to firms residing, or primarily doing business, in Mississippi is denied where the agency's J&A reasonably explains and justifies the actions taken, and where the record shows that those actions are within the discretion provided by the Stafford Act, even though the protester correctly points out minor errors in the J&A.
Trailboss Enterprises, Inc., B-297742, March 20, 2006.
DIGEST:
Agency properly considered past performance record of predecessor company of awardee in evaluation where solicitation specifically provided that such information would be considered.
Optical Systems Technology, Inc., B-296516.2; B-296516.3, March 17, 2006.
DIGEST:
Protest that rejection of proposal was based on unreasonable testing of protester's sample night sights for .50 caliber rifles is denied where, contrary to protester's assertion, record indicates that agency undertook reasonable efforts to ensure that sights were securely mounted and properly adjusted during testing; even if these efforts were not entirely successful (and there is no basis in the record for reaching such a conclusion), the agency could reasonably conclude that the susceptibility of protester's sights to significant damage and degraded performance, notwithstanding reasonable efforts to mount the sights correctly, rendered the sights technically unacceptable.
United Paradyne Corporation, B-297758, March 10, 2006.
DIGEST:
Protest that past performance evaluation was unreasonable is sustained where agency used methodology to determine performance confidence ratings that improperly penalized offerors with relevant experience for their non-relevant experience and that effectively gave equal weight to highly relevant and non-relevant performance.
CRAssociates, Inc., B-297686, March 7, 2006.
DIGEST:
Protest that agency was required under the provisions of Office of Management and Budget Circular A-76, as revised on May 29, 2003, to include technically unacceptable private sector offer in the initial competitive range under solicitation issued as part of a Circular A-76 cost comparison study, is denied where solicitation clearly indicated that the agency contemplated conducting discussions only with offerors in the competitive range, and that not all offerors would be included in the competitive range; to the extent that protester believed it should be entitled to discussions even if its proposal were excluded from the competitive range, it was required to protest on this ground prior to the closing date for receipt of proposals.
Novex Enterprises, B-297660; B-297660.2, March 6, 2006.
DIGEST:
Agency unreasonably selected higher-priced proposal based on the fact that its initial delivery was somewhat earlier than the protester's, where the awardee's overall delivery schedule was noncompliant with the delivery schedule established in the solicitation and significantly less advantageous than the protester's compliant delivery schedule, and the agency apparently did not consider this in making the award selection.
Information Ventures, Inc., B-297276.2; B-297276.3; B-297276.4, March 1, 2006.
DIGEST:
Protest is sustained where agency failed to reconcile contradictory cost and technical evaluations regarding offerors' proposed staffing levels and unreasonably normalized offerors' proposed labor hours under its cost realism analysis
Alan D. King, B-295529.6, February 21, 2006.
DIGEST:
Protester challenging, on behalf of federal employees, the outcome of a cost comparison study held pursuant to Office of Management and Budget Circular A-76, is not an interested party with standing to pursue a protest at the Government Accountability Office (GAO) where the study at issue was not initiated on or after January 26, 2005, as required by the amendment to the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-56 (2000) set forth at section 326(a) of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811, 1848, which authorizes the official responsible for submitting the federal agency tender in a public-private competition conducted under the Circular to be an “interested part” for purposes of filing a bid protest at the GAO.
Computers Universal, Inc., B-297552, February 14, 2006.
DIGEST:
Agency unreasonably evaluated protester's quotation for repairing a vehicle tracking system when it added to protester's price, for evaluation purposes, the protester's proposed increase in telecommunications charges under another contract for maintaining the system, without first verifying with the protester whether costs for necessary telecommunications to accomplish the purchase order work were already included in the purchase order price.
M.D. Thompson Consulting, LLC; PMTech, Inc., B-297616; B-297616.2, February 14, 2006.
DIGEST:
Protests are sustained where agency notice of intent to modify contract to extend performance on a sole-source basis did not comply with requirement for an accurate description of the services to be furnished and thus did not provide enough information to allow all prospective sources a meaningful opportunity to demonstrate the ability to meet the agency's requirements.
SAP Public Services, Inc., B-297535.2; B-297535.3; B-297535.4, February 10, 2006.
DIGEST:
1. Protest that awardee's quotation was “noncompliant” with solicitation requirements regarding commercial availability of software is denied where the procurement record indicates that awardee's quotation complied with the solicitation requirements and protester expressly acknowledges that it has “no proof” to support its allegation.
2. Protester's disagreement with the agency's subjective assessments of the protester's and awardee's quotations with regard to non-price evaluation factors do not provide a basis for sustaining the protest where agency evaluation is supported by the record.
3. Where solicitation stated that agency's evaluation of vendors' quotations would include risk assessments regarding, among other things, the potential for increased costs, agency's “best value” determination properly considered such risk assessments without quantifying the potential impact on vendors' costs.
4. In making a “best value” determination, agency properly performed a cost/technical tradeoff based on the evaluated prices that were calculated consistent with the solicitation's provisions.
MMI-Federal Marketing Service Corp., B-297537, February 8, 2006.
DIGEST:
Protest is sustained where the agency unreasonably determined that awardee's quotation demonstrated compliance with the Berry Amendment's domestic production requirements, in light of countervailing pre-award information that the awardee would not comply
New England Radiation Therapy Management Services, Inc.--Costs, B-297397.3, February 2, 2006.
DIGEST:
Reimbursement of the costs of filing and pursuing multiple protests is not recommended where, even if the protester is correct that the agency took corrective action in response to the first protest filed, that protest was not clearly meritorious.
DOR Biodefense, Inc.; Emergent BioSolutions, B-296358.3; B-296358.4, January 31, 2006.
DIGEST: Protest that modification of contract for research and development of botulinum vaccine was outside scope of the original contract is denied where changes did not substantially alter the contract's type of work, costs or period of performance beyond that which could have been reasonably anticipated by offerors.
B-306475, Help America Vote Act of 2002: Audits and Recovery of
Funds, January 30, 2006.
DIGEST:
The Help America Vote Act of 2002 provides that if the Comptroller
General determines as a result of an audit that a fund recipient is
not compliant with program requirements, or that an excess payment
has been made, the recipient must return a certain portion of the
payment. However, the Comptroller General need not make such a
determination before a paying agency may audit and take corrective
action on questioned costs. This provision of the Act does not
supersede the independent statutory authority of agencies to audit
and take corrective action on the use of federal funds. If the
Comptroller General were to make a determination under the Act as
a result of any audit he conducts, he will make an appropriate
recommendation for the agency to determine liability and to take
corrective action.
TruLogic, Inc., B-297252.3, January 30, 2006.
DIGEST:
Source selection authority's (SSA) disagreement with the majority of the evaluators and acceptance of the minority s recommendation that the awardee be selected for award is unobjectionable and does not evidence a lack of “impartiality,” where the SSA reached a reasoned conclusion, supported by the record, that the awardee's lower-priced, lower-rated proposal deserved a higher technical rating than was assigned by the majority and represented the best value to the government.
American Material Handling, Inc., B-297536, January 30, 2006.
DIGEST:
In a negotiated procurement which provided for award on the basis of a price/technical tradeoff, protest challenging the selection of the higher-priced proposal is denied, where, consistent with the solicitation's evaluation factors, the source selection authority found the awardee's offer of a shorter delivery schedule to outweigh the protester's price advantage.
KIC Development, LLC, B-297425.2, January 26, 2006.
DIGEST:
Protest challenging agency's determination that protester's proposal was technically unacceptable is sustained where the agency's determination that the proposal was unacceptable because it did not show that the protester itself met the solicitation's experience requirement--while its subcontractor clearly did--was inconsistent with the solicitation's evaluation scheme, which allowed offerors to meet experience requirements using the experience of properly-committed key employees or subcontractors.
The MIL Corporation, B-297508; B-297508.2, January 26, 2006.
DIGEST:
1. Protest issue raised subsequent to a post-award debriefing provided to a vendor in a Federal Supply Schedule procurement is untimely where it was filed more than 10 days after the basis of protest was known; since the procurement was not conducted on the basis of competitive proposals, the timeliness rules based on protests which challenge a procurement conducted on the basis of competitive proposals under which a debriefing is requested and required are not applicable.
2. Protest challenging the evaluation of vendors' quotations is denied where the record establishes that the agency's evaluation was reasonable and in accord with the stated evaluation criteria.
3. Protest alleging that, in its evaluation of the protester's quotation, the agency unreasonably ignored information that was “simply too close at hand” (but not contained in the protester's quotation) is denied where the protester fails to demonstrate that the information in question was known to the individuals involved in the evaluation of the quotation.
4. Protest that agency improperly changed the stated basis for award from “best value” to low priced/technically acceptable is denied where the record reflects that the agency found the quotations of the awardee and protester to be, at best, technically equal and made award to the lower-priced vendor; the fact that no price/technical tradeoff was required does not negate the fact that the agency properly adhered to the best-value award basis.
Kenco Associates, Inc.; Air Product and Chemicals, Inc., B-297503; B-297503.2, January 25, 2006.
DIGEST:
Cancellation of solicitation minutes prior to the scheduled time for receipt of proposals was reasonable where the agency, as a result of inquiries from members of Congress, reasonably determined that it needed to further review its mission requirements before proceeding with the procurement.
Wyse Technology, Inc., B-297454, January 24, 2006.
DIGEST:
Agency improperly awarded contract based upon a proposal where the offeror expressly declined to certify that the product to be provided would comply with the Trade Agreements Act as was required by the terms of the solicitation.
Puglia Engineering of California, Inc., B-297413; B-297413.2; B-297413.3, January 20, 2006.
DIGEST:
1. Protest that the agency's evaluation of proposals was unreasonable and inconsistent with the stated evaluation criteria is denied where the record shows that the agency's evaluation was reasonable, and that the solicitation's evaluation criteria were fairly and consistently applied in the agency's assessment of both the protester's and the awardee's proposals.
2. Source selection authority (SSA) performed a reasonable price/technical tradeoff in determining that the awardee's proposal 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 price advantages consistent with the solicitation's evaluation criteria.
Crane & Company, Inc., B-297398, January 18, 2006.
DIGEST:
Agency's solicitation for distinctive currency paper is defective where it provides for the award of a contract with a 6-year term in violation of 31 U.S.C. § 5114(c), which limits contracts for currency paper to periods of not more than 4 years.
Greenleaf Construction Company, Inc., B-293105.18; B-293105.19, January 17, 2006.
DIGEST:
1. Department of Housing and Urban Development's evaluation of awardee's proposal for contract to provide single-family home management and marketing services was unreasonable where it was based on awardee's proposal of key personnel and an electronic monitoring system that awardee should have known--more than 2 months prior to final evaluation and award--would not be available, and awardee never advised agency of the material change in circumstances.
2. Protest is sustained where Department of Housing and Urban Development failed to reasonably consider or evaluate potential organizational conflict of interest arising due to the fact that the owner of the management and marketing (M&M) services contractor in Ohio will be receiving payments from the owner of the closing agent contractor for Ohio, the activities of which the M&M contractor will oversee.
3. Affirmative determination of awardee's financial responsibility was not reasonable where, despite knowing awardee had sold an affiliated company, contracting officer nevertheless based responsibility determination on financial capability assessment by Defense Contract Audit Agency that was based in significant measure on financial resources of company that had been sold.
EPW Closure Services, LLC; FFTF Restoration Co., LLC, B-294910; B-294910.2; B-294910.3; B-294910.4; B-294910.5; B-294910.6; B-294910.7, January 12, 2005.
DIGEST:
1. Protest against award for deactivation and decommissioning of nuclear reactor is sustained where, although solicitation provided that agency was committed to achieving an accelerated closure of the site, agency accorded little or no weight in the evaluation to the degree to which offerors proposed to accelerate completion ahead of required site closure date.
2. Protest against award for deactivation and decommissioning of nuclear reactor is sustained where, because agency was unable to conclude that proposed allowances for contingencies reasonably reflected the likely risks of offerors' proposed approaches, there was no basis for agency to conclude that the cost figures upon which source selection decision was based reasonably represented the differences in costs to be incurred under competing proposals.
Meggitt Safety Systems, Inc., B-297378; B-297378.2, January 12, 2006.
DIGEST:
Protest challenging agency's sole-source acquisition of urgently required automatic fire suppression systems is denied where record shows agency adequately investigated protester's capabilities, and reasonably concluded that protester would not be able to timely meet agency's requirements.
Remington Arms Company, Inc., B-297374; B-297374.2, January 12, 2006.
DIGEST:
1. Failure to file a protest within 10 days of a preaward debriefing does not render the protest untimely when the agency, after the preaward debriefing, reinstated protester in the competitive range and continued to consider the protester's proposal for award.
2. Protest of agency's reliability testing of offerors' bid samples is denied where the record shows the evaluation was reasonable and consistent with the evaluation criteria; protester's disagreement with agency's evaluation is insufficient to show it was unreasonable.
3. Protest challenging the evaluation of technical proposals is denied where the record, including post-protest explanations of the rationale for the agency's contemporaneous conclusions, establishes that the agency's evaluation was reasonable and in accord with the stated evaluation criteria.
4. Agency's decision to make award based on a higher technically-rated, higher-priced proposal is unobjectionable where the agency reasonably determined that the awardee's greater weapon accuracy, reliability, and higher user assessment were worth the price premium.
Alion Science & Technology Corporation, B-297022.3, January 9, 2006.
DIGEST:
Protest is sustained where record does not support the agency's assessment regarding the “maximum potential” for organizational conflicts of interest to occur during awardee's contract performance where awardee, a manufacturer of spectrum-dependent products, will perform various activities requiring subjective judgments that may affect the sales or use of spectrum-dependent products of the awardee, the awardee's competitors, and the awardee's customers.
NANA Services, LLC B-297177.3; B-297177.4, January 3, 2006.
DIGEST:
The award of noncompetitive bridge contract under the Small Business Administration's section 8(a) program is unobjectionable where the acceptance of the requirement into the 8(a) program does not violate any statute or regulation
Department of Education -- Grant Extensions, B-303845, January 3, 2006.
DIGEST:
1. Department of Education's 4-year extension of a 5-year grant made to an Historically Black Graduate Institution (HBGI) was improper given the plain language of the authorizing statute limiting grants to HBGIs to a period not to exceed 5 years. 20 U.S.C. § 1063b(b).
2. Department of Education's 4-year extension of a 5-year grant made to an Historically Black College and University (HBCU) amounted to an improper waiver of its regulations, which limited the duration of HBCU grant periods to 5 years. 34 C.F.R. § 608.11.
Spectrum Security Services, Inc., B-297320.2; B-297320.3, December 29, 2005.
DIGEST:
1. Where an agency fails to provide pre-award notification of the identity of the prospective awardee on a small business set-aside and the awardee is ultimately found by the Small Business Administration to be other than small based upon a timely size protest filed after award, the agency should terminate the contract and obtain the services from a small business offeror.
2. Protest that awardee's proposal, on its face, shows that the awardee would not comply with the solicitation's subcontracting limitation is denied, where the solicitation for services provided for the evaluation of base and option requirements and the awardee proposed to perform more than 50 percent of the personnel costs of the contract, considering the entire contract period.
3. Protest that agency improperly considered the corporate experience and past performance of awardee's proposed subcontractor is denied, where the solicitation encouraged offerors to submit such information.
Sytronics, Inc., B-297346, December 29, 2005.
DIGEST:
Protest is sustained where the agency did not reasonably evaluate in accordance with the terms of the solicitation the quotation of the selected vendor in the areas of technical approach and past performance, where the agency conducted price discussions that improperly favored the selected vendor over the protester (whose higher priced quotation received a higher technical score), and where the protester was competitively prejudiced by the agency's conduct of the procurement.
Global, A 1st Flagship Company, B-297235; B-297235.2, December 27, 2005.
DIGEST:
In procurement that placed greater importance on technical factors, agency's establishment of a competitive range of one, which consisted of the awardee's technically unacceptable initial proposal and which excluded protester's “highly acceptable” technical proposal, on the basis that protester's evaluated cost/price was 15 percent higher than the awardee's, was not reasonable where the agency's cost/price evaluation reflected various flaws and erroneous assumptions.
Honeywell Technology Solutions, Inc.--Costs, B-296860.3, December 27, 2005.
DIGEST:
Where Government Accountability Office (GAO) attorney, in conducting outcome prediction alternative dispute resolution (ADR), advised parties that protest issue related to organizational conflict of interest would likely be sustained (which led agency to take corrective action that rendered entire protest academic), but GAO attorney did not address other, separate issues raised by protest, GAO does not recommend reimbursement of costs associated with the unresolved issues, which were severable from the organizational conflict of interest issue addressed during ADR.
Wiltex Inc., B-297234.2; B-297234.3, December 27, 2005.
DIGEST:
Protest challenging agency's selection decision is sustained where the record shows that the awardee's proposal failed to address material solicitation requirements and that the agency failed to treat offerors equally by making award to the awardee despite the deficiencies in its proposal, while finding the protester's proposal unacceptable for similar deficiencies.
STR, L.L.C., B-297421, December 22, 2005.
DIGEST:
Government Accountability Office will not consider protest of an award of a subcontract as “by” the government where the prime contractor drafted the portion of the solicitation pertaining to evaluation of vendor responses; participated substantially in the evaluation of responses and selection of a product for award; and will be responsible for administration of the subcontract.
Hera Constructive S.A./Synthesis S.A., Joint Venture, B-297367, December 20, 2005.
DIGEST:
Protester's contention that the agency's evaluation of its and the awardee's proposals was unreasonable, and that the agency failed to consider the protester's extensive general experience, is denied where the record shows that the agency's evaluation of both proposals was consistent with the solicitation's stated scheme.
M&M Ret. Enterprises, LLC, B-297282, December 15, 2005.
DIGEST:
Protest that agency should have rejected awardee's proposal as technically unacceptable for failure of the company's owners/management personnel to hold allegedly required security clearances is denied, where solicitation did not expressly require clearances for those personnel, and there is no basis to conclude that contract work cannot be performed as required without those additional clearances.
LENS, JV--Costs, B-295952.4, December 12, 2005.
DIGEST:
Request for recommendation for reimbursement of costs for filing and pursuing protest is denied, even though the agency decided to take corrective action in response to the protest, where the record does not establish that protest was clearly meritorious.
Clean Harbors Environmental Services, Inc. File:
B-296176.2 Date: December 9, 2005.
DIGEST: Protest
that past performance evaluation was unreasonable is sustained where
record shows that agency made no attempt during evaluation to assess the
relevance of the offerors' prior contracts, notwithstanding solicitation
term requiring such an assessment.
PHT Corporation, B-297313, December 8, 2005.
DIGEST:
Where solicitation defined relevant past performance as performance on contracts with a value over $500,000 that demonstrates the successful manufacture of M9 magazine cartridge or similar item, award to offeror with no relevant past performance was reasonable where source selection authority recognized the awardee's lack of relevant past performance, but nonetheless reasonably concluded, consistent with the solicitation, that the awardee's overall past performance record justified a “moderate” risk rating.
Metro Home Medical Supply, Inc., B-297262, December 8, 2005.
DIGEST:
Protest objecting to agency's failure to make award to protester, an Historically Underutilized Business Zone small business, on a sole-source basis is denied where prerequisites for a sole-source award, set forth in Federal Acquisition Regulation § 19.1306, were not met.
Europe Displays, Inc., B-297099, December 5, 2005.
DIGEST:
1. Agency unreasonably awarded a contract for the design and construction of an exhibition pavilion on a sole-source basis under simplified acquisition procedures to a firm that the agency believed the exhibit organizer required be used, where the agency's belief was erroneous and unreasonable.
2. A firm's statement of interest and technical capability to compete in response to an agency's published notice of intent to negotiate a contract on a sole-source basis is not a bid or proposal for which the GAO will recommend reimbursement of bid and proposal preparation costs where protest of sole-source award is sustained.
Charter Environmental, Inc., B-297219, December 5, 2005.
DIGEST:
1. Contracting agency unreasonably determined that apparent low bidder on invitation for bids for the stabilization and removal of mine waste met the solicitation‘s definitive responsibility criterion requiring that the awardee have completed three similar projects, where the agency only considered the experience of what is apparently the low bidder‘s parent company, even though the record does not contain a commitment by the parent company to the low bidder‘s successful performance of the work.
2. Bid cannot be rejected as nonresponsive on the basis that the bid did not include completed standard representations and certifications or the bidder had not yet registered in the Central Contractor Registration.
L-3 Systems Company Wescam Sonoma, Inc., B-297323, December 3, 2005.
DIGEST:
Protest is dismissed as untimely where protester learned of independent bases for protest as a result of letter from agency, but raised the issues with our Office more than 10 days later in its comments on the agency report.
Marine Industries NW, B-297207, December 2, 2005.
DIGEST:
Agency reasonably determined that protester's proposal failed to comply with a solicitation requirement for a brief description of offeror's quality assurance plan for certifying completed work where protester submitted brief description of plan that it was in the process of implementing, but failed to represent that the plan would be in place by the time of contract award or describe any plan that it would be replacing.
Shaw Environmental, Inc. B-297294, December 2, 2005.
DIGEST:
1. Where solicitation was clear on applicable requirements and responses to offerors' questions were consistent with those requirements, agency had no duty to amend the solicitation to clarify protester's unilateral misinterpretation of solicitation.
2. Agency was not required to hold discussions to allow protester to make its proposal technically acceptable where solicitation advised offerors of the possibility of award without discussions.
FN Manufacturing, Inc., B-297172; B-297172.2, December 1, 2005.
DIGEST:
Protest challenging an agency's affirmative determination of the awardee's responsibility on the ground that there is evidence raising serious concerns that the contracting officer (CO) unreasonably failed to consider available relevant information suggesting that the awardee does not have a satisfactory record of integrity and business ethics is denied where the record shows that: (1) while the awardee was investigated for possible fraud, it was neither indicted nor proposed for debarment; (2) the CO was aware of the information that led to the questions about the awardee's activities under certain previous contracts and did not ignore the matter; and (3) the CO's more recent dealings with the company provided a rational basis for her conclusion that the awardee is a responsible contractor.
Information Ventures, Inc., B-297225, December 1, 2005.
DIGEST:
Where record shows that agency overstated its needs by requiring vendors to submit multiple examples of toxicology reports because agency report only justifies need to review one sample report, protest is nonetheless denied where protester has failed to show that it could have met requirement for even one sample report, and thus the overstated requirement did not result in competitive prejudice to the protester.
WorldWide Language Resources, Inc., B-297210; B-297210.2; B-297210.3, November 28, 2005.
DIGEST:
Protest challenging award for linguistics support services is denied, where agency reasonably concluded that protester's quotation was technically unacceptable since the protester's linguists did not meet the requirements of the solicitation.
Haworth, Inc., B-297077; B-297077.2, November 23, 2005.
DIGEST:
1. Protest is sustained where agency issued blanket purchase agreement for office furniture to vendor whose quotation did not comply with requirements of request for quotations.
2. Protest is sustained where agency evaluation of protester's quotation for furniture was based on purported weakness under one evaluation criterion, where quotation showed that vendor actually met (or even exceeded) that criterion, and protester was competitively prejudiced because evaluation showed quotations were considered very close under the technical evaluation.
Carahsoft Technology Corporation, B-297112, November 21, 2005.
DIGEST:
Solicitation for software to computerize employee appraisal process that calls for the same software to be used both agency-wide and for one agency component that requires its own separate, internally-hosted software system is not unduly restrictive of competition where the record shows that the requirement furthers agency's need for efficiency and risk avoidance in its modernization efforts.
MadahCom, Inc.--Reconsideration, B-297261.2, November 21, 2005.
DIGEST:
Protest that a solicitation improperly restricits(sic) competition to multiple-award task- order contract holders, and that the task orders will exceed the scope of the underlying contracts, is timely under section 21.2(a)(1) of GAO's Bid Protest Regulations where filed before the closing date for receipt of task-order proposals. Dismissal of protest as untimely under section 21.2(a)(2) because it was not filed within 10 days of when the protester knew that the procurement would be restricted to task-order contract holders therefore is reversed.
Odyssey International, Inc. B-296855.2, November 16, 2005.
DIGEST:
Agency improperly failed to allow correction of claimed mistake in bid, where the bidder established its mistake and its intended bid (which was still low) by clear and convincing evidence and the agency denied the requested correction because of other suspected mistakes which were unrelated to the one claimed and which the agency did not bring to the bidder's attention, as required by Federal Acquisition Regulation §§ 14.407-1, 14.407-3(g)(1)(iv), and where the evidence in the record, including hearing testimony and worksheets, does not evidence that the bidder made additional mistakes (as suspected by the agency) or that the worksheets were not in good order.
Cartographics, LLC, B-297121, November 15, 2005.
DIGEST:
Protest that agency should have issued task order for digital conversion of maps to protester under its multiple-award indefinite-delivery/indefinite-quantity (ID/IQ) contract for cartographic services, rather than to awardee under its architect/ engineering services ID/IQ contract, is dismissed; GAO lacks jurisdiction to consider issuance of task order against ID/IQ contract.
WorldWide Language Resources, Inc.; SOS International Ltd., B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993, B-296993.2; B-296993.3; B-296993.4, November 14, 2005.
DIGEST: 1. Protests challenging agency's award of sole-source contract for bilingual-bicultural advisors utilizing other than competitive procedures based on unusual and compelling urgency are sustained where the agency initially attempted to place the requirement under an environmental services contract, which, on its face, did not include within its scope the bilingual-bicultural advisor requirement. This obvious error constituted lack of advance planning, which compromised the agency's ability to obtain any meaningful competition and directly resulted in the sole-source award.
2. Justification and approval prepared in support of second sole-source award expanding the bilingual-bicultural advisor requirement was unreasonable where justification was premised on the conclusion that the awardee was the only responsible source, yet the capabilities of firms other than the awardee were not in fact considered.
3. Agency's request for dismissal of protests as untimely on the ground that announcement of contract award on the Department of Defense's official website, www.DefenseLink.mil, placed protesters on constructive notice of the award and thus required the protesters to file their protests within 10 days of the announcement
is denied since DefenseLink has not been designated by statute or regulation as the public medium for announcement of procurement actions.
Raloid Corporation, B-297176, November 10, 2005.
DIGEST:
1. Protest is denied where the record shows that the agency's evaluation was reasonable and consistent with the solicitation's evaluation factors.
2. Where proposal, on its face, does not reasonably lead the agency to conclude that the offeror will not comply with the subcontracting limitation contained in the solicitation, the offeror's compliance concerns a matter of responsibility or contract administration not for review by the Government Accountability Office.
YORK Building Services, Inc., B-296948.2; B-296948.3; B-296948.4, November 3, 2005.
DIGEST:
Protest is sustained where source selection official failed to document rationale for source selection consistent with differential weighting of technical evaluation factors and emphasis on technical superiority as required by solicitation.
IAP World Services, Inc., B-297084, November 1, 2005.
DIGEST:
1. Where solicitation provided for the relative weighting of evaluation factors in the evaluation, rather than mere review for acceptability, agency properly considered extent to which proposals exceeded solicitation requirements.
2. Protest that agency failed to hold meaningful discussions with protester is denied where protester's proposal was rated at least acceptable under all evaluation categories, and protester does not point to any specific item that agency failed to discuss that kept protester from having a reasonable chance of receiving award.
3. Where agency determined that protester's price was reasonable, agency was not required to inform protester during discussions that its price was significantly higher than prices of competing offerors and government estimate.
Standard Communications, Inc.B-296972, November 1, 2005.
DIGEST:
1. Agency reasonably did not evaluate protester's past performance as justifying high confidence rating, despite generally positive feedback from references, where protester's past contracts were reasonably found to be only partially relevant in size and scope to work to be performed in statement of work.
2. Agency reasonably evaluated protester's proposal's technical risk as high where its proposed labor rates and overall price were significantly below agency's independent estimate and reasonably were found to threaten its ability to hire and retain incumbent personnel.
3. Where protester's neutral past performance rating was not considered a significant weakness, and nature and ultimate relevance of protester's past performance submissions were clear, agency was not required to conduct discussions on past performance.
4. Price-technical tradeoff was reasonable where source selection official identified technical distinctions between competing proposals and specifically determined that higher technically rated proposal represented best value despite higher cost.
Testek, Inc.B-297137, October 28, 2005.
DIGEST:
Protest is denied where agency reasonably determined offeror's proposed alternative approach to meeting sole-source requirement did not comply with solicitation criteria.
CACI Technologies, Inc., B-296946, October 27, 2005.
DIGEST:
Agency reasonably evaluated protester's proposal as failing to comply with mandatory solicitation requirements regarding engineering services and, on that basis, properly determined that protester's proposal was ineligible for award on the basis of initial offers.
Blue Rock Structures, Inc.--Costs, B-293134.2, October 26, 2005.
DIGEST:
1. Attorney's fees need not be allocated between sustained and denied protest issues where issues were interconnected and based on common factual underpinnings.
2. Hourly fee for attorney for small business protester that exceeds benchmark set forth in Federal Acquisition Regulation § 33.104(h)(5) is nonetheless reasonable where fee is consistent with customary rates for similar work by attorneys of similar experience in the community in which the attorney practices.
3. Protester is not entitled to reimbursement for time spent discussing settlement since settlement discussions are not in pursuit of the protest.
4. Protester is not entitled to recover the costs associated with preparing for and attending a debriefing since time spent by a potential protester in ascertaining whether it has a basis for protest is not time spent in pursuit of the protest.
5. Protester is not entitled to recover profit on its employees' time.
Cherry Road Technologies; Electronic Data Systems Corporation, B-296915; B-296915.2; B-296915.3; B-296915.4; B-296915.5, October 24, 2005.
DIGEST:
1. Protest challenging awardee's use of leased government facilities is denied, where solicitation did not preclude the use of leased government facilities but stated only that agency would not be providing facilities as “government furnished property” under this contract.
2. Protest contending that agency failed to eliminate the awardee's competitive advantage from using leased government facilities as assertedly required by Federal Acquisition Regulation (FAR) Part 45 is denied because FAR Part 45 does not apply to leases that are executed pursuant to statutory leasing authority, and unfair advantage does not otherwise exist because leases were executed at fair market value.
3. Protest challenging source selection decision and evaluation ratings under each evaluation factor is denied, where the record demonstrates a reasoned and rational evaluation, and protesters' arguments amount to mere disagreement with the agency's conclusions.
Johnson Machine Works, Inc., B-297115, October 20, 2005.
DIGEST:
Where corporate surety's power of attorney form attached to bid bond failed to designate the individual who signed the bond on behalf of the surety as an attorney-in-fact authorized to bind the surety, contracting agency properly determined the bond was defective and the bid nonresponsive because it is not clear whether the surety would be bound. Evidence of the authority of surety's agent to sign bid bond on behalf of the surety must be furnished with a bid prior to bid opening, and failure to furnish it renders the bid nonresponsive.
Spherix, Inc. B-294572.3; B-294572.4, October 20, 2005.
DIGEST:
1. Protest sustained where several significant technical discriminators in the cost/technical tradeoff justifying award lacked a reasonable basis.
2. Agency misled protester regarding the propriety of offering alternative implementation plan that did not comply with the solicitation requirements when it recognized a strength in the awardee's proposal for making such a proposal while specifically advising the protester that the required implementation plan was that stated in the solicitation.
Fort
Mojave/Hummel, a Joint Venture, B-296961, October 18, 2005.
DIGEST: Agency improperly rejected low bid as nonresponsive
where the bid failed to acknowledge a solicitation amendment that merely
clarified requirements already contained in the solicitation and
otherwise had a negligible effect on the quality and price of the
construction project bid upon.
J.A. Farrington Janitorial Services, B-296875. October 18, 2005.
DIGEST:
1. Agency's rejection of fixed-price proposal submitted by HUBZone small business because the price was determined unrealistically low was improper, where the solicitation contains no evaluation criterion pertaining to price realism or understanding; such a determination concerns the offeror's responsibility, i.e., the offeror's ability and capacity to successfully perform the contract at its offered price, and must be submitted to the Small Business Administration for a possible certificate of competency.
2. Agency determination that the protester's past performance was only entitled to a “confidence” rating was reasonable and gave appropriate consideration to the considerable relevant and successful past performance of protester's mentor and major subcontractor, where the protester had no relevant past performance.
3. Protest challenging the past performance evaluation of the awardee is sustained where the record fails to explain why the contracts, on which the past performance rating was based, were relevant, given their relatively low dollar value compared to the estimated dollar value of the solicited contract.
ITT Federal Services International Corporation, B-296783; B-296783.3, October 11, 2005.
DIGEST:
Protest challenging agency's evaluation of proposals is sustained where record shows that (1) agency improperly failed to consider a staffing understatement in awardee's proposal that could have had a material effect on the agency's technical and price/cost evaluation conclusions, and (2) agency's staffing estimates for various program requirements lacked a reasonable basis.
Specialty Marine, Inc., B-296988, October 11, 2005.
DIGEST:
1. Protest that the time allowed for submission of quotations was unreasonable is denied where the solicited firms received a reasonable time to respond to the solicitation and the agency was under no obligation to solicit the protester.
2. Protest challenging agency's failure to publicly display solicitation is denied where the record supports the agency's use of the unusual and compelling urgency exception to the public display requirement.
3. Protest that the awardee was improperly permitted to alter its quotation is denied where the record supports the agency's assertion that, initially, the quotation was misinterpreted by the contracting specialist and in fact no alteration to the quotation was ever made.
Cogent Systems, Inc., B-295990.4; B-295990.5, October 6, 2005.
DIGEST:
In a negotiated procurement that provided for award on the basis of a price/technical trade-off, the agency's determination that the protester's lower-priced proposal was unacceptable was unreasonable, where the agency's assessment of a significant weakness in the protester's proposal with respect to its proposal of a flatbed scanner was unreasonable and the agency failed to provide meaningful discussions to the protester on this point.
BAE Technical Services, Inc., B-296699, October 5, 2005.
DIGEST:
Protest is sustained where, under solicitation requiring that offerors substantiate proposed initiatives to reduce staffing, agency applied a more exacting standard in evaluating adequacy of substantiation for protester's proposed initiatives than it did in evaluating awardee's substantiation.
Brewbaker White Sands JV, B-295582.4, October 5, 2005.
DIGEST:
Protest of award to offeror that submitted slightly lower-rated, lower-priced proposal in a best value procurement is proper where record shows source selection authority performed a rational integrated assessment of proposals and reasonably determined that (1) both offerors' past performance proposals were essentially equal in terms of performance risk, and (2) despite protester's higher adjectival rating for past performance, price premium involved in an award to the protester on the basis of its slightly higher-rated, higher-priced proposal was not warranted given the acceptable level of technical competence available at the awardee's lower price.
Chapman Law Firm Company, LPA, B-296847, September 28, 2005.
DIGEST:
Protest that agency improperly awarded “bridge contract” on sole-source basis is denied where award of long-term contract for same services was delayed by litigation and agency reasonably determined that only incumbent contractor was in a position to perform the services.
Coastal Maritime
Stevedoring, LLC,. B-296627, September 22, 2005.
DIGEST: 1. Source selection authority unreasonably rated as
satisfactory an offeror's small business subcontracting plan that
failed to address many of the required elements of Federal Acquisition
Regulation § 19.704 and that furnished conflicting information regarding
offeror's overall objective for small business subcontracting.
2. Price/technical tradeoff determination that failed to take into
consideration several of the advantages of protester's
higher-rated, higher-priced proposal was not reasonably based.
EDO Corporation, B-296861, September 28, 2005.
DIGEST:
1. Cost realism evaluation of protester's proposal was unobjectionable where record shows that upward cost adjustments were based on evaluators' reasonable assessments that proposal significantly understated labor hours needed to perform.
2. Agency's identification of risk associated with protester's very low fixed production price is not relevant to award decision where selection authority did not cite the identified risk in making award decision.
3. Agency reasonably evaluated protester's proposal as high risk, despite protester's experience, due to proposal's failure to include sufficient support for low proposed labor hours.
Firetech Automatic Sprinkler, B-296626, September 22, 2005.
DIGEST:
Agency reasonably determined, in accordance with the solicitation's evaluation criteria, that the awardee's superior experience and past performance justified award based on its slightly higher-priced quotation.
Delphinus Engineering, Inc., B-296902; B-296902.2, September 20, 2005.
DIGEST:
1. The protester--a section 8(a) qualified business--had no basis to expect that the agency would award it a contract as the only 8(a) offeror submitting a technically acceptable proposal, where the solicitation was issued on an unrestricted basis and stated that award would be made to the offerors submitting the proposals determined to be most advantageous to the agency considering the listed technical factors and cost.
2. The agency's evaluation of the protester's response to a sample task order did not have to consider protester's performance on another contract not identified in the protester's proposal.
The Sandi-Sterling Consortium--Costs, B-296246.2, September 20, 2005.
DIGEST:
Where agency proposed corrective action before filing administrative report and protest grounds were not clearly meritorious, there is no basis for GAO to recommend reimbursement of costs of pursuing the protest.
R&G Food Service, Inc., d/b/a Port-A-Pit Catering, B-296435.4; B-296435.9, September 15, 2005.
DIGEST:
Agency unreasonably determined that the protester's prices were not fair and reasonable where the agency's price evaluation considered only offerors' unit prices and, in so doing, failed to provide a reasonable basis for comparing the relative costs to the government of offerors' competing proposals.
Quality Support, Inc., B-296716, September 13, 2005.
DIGEST:
Protest of agency's cancellation of solicitation after receipt and evaluation of quotations is denied where record supports reasonableness of cancellation due to lack of available funding.
National Beef Packing Company, B-296534, September 1, 2005.
DIGEST:
1. Challenge to technical and past performance evaluation scores is denied where the agency's evaluation of proposals was reasonable and is adequately supported by the record.
2. Protest that agency waived mandatory delivery schedule for an awardee is denied where the solicitation allowed offerors to propose alternate delivery schedules.
3. Agency's exchanges with an awardee after receipt of proposals were clarifications, which resolved a minor error, and did not constitute discussions.
Cattlemen's Meat Company, B-296616, August 30, 2005.
DIGEST:
Protest of agency's cancellation of solicitation for food services to instead perform the services in-house is denied where the protester's price submitted in response to the solicitation significantly exceeded the government estimate, which has not been shown to be other than realistic and fair.
Johnson Controls Security Systems, B-296490; B-296490.2, August 29, 2005.
DIGEST:
1. Protest is sustained where awardee misrepresented in its proposal that it had made arrangements before award to obtain training and certification required under the solicitation for its personnel, and the misrepresentation was material in that the agency relied upon it and the record indicates that it had a significant impact upon the evaluation.
2. Protest is sustained where, rather than determining which proposal was most advantageous, as required under the “best value” evaluation scheme, agency essentially considered only whether the proposals were technically acceptable, and failed to reasonably account for the technical superiority of the protester's proposal.
Kola Nut Travel, Inc., B-296090.4, August 25, 2005.
DIGEST:
1. Agency's contemporaneous evaluation record reasonably supports the agency's evaluation of protester's technical proposal as merely “acceptable.”
2. Where awardees' consultant will earn a fee based on profits earned during the awardees' performance of the contract, and there is no evidence of improper influence on government officials regarding the contract award decisions--rather, the record reflects that award was made on the basis of the awardees' significantly lower prices and higher rated technical proposals--the agreement between the awardees and the consultant does not violate the statutory and regulatory limitations on contingent fees.
Digital Healthcare, Inc., B-296489, August 24, 2005.
DIGEST:
Allegation that agency misappropriated information contained in protester's unsolicited proposal and developed specifications based on that information is denied where protester has not met its burden of showing proprietary nature of information allegedly misappropriated.
Evergreen Fire & Security, B-296510, August 22, 2005.
DIGEST:
1. Where solicitation did not require offerors to submit evidence of technicians' qualifications prior to award, whether technicians will meet the requirements is a matter of contract administration and not for review by GAO.
2. Agency's evaluation of awardee's past performance as very good was unobjectionable where it was consistent with awardee's performance record and only negative information identified by protester concerned matters for which, record shows, awardee was not responsible.
3. Evaluation of protester's proposal as marginal was reasonable where proposal failed to identify firm's capability in all systems identified in solicitation.
Johnson Controls World Services, Inc.--Costs, B-295529.4 , August 19, 2005.
DIGEST:
Protester's request for a recommendation that it be reimbursed the costs of filing and pursuing its protest is granted where: (1) the issues raised in the initial protest filing clearly identified deficiencies in the agency's decision that it was more economical to provide base operations support services at Walter Reed Medical Center, in Washington, D.C., than to contract for those services; (2) the agency admits that it did not investigate the protester's detailed allegations; and (3) the agency withheld relevant protest documents until more than 70 days after the initial protest filing, when GAO convened a hearing. Under these circumstances, the record shows that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief.
Jess Bruner Fire Suppression, B-296533, August 19, 2005.
DIGEST:
Agency's posting of a pre-solicitation notice and solicitation conducted under simplified acquisition procedures on the Federal Business Opportunities Internet site did not deprive the protester of an opportunity to compete for a contract for fire engine services to be provided in a particular national forest where the pre-solicitation notice and solicitation were accessible on the Internet site by searching by geographic location.
United Paradyne Corporation, B-296609, August 19, 2005.
DIGEST:
Agency may properly include in a work statement for fuels management services a minimum staffing requirement that the agency has shown to be necessary, without violating Federal Acquisition Regulation §§ 11.002(a)(2)(i), 37.602-1(b), which generally require that, to the maximum extent practicable, the agency's needs be described in terms of performance-based standards.
Department of State--Costs, B-295352.5, August 18, 2005
DIGEST:
Request that Comptroller General 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 protester's claim filed with agency presented a reasonable basis for the adjustment.
OTI America, Inc., B-295455.3; B-295455.4, August 10, 2005.
DIGEST:
1. Where agency uses contract options under parallel contracts to include or exclude contractors from continuing consideration for the development and production of electronic passport covers, the agency is conducting a limited competition between the multiple contractors, so that a protest of the agency's determination to eliminate a firm from the competition is within GAO's jurisdiction.
2. Agency has a reasonable basis to eliminate protester from competition where the electronic passport covers it delivered to the agency for testing did not meet material contract requirements.
Sigmatech, Inc., B-296401, August 10, 2005.
DIGEST:
1. Protest challenging bundling of system engineering and support services with other requirements under a single-award blanket purchase agreement (BPA) issued under awardee's Federal Supply Schedule contract is timely, where record does not demonstrate that protester knew of basis for protest until task orders for work, which the protester had previously performed, were issued under the BPA, and the protester filed its protest within 10 days thereafter; GAO resolves doubts regarding timeliness in favor of protesters.
2. Protest challenging bundling of system engineering and support services with other requirements under a single-award BPA issued under awardee's Federal Supply Schedule contract is sustained, where agency failed to perform bundling analysis or satisfy the requirements of Federal Acquisition Regulations §§ 7.107 (a), (b); 10.001(c)(2); and 19.202-1.
Encompass Group LLC, B-296602; B-296617, August 10, 2005.
DIGEST:
Protest that solicitations for linens and blankets should not be set aside for small business concerns because there are no small business manufacturers of bulk fabric from which the linens and blankets will be made is denied, where agency found from its market research two or more small business concerns that could provide the linens and blankets manufactured by small businesses and provided at fair market prices.
Muddy Creek Oil and Gas, Inc., B-296836, August 9, 2005.
DIGEST:
Where a protester's response to a request for quotations altered material terms and conditions of the solicitation, the agency reasonably determined that the quotation was unacceptable.
Veterans Affairs-Liability of Aexander Tripp, B-304233, August 08, 2005.
DIGEST: The position of designated certifying officer carries with it personal financial liability for improperly certified payments. GAO has statutory authority to relieve a certifying officer from liability. 31 U.S.C. § 3528(b)(1). A Department of Veterans Affairs director, who acted as an approving official, is not a designated certifying officer and is therefore not personally financially liable for the improper certification of appropriated funds. The Department of Veterans Affairs should recover the improper payment from the payee, if possible, or from the certifying officer who actually certified the payment.
, August 5, 2005.
DIGEST:
Protest that awardee's proposed key personnel do not meet solicitation's definitive responsibility criteria requiring experience managing or supervising the operation of an 800,000 square foot building is denied where the agency has reasonably determined that experience of awardee's personnel with two buildings (totaling 971,425 square feet), operated in major respects as one building, and having integrated systems with equipment sized to operate the two buildings together, satisfied the requirements.
Rand & Jones Enterprises Company, Inc., B-296483, August 4, 2005.
DIGEST:
Agency lacked a reasonable basis to cancel a request for proposals (RFP)
after disclosure of the offerors' proposed prices where the RFP provided
only for a price competition and did not contain technical evaluation
factors, the agency intends to issue an invitation for bids for this same
requirement, and there is no basis to find the government or the integrity
of the procurement system would be prejudiced if the RFP were not
cancelled.
Trajen, Inc.; Maytag Aircraft Corporation, B-296334; B-296334.2; B-296334.3; B-296334.4, July 29, 2005.
DIGEST:
1. Discussions were meaningful where agency led protesters into areas of their proposals requiring additional information or improvement, including staffing levels and maintenance plans.
2. Agency's use of three adjectival ratings instead of five, as called for by solicitation, did not render evaluation unreasonable, since adjectival ratings are simply a guide for use by contracting officials, and numerical scores as well as supporting narratives provided means of differentiating among proposals that would have been provided by additional adjectival ratings.
3. Technical evaluations of protesters' proposals under staffing and other subfactors were reasonable where they are consistent with content of proposals; for example, protesters' proposals offered fewer personnel than agency's estimated targets and personnel who lacked required qualifications, and failed to reasonably assure the government of access to preventive maintenance software.
4. Technical evaluation of awardee's proposal was unobjectionable where agency reasonably found that proposed staffing levels were appropriate and that personnel were qualified for proposed positions.
Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005.
DIGEST:
Contracting agency's decision to cancel solicitation and resolicit requirement was reasonable where the original solicitation no longer represented the agency's actual needs.
Cooperativa Muratori
Riuniti, B-294980.5, July 27, 2005.
DIGEST: 1. Agency did
not act improperly by revising request for proposals and soliciting revised
proposals prior to conducting reevaluation that Government Accountability
Office recommended as corrective action in sustaining prior protest where
solicitation revisions were reasonably based and offerors were given the
opportunity to revise their proposals in response to them.
2. Where
agency amends request for proposals after closing and permits offerors to
submit revised proposals, it should permit offerors to revise aspects of
their proposals that were not the subject of the amendment absent evidence
that the amendment could not reasonably have any effect on other aspects of
proposals, or that allowing such revisions would have a detrimental impact
on the competitive process.
CW Government Travel, Inc.--Reconsideration; CW Government Travel, Inc.; CI Travel; The Alamo Travel Group; National Travel Service; Bay Area Travel; Knowledge Connections, B-295530.2; B-295530.3; B-295530.4, July 25, 2005.
DIGEST:
1. Protest challenging solicitation's price evaluation scheme is sustained where offerors are not required to propose binding transaction and management fees for the services being procured under the solicitation, thereby precluding the agency from meaningfully evaluating proposals' cost to the government, and where the agency has not explained why it cannot request and evaluate this pricing information.
2. Request for reconsideration of prior bid protest decision is denied where new information regarding agency's determination of solicitation's guaranteed minimum amount provides no basis to disturb the decision.
B.H. Aircraft Company, Inc., B-295399.2, July 25, 2005.
DIGEST:
Protest that agency's bundling of requirements for spare parts for aircraft engine violated the Small Business Act and Competition in Contracting Act of 1984 is denied where agency has established measurably substantial benefit to government from consolidating spare part purchases under a single contract, and established that the single contract otherwise is necessary to meet agency needs.
Photo Science, Inc., B-296391, July 25, 2005.
DIGEST:
Agency did not abuse its discretion in determining that services to identify, measure and analyze natural resource habitats and cultural resource sites, using Global Positioning System services and Geographic Information Systems data management services, are not surveying services subject to the Brooks Act procedures applicable to the procurement of architectural and engineering services.
PPCSC/RAC BENNING JV 1, B-296239, July 19, 2005.
DIGEST:
Agency decision to include clauses applicable to both construction work and supply work in a solicitation for a complex of prefabricated modular structures that included both types of work was reasonable where the solicitation divided the work into separate line items, many of which were for construction and many for supply.
SPAAN Tech, Inc., B-296305, July 14, 2005.
DIGEST:
Agency's determination that protester's proposal was essentially equal to awardee's lower cost proposal has not been shown to be unreasonable.
Great South Bay Marina, Inc., B-296335, July 13, 2005.
DIGEST:
1. Government Accountability Office (GAO) has jurisdiction over protest of award of National Park Service concession contract where prospectus, in addition to authorizing contractor to furnish concession services, requires contractor to furnish construction and rehabilitation services valued at over $1 million to the government.
2. Where agency refuses to furnish an agency report responding to a protest, GAO will decide protest on the basis of the documents available, even if that record is limited to documents submitted by protester.
3. Protest challenging agency's conclusion that awardee's proposal represented the best value to the government is denied where protester generally asserts that its offer is superior to awardee's but offers no specific or detailed argument, beyond a description of its proposal in one area (financial capability), to establish that the agency unreasonably concluded that its proposal did not represent the best value.
Metro Business Systems, LLC, B-296371.2, July 13, 2005.
DIGEST:
Agency that purchases copiers using Federal Supply Schedule procedures is not required to disclose its requirements for network compatibility and security features where agency did not shift the burden to vendors to select what to quote; agency may consider special copier features discernable from product literature when selecting vendor for award.
Research Analysis & Maintenance, Inc., B-296206; B-296206.2, July 12, 2005.
DIGEST:
Protest against sole-source award of contract for maintenance and operation of foreign threat systems is denied where agency reasonably determined that protester's performance under its current contract was unacceptable, and that protester had not adequately addressed the unacceptable performance, casting protester's ability to satisfactorily perform new contract into doubt.
Coast Guard-Electronic Certification Procedures, B-302789, July 6, 2005
DIGEST:
1. Under the Coast Guard Finance Center's electronic certification system,
the same certifying officer who approves the transmission of schedules of
vouchers to Treasury for disbursement may also have certified individual
vouchers included in the schedule. The government's risk of loss due to
error, waste, or wrongful act is not jeopardized by a certifying officer's
confirmation of totals on the schedule of vouchers that may include
vouchers he or she individually certified.
2. A certifying officer
who approves a schedule of payments transmitted to Treasury for
disbursement is responsible only for errors made in the processing of the
voucher schedule.
SOS International, Ltd., B-295533.2; B-295533.3, July 1, 2005.
DIGEST:
1. Bid that included tiered pricing where solicitation did not contemplate bidding on such a basis is nonetheless responsive where record shows that awardee's pricing scheme did not condition the bid in any way, and bid is low using any of the tiered prices.
2. Where solicitation provided for award of contract on indefinite quantity basis, bid that offered larger quantity than maximum specified in solicitation is responsive, where bid did not limit government's right to purchase only up to the maximum quantity specified in the solicitation or otherwise condition the firm's pricing or performance on the government's buying the larger quantity.
Grove Resource Solutions, Inc., B-296228; B-296228.2, July 1, 2005.
DIGEST:
1. Agency's inclusion of the awardee's proposal in the competitive range even though the proposal was unacceptable as submitted was reasonable under the circumstances; the exclusion of technically unacceptable proposals from the competitive range, while permissible, is not required.
2. Agency's price realism analysis of the awardee's proposal was reasonable where the agency determined that the labor rates proposed by the awardee were, among other things, similar to those listed for similar labor categories on the awardee's and other vendors' federal supply schedule contracts, and were sufficient to provide acceptable personnel.
Kesser International, B-296294, June 30, 2005.
DIGEST:
Agency properly rejected proposal as late where it was received minutes after closing time; 20 minute delay at a security checkpoint did not constitute improper government action and, in any case, was not paramount cause of late receipt, since delay took place 2 hours before closing time, leaving courier sufficient time to deliver proposal.
Dynamic Corporation, B-296366, June 29, 2005.
DIGEST:
Compelling reason to cancel invitation for bids (IFB) exists where IFB contained pricing specifications that were ambiguous and that led to total prices from bidders that lacked a common basis for comparison.
Johnson Controls World Services, Inc., B-295529.2; B-295529.3, June 27, 2005.
DIGEST:
In the context of a cost comparison study of base operation services conducted pursuant to Office of Management and Budget Circular A-76, a decision by the agency's Independent Review Official to withdraw its certification that the agency's plan for performing the services includes all of the required costs associated with in-house performance renders academic a protest alleging that the agency's cost estimate for performing the work in-house failed to include all required costs.
Zebra Technologies International, LLC, B-296158, June 24, 2005.
DIGEST:
Protest of agency's rejection of quotation as late is denied where record shows agency action was reasonable and consistent with the solicitation's late quotation terms.
Chenega Technical Products, LLC, B-295451.5, June 22, 2005.
DIGEST:
1. Protest of agency's past performance evaluation is denied where record shows evaluation was reasonable and consistent with evaluation criteria; protester's disagreement with agency's evaluation is insufficient to show it was unreasonable.
2. Protest that agency's source selection decision was improperly based on a mechanical comparison of evaluation ratings is denied where the record shows the agency adequately considered offerors' prices and performance risk in its award determination.
Advanced
Environmental Solutions, Inc.--Costs, B-296136.2, June 20, 2005.
DIGEST: GAO will not recommend reimbursement of the costs of
protest challenging contract award based on improper evaluation of past
performance, where protest was rendered academic by agency's decision to
terminate the contract and make a new award decision in response to
Small Business Administration's decision that
awardee was not eligible for award.
City Chemical LLC, B-296135.2; B-296230.2. June 17, 2005.
DIGEST:
Agency properly evaluated dye that protester proposed to furnish as a foreign end product where imported “raw” dye accounted for more than 50 percent of the cost of all components making up the dye.
Gold Cross Safety Corporation, B-296099, June 13, 2005
DIGEST:
Agency's failure to evaluate protester's technical submission before eliminating its quotation from competition was unobjectionable where agency reasonably determined that protester's quoted price--which was 20 times the awardee's--was not fair and reasonable, and eliminated quotation from competition on that basis.
International Marine Products, Inc., B-296127, June 13, 2005.
DIGEST:
1. Receipt on Saturday of an agency-level protest decision by a vice-president for the protester did not constitute actual or constructive knowledge of adverse agency action on that date, where Saturday was not a business day for the protester and the envelope containing the decision was not opened until Monday, the first business day after receipt.
2. Protester's assertion that agency's evaluation of its technical proposal was flawed is denied where the record shows that the evaluation was reasonable and consistent with the solicitation, and the protester's contentions represent only its disagreement with the agency's judgment.
Envirosolve LLC, B-294974.4, June 8, 2005.
DIGEST: Protest of agency's failure to implement corrective action in response to an earlier protest filed with the Government Accountability Office is sustained where the record shows that the agency failed to implement the corrective action it proposed to take in response to clearly meritorious issues raised in the original protest, such that protester was put to the expense of protesting a second time on the same ground.
Department of Labor-Grant to New York Workers' Compensation Board, B-303927, June 7, 2005.
DIGEST: 1. Appropriation to the Department of Labor “for payment to” New York Workers' Compensation Board for “processing of claims” was not available for the Workers' Compensation Board to make payments to other New York State entities. The Department should seek recovery of $44 million improperly transferred unless the Secretary seeks and obtains congressional ratification of the grant expenditures to date.
2. Department of Labor's grant to New York Workers' Compensation Board imposed a responsibility on the Department to ensure proper performance of that grant, even though it was outside the Department's normal sphere of operations.
U.S. Reconstruction and Development Corporation, B-296195, June 7, 2005.
DIGEST: Contracting agency properly rejected protester's offer as technically unacceptable where the solicitation called for diesel generators to be delivered to Iraq and the protester offered unleaded gasoline generators to be delivered to Kuwait.
Front Line Apparel Group, B-295989, June 1, 2005.
DIGEST:
Protest is sustained where record shows that agency improperly engaged in a second round of discussions with awardees, but not protester; while there is nothing inherently improper in an agency's conducting additional discussions relating to previously-discussed issues with only one or a limited number of offerors where the agency has remaining concerns relating to those issues, where agency conducts multiple rounds of discussions relating to the same issues with one offeror, it must afford other similarly-situated offerors the same benefit of additional discussions.
Linguistic Systems, Inc., B-296221, June 1, 2005.
DIGEST: Protester unreasonably interpreted electronic solicitation's reference to “12 PM” as establishing midnight closing time for electronic quotation submission, where “Questions and Answers” subsequently posted to website referred to closing time as “12 Noon”; since “Questions and Answers” posting was sufficient to amend solicitation, it should have been clear to protester that 12 o'clock noon was closing
Poly-Pacific Technologies, Inc., B-296029,/ June 1, 2005.
DIGEST: Protest challenging agency's modification of a contract is sustained where modification improperly changed the scope of work anticipated by the underlying solicitation.
VSE Corporation; Johnson Controls World Services, Inc., B-290452.3; B-290452.4; B-290452.5, May 23, 2005.
DIGEST: 1. Protest of proposed sole-source contract must be filed within 10 days of the publication on the FedBizOpps Internet website of the agency's notice of its intent to enter into the sole-source contract where the notice does not request responses from other potential sources.
2. Protest of award of sole-source bridge contract for storage, maintenance, and disposition services to handle personal property seized by various federal agencies, pending completion of competitive procurement for long-term services, is sustained, where the procuring agency failed to execute a justification and approval for the sole-source award and did not conduct reasonable advanced procurement planning.
General Dynamics-Ordnance & Tactical Systems, B-295987; B-295987.2, May 20, 2005.
DIGEST: 1. Protester's challenge that it should have been afforded the opportunity to comment on negative past performance information, which the protester had not previously had the opportunity to address, is denied where the solicitation indicated that award could be made without the benefit of discussions and there was no basis for the agency to have questioned the validity of the information since it was based on the agency's first-hand experience with the protester's performance.
2. Agency did not trigger requirement to hold discussions with all competitive range offerors by communicating with awardee regarding its subcontracting plan prior to award since these communications did not pertain to evaluation of the awardee's proposal and therefore did not constitute discussions. Rather, the negotiation and ultimate approval of a subcontracting plan involved a question of the awardee's responsibility.
HMR Tech, LLC, B-295968; B-295968.2, May 19, 2005.
DIGEST: Where proposals were reasonably evaluated as technically equal, agency properly selected for award the proposal of the firm submitting the lower price.
Poly-Pacific Technologies, Inc., B-293925.3, May 16, 2005.
DIGEST: Protest challenging agency's award of a contract is denied where agency reasonably evaluated awardee's technical proposal to provide a product that complies with solicitation requirements. Protester's interpretation of the solicitation as prohibiting awardee's proposed product does not appear reasonable; at most, the protester's interpretation suggests a patent ambiguity in the solicitation which cannot be protested after award.
Integration Technologies Group, Inc., B-295958; B-295958.2, May 13, 2005.
DIGEST: 1. Agency reasonably eliminated from the competitive range a proposal for a computer system for use by blind veterans that included a 107-key keyboard instead of the 104-key keyboard required by the solicitation.
2. Agency reasonably made a nonavailability determination waiving application of the Trade Agreements Act, 19 U.S.C. §§ 2501-81 (2000), to a procurement, where award was to be made on a group basis and all proposals included components that were not acquired from the United States or designated countries.
Merck & Company, Inc., B-295888, May 13, 2005.
DIGEST: 1. Government Accountability Office has jurisdiction to review a protest challenging the terms of a quotation request for a possible blanket purchase agreement which is being used by the Department of Defense's TRICARE Management Activity (pursuant to its statutory authority to establish a pharmacy benefits program, including a uniform formulary) to inform, and then implement, a TRICARE formulary determination.
2. Decision by the TRICARE Management Activity to consider the cost of pharmaceutical agents obtained by TRICARE beneficiaries at retail pharmacies participating in TRICARE's retail pharmacy network as part of its review of cost effectiveness undertaken to determine whether to add a pharmaceutical agent to the uniform formulary is reasonable where the statutory authorization for the pharmacy benefit program requires the agency to consider the cost effectiveness of pharmaceutical agents as part of any such determination, and where the record shows that more than half of TRICARE's expenditures for pharmaceutical agents are incurred for prescriptions filled by beneficiaries at such retail pharmacies.
3. Protester's assertion that the agency is unreasonably obtaining quotations applicable to only two of the venues where TRICARE beneficiaries can have their prescriptions filled (military treatment facilities and the mail order pharmacy), and is using what is, in essence, a plug number unique to each company (i.e., the Federal Ceiling Price applicable to certain types of purchases from the Federal Supply Schedule) for its assessment of the costs that will be incurred in purchasing each agent from participating retail pharmacies (the third venue where prescriptions can
be filled) is denied where the agency reasonably decided that it should consider the costs of pharmaceutical agents obtained by beneficiaries at such pharmacies; where the Secretary of the Department of Veterans Affairs has determined that the Federal Ceiling Price applies to TRICARE retail pharmacy purchases; and where the Federal Ceiling Price will be the actual price paid by TRICARE if the Secretarial determination, which is being challenged by certain pharmaceutical manufacturers, remains in place.
4. Protester's argument that a request for blanket purchase agreement price quotations improperly fails to identify the relative importance of clinical and cost effectiveness that will be used by the TRICARE Pharmacy & Therapeutics Committee to select pharmaceutical agents for inclusion on the uniform and basic core formularies is denied where the request is consistent with the statutory scheme, which does not identify the relative importance of these two considerations, and which reserves for the discretion of health care professionals the decision about which agents will be included on the formulary, and where, even though this request is limited to vendors submitting quotations for pharmaceutical agents included on their Federal Supply Schedule contracts, there is no requirement in the request that vendors select a particular configuration of their offered products.
AHNTECH, Inc., B-295973, May 11, 2005.
DIGEST: 1. Agency reasonably regarded protester's approach to staffing as a weakness where proposal implied that protester intended to do most of its hiring from the incumbent workforce, but protester offered no evidence that incumbent employees could be expected to accept its offer of employment and protester failed to propose an alternative approach to hiring in the event of the unavailability of the incumbent employees.
2. Protest of technical evaluation of proposal is denied where agency offered explanation for its findings that was supported by the record, and protester failed to offer any meaningful rebuttal.
Patriot Contract Services -- Advisory Opinion, B-294777.3, May 11, 2005.
DIGEST: Where solicitation required that offerors provide letters of commitment for key personnel and further required that such commitment letters “reflect mutually agreed position, salary, and benefits,” and record establishes that, contrary to the awarde's representations, awardee did not discuss salary, benefits or location of employment with certain key personnel it proposed, GAO finds, in an advisory opinion, that the protest is meritorious.
Zafer Construction Company; Kolin Construction, Tourism, Industry and Trading Co. Inc., B-295903; B-295903.2, May 9, 2005.
DIGEST: 1. Protest that agency unreasonably evaluated protester's proposal is denied where record shows that evaluation was reasonable and consistent with stated evaluation criteria, and protester's contentions amount to disagreement with the evaluation.
2. Protest that award was improper because awardee was unable, after award, to obtain site identified in its proposal for construction of man camp, is denied where solicitation did not require firm commitment or executed lease for sites identified in proposals.
Public Facility Consortium I, LLC; JDL Castle Corporation, B-295911; B-295911.2, May 4, 2005.
DIGEST:
1. Evidence of compliance with zoning laws relates to ability of successful offeror to perform, rather than whether offer is acceptable and, therefore, is a matter of responsibility.
2. A definitive responsibility criterion is established where solicitation requires specific zoning so that requirement itself is an aspect of contract work; thus, general requirement for zoning approval does not constitute definitive responsibility criterion.
3. Allegation that contracting officer improperly made affirmative determination of responsibility does not raise serious concern that contracting officer failed to consider available relevant information where record shows, contrary to the protesters' assertions, that contracting officer did not ignore or disregard any available relevant information in making his responsibility determination.
Sayres & Associates Corporation, B-295946; B-295946.2, April 25, 2005.
DIGEST: Agency properly excluded from consideration some of the protester's descriptions of past performance and a late submitted reference, where the descriptions exceeded the page limit set forth in the solicitation and the agency made reasonable efforts to contact the reference but the reference failed to timely respond.
Madison Research Corporation, B-295716, April 25, 2005.
DIGEST: 1. Protest challenging revision of awardee's past performance score is denied where agency reasonably explains basis for change to initial scoring.
2. Protest alleging “bait and switch” of awardee's proposed key personnel is denied where the record does not support allegation--the proposed individual was initially performing the work, but subsequently resigned.
3. Protest challenging evaluation of offerors' technical and cost proposals is denied where agency reasonably evaluated offerors' proposals.
SWR, Inc.--Protest and Costs, B-294266.2; B-294266.3; B-294266.4, April 22, 2005.
DIGEST: 1. Determination that protester's technical proposal was unacceptable was reasonable where evaluation board found that protester's proposal included numerous weaknesses, including flawed plans for decentralized project management and tool accountability.
2. Evaluation of protester's past performance was unobjectionable where agency reasonably concluded that more recent poor performance at one of the solicitation performance sites was more probative of protester's record than performance on other contracts more remote in time or of shorter duration.
3. Request that GAO recommend payment of costs associated with prior successful protest is denied where claim was filed with contracting agency more than 60 days after protester's counsel received protected copy of protest decision; delay in receipt of publicly-releasable version of decision did not toll period for filing, and there is no evidence of compelling reason beyond protester's control that prevented it from timely filing the claim.
Metro Machine Corporation, B-295744; B-295744.2, April 21, 2005.
DIGEST: 1. Cost realism evaluation of offerors' proposals was unobjectionable where record shows that agency reasonably considered the information submitted in each offeror's proposal and that the agency's methodology and rationale for its analysis were reasonable.
2. Contracting agency's cost realism analysis of protester's proposal was reasonably based on information reasonably available to it, even when it did not inquire into the conclusions of a Defense Contract Audit Agency audit report, where the agency instead sought additional information from the offeror itself through discussions.
3. Contracting agency engaged in meaningful discussions concerning proposed direct and subcontractor labor rates, such that the protester should have known and understood the agency's concerns, where it specifically requested during written discussions that offeror explain the rationale for the rates being proposed.
4. Protest of agency's past performance evaluation is denied where record shows evaluation was reasonable and consistent with evaluation criteria; mere disagreement with agency's evaluation is insufficient to show it was unreasonable.
5. Protest that agency's source selection decision was improperly based on a mechanical comparison of technical evaluation ratings is denied where the record shows the allegation is without basis.
University Research Company, LLC, B-294358.6; B-294358.7, April 20, 2005.
DIGEST: 1. Protest challenging selection official's treatment of concerns raised by agency project officers, under provisions of the Department of Health and Human Services (HHS) Acquisition Regulation which anticipate that selection officials will receive input from agency project officers in addition to the input received from a traditional evaluation panel, is denied where the selection official's award decision document acknowledges receipt of the project officers' views (which recommended award to the protester), makes reasonable changes in the selection analysis in response to those concerns, and, in some cases, makes no change because the selection official reasonably decides to adopt the views of the evaluation panel on matters more appropriate for evaluator review.
2. The principle that selection officials are not bound by the recommendations or evaluation judgments of lower-level evaluators applies equally to evaluation input received from project officers in procurements conducted under HHS procedures; HHS selection officials are no more bound by the views of agency project officers than they are by the views of agency evaluators.
3. Protester's contention that agency past performance evaluation was unreasonable because the agency did not distinguish between degrees of relevance in evaluating each offeror's past performance is denied where the evaluation was reasonable, and
consistent with the stated evaluation criteria; there is no per se requirement that an agency weight differently the experience ratings given each offeror based on an assessment of the relative relevance of the offeror's prior contracts, and there is no requirement that incumbents be given extra credit for their incumbent experience.
4. Challenge to agency's review of cost realism is denied where the record shows that the agency had a reasonable basis for the adjustments it made.
Department of State; Wackenhut International, Inc.--Reconsideration and Modification of Recommendation, B-295352.3; B-295352.4, April 19 2005.
DIGEST: 1. Requests for reconsideration of decision finding that the contracting agency improperly applied an evaluation preference for U.S. persons to the awardee's proposal absent the information required by the agency's regulation and the solicitation are denied, where the requests do not show that the required information was provided to, or otherwise known by, the agency at the time of the evaluation.
2. Agency's request for modification of GAO recommendation that guard services contract at a foreign embassy be terminated immediately and a new contract awarded to the protester is granted, in view of security concerns at the embassy, as well as significant change in the agency's needs for guard services.
USA Fabrics, Inc., B-295737; B-295737.2, April 19, 2005.
DIGEST: 1. Protest that solicitation requirement that the contractor maintain minimum levels of consignment inventory is unduly restrictive of competition is denied where the record establishes that the 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 sustained where decision was based on insufficient facts to establish reasonableness of conclusion that there are not two or more HUBZone business concerns interested in performing the requirement, or that contract would not be awarded at fair market price.[The GAO also reaffirmed that it's bid protest authority covered procurements by the Federal Prison Industries-jaw]
Hospital Klean of Texas, Inc., B-295836; B-295836.2, April 18, 2005.
DIGEST:
1. Agency properly considered late proposal revision because agency action was paramount cause of late delivery of the revision and acceptance would not compromise the integrity of the competitive process, where agency extended the closing date for receipt of proposals to Saturday (not a business day of agency) from Friday after issuing a material amendment on Thursday; a commercial carrier unsuccessfully attempted delivery of the proposal revision on Saturday, but the agency's doors were locked and the agency had not posted delivery instructions for that day to advise that agency personnel were on-site to accept deliveries; and the proposal revision was delivered to agency by commercial carrier on Monday, the next business day.
2. Agency's decision in a “best value” negotiated procurement selecting for award a higher-priced proposal that offered a superior quality control program was reasonable and consistent with the solicitation.
Restoration and Closure Services, LLC, B-295663.6; B-295663.12, April 18, 2005.
DIGEST: 1. Consultants' applications for admission to protective order are denied where the applications agreed to restrict the consultants' activities only with regard to the particular site for the procurement being protested, and thus permitted the consultants to engage or assist in the preparation of proposals for the same type of work at other sites where a party to the protest may be a competitor.
2. Protest challenging the agency's evaluation of the protester's proposal on the basis that, although the solicitation did not prescribe or suggest a particular technical approach, the agency was predisposed towards a particular technical solution, is dismissed where there is no reasonable possibility that the protester was prejudiced by the alleged unreasonable evaluation because, even if the protester's proposal had received the maximum points under the contested areas of evaluation, its proposal would have remained lower rated and significantly higher in cost than the proposal selected for award.
Vertol Systems Company, Inc. , B-295936, April 18, 2005.
DIGEST: Protest that procurement of foreign threat systems aircraft under Economy Act is improper, and that agency instead should conduct competitive acquisition under which protester could compete, is denied where Air Force reasonably determined that protester was not viable competitor because its helicopter could not satisfy the agency's requirement for demonstrated airworthiness.
Department of Commerce--Reconsideration
B-294121.5, April 12, 2005.
DIGEST: GAO will not reconsider a prior decision where the request is based on information that was available to the requester and could have been presented during consideration of the protest.
United Enterprise & Associates, B-295742, April 4, 2005.
DIGEST: In a noncompetitive acquisition under the Small Business Administration's (SBA) section 8(a) program, although SBA, in considering the responsibility of an 8(a) vendor under the certificate of competency procedures, was not following applicable regulations, the protester was not prejudiced because SBA agreed with the procuring agency that the 8(a) vendor was not responsible for this requirement, and it is thus apparent that SBA would not have exercised its right to appeal the agency's determination not to contract with that vendor, which was the only action under applicable regulations that SBA could take to contest the procuring agency's determination here, and the protester has not shown that either agency acted in bad faith.
Yang Enterprises, Inc.; Santa Barbara Applied Research, Inc., B-294605.4; B-294605.5; B-294605.6, April 1, 2005.
DIGEST: 1. Protest challenging evaluation of awardee's technical proposal and past performance is denied where record shows that agency's evaluation was reasonable.
2. Protest alleging agency failed to engage in meaningful discussions is denied where offerors were given meaningful opportunities to address agency concerns during discussions.
3. Protest challenging selection of low cost proposal is denied because, even where cost is the least important factor for award, an agency may award to an offeror with a lower-cost, lower-rated proposal if it reasonably determines that the cost premium involved in awarding to an offeror with a higher-rated proposal is too great.
Career Quest, a division of Syllan Careers, Inc., B-293435.4, March 31, 2005.
DIGEST: Protest raising various challenges to agency's conduct of a cost comparison study pursuant to Office of Management and Budget Circular A-76 is denied where record shows that preparation of agency's most efficient organization, and evaluation thereof, were reasonable and consistent with solicitation's performance work statement and applicable guidance.
AVL Books.Com, Inc., B-295780, March 28, 2005.
DIGEST: Protest challenging agency's oral amendment to solicitation is denied where oral notice adequately advised firms of agency's added requirement.
Systems, Studies, and Simulation, Inc., B-295579, March 28, 2005.
DIGEST: Agency's evaluation of the protester's quotation under the solicitation's “pricing structure” evaluation criterion as posing “moderate risk” was reasonable where the quotation included the protester's Federal Supply Schedule labor rates, and the protester's rates were slightly to significantly lower than the agency's calculated historical rates, and the specific services to be performed are highly complex in nature.
Park Tower Management Ltd., B-295589; B-295589.2, March 22, 2005.
DIGEST: 1. Where solicitation for building maintenance services provided for evaluation of comparability of buildings under prior maintenance contracts to building under solicited requirement, including equipment maintained, agency reasonably determined that awardee's building was comparable, despite fact that equipment awardee maintained was located in adjacent building, not in building submitted for consideration.
2. Evaluation of offerors' preventative maintenance plans was unobjectionable where neither offeror's plan included all required information, and agency scored protester's plan more favorably because it contained more information than awardee's.
3. Where offeror proposed to hire specific individuals employed by incumbent contractor, but failed to include required qualification and other information, agency reasonably considered information from outside proposal to fill in gaps.
4. Protester's allegation that agency improperly held discussions only with awardee after submission of final revised proposals is denied where record shows that contracting officer communicated with awardee only to clarify status of its commitments from proposed personnel.
Knoll, Inc.; Steelcase, Inc. B-294986.3; B-294986.4, March 18, 2005.
DIGEST: Protest challenging evaluation of offerors' technical proposals is denied where record shows that agency's evaluation was reasonable. [The GAO also agreed with GSA's view that a FSS schedule contract is valid for award as long as there are option periods that can be exercised that would cover the contract award period.-jaw]
CourtSmart Digital Systems, Inc.--Costs, B-292995.7, March 18, 2005.
DIGEST: Where the contracting agency challenges the reasonableness of hourly rates claimed for outside legal services for both attorney and legal assistant fees, GAO will recommend reimbursement of actual costs claimed to the extent relevant evidence establishes that the actual costs reflect customary rates charges for similar services; to the extent customary rates for costs claimed are not established, GAO will recommend reimbursement of a portion of the costs by applying rates that the record establishes as customary rates charged for similar services.
OMNIPLEX World Services Corp., B-295698; B-295698.2, March 18, 2005.
DIGEST: Protest challenging solicitation provisions in indefinite-delivery/indefinite-quantity contract as unreasonably shifting risk to contractors is denied, where solicitation's assignment of risk was not shown to be unreasonable.
White Sands Concessions, Inc., B-295932, March 18, 2005.
DIGEST: Protest against the terms of a prospectus for proposals for the award of a concession contract for the operation of a gift shop and snack bar at a National Park Service visitor center is dismissed as beyond the scope of the Government Accountability Office's bid protest jurisdiction where the contract to be awarded does not involve the delivery of goods or services of more than de minimis value to the government.
Creative Information Technology, Inc. B-293073.10, March 16, 2005.
DIGEST: Agency's discussions with protester were not meaningful where the agency estimated that the work under the solicitation required seven full-time-equivalent employees (FTE) (which resulted in a government estimate of approximately $13 million), the protester initially proposed to staff the effort with 37 FTEs (which resulted in a price of approximately $110 million) and the agency advised the protester during discussions merely that its price appeared to be “overstated.”
Northrop Grumman Information Technology, Inc.; Broadwing Communications LLC; Level 3 Communications, Inc.; Qwest Government Services, Inc.; MCI WORLDCOM Communications, Inc., B-295526; B-295526.2; B-295526.3; B-295526.4; B-295526.5; B-295526.6; B-295526.7; B-295526.8; B-295526.9; B-295526.10, March 16, 2005.
DIGEST: Protest is sustained where Department of Treasury negotiated during procurement for network services a memorandum of understanding (with the Office of Management and Budget and General Services Administration's Federal Technology Service) that significantly changed the approach set forth in solicitation and Federal Acquisition Regulation to determining whether to exercise the options, making it significantly less likely that the options would be exercised, and thus materially altering the basis upon which offerors prepared their proposals.
Liberty Power Corporation, B-295502, March 14, 2005.
DIGEST: 1. Where solicitation established an evaluation scheme providing for application of price evaluation adjustment on behalf of eligible small disadvantaged business (SDB) offerors, and agency, through its exchanges with protester prior to the submission of price proposals, led firm to believe that adjustment would be applied in the event that protester established its eligibility, agency cannot defend its failure to accord protester the preference on the basis that the preference in fact is not authorized; rather, having led protester to base its price proposal on the expectation that it would benefit from the SDB price evaluation adjustment if it established its eligibility, if agency believes adjustment is not authorized for this procurement, agency should amend the solicitation to delete adjustment and reopen discussions so as to permit offerors to submit revised proposals.
2. Contracting officer's determination to deny a small disadvantaged business (SDB) concern the benefit of an SDB price evaluation adjustment essentially on the basis that the SDB could not comply with this provision must be referred to the Small Business Administration for final determination.
Government Scrap Sales, B-295585, March 11, 2005.
DIGEST: Protest that proposed awardee of scrap property contract has an impermissible organizational conflict of interest (OCI) because a subsidiary company performs
related surplus property contract is denied; the theoretical possibility that the awardee will act in bad faith under its contract does not establish an OCI, and provides no other basis for denying firm the award.
Scot, Inc., B-295569; B-295569.2, March 10, 2005.
DIGEST: 1. Protest that agency did not give sufficient weight to protester's superior warranty in selecting low-priced proposal for award based on a cost/technical tradeoff is denied, where agency reasonably determined in accordance with the solicitation that the warranty was not worth a price premium.
2. Agency reasonably considered awardee's past performance to be relevant, even though it was on lower-priced contracts than protester's relevant contracts, where solicitation did not state that contract value was a consideration in determining relevance.
3. Protest that awardee's price is unbalanced is denied, where the agency reasonably considered the risk to the government associated with the offerors' different pricing strategies, and properly determined that the government would pay less under the awardee's pricing approach than with the protester's and that the cost risk entailed in the awardee's approach was acceptable.
4. Agency did not err in accepting expired offer for award without reopening negotiations where, despite the protester's assertion that it can now offer a lower price, the acceptance of the expired offer did not prejudice the competitive system or provide the awardee with an unfair competitive advantage.
CW Government Travel, Inc., B-295530, March 7, 2005.
DIGEST: Protest challenging a solicitation's guaranteed minimum amount for an indefinite-delivery, indefinite-quantity contract is denied where the record shows that the minimum is more than nominal.
Keeton Corrections, Inc., B-293348, March 4, 2004.
DIGEST: In a negotiated procurement, which provided for award on the basis of a cost/technical tradeoff and under which past performance was stated to be the most important evaluation factor, the selection of the awardee's significantly higher-priced offer based upon that firm's technical superiority and better past performance was unreasonable, where the information provided to the source selection authority to support the awardee's and protester's past performance evaluation did not accurately reflect the firms' evaluation but instead erroneously conveyed the impression that the awardee had no evaluated past performance weaknesses and that the protester's past performance had nearly only weaknesses.
Supreme Edgelight Devices, Inc., B-295574, March 4, 2005.
DIGEST: 1. Saturday receipt of an agency-level protest decision by a clerk employed by the protester did not constitute actual or constructive knowledge of the initial adverse agency action on that date, where Saturday was a non-business day for the protester and the envelope containing the decision was not opened until Monday, the first business day after receipt.
2. Agency had a reasonable basis to cancel a request for quotations for an aircraft part, which the solicitation indicated was a critical application item and for which the agency did not have technical data, where the agency wished to investigate the impact of a change in revision levels for the drawing that controlled the manufacture of the part and determine whether the protester's quoted part would satisfy the agency's needs.
National Institutes of Health - Food at Government-Sponsored Conferences, B-300826, March 3, 2005.
DIGEST: The National Institutes of Health (NIH) may pay for legitimate, reasonable conference costs, including meals and light refreshments, of a formal conference pertaining to Parkinson's disease subject to the conditions outlined herein. A formal conference typically involves topical matters of interest to, and participation of, multiple agencies and/or nongovernmental participants. In addition, other indicators of a formal conference include registration, a published substantive agenda, and scheduled speakers or discussion panels. An agency hosting a formal conference may consider the cost of providing meals and refreshments to conference attendees an allowable conference cost so long as (1) meals and refreshments are incidental to the conference, (2) attendance at the meals and when refreshments are provided is important for the host agency to ensure full participation in essential discussions, lectures, or speeches concerning the purpose of the conference, and (3) the meals and refreshments are part of a formal conference that includes not just the meals and refreshments and discussions, speeches, or other business that may take place when the meals and refreshments are served, but also includes substantial functions occurring separately from when the food is served. The NIH conference here satisfies these three criteria.
Without statutory authority to charge a fee and retain the proceeds, NIH may not charge a registration or other fee to defray the costs of providing meals or light refreshments. An appropriation establishes a maximum authorized program level, and an agency, without specific statutory authority, may not augment its appropriations from sources outside the government.
McKinley Construction & Excavating, B-295547, March 3, 2005.
DIGEST:
Bid that acknowledges all amendments to an invitation for bids, but which contains only the original version of the bid schedule, which was modified by an amendment to increase the footage of pipe to be provided, is nonresponsive because the bid is ambiguous regarding whether the bidder intends to be bound to the original or amended quantity.
Lucent Technologies World Services Inc., B-295462, March 2, 2005.
DIGEST: Protest challenging agency's exclusion of an offeror from participation in a procurement is denied where the agency reasonably determined that the protester has an organizational conflict of interest arising from its preparation of technical specifications used by the agency in the solicitation.
Lockheed Martin Aeronautics Company; L-3 Communications Integrated Systems L.P.; BAE Systems Integrated Defense Solutions, Inc., B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5, B-295401.6, B-295401.7, B-295401.8, February 24, 2005.
Digest: Where a senior procurement official who functioned as the source selection authority has acknowledged bias in favor of the awardee, and was materially involved in the evaluation of proposals, indicating during the evaluation process that she believed the awardee's technical ratings should be raised in various areas and that the protesters' technical ratings should be lowered in various areas, the protests are sustained based on the agency's failure to demonstrate that the senior official's acknowledged bias did not prejudice the protesters and that the integrity of the procurement process was not compromised.
2. Protests are sustained where, following submission of final proposal revisions, the agency reopened discussions in order to permit the ultimate awardee to address an aspect of its proposal that was contrary to instructions previously given by the agency during discussions, but failed to identify similar concerns with the proposals of the protesters
MTB Group, Inc., B-295463, February 23, 2005.
Digest: Protest that conducting procurement using reverse auction format is impermissible because vendors' prices will be disclosed during the auction is denied; agency is conducting reverse auction under simplified acquisition procedures, which encourage use of innovative procedures and do not expressly prohibit disclosure of vendors' prices in implementing such procedures, and disclosure is not prohibited under the procurement integrity provisions of the Office of Federal Procurement Policy Act.
Crestridge, Inc., B-295425, February 23, 2005.
Digest: Protest of task order award resulting from competition among Federal Supply Schedule vendors is sustained where record does not support agency's conclusion that awardee's quotation is technically superior to the protester's
Gray Graphics Corporation, B-295421, February 18, 2005.
Digest: Protester's allegation that agency improperly rejected its low bid for printing services after determining that it was nonresponsible is denied; agency's nonresponsibility determination was reasonable based on information showing that protester had made late deliveries under recent contracts.
Lockheed Martin Corporation, B-295402, February 18, 2005.
Digest: Where the record shows that performance requirements, and associated evaluation criteria, were altered to delete a significant requirement and an evaluation factor under which the protester was viewed as having an advantage, and a senior procurement official, who was involved in discussions that culminated in the deletion of the requirement, has acknowledged bias in favor of the ultimate awardee, the protest is sustained on the basis that the agency has failed to demonstrate that the senior official's acknowledged bias did not prejudice the protester and that the integrity of the procurement process was not compromised.
Spotless Janitorial Services, Inc., B-295620, February 18, 2005.
Digest: Agency properly rejected the protester's bid as nonresponsive where the bid, as modified, stated that it was proprietary and was not to be disclosed publicly.
FR Countermeasures, Inc., B-295375, February 10, 2005.
Digest: Protest that agency unreasonably assigned protester a neutral past performance rating of “unknown” under evaluation subfactor relating to on-time delivery because the agency failed to consider protester's delivery record between the closing date for receipt of proposals and the time of award is denied since, while the solicitation reserved to the government the right to consider an offeror's past performance information after the proposal closing date through the time of award, there was no requirement that the agency consider that information.
American Water Services, Inc., B-295376, February 8, 2005.
Digest: 1. Protest alleging agency improperly assumed that regulated offerors presented lower risk than non-regulated offerors in its evaluation of proposals for privatization of wastewater and storm water utility systems is denied where the solicitation provided that proposals would be evaluated based on the degree to which long-term price and service stability were enhanced as a result of regulation by an independent federal, state, or local regulatory authority with jurisdiction over the applicable utility service, and where the record shows that the agency reasonably concluded that regulated utility offeror presented low risk under evaluation subfactor relating to long-term price and service stability.
2. Agency's determination that the awardee's prices for wastewater and storm water utility services were fair and reasonable, that the work could be performed at the prices proposed, and that the awardee's proposal represented low risk for price realism was reasonable where the agency based its conclusion on extensive consideration of the awardee's pricing strategy, the elements of its pricing, and the detailed breakdowns of its price structure, as well as the agency's comparison of the awardee's price with the government's cost estimate and the agency's consideration of the awardee's status as a regulated entity.
3. Offeror's proposal for wastewater and storm water utility services was not rendered unacceptable where it proposed rates that were contingent upon approval by an independent regulatory body after contract award.
Dynamic Access Systems, B-295356, February 8, 2005.
Digest: Protest arguing that an agency overstates its needs by limiting competition to commercial off-the-shelf (COTS) loan software packages that can be installed on agency computers is denied where the record shows that requiring COTS software reasonably reflects the agency's need for a reliable product with a low risk of unsuccessful performance.
Inter-Con Security Systems, Inc., B-295352; B-295352.2, February 8, 2005.
Digest: 1. Where solicitation for local guard services provided for 10-percent price evaluation preference for offerors qualifying as “U.S. persons,” fact that awardee has a foreign parent did not preclude awardee from receiving the preference, since nothing in the solicitation or underlying statute required offerors to establish ownership and control by U.S. citizens to qualify for the preference.
2. Awardee's proposal was not entitled to application of “U.S. person” evaluation preference, and protest is sustained, where solicitation provided that offerors would qualify for preference if required certification showed offeror had achieved a specified business volume, and awardee's certification, which consisted solely of consolidated (i.e., corporate parent and subsidiary) financial information, failed to show that awardee had adequate business volume; agency's knowledge of awardee's other contracts was insufficient to establish that awardee met the requirement, since a majority of those contracts were performed by awardee as a joint venturer, and there was no breakdown information showing amount of business volume attributable to awardee.
Saltwater Inc.--Reconsideration and Costs, B-294121.3; B-294121.4, February 8, 2005.
Digest: 1. Where agency's implementation of the corrective action proposal that led GAO to dismiss a protest as academic is such that the issue in controversy in fact has not been rendered academic, GAO will consider the protest's merits in response to reconsideration request.
2. Protest that contract award was based on terms different than those on which competitive offers were received is sustained where the contract's term exceeds the term provided for in the underlying solicitation.
DIY, Inc., B-293105.13, February 7, 2005.
Digest: Protest challenging contracting agency's evaluation of protester's proposal, and resultant exclusion of proposal from competitive range, is denied where evaluation and competitive range determination were reasonable and in accordance with the solicitation evaluation criteria.
Boehringer Ingelheim Pharmaceuticals, Inc., B-294944.3; B-295430, February 2, 2005.
Digest: Protests arguing that solicitations for formulary drugs are unduly restrictive because the solicitations limit competition to those drugs within the class that treat certain conditions is denied where the limits on competition reasonably reflect the agency's needs.
Capitol CREAG LLC, B-294958.4, January 31, 2005.
Digest: 1. Where a solicitation uses traditional responsibility factors as technical evaluation criteria and where the proposal of a small business concern which otherwise would be in line for award is found ineligible for award based on an agency's evaluation under those criteria, the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements; accordingly, the agency must refer the matter of the firm's responsibility to the Small Business Administration (SBA) for the possible issuance of a certificate of competency (COC).
2. Where the proposal of a small business concern is not selected for award because the agency concludes that the concern's approach to management and staffing creates a high risk of unacceptable performance, the agency's determination is not tantamount to a nonresponsibility determination and there is no requirement for referral to the SBA for the possible issuance of a COC.
Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005.
Digest: 1. Protest challenging agency's evaluation of awardee's proposal of an alternative test method to determine compliance with technical requirements is sustained where the record shows that the alternative test proposed by the awardee is not comparable to the tests required by the specifications and, thus, the agency lacked a reasonable basis to conclude that the awardee's proposal was technically acceptable.
2. Protests challenging agency's evaluation of offerors' past performance are denied where the record reflects a reasonable evaluation and the offerors were given adequate opportunities to address negative past performance information during discussions.
Cooperativa Muratori Riuniti, B-294980; B-294980.2, January 21, 2005.
Digest: 1. In evaluating proposals for construction work, agency has not provided a reasonable basis for distinguishing between offerors' experience in performing multiple projects at multiple sites under a single contract and offerors' experience in performing multiple projects at multiple sites under multiple contracts, particularly where solicitation called for performance at two separate work sites.
2. Protest against evaluation of past performance is sustained where record reveals that protester's past performance was re-rated by the evaluators on a different scale and in response to different questions than those posed to the references, and it is not clear that the new ratings were reasonably based.
3. Evaluators reasonably rated protester's proposed construction schedule as good, as opposed to excellent, where they determined that protester had offered an accelerated schedule, but had failed to offer evidence that it had thought through the implications of that schedule with regard to matters such as staffing.
L-3 Communications Westwood Corporation, B-295126, January 19, 2005.
Digest: Protest against agency's evaluation of protester's proposal is denied where record shows allegations are without merit, or that alleged evaluation errors did not result in competitive prejudice to protester.
Bristol-Myers Squibb Company, B-294944.2, January 18, 2005.
Digest: Agency's use of a price evaluation scheme in a pharmaceutical procurement that compares prices for two drugs on a per-tablet basis is unobjectionable where the record shows that the optimal dosing level for both drugs is a single pill taken once daily, and where the agency has no valid data for estimating other dosing levels of these drugs, and does not expect other dosing levels to be ordered in significant quantities.
Catapult Technology, Ltd., B-294936; B-294936.2, January 13, 2005.
Digest: Protest that the Small Business Administration (SBA) improperly accepted information technology services requirement into section 8(a) business development program is denied where, under the SBA's interpretation of its regulation, the protester does not appear to meet the condition for a presumption that accepting the requirement would cause it adverse impact and the applicable regulation does not preclude the SBA from deciding to accept a consolidated requirement into the section 8(a) business development program, even if the adverse impact presumption is met.
Military Waste Management, Inc., B-294645.2, January 13, 2005.
Digest: Protest that solicitation's weight-based payment terms for solid waste disposal services are unduly restrictive is denied where record supports reasonableness of agency's determination that terms are necessary to meet agency's needs.
Riley Creek Lumber Company, B-295322, January 13, 2005.
Digest: Where neither the Small Business Act, the National Forest Management Act, nor any applicable regulations mandate that certain timber sales be set aside for small business or prohibit setting aside any particular timber sale, the decision to set aside a particular sale is within the discretion of the Forest Service and is not subject to review by the Government Accountability Office pursuant to its bid protest authority.
KEI Pearson, Inc., B-294226.3, B-294226.4, January 10, 2005.
DIGEST: Where the solicitation required that all items or services be on a Federal Supply Schedule (FSS), the contracting agency improperly issued a task order to a vendor whose quotation was based on purchasing software products outside the framework of the FSS.
Office of National Drug Control Policy -- Video News Release, Appropriations decision, B-303495,
January 04, 2005.
Summary: 1. The Office of National
Drug Control Policy (ONDCP) produced and distributed prepackaged news
stories as part of some video news releases it issued under the
Drug-Free Media Campaign Act of 1998, Pub. L. No. 105-277, div. D,
title I, subtitle A, 112 Stat. 2681-752 (Oct. 21, 1998), codified in
21 U.S.C. ch. 23. Because ONDCP did not identify itself to the viewing
audience as the producer and distributor of those prepackaged news
stories, ONDCP's news stories constituted covert propaganda and
violated publicity or propaganda prohibitions contained in its 2002,
2003, and 2004 appropriations acts.
2. The use by the Office of National Drug Control Policy (ONDCP)
of the term “Drug Czar” to describe the Director of ONDCP in some
video news releases it issued under the Drug-Free Media Campaign Act
of 1998, Pub. L. No. 105-277, div. D, title I, subtitle A, 112 Stat.
2681-752 (Oct. 21, 1998), codified in 21 U.S.C. ch. 23, does not
constitute unlawful self-aggrandizement because ONDCP does not use the
term to promote some sense of importance, accomplishment, respect, or
authority for the Director, whether as an individual or as an officer
of the government.
3. The Office of National Drug Control Policy (ONDCP) must
report violations of the Antideficiency Act, 31 U.S.C. 1341, pursuant
to 31U.S.C. 1351, because ONDCP had no appropriation available to
produce and distribute materials in violation of publicity or
propaganda prohibitions contained in its 2002, 2003, and 2004
appropriations acts.
Tiger Enterprises, Inc., B-294973, January 04, 2005.
Digest: Protest that Small Business Administration (SBA) improperly accepted a U.S. Marine Corps requirement for the lease of washers/dryers into the section 8(a) program is denied where the record supports the SBA's determination that the requirement is “new,” and as such an adverse impact determination was not required.
American College of Physicians Services, Inc.; COLA. B-294881; B-294881.2, January 3, 2005.
Digest: 1. Contention that a solicitation unduly restricts competition by bundling the procurement of accreditation services and laboratory proficiency testing in a single contract is denied where the agency reasonably explains that procuring both services under the same contract is necessary to meet the agency's needs for maintaining its medical laboratories.
2. Contention that the agency violated the restriction, found at Federal Acquisition Regulation (FAR) § 12.302(c), against including terms and conditions in a commercial item procurement that are inconsistent with customary commercial practices by bundling the purchase of two commercial items into a single procurement is denied because the regulatory restriction, on its face, applies to terms and conditions used to procure commercial items, and cannot properly be read as a supplemental restriction against bundling, nor can it reasonably be read as a supplement to the definition of a commercial item found at FAR § 2.101.
The MIL Corporation, B-294836, December 30, 2004.
Digest: 1. Agency's unfavorable evaluation of protester's proposal under a past performance subfactor was improper where the effect of the low rating was to penalize the protester for a lack of past performance information that the agency deemed relevant to this subfactor.
2. Agency's “best value” (price/technical tradeoff) analysis in which minimal consideration was given to proposed prices is improper because it fails to consider price as a meaningful evaluation factor, as required by 41 U.S.C. § 253a(c)(1)(B) (2000) and the terms of the solicitation.
ProTech Corporation, B-294818, December 30,2004.
DIGEST: Selection of higher-rated, higher-priced proposal over lower-rated, lower-priced one was unreasonable, where the weight applied to the evaluation factors in the source selection decision differed from that announced in the solicitation.
Bureau of Customs and Border Protection - Automated Commercial Environment Contract, B-302358, December 27, 2004.
Digest: 1. Customs's Automated Commercial Environment (ACE) contract was an indefinite delivery, indefinite quantity (IDIQ) contract and therefore was not subject to the multiyear contracting requirements of 41 U.S.C. § 254c, including the termination provisions in that section.
2. Upon award of Automated Commercial Environment (ACE) contract, Customs should have obligated the contract minimum of $25 million in accordance with 31 U.S.C. § 1501(a), the recording statute, to ensure the integrity of Customs's obligational accounting records.
Oregon Potato Company, B-294839, December 27, 2004.
Digest: Protest regarding procurement for supply of commodity for export overseas is sustained where the solicitation failed to advise offerors that an offer would not be considered if, in a separate procurement seeking bids to transport the commodity to the ultimate destination, the agency failed to receive a bid corresponding to an offeror's proposed delivery location. Without this information, offerors lacked sufficient information to prepare their offers intelligently and to compete on an equal basis.
Health & Human Services Group, B-294703, December 15, 2004.
Digest: Protest that combination of two requirements under single solicitation constituted improper bundling under Small Business Act is denied where the requirement
set aside for award to a small business, there was expression of interest by small businesses, and the agency in fact made award of the contract to a small business.
American Systems Consulting, Inc., B-294644, December 13, 2004.
Digest: Award of a blanket purchase agreement based on a competition among Federal Supply Schedule (FSS) vendors using Federal Acquisition Regulation Part 8 procedures, is improper, where awardee's quotation contains services not identified on its FSS contract.
L-3 Communications Company, B-295166, December 10, 2004.
Digest: Where solicitation issued under indefinite-delivery, indefinite-quantity (ID/IQ), multiple award contract called for issuance of delivery order for driver trainers, and also provided that agency “may” award future delivery orders for driver trainers to same contractor, selection of contractor for receipt of delivery order did not constitute “downselection,” and therefore is not subject to Government Accountability Office jurisdiction; solicitation did not definitively provide for award of future orders or that other multiple award contractors would not be given fair consideration before future awards, and there is some indication in record that future driver trainer requirements could constitute “follow-on” requirement, one of the FASA exceptions under which the agency would not be required to give fair consideration to other contractors.
CourtSmart Digital Systems, Inc., B-292995.8, December 09, 2004.
Digest: 1. Protest that awardee's quoted software does not satisfy a solicitation requirement is denied, where the parties disagree as to the interpretation of this requirement and, even accepting the protester's interpretation, the protester is not prejudiced by the agency's waiver of this requirement.
2. Protest that awardee did not demonstrate that its offered software was part of a product line installed and operational in 100 court or hearing rooms, as required by the solicitation, is denied, where agency reasonably determined that offered software was an upgraded version of software within an existing product line that satisfied the solicitation requirement.
3. Awardee's software was reasonably found to be more access compliant under Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d (2000), where awardee's software received a higher compliance test score than the protester's software, and the solicitation stated that the overall test scores would establish the comparative degree of compliance with the standards.
Superior Optical Labs, Inc.; Diversified Ophthalmics, Inc., B-294662; B-294662.2, December 9, 2004.
Digest: 1. Agency reasonably did not question authority to bind offeror of individual who signed successful offer where offer designated him as contractor's administrative representative with binding authority to act on behalf of the contractor on administrative matters pertaining to the contract.
2. Allegation that awardee violated Anti-Kickback Act and Federal Healthcare Anti-Kickback Act will not be considered by GAO because both statutes impose criminal penalties for their violation, and GAO has no jurisdiction over alleged violations of criminal laws.
3. Protest of scoring of technical proposals is denied where it is apparent that protesters suffered no prejudice as a result of alleged evaluation errors.
4. Federal Acquisition Regulation § 52.219-14 (Limitation on Subcontracting) has no application where solicitation is unrestricted.
National Parks Service Contract--Payments to Subcontractors, B-303906, December
7, 2004.
Digest: GAO no longer has claims settlement
authority under 31 U.S.C. 3702. Authority to settle claims now lies
with the executive branch agency out of whose activity the claims
arose. Consequently, the Department of the Interior, not GAO, must
decide whether to pay the claims of subcontractors under an equitable
theory of quantum meruit. In that regard, Interior may find our past
claims settlement decisions helpful.
Sigma One Corporation, B-294719, December 2, 2004.
Digest: Protest is denied where, notwithstanding general direction in solicitation that detailed information should be presented in proposals only when required by specific solicitation instructions, agency reasonably downgraded protester's proposal for failing to include sufficient specificity in response to factors where solicitation did call for specific information, and therefore agency's elimination of protester's low-priced proposal from the competitive range was reasonable and consistent with the request for proposals.
All Phase Services, Inc., B-294640; B-294640.2, December 1, 2004.
DIGEST:
1. In evaluating past performance, agency properly considered prior contracts performed by awardee's proposed subcontractor where solicitation expressly advised offerors that such information would be considered, and awardee submitted a letter from the proposed subcontractor expressly authorizing consideration of its past performance information.
2. In awarding contract for demolition services, agency reasonably determined that various demolition contracts performed by the awardee and the awardee's proposed subcontractor were relevant for purposes of evaluating past performance.
3. Agency's procurement record reasonably supports the determination that awardee's higher priced, higher rated proposal represented the best value to the government where solicitation advised offerors that past performance was “significantly more important” than price and the contracting officer expressly documented the bases for concluding that the risks associated with protester's lower past performance rating outweighed the protester's price advantage.
Comprehensive Health Services, Inc., B-294608, December 1, 2004.
Digest: Contracting agency engaged in meaningful discussions concerning adequacy of proposed staffing, such that the protester should have known and understood the agency's concerns, where it advised offeror during oral discussions that protester's labor hours for full time employees were understated.
Spherix, Inc., B-294572; B-294572.2, December 1, 2004.
Digest: 1. Protest challenging an agency's evaluation and source selection decision that found the awardee's staffing and proposed marketing approach to be significant proposal strengths and discriminators in the selection decision is sustained, where the protester and awardee both addressed staffing and marketing approach, though not specifically requested by the solicitation, and the agency did not fairly consider the protester's similar proposed staffing and marketing approach.
2. Where the agency's evaluation identified significant weaknesses in the protester's proposal, but failed to identify them for the offeror during discussions, discussions were not meaningful.
Transcontinental Enterprises, Inc., B-294765, November 30, 2004.
Digest: Protest challenging an agency's affirmative determination of the awardee's responsibility on the ground that the contracting officer failed to consider the fact that the awardee did not possess a North Carolina unlimited general contractor's license at the time of award, and could not likely obtain the required license in a timely manner, if at all, is dismissed where the record shows that the license was not required to perform most of the work called for under the solicitation, if any work at all; thus, information regarding the awardee's ability to obtain the license is not the type of information that would be expected to have a strong bearing on the awardee's responsibility, and, as a result, an allegation that the agency failed to consider such information is not sufficient to trigger review by GAO of the agency's affirmative responsibility determination.
Lockheed Martin Simulation, Training & Support, B-292836.8; B-292836.9;
B-292836.10, November 24, 2004.
Digest: 1. Protest that
agency improperly engaged in post-final proposal revision (post-FPR)
discussions only with awardee is sustained where record shows that
post-FPR exchange resulted in material changes to awardee's proposal.
2. Protest that agency failed to engage in meaningful discussions with
protester is sustained where record shows that agency failed to
discuss weaknesses first identified in a reevaluation of proposals
that were based on earlier proposal language, and also was
unreasonably vague in areas where agency did conduct discussions.
New SI, LLC, B-295209; B-295209.2; B-295209.3, November 22, 2004.
Digest: Absent clear indication from agency that scheduled debriefing session was considered to be extended pending agency's response to questions that protester might pose following the session, the debriefing is presumed to have ended at the conclusion of the session; protester's posing questions to agency after the session concluded therefore did not extend time for filing a bid protest, and protest filed more than 10 days after the session thus is dismissed as untimely.
Seven Seas Engineering & Land Surveying B-294424.2, November 19, 2004.
Digest: Protest challenging agency's rejection of the protester's late proposal revision is denied, where the lateness of the submission was not caused by the agency and the protester's initial proposal was not technically acceptable.
Digital Technologies, Inc., B-291657.3, November 18, 2004.
Digest: Where award was canceled after awardee under small business set-aside was declared other than small by Small Business Administration, agency's decision to amend solicitation and provide offerors opportunity to submit revised proposals--instead of making award to next offeror in line for award under original evaluation--was reasonable in view of material increase in estimated quantities and addition of geographically remote performance site.
Chapman Law Firm, B-293105.6, B-293105.10, B-293105.12, November 15, 2004.
Digest: 1. Protest that agency misled protester during discussions into believing that its responses had adequately addressed identified weaknesses and deficiencies is denied where record shows that agency neither indicated to protester that its responses to discussion questions resolved agency's concerns, nor otherwise indicated that protester could not further address those concerns in its final proposal revision.
2. Protest that agency's evaluation improperly failed to credit protester for proposed subcontractor's experience is denied where subcontractor was removed from management position in protester's final proposal revision.
3. Protest that agency incorrectly averaged adjectival ratings for individual evaluation factors in determining overall adjectival rating for protester's technical proposal is denied, since record shows that award decision was based, not on adjectival ratings, but on relative advantages and disadvantages of protester's and awardee's proposals.
Optical Systems Technology, Inc., B-292743.2, November 12, 2004.
Digest: 1. Protest that agency improperly failed to conduct testing to assess accuracy of awardee's clip-on night vision devices prior to contract award is denied where solicitation did not require such testing.
2. Where request for proposals required fixed prices and delivery in accordance with a specified schedule, and protester included a pricing contingency in its proposal and did not offer to deliver in accordance with the required schedule, agency reasonably declined to consider the proposal further.
Marriott Downtown, B-294594, November 08, 2004.
Digest: Protest of 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.[Keep the feds away from Beale St. in Memphis-jaw]
Security Consultants Group, Inc.--Costs File: B-293344.6 Date: November 4, 2004.
Digest: 1. Government Accountability Office will not recommend reimbursement of protester's costs of submitting proposals and challenging solicitation terms where, prior to submission of agency report, agency took corrective action canceling the solicitations and reinstating protester's contract.
2. Government Accountability Office recommends reimbursement of the costs of defending against agency's request for reconsideration where protester was required to incur additional expense in responding to request and record shows request, although ultimately withdrawn, failed to state a valid basis for reconsideration.
University Research Company, LLC, B-294358; B-294358.2; B-294358.3; B-294358.4; B-294358.5, October 28, 2004.
Digest: Protest challenging the adequacy of a source selection decision is sustained where the selection official ultimately conceded that she knowingly mischaracterized in the source selection document the award recommendation of agency project officers, whose participation in the evaluation of proposals is anticipated by the agency's acquisition regulation--i.e., she wrote that the project officers recommended award to the awardee, when, in fact, they recommended award to the protester--and, as a result, she fails to state any basis for rejecting their award recommendation. Without documentation in the record explaining the basis for rejecting the input of the project officers, the Government Accountability Office has no basis for determining whether those actions were reasonable.
Greenlee Construction, Inc., B-294338, October 26, 2004.
Digest: Protest is sustained where agency had no basis to cancel solicitation because, notwithstanding the agency's claim that cancellation was justified because the solicitation allegedly indicated two different methodologies by which to determine the lowest-priced offer entitled to award, the agency was unable to articulate an example or methodology that would, while remaining consistent with the solicitation, establish that the protester's price was not the lowest price received.
Consolidated Engineering Services, Inc., B-293864.2, October 25, 2004.
DIGEST: 1. In taking corrective action in response to bid protest, agency acted within its discretion in limiting proposal revisions to updating key personnel/subcontractor information, and precluding price revisions, where agency reasonably concluded that only this information was needed, and that price revisions would undermine integrity of procurement due to disclosure of awardee's price after original award.
2. Where solicitation for facility management services called for offerors' proposals to take into account work to be performed in areas undergoing construction and renovation and provided for post-award adjustments, completion of that work during delay occasioned by bid protest does not represent material change requiring agency to amend solicitation to