Cygnus Corporation, Inc., B-292649.3; B-292649.4, December 30, 2003.
DIGEST: Discussions with protester were not meaningful, and protest therefore is
sustained, where agency (1) failed to advise protester of significant
weaknesses in its proposal, and (2) conducted misleading discussions
concerning other weaknesses or deficiencies by advising protester prior
to submission of final proposal revisions that agreement had been
achieved as to all technical and cost issues raised during negotiations
when in fact the agency’s concerns had not been resolved.
Islandwide Landscaping, Inc., B-293018, December 24, 2003.
DIGEST: Protest that agency improperly determined that protesters proposed fixed price was unrealistically low is denied where solicitation called for price realism analysis and protesters price was substantially lower than other offerors prices; based on comparison with these prices, it was reasonable for agency to conclude that protesters proposal posed a significant risk of nonperformance.
Kilgore Flares Company, B-292944; B-292944.2; B-292944.3, December 24, 2003.
DIGEST: Contention that agency wrongly rejected protesters offer after determining that the protester was nonresponsible is denied where the record shows that the agency reasonably concluded that protester had not clearly established that it could meet the solicitations delivery schedule.
Reconsideration of District of Columbia 9-1-1 Emergency Telephone System Surcharge and Effect of New Amendments, B-302230, December 20,2003. GAO finds that under the revised DC 9-11 Emergency Telephone System legislation the legal incidence of the tax is not on the federal government, but on the provider of services. Good discussion of McCulloch v. Maryland and the application of the Supremacy Clause to the District of Columbia.
KMR, LLC, B-292860, December 22, 2003.
DIGEST: Agency unreasonably rated two vendors' quotations equal under past performance evaluation factor, where record does not support agency's finding that awardee's experience was relevant to the requirements of the solicitation.
Contractors Northwest, Inc., B-293050, December 19, 2003.
DIGEST: Agency properly awarded contract based on evaluation of base and optional items, where invitation for bids (IFB) informed bidders that optional items would be evaluated and agency had a reasonable expectation that funding would be received in time to exercise the options in accordance with the IFB provisions.
Marine Metal, Inc., B-292445.3, December 19, 2003.
DIGEST: Where an invitation for bids for the dismantling of up to four ships does not prohibit all or none bids, a bid that expressly states it is a package bid for the complete dismantling of two named ships is an all or none bid for those ships and cannot be considered for award of only one of the ships.
Lockheed Martin Information Systems, B-292836; B-292836.2; B-292836.3; B-292836.4, December 18, 2003.
DIGEST: 1. Protest that agency misevaluated proposals is sustained where record does not support agencys conclusion that the awardees proposal was superior to the protesters with respect to a number of the discriminators used by the agency in arriving at its source selection decision.
2. Agency unreasonably determined that awardee met solicitations requirement for small business subcontracting where record shows that it miscalculated the percentage of the awardees subcontracting dollars relative to the overall value of the contract, and failed to account for the possibility that at least one of the awardees small business contracts may have been improperly inflated in terms of its value.
Mechanical Equipment Company, Inc.; Highland Engineering, Inc.; Etnyre International, Ltd.; Kara Aerospace, Inc., B-292789.2; B-292789.3; B-292789.4; B-292789.5; B-292789.6; B-292789.7, December 15, 2003.
DIGEST: 1. Agency performed reasonable price/technical tradeoff in determining that awardee’s proposal for transportable water systems represented best value, based on consideration of price and the results of reasonable technical evaluation under listed evaluation factors, consistent with solicitation’s evaluation plan; in making tradeoff analysis, agency had reasonable basis to focus on particular discriminator involving realism of logistics effort, even though it was not one of most heavily weighted factors.
2. Agency is not required to advise offerors of minor weaknesses or to reopen discussions where offeror’s final proposal revision includes new information that constitutes a weakness or deficiency.
3. If offeror’s price is not so high as to be unreasonable, agency is not required to advise that offeror that its price is not competitive.
4. Awardee’s proposal on supply contract complies with the solicitation’s subcontracting limitation that prime contractor perform work for at least 50 percent of the cost of manufacturing the supplies, not including the costs of materials; in
determining compliance with the limitation, the awardee’s overhead and profit should be included in determining the total contract cost.
5. Agency’s determination that awardee’s major subcontractor did not have a significant organizational conflict of interest because of its work as a support services contractor for the agency has not been shown to be unreasonable, where there was no evidence in record showing that the subcontractor had an unfair competitive advantage resulting from access to the proprietary information of competitors, or to competitively useful or source selection sensitive information not available to the other offerors.
Foundation Engineering Sciences, Inc., B-292834; B-292834.2, December 12, 2003.
DIGEST: Protest that agency should have selected the protester, the fourth-ranked firm, as the most highly qualified firm with which to negotiate an architect-engineer contract is denied where the record shows that the agency reasonably evaluated the protesters and the awardees qualifications consistent with the evaluation factors and applicable procurement rules, and reasonably determined that, due to its relatively limited equipment availability, protester was not the most highly qualified of the firms.
Continental RPVs, B-292768.2; B-292768.3, December 11, 2003.
DIGEST: 1. Protest that agency unreasonably evaluated the offerors technical proposals under a solicitation for a remotely piloted vehicle target (RPVT) system and services is denied where the record shows that the agencys evaluation of proposals was reasonable and consistent with the stated evaluation criteria, and the protesters contentions represent only its disagreement with the agencys evaluation.
2. Protest that contracting agency improperly relaxed solicitations technical requirement that offerors be able to perform eight RPVT operations concurrently by allowing the awardee to propose to support only seven concurrent RPVT operations is denied where the agency reasonably determined that the awardees proposal met the solicitation requirement.
3. Agencys evaluation of the offerors past performance, and the source selection decision based upon that evaluation, were not reasonable where the agency evaluated the protester and awardee as each being of low risk under the performance evaluation criterion without the record containing any basis upon which the agency could reasonably have determined that the awardees past performance was, in accordance with the terms of the solicitation, the same or similar to the solicitation requirements for which the protester was the incumbent contractor.
Career Quest, Inc., B-292865; B-292865.2, December 10, 2003.
DIGEST: 1. In evaluation under experience factor, where offerors were to establish similarity of prior contract to solicited requirement and sufficient experience of their own, agency reasonably found protesters proposal unacceptable on basis that its experience as a prime contractor was limited to work not comparable to the requirement and otherwise indicated that the protesters relevant experience was essentially limited to its subcontractors experience.
2. In evaluation of offerors proposals, where agency found that one offerors experience as a prime contractor met requirements for similarity in size, scope, complexity and relevance to the solicited requirements, but concluded that protesters experience as a prime was not sufficiently comparable to solicitation requirements, agency did not engage in unequal treatment of offerors, since record supports finding that the different conclusions were reasonable.
Amigo-JT Joint Venture, B-292830, December 9, 2003.
DIGEST: Protest challenging agencys rejection of facsimile bid modification as late is denied where the record shows protester began transmitting modification only a few minutes before scheduled bid opening, the transmission was completed after bid opening was declared, and the modification therefore did not reach the designated bid opening room prior to bid opening; even if the modification was in the facsimile machines memory before bid opening (as the protester contends), the agency was not required to accept it.
Immediate Systems Resources, Inc., B-292856, December 9, 2003.
DIGEST: Agency properly rejected protesters best and final offer as late where the record shows that the proposal was not under government control prior to the time set for the receipt of proposals.
Horizon Shipbuilding, Inc., B-292992, December 8, 2003.
DIGEST: Agency reasonably found protester's proposal unacceptable where protester's purported individual surety bid bond contained an ambiguity as to the identity of the surety and where the bond was not accompanied by Standard Form 28, Affidavit of Individual Surety, as required by the solicitation.
Sierra Military Health Services, Inc.; Aetna Government Health Plans, B-292780; B-292780.2; B-292780.3; B-292780.4; B-292780.5; B-292780.6, December 5, 2003.
DIGEST: Agency's communications with awardee during oral presentation did not constitute discussions, and agency thus was not required to conduct discussions with and request revised proposals from all offerors in the competitive range, where information furnished by awardee (with respect to staffing of effort to develop health care network) in response to agency questions after oral presentation was merely a clarification of information previously furnished by awardee in the presentation slides and accompanying oral presentation of slides.
American Ordnance, LLC, B-292847; B-292847.2; B-292847.3, December 5, 2003.
DIGEST: 1. Agency reasonably assessed weaknesses against protesters proposal where proposal failed to include information required by the solicitation.
2. Agency was not required to discuss weaknesses in protesters proposal that did not make the proposal unacceptable or prevent protester from having a reasonable opportunity for award.
American Systems Corporation, B-292755; B-292755.2, December 3, 2003.
DIGEST: 1. Agency reasonably rated proposal as marginal/high risk for technical factor under solicitation requesting proposals for training systems devices and curricula, where the proposal failed to provide sufficient details of its written instructional system development processes and failed to provide sufficient details in its sample task response.
2. Discussions were not misleading, even though, on the basis of an incorrect assumption, protester misinterpreted a particular discussion question, where a reasonably diligent offeror would have correctly understood, or requested clarification of, the agency discussion question.
3. Agency reasonably made one of the awards under solicitation contemplating multiple awards of indefinite-delivery/indefinite-quantity contracts to an offeror whose marginal proposal contained one significant weakness, but not to an offeror whose marginal proposal contained two significant weaknesses under the same technical subfactor (with other aspects of the evaluation being relatively equal), where the agency reasonably determined this was a discriminator between the technical merits of the two proposals that justified award to one and not the other.
e-LYNXX Corporation, B-292761, December 3, 2003.
DIGEST: Under a request for quotations, issued under simplified acquisition procedures, under which oral presentations constituted the vendors technical submissions and which provided for award based upon a price/technical tradeoff, protest challenging source selection decision is sustained, where the contracting officers selection of the higher-priced, higher-rated quotation reflected a failure to meaningful consider price, given that the price/technical tradeoff was based primarily upon a technical consideration which the contracting officer testified he did not understand and for which he obtained no advice.
Atlantic Research Marketing Systems, Inc., B-292743, December 1, 2003.
DIGEST: Where solicitation provided that failure to offer desired product improvements would not remove a proposal from consideration for contract award, it was inconsistent with the terms of the solicitation for the agency to remove the protester's proposal from consideration for award for allegedly failing to offer certain desired improvements.
Population Health Services, Inc., B-292858, December 1, 2003.
DIGEST: Agency evaluated proposals in accordance with the
evaluation criteria and reasonably downgraded the protester’s proposal
under the solicitation’s experience sub-criterion where the
sub-criterion provided for the evaluation of corporate as well as key
personnel experience and the record reflects that the protester lacks
corporate experience.
SMF Systems Technology Corporation, B-292419.3, November 26, 2003.
DIGEST: Agency determination, in the face of protester's challenge to selection decision, to cancel request for quotations for services under the Federal Supply Schedule (FSS) and to issue an order for services on a noncompetitive basis because the initial competition allegedly was contrary to regulations governing FSS acquisitions and inconsistent with an urgent need to conduct the procurement with minimum delay was not reasonable where the competition conducted was not contrary to applicable regulations and the urgency was primarily the result of the agency's missteps in the acquisition process.
Impregilo Edilizia S.p.A., B-292468.4, November 25, 2003
DIGEST: Protester's contention that agency improperly downgraded its past performance rating after a reevaluation of proposals in connection with the agency's implementation of corrective action is denied where agency reasonably determined that protester's past performance projects materially differed from the projects contemplated by the solicitation.
Unisys Corporation, B-292679; B-292679.4, November 21, 2003.
DIGEST: 1. Agency reasonably evaluated protester’s proposal as “high” risk, based on protester’s proposal of staffing levels that were significantly lower than historical levels, and protester’s failure to meaningfully explain how it would successfully perform the contract requirements with the level of staff proposed.
2. Agency’s discussions with protester were meaningful and adequate where agency provided written discussion questions to protester that reasonably identified the agency’s concerns, and subsequently conducted oral discussions during which the agency expanded on the identified concerns.
3. In procurement where non-price factors were significantly more important than price, agency’s price/technical tradeoff was reasonable and adequately documented where source selection decision memorandum expressly acknowledges protester’s price advantage, references multiple evaluated strengths in the awardee’s proposal, and concludes that the higher price is more than justified by the technical superiority of awardee’s proposal.
The Haskell Company, B-292756, November 19, 2003
DIGEST: 1. Under request for proposals that designated closing time for submission of proposals as 14:00 hours, agency reasonably declined to reject as late a proposal received before the time 14:01 was displayed on the time/date stamp clock used by the agency for determining timeliness of proposal submissions.
2. In circumstances of this case, offeror relinquished control of proposal package to government by placing package on desk of proposal receipt official in her presence.
Computers Universal, Inc., B-292794, November 18, 2003.
DIGEST: 1. Protest that awardee has a prohibited impaired objectivity organizational conflict of interest because under the awarded contract it will be required to perform quality assurance of its own work under an existing contract is denied; since any such quality assurance will not entail a subjective evaluation of its performance under the existing contract, there is no basis for finding that awardees objectivity will be impaired.
2. There is no basis for finding an improper personnel bait and switch by the awardee where solicitation did not require vendors to, and the awardee did not, identify specific personnel to fill positions.
PGBA, LLC, B-292679.2; B-292679.3, November 17, 2003.
DIGEST: 1. Protest that awardee intends to improperly access proprietary Medicare information in performing claims processing function for Department of Defense (DOD) health care beneficiaries is denied where record shows that, rather than access Medicare databases, the awardee proposed to train its staff regarding Medicare requirements, coordinate communication with Medicare contractors and health care providers, and act as advocates for the DOD health care beneficiaries.
2. Where contract performance requires coordination of benefits available under both Medicare and DOD health care programs, and solicitation advised that proposals would be evaluated regarding the effectiveness of proposed approaches to timely and accurately resolve claims, offerors were reasonably on notice that the agency would consider the extent of an offeror’s knowledge and experience regarding the Medicare program.
3. Agency reasonably concluded that protester’s proposal to provide “one-on-one” assistance to a limited number of beneficiaries--selected on the basis of their status as “VIP beneficiaries,” by virtue of a high call frequency, or due to having submitted a high volume of claims--did not provide the depth of service reflected in awardee’s proposed approach to employ higher staffing levels of trained personnel to function as advocates for DOD beneficiaries.
4. Agency reasonably evaluated awardee’s proposal regarding transitioning requirements as superior to protester’s proposal, notwithstanding protester’s incumbent status, where requirements of contract being competed have significant differences from prior contract requirements and awardee’s proposal contained a detailed discussion of those new requirements, discussed anticipated risks, problems and potential disruptions, and identified potential strategies and solutions.
5. Agency reasonably evaluated awardee’s proposal as superior to protester’s regarding data access where awardee proposed to provide access to all points designated in the solicitation, identified two additional points where data access would be provided, and proposed to host semi-annual, customer focused, “discovery meetings” with government representatives to identify and discuss data access issues.
6. In evaluating protester’s past performance, agency reasonably relied on content
performance reports that had been previously disclosed to, and discussed with protester, and for which protester had previously provided written comments; agency was not required to present the previously discussed information with protester again during discussions.
Research Analysis
& Maintenance, Inc.; Westar Aerospace & Defense Group, Inc.,
B-292587.4; B-292587.5; B-292587.6; B-292587.7; B-292587.8, November 17,
2003.
DIGEST: Protest is sustained where, based on a
reasonable interpretation of agency’s stated expectations in the
solicitation with respect to the desired staffing approach, protester,
the incumbent contractor, was misled into proposing a staffing
approach--involving a significant reduction in core staffing from the
historical staffing, reliance on extensive cross-training, and use of
surge staffing to perform a significant portion of the operational
requirement--that the agency viewed as essentially unacceptable.
TDS, Inc., B-292674, November 12, 2003.
DIGEST: 1. Protest that awardee's proposed subcontractor has an impermissible impaired objectivity organizational conflict of interest by virtue of another contract with the agency, is denied where record fails to show that firm will be in a position to evaluate the performance or activities of the prime contractor as part of its responsibilities under that other contract.
2. Where agency personnel comment on, or raise substantive questions or concerns about, vendors' quotations or proposals in the course of an oral presentation, and either simultaneously or subsequently afford the vendors an opportunity to make revisions in light of the agency personnel's comments, questions, and concerns, discussions have occurred.
3. Protest that agency failed to engage in meaningful, equitable discussions is sustained where agency personnel, during course of at least one vendor's oral presentations, asked detailed, substantive questions relating to the vendor's quotation, yet agency failed to alert protester to any of the numerous weaknesses identified in its quotation.
Turkcell Consortium, B-293048.2, November 12, 2003.
DIGEST: Protest challenging Coalition Provisional Authoritys issuance of licenses for telecommunications services in Iraq is not for consideration under General Accounting Offices bid protest function since the licenses do not involve the provision of property or services to the federal government.
American Recreation Products, B-292689; B-292689.2; B-292689.3, November 6, 2003.
DIGEST: 1. Protest that agency unreasonably determined that awardee's past performance was superior to protester's is denied where awardee had performed a substantial number of contracts of similar complexity ahead of schedule, received high marks for customer satisfaction, and met its subcontracting goals, while protester had performed fewer contracts, those contracts were not of similar complexity, and the protester did not address subcontracting goals in its proposal.
2. Protest that agency unreasonably evaluated protester's production demonstration model (PDM) is denied where record shows agency reasonably concluded that PDM did not meet certain dimensional requirements and specifications.
C. Martin Company, Inc., B-292662, November 6, 2003.
DIGEST: Protest contentions that (1) the contracting agency transferred its requirement for housing maintenance services to the Small Business Administrations (SBA) 8(a) contracting program in a bad faith attempt to avoid continued performance under a small business set-aside contract previously awarded to the protester, or to avoid giving the protester an opportunity to compete for the work, and (2) SBA violated its regulations in accepting the work for the 8(a) program, are denied where the record shows that despite inadequacies in the contracting agencys initial offering letter to SBA, SBA ultimately obtained all of the information required by its regulations, and followed its regulatory guidelines in deciding that the offered work was a new requirement under the terms of the regulations.
Ocean Services, LLC, B-292511.2, November 6, 2003.
DIGEST: 1. Specifications in a solicitation for the time charter of an oceanographic research vessel to be used in performing hydrographic surveys in the Gulf of Mexico and near coastal areas of Alaska that mandate that the vessel meet certain enhanced safety-related requirements are not objectionable, given the environment in which the vessel will operate and the agencys desire to contract for a vessel that offers a greater level of safety for its crew than that advocated by the protester.
2. In taking corrective action in response to a protest of amending the solicitation, reopening discussions, and reevaluating proposals, agency did not act improperly in disclosing the offerors total proposed prices (without disclosing the offerors by name or vessels proposed), given that the agency had disclosed one offerors total price to certain of the other offerors during debriefings.
Efficiency Management & Engineering Company;, B-292676; B-292676.2, October 31, 2003.
DIGEST: 1. Agencys consideration of more than three contracts in evaluating offerors past performance was unobjectionable where solicitation required offerors to submit detailed information on three most relevant contracts, but did not specify three as the maximum, and specifically requested offerors to include in their proposals a listing of all contracts performed within past 3 years.
2. Agencys price reasonableness evaluation, which compared overall and individual prices, but did not penalize offeror for proposing lower rates than the incumbent, was unobjectionable; purpose of price reasonableness review is to determine whether prices offered are higher--as opposed to lower--than warranted.
3. In price/technical tradeoff decision, where past performance and price were of approximately equal weight, and agency was fully aware of the proposals relative technical and price advantages, agency reasonably determined that awardees proposal with rating of very good/significant confidence and higher price was best value compared to one protesters proposal with neutral/unknown confidence rating and lower price and second protesters proposal with exceptional/high confidence rating but higher price.
Planned Systems International, Inc., B-292319.3; B-292319.4; B-292319.5, October 30, 2003.
DIGEST: 1. Agency reasonably determined that awardee was eligible for award where solicitation required that vendors be included on a particular Federal Supply Schedule, and awardee at one time was included on that schedule but subsequently was listed instead on a single, consolidated corporate schedule that included services under several schedules, including the specified schedule.
2. Protest that agency improperly evaluated protesters quotation is denied where record shows that agency reasonably determined that the quotation, among other things, did not demonstrate a full understanding of the solicitation requirements or offer a fully qualified project manager.
3. Selection of higher-rated, higher-priced quotation was not improper where solicitation provided that price was less important than technical factors, and agency reasonably concluded that the technical advantages of awardees quotation outweighed protesters price advantage.
KPMG LLP, B-292624, October 27, 2003.
DIGEST: Protest that vendors quotation should have been rejected for failure to satisfy alleged solicitation requirement to provide labor rates under a specific labor category is denied where the solicitation did not contain mandatory labor categories, but rather invited vendors to determine the labor mix with which they proposed to fulfill the solicitation performance requirements.
National Weather Service—Georgia 911 Charge, B-301126, October 22, 2003.
DIGEST: The federal government is constitutionally immune from
paying the Georgia 911 charge because it is a vendee tax, the legal
burden of which falls directly on the federal government as a user of
telephone services. In addition, Georgia statutes bar the assessment of
this charge against federal entities. The National Weather Service
should not pay assessments of this fee by its telephone service
provider.
ManTech Environmental Research Services Corporation, B-292602; B-292602.2, October 21, 2003.
DIGEST: 1. Where agency performed cost/technical tradeoff, selecting awardee's higher-priced proposal on the basis of perceived technical superiority, as reflected in point scores, protest challenging that cost/technical tradeoff is sustained where agency's contemporaneous evaluation record reflects evaluation errors which the agency acknowledges might have resulted in improperly doubling the awardee's perceived technical point margin.
2. Where evaluation record supporting cost/technical trade-off is materially flawed, and perceived technical superiority of awardee's higher-priced proposal, as reflected by technical point scores, is dramatically reduced by correction of procurement flaws, agency's post-protest confirmation of its prior cost/technical tradeoff, conducted in the heat of an adversarial process, does not provide credible support for the agency's assertion that protester was not prejudiced by the evaluation flaws.
NVT Technologies, Inc., B-292302.3, October 20, 2003.
DIGEST: Agency reasonably imposed bond requirements in a solicitation for real property management services, despite the fact that these requirements may restrict competition, where the agency reasonably determined that the bonds were necessary to protect substantial and mission-critical infrastructure that will be entrusted by the agency to the contractor in order to perform the contract.
Weeks Marine, Inc., B-292758, October 16, 2003.
DIGEST: Agency reasonably accepted late bid where the paramount cause of the late receipt was affirmative misdirection by the agency and where consideration of the late bid did not compromise the integrity of the competitive procurement system.
CAMS Inc., B-292546, October 14, 2003.
DIGEST: Agency improperly placed an order based on a request for quotations that provided that final inspection and acceptance must be at the actual manufacturing facility based upon a quotation that provides for inspection and acceptance at facility where the supplies are to be packaged.
DLH Construction and Trucking Company, Inc., B-292578, October 10, 2003.
DIGEST: Contracting agency properly rejected bid as nonresponsive where the bid required agency to exercise the first and second option year at time of award where the solicitation did not call for the agency to do so, and thus materially altered the rights of the contracting agency.
Roy Anderson Corporation, B-292555; B-292555.2, October 10, 2003.
DIGEST: Where workpapers contain clear and convincing evidence that the low bidder mistakenly omitted an element of cost from its bid, the contracting agency properly permitted upward correction of the bid; even where the exact amount of the intended bid is not certain, determination to allow correction is reasonable where intended bid falls within a narrow range of uncertainty and would remain low after correction.
American Artisan Productions, Inc., B-292559; B-292559.2, October 7, 2003.
DIGEST: 1. Where solicitation instructed offerors to submit past performance references for projects similar in size, complexity and nature to the contract being awarded and indicated that past performance would be evaluated based on performance of work similar in nature to that required by the solicitation, the agency reasonably downgraded protester's proposal for not identifying project references that were comparable in dollar value to that of the requirement solicited.
2. Because solicitation provided that the agency would evaluate the quality and workmanship of samples of museum exhibit work completed by offerors' proposed personnel, it was reasonable for the agency to consider the aesthetic quality of the work samples submitted by the offerors.
3. Contracting agency reasonably concluded that awardee's use of a subcontractor which had participated in the development of the solicitation's specifications did not present an organizational conflict of interest because the subcontractor had worked only on design aspects of the specifications, more than one contractor was involved in preparing the specifications, and the subcontractor was not in a position to draft specifications favoring its own products.
Beautify Professional Services Corporation, B-291954.3, October 6, 2003.
DIGEST: Protest of the award to a firm with a higher past performance rating and a higher price is sustained where the source selection authority ignored the protester's significantly lower price and, as a result, failed to justify the payment of a substantial price premium.
Global Solutions Network, Inc., B-292568, October 3, 2003.
DIGEST: Agency's determination not to set aside procurement for Historically Underutilized Business Zone (HUBZone) businesses was reasonably based on the agency's determination that it did not expect to receive proposals from at least two responsible HUBZone firms capable of satisfying this solicitation's particular requirements at fair market prices.
Marine Hydraulics International, Inc., B-291594.3, October 3, 2003.
DIGEST: 1. Where solicitation for cost-reimbursement contract required offerors to provide supporting rationale for proposed costs and protester failed to provide credible support for its proposed staffing levels, as confirmed by hearing testimony provided by protester's personnel, agency reasonably increased protester's proposed staffing levels, for cost evaluation purposes, with regard to tasks the agency considered understaffed.
2. Agency conducted meaningful discussions with protester where it identified every work item the agency believed to be understaffed and sought additional information from the protester regarding the bases for its staffing calculations.
3. Where solicitation for cost-reimbursement contract to perform ship repairs advised offerors that prior contracts involving drydocking and contracts performed on a cost-reimbursement basis would be more relevant for purposes of evaluating past performance, agency properly considered those factors in determining the
relative relevance of offerors' prior contracts, and protester's assertion that it was entitled to past performance rating of excellent rather than [deleted] constitutes mere disagreement with the agency's judgment.
Scot, Incorporated, B-292580, October 3, 2003.
DIGEST: Agency's prior approval of the awardee for inclusion on a qualified source list for impulse cartridges, without pre-award testing, is reasonable, where the awardee had acquired a firm that was already a qualified source at one facility and had requested qualification at a recently acquired facility to which it was transferring technology and assets from the qualified source that had designed and produced the impulse cartridge, the recently acquired facility had previously manufactured similar impulse cartridges, and the solicitation included a provision permitting waiver of any or all qualification requirements for firms with experience producing the same or similar cartridges.
Zarc International, Inc., B-292708, October 3, 2003.
DIGEST: Where request for quotations specified protester's product by product number and prohibited substitutions, issuance of an order for alternative vendor's equivalent product is nonetheless unobjectionable where agency determined that equivalent product would meet its needs at a lower price than named vendor's, and protester fails to establish that had it known of agency's willingness to consider equivalent products, it would have altered its quotation to its competitive advantage.
Southwestern Bell Telephone Company, B-292476, October 1, 2003.
DIGEST: 1. Protest challenging agency's evaluation of the protester's and awardee's past performance, which found the two firms had essentially equal past performance, is sustained, where the agency did not consider awardee's record of integrity and business ethics, as required by the solicitation, and the record raises serious concerns that awardee may have problems in this area, and where agency did not document its assessment of protester's past performance, despite the fact that solicitation provided for qualitative assessment of offerors' past performance.
2. Contracting officer's affirmative determination of the awardee's responsibility is not reasonably based where, despite having general awareness of misconduct by some of awardee's principals and parent company, the contracting officer did not obtain sufficient information about or consider the awardee's record of integrity and business ethics in making his responsibility determination.
MacAulay-Brown, Inc., B-292515; B-292515.2, September 30, 2003.
DIGEST: 1. Where protesters primary proposal was to hire incumbent staff, and it proposed higher salary rates but lower total compensation than the incumbent contractor, agency reasonably evaluated proposal as posing moderate risk based on potential inability to hire significant portion of incumbent workforce.
2.Agency satisfied requirement to conduct meaningful discussions by communicating evaluators concerns with the protesters ability to recruit/retain the incumbent workforce, thus leading the protester into the area of its proposal needing improvement.
3.Agencys failure to adjust awardees evaluated most probable cost upward to reflect awardees proposed lowering of current salary rates and proposed low escalation rate was reasonable where agency fully considered these features of awardees cost proposal and concluded that they were achievable and represented reasonable exercise of management control given current employment market conditions.
4.Cost/technical tradeoff was reasonable where source selection authority considered technical distinctions between competing proposals and specifically determined that higher technically rated proposal represented best value despite higher cost.
The November Group, Inc., B-292483, September 30, 2003.
DIGEST: Protest alleging that agency improperly released solicitation materials containing protester's proprietary information is denied where protester fails to provide clear and convincing evidence rebutting agency's determination that materials at issue were based on publicly available information and general quality control concepts commonly used in epidemiological studies.
The LEADS Corporation, B-292465, September 26, 2003.
DIGEST: Contracting agency reasonably determined not to reject the quotation from the vendor selected to receive an order for augmentation of the agencys procurement staff on the basis of organizational conflicts of interest (OCI) where any potential OCI can be avoided by the careful assignment of work under the contract to ensure that the vendors contracting specialists do not handle matters (procurements or contracts) in which the vendor has an interest.
Shubhada, Inc., B-292437, September 18, 2003.
DIGEST: Where an agency rejects an offeror's submission as technically unacceptable for failing to include a technical proposal required by the solicitation, but the agency actually may have received the proposal and lost it, a protest of the agency's evaluation and award decision generally will not be sustained, absent a systemic failure in the agency's proposal-receipt process. Since the content of a lost proposal is known only to the protester, it would be inconsistent with maintaining a fair competitive system to allow the protester to establish the content of its proposal after the closing date has passed.
Enola-Caddell JV, B-292387.2; B-292387.4, September 12, 2003.
DIGEST: 1. Protester was not prejudiced by downgrading of its technical evaluation rating from excellent to good where, based on its higher price, it would not have been in line for award even had it received technical rating of excellent.
2. Pursuant to Small Business Administration guidance, small business that is not a HUBZone small business cannot benefit from application of the HUBZone price evaluation preference to gain the award of a contract.
Accurate Automation Corporation, B-292403; B-292403.2, September 10, 2003.
DIGEST: 1. Under unrestricted solicitation that called for full and open competition with no provision for award under small business innovation research (SBIR) program or for any other small business preference, there was no basis for agency to afford special assistance or differential treatment to small business offeror, notwithstanding offerors erroneous assertion in its proposal that it could be awarded an SBIR contract for the requirement.
2. Agency reasonably evaluated protesters past performance as neutral under subcontractor management subfactor where protester lacked relevant subcontractor management experience; the proposed large business subcontractors past performance record in managing subcontractors cannot reasonably be credited to small business protester as the prime contractor, notwithstanding alleged mentor/protg agreement between the two, since the evaluation subfactor is intended to assess the prime contractors ability to supervise and control that mentors performance as a major subcontractor.
3. Agency reasonably determined that the significantly reduced technical and past performance risk offered by technically superior proposal warranted the payment of the associated evaluated cost premium under a solicitation for a cost reimbursement contract for a complex system development program which provided that the technical factors were significantly more important than cost.
4. Award determination, as well as underlying cost/technical tradeoff vis--vis protester, is unobjectionable even though focused on comparison between awardees proposal and that of the next highest technically rated proposal where, notwithstanding protesters low evaluated cost, record establishes propriety of evaluated technical superiority of awardees proposal, and the protesters proposal was reasonably evaluated as a distant third.
Gulf Copper Ship Repair, Inc., B-293706.5, September 10, 2004.
DIGEST: Agency acted improperly when, in taking corrective action in response to a prior protest, it conducted discussions only with one of the previously selected awardees, rather than with all offerors whose proposals had been in the competitive range and had been considered by the agency in performing its best value analysis.
Carmon Construction, Inc., B-292387; B-292387.3, September 5, 2003.
DIGEST: Agency properly awarded contract to large business offeror with higher evaluated price than that of protester, a Historically Underutilized Business Zone small business concern, where request for proposals provided for award on a best value basis and agency determined that technical superiority of awardee's proposal outweighed price differential.
Computer Associates International, Inc., B-292077.2, September 4, 2003.
DIGEST: 1. Protester's argument that the solicitation is defective in that it fails to set forth the agency's actual minimum requirements is in essence a challenge to the evaluation of vendor responses, and thus is premature where award has not yet been made.
2. Corrective action taken by the agency in response to a suspected procurement impropriety is unobjectionable where the agency has a reasonable basis for restricting the scope of revisions that vendors may make to their quotes, and the agency's corrective action resolves the suspected impropriety.
Strategic Analysis, Inc., B-292392; B-292392.2, September 3, 2003.
DIGEST: Where solicitation expressly contemplated that vendor would not have certain required non-disclosure agreements (NDA) until after commencement of performance under task order, and provided criteria for assessing vendor's plan to obtain NDAs after issuance of order without calling for price evaluation adjustments or for any adverse evaluation consequences for doing so, agency reasonably did not downgrade proposal for including a highly rated plan to obtain required NDAs after issuance of the order, and was not required to increase the evaluated cost to the government to compensate for the alleged transition costs related to the delay in performance that the solicitation anticipated for obtaining the NDAs.
Honeywell Technology Solutions, Inc.; Wyle Laboratories, Inc., B-292354; B-292388, September 2, 2003.
DIGEST: Agency’s evaluation of proposals was not reasonable where the agency, during the cost realism evaluation, made significant adjustments to the protester’s proposed staffing levels in calculating the most probable cost associated with the proposal that were inconsistent with the agency’s view during the technical evaluation of the proposal that the proposed staffing level was appropriate, and where the record casts serious doubts on the reasonableness of the government estimate and the mechanical way it was used in the cost realism evaluation.
HK Systems, Inc.--Protest and Reconsideration, B-291647.6; B-291647.7, August 29, 2003.
DIGEST: Award to offeror that submitted low-priced proposal offering equipment required by the solicitation is unobjectionable, especially where offeror also was found technically more advantageous.
Preferred Systems Solutions, Inc., B-292322; B-292322.2; B-292322.3, August 25, 2003.
DIGEST: 1. Under procurement that gave technical factors more importance than cost, source selection decision selecting the low-priced, technically-inferior proposal as the best value, instead of the protester's higher-priced, higher-rated proposal, was not reasonably based, where the agency did not reasonably explain why the benefits associated with the evaluated technical superiority of the protester's proposal were not worth the price premium and where the source selection authority was not aware of the actual differences in costs that would be incurred under the competing proposals.
2. Protest that agency misevaluated proposals under a subfactor which contemplated a qualitative evaluation is sustained where the proposals received the same ratings, even though the supporting narrative indicated that there should be differences in the ratings
ProMar; Urethane Products Corporation, B-292409; B-292409.2; B-292409.3, August 25, 2003.
DIGEST: Agency reasonably rejected protesters' quotations for pneumatic rubber fenders as technically unacceptable where the quotations included product literature that did not show compliance with the standards required by the solicitation.
American Recycling Systems, Inc., B-292500, August 18, 2003.
DIGEST: Protest that contracting agency improperly found protester's quotation to be technically unacceptable is denied where the agency possessed significant countervailing evidence that created doubt whether the vendor could comply with a material requirement of the solicitation and the vendor failed to take the opportunity to provide support for its claimed ability to comply with the requirement; under such circumstances, an agency may not accept at face value a quotation's promise to meet a material requirement.[A commercial items buy for a trailer mounted shell deformer capable of handling 7000 pounds per hour of .50 caliber shells!]
Universal Construction Company, Inc., d/b/a Turner-Universal,B-292407, August 18, 2003.
DIGEST: In accordance with the Small Business Act and the clause at Federal Acquisition Regulation 52.219-4, agency properly awarded a contract to an Historically Underutilized Business Zone small business concern whose evaluated price was not more than 10 percent higher than the evaluated price of a large business.[See the footnotes in this case. GAO rejects argument based on example in 13 CFR 126.613 (January 2003) that the preference should not have been applied. SBA apparently explained that example in the regulation "contains an error."]
General Services Administration: Real Estate Brokers' Commissions, B-291947, August 15, 2003.
DIGEST: The General Services Administration (GSA) may enter into proposed contracts with real estate brokers without augmenting its appropriations since the proposed contracts do not contemplate the government receiving funds from the brokers. Services rendered under a formal contract at no cost to the United States do not constitute an acceptance of voluntary services under 31 U.S.C. § 1342.
GTSI Corp., B-292298; B-292298.2; B-292298.3, August 14, 2003.
DIGEST: Protest that agency improperly accepted quotation that did not unambiguously indicate compliance with mandatory computer monitor viewing area requirement, but instead could reasonably be interpreted as indicating noncompliance, and then improperly modified the blanket purchasing agreement shortly after award to correct ambiguity, is denied where there is no basis for concluding that the agency's actions prejudiced protester; protester has not alleged, nor is there any basis for concluding, that it would have lowered its price sufficiently to displace awardee as the low-priced vendor.
Robert Clay, Inc., B-292443, August 14, 2003.
DIGEST: 1. Protest based on information learned in non-required debriefing is timely if filed within 10 days of the debriefing.
2. Agency reasonably determined that awardee and protester had equal performance risk ratings; because past performance and price were the sole evaluation factors, award was reasonably based on the awardee's lower-priced proposal.
Bechtel Hanford, Inc., B-292288; B-292288.2; B-292288.3, August 13, 2003.
DIGEST: Protest that agency improperly made award in a cost-plus-incentive-fee acquisition to a firm that submitted a proposal whose cost was found to be [deleted] unrealistic by the agency is sustained where solicitation called for evaluation of realism of cost proposals, agency emphasized need for realism during written and oral discussions, agency never indicated to offerors during the competition that it would accord little weight to realism in its source selection, protester relied on agencys direction in submitting a proposal that was found very realistic, and agency failed to adequately document in its selection decision why it discounted the importance of realism in its source selection.
Delco Industrial Textile Corporation, B-292324, August 8, 2003.
DIGEST: Protester's assertion that its subcontractor bore responsibility for untimely delivery under its prime contracts with the agency presents no basis for questioning the agency's downgrading of protester's proposal based on conclusion that its delivery record under those contracts was poor; agency's evaluation properly was based on its reasonable perception of prior performance problems and, in any case, a prime contractor under a government contract is generally responsible for the performance of its subcontractors.
Gamut Electronics, LLC, B-292347; B-292347.2, August 7, 2003.
DIGEST: 1. Protest of solicitation terms more than 4 months after closing date, and after protester submitted proposal and participated in product demonstration, is untimely and not for review.
2. Protest that agency improperly rejected protester's product as unsuitable is denied where agency evaluation was conducted in accordance with stated evaluation criteria and protester does not allege any specific errors in ev aluation.
Rochester Optical Manufacturing Company, B-292247; B-292247.2, August 6, 2003.
DIGEST: Protest challenging agency decision not to set aside procurement for small business concerns is sustained where decision was based on insufficient efforts to ascertain small business interest and capability to perform the requirement.
Sodexho Management, Inc.--Costs, B-289605.3, August 6, 2003.
DIGEST: 1. Request that agency reimburse protester for the costs it incurred in pursuing an administrative appeal of the agency's cost comparison decision under Office of Management and Budget Circular No. A-76 is denied because such costs are not, as protester argues, part of its proposal preparation costs; administrative appeals costs are tantamount to agency-level protest costs, and GAO's authority to recommend reimbursement of protest costs does not extend to costs incurred by a protester in litigating in another forum.
2. Protester should not be paid costs incurred in filing and pursuing unsuccessful protest issues where those issues are readily severable from a successful protest issue, which rested upon a different set of facts and relied upon unrelated legal theories.
3. Protester claiming reimbursement of the costs of preparing its proposal and the costs of filing and pursuing its protest must submit evidence sufficient to support its claim that those costs were incurred and are reasonable and properly attributable to either proposal preparation or the filing and pursuit of the protest; GAO recommends that costs which are not adequately documented not be reimbursed, and that claimed allowable costs which are aggregated with unallowable costs in a way that does not permit segregation of allowable costs be disallowed in their entirety.
4. Request that Comptroller General recommend that an increase in the cost of living justifies a fee higher than the statutory cap of $150 per hour for attorneys' fees is granted where the protester alleges that the cost of living has increased, as measured by the Department of Labor's Consumer Price Index (CPI), and has presented a reasonable basis upon which the adjustment should be calculated.
MW-All Star Joint
Venture, B-291170.4, August 4, 2003..
DIGEST: 1. Agency
reasonably assigned neutral rating for past performance of
mentor-protégé joint venture offeror, where solicitation provided that a
neutral rating would be assigned to firms with no past performance and,
although mentor firm had performance history, the joint venture itself
did not.
2. Agency reasonably rated awardee’s performance risk
lower than protester’s where awardee had performed contracts similar to
that contemplated by the solicitation while joint venture protester had
not, and evaluation was otherwise in accordance with solicitation.
3. Agency reasonably evaluated realism of awardee’s proposal where it
determined that, although awardee’s total price was lower than that of
other proposals, its prices for four of the five most ordered items were
in line with the incumbent’s, and its lower prices resulted from cost
saving measures and lower profit.
Americom Government Services, Inc., B-292242, August 1, 2003.
DIGEST: Agency reasonably eliminated from competitive range proposal that failed to comply with material technical requirements in solicitation; contrary to protester's contention, agency was not required to augment the proposal by considering information contained in competitors' proposals, or to conduct discussions to enable offeror to cure evaluated deficiencies.
American Artisan Productions, Inc., B-292380, July 30, 2003.
DIGEST: 1. Agency properly imposed bond requirement in solicitation for the design, fabrication, and installation of exhibits, despite the fact that it may restrict competition, where agency reasonably determined that bonds were necessary to ensure timely completion of project and to protect the government from losses that would result from contractor default.
2. Agency's determination not to set aside procurement for small businesses was proper where agency reasonably concluded--based on market surveys and concurrence of the Small Business Administration--that it could not expect to receive proposals from at least two responsible small business offerors at fair market prices.
REEP, Inc.--Costs, B-290665.2, July 29, 2003.
DIGEST: Request for recommendation that protester be paid a particular amount in protest costs is denied where claim was presented to agency in an untimely, piecemeal fashion and aggregated allowable and unallowable costs.
Specialty Marine, Inc.--Reconsideration, B-292053.2, July 29, 2003.
DIGEST: The Small Business Administration (SBA), in commenting on a protest alleging that an agency had improperly rejected the protester's quotation because the firm did not hold an Agreement for Boat Repair, advised that it did not consider the matter a responsibility one subject to the certificate of competency (COC) process; as a result, GAO, while observing that the requirement appeared to involve a definitive responsibility criterion, addressed the merits of the agency's action and denied the protest. The fact that the SBA, in a post-decision submission, attributes its prior position to its understanding of GAO precedent and states that it would have considered the protester for a COC if GAO had sustained the protest, does not warrant reconsideration of the decision, since the decision properly was based on the protest record.
SKJ & Associates, Inc.--Costs, B-291533.3, July 24, 2003.
DIGEST: 1. Protester may not recover profit on its employee's time in filing and pursuing protests; claimed rates must be based upon actual rates of compensation, plus reasonable overhead and fringe benefits, not market rates that include profit.
2. Hours claimed by protester's president as part of its request for reimbursement of the cost of filing and pursuing its protest are not allowed where they are excessive given the nature of the particular protest.
R&K Contractors, Inc., B-292287, July 23, 2003.
DIGEST: 1. Protest of selection of slightly higher-priced proposal with higher-rated past performance is denied where selection decision was consistent with solicitation and reflected a reasonable price/past performance tradeoff.
2. General Accounting Office's granting of an extension of the due date for the protester's comments on the agency report does not waive the timeliness requirements for filing a supplemental protest, and thus new and independent protest issues, first raised in comments submitted more than 10 days after receipt of the agency report on which the issues were based, are dismissed as untimely.
Lyntronics Inc., B-292204, July 22, 2003.
DIGEST: Agency properly modified incumbent's contract to increase number of required batteries, instead of conducting competitive procurement, where agency reasonably determined that any firm other than incumbent would require testing that would result in unacceptable delay in deliveries.
J&J/BMAR Joint Venture, LLP--Costs, B-290316.7, July 22, 2003.
DIGEST: Protester's request for a recommendation that it be reimbursed the cost of filing an earlier protest challenging a cost comparison under Office of Management and Budget Circular A-76 is denied where the agency did not unduly delay implementing the promised corrective action that caused our Office to dismiss the protest as academic.
Sam Facility Management, Inc., B-292237, July 22, 2003.
DIGEST: Protest that agency improperly evaluated proposals of both the protester and the awardee is denied where the record shows that the evaluation was reasonable and consistent with the solicitation's stated evaluation criteria.
Cortez, Inc., B-292178; B-292178.2; B-292178.3, July 17, 2003.
DIGEST: 1. Protest challenging conduct of price realism evaluation and agency determination that awardees pricing was realistic is denied where protester does not show that awardees pricing was likely to result in significant performance risk and agency reasonably found that nothing in awardees pricing called into question its understanding of the performance requirements set forth in the solicitation.
2. Protest that agency unreasonably found awardees past performance/experience superior to the protesters (the incumbent contractor), is denied where, although both firms were reported to have strong performance on a number of contracts, and protester was given evaluation credit for experience on the incumbent contract, agency determined, and protester conceded during discussions, that protester had encountered problems in performing the incumbent contract.
Remtech Services, Inc., B-292182, July 17, 2003.
DIGEST: Protest challenging agency decision to retain certain services in-house as a result of a cost comparison conducted pursuant to Office of Management and Budget Circular A-76 on the basis that government's most efficient organization (MEO) plan improperly failed to include sufficient staffing to meet performance work statement (PWS) requirements is denied where record supports reasonableness of agency's determination, confirmed by independent reviewing official and administrative appeals board, that MEO included adequate staffing to meet PWS requirements.
Integrated Business Solutions, Inc., B-292239, July 9, 2003.
DIGEST: 1. Agency properly rejected protester's electronically submitted final proposal revision for facilities management services where solicitation did not authorize the electronic submission of proposals.
2. Agency properly rejected protester's initial proposal as unacceptable where protester failed to acknowledge solicitation amendment changing period of performance.
RVJ International, Inc., B-292161; B-292161.2, July 2, 2003.
DIGEST: 1. Agency reasonably downgraded protester's quotation under staffing/resources subfactor where technical submission failed to demonstrate positions and skill levels for six of seven areas of performance.
2. Agency reasonably downgraded protester's quotation under key personnel subfactor where the agency was reasonably concerned that the protester's project manager, who was also the company president, would not be able to effectively perform both jobs concurrently.
3. In a procurement involving vendors under the Federal Supply Schedule program, agency gave appropriate weight to price in conducting reasonable comparative analysis of quotations and selecting the higher technically rated, higher-priced vendor for award.
4. There is no requirement for source selection officials to attend oral presentations.
Prisoner Transportation Services, LLC; V1 Aviation, LLC; AAR Aircraft Services, B-292179; B-292179.2; B-292179.3, June 27, 2003.
DIGEST: 1. Solicitation term limiting offers to particular make and model of aircraft unduly restricts full and open competition, where the agency concedes that other aircraft can meet its needs.
2. Solicitation term limiting offers to aircraft manufactured after 1990 is reasonably related to the agency's needs because the agency has shown that limitation was designed to avoid the problems associated with aging aircraft.
3. Protest that agency should have provided for multi-year pricing instead of requiring proposals based on a 1-year contract with multiple options totaling 10 years is denied, where the agency has the discretion to decide whether to allow multi-year contracts under 41 U.S.C. § 254c(a) and reasonably determined that the approach included in its solicitation will provide economy in administration, performance, and operation.
Dismas Charities, Inc., B-292091, June 25, 2003.
DIGEST: 1. Protest is sustained where agency applied an evaluation scheme other than that established by the solicitation, failed to evaluate all of protester's proposal, failed to evaluate past performance in a consistent manner and as specified by the solicitation, and failed to permit protester to address adverse past performance information.
2. Where contemporaneous record reflects multiple procurement flaws, and the agency's post-protest reevaluation of offerors' proposals--which was conducted in the heat of an adversarial process--includes, among other things, an increase to the awardee's rating which is unsupported by objective documentation, GAO declines to afford any material weight to the reevaluation activities and rejects the assertion that the reevaluation demonstrates that protester was not prejudiced by the agency's errors in the conduct of the procurement.
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American Analytical & Technical Services, Inc., B-292100, June 11, 2003.
DIGEST: Consistent with the terms in the invitation for bids, contracting agency properly calculated evaluated prices by adding ten percent to prices bid by all firms other than those of qualifying small disadvantaged business concerns.
Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003.
DIGST:
1. A protester may challenge an agency's decision not to provide the protester with a solicitation for a purchase under the Federal Supply Schedule, where this decision was based upon the agency's determination, pursuant to Federal Acquisition Regulation § 8.404(b)(3) (which applies to orders expected to exceed the maximum order threshold), that the protester did not appear to offer best value, as determined by the agency from market information obtained from schedule vendors and product demonstrations; GAO will review the reasonableness of the agency's determination.
2. Agency decision not to provide the protester with a solicitation for an acquisition of a unified financial management system under the Federal Supply Schedule program was reasonable, where, in accordance with Federal Acquisition Regulation § 8.404(b)(3), the agency reasonably determined that the protester did not appear to offer best value (price and other factors considered) when compared to schedule vendors that were provided with the solicitation.
TRS Research--Costs, B-290644.2, June 10, 2003.
DIGEST: Protester's request for recommendation that it be reimbursed costs of pursuing protest is denied where protester fails to document the reasonableness of hourly rate claimed for attorney's services and fails to provide any evidence that it is obligated to pay the legal fees claimed regardless of whether they are recovered from the government.
Venturi Technology Partners, B-292060, June 10, 2003.
DIGEST: 1. Protest is denied where in a competitive procurement under the Federal Supply Schedule (FSS) the record shows that the evaluation was reasonable and consistent with the stated evaluation factors.
2. Agency's conduct of discussions with two other FSS vendors without affording protester an opportunity to address technical deficiencies in its proposal is unobjectionable where agency reasonably concluded that protester's proposal should be excluded from further consideration because of reasonable concerns about its technical compliance and its higher price.
HEROS, Inc., B-292043, June 9, 2003.
DIGEST: Protest is sustained where solicitation to overhaul helicopter engines contemplates less than full and open competition, the agency has concluded that the successor-in‑interest to the original equipment manufacturer of the engine is the only entity that possesses adequate information to successfully overhaul the engine, and the agency's view regarding other potential offerors' ability to meet the agency's requirements fails to reflect a reasonable level of advance planning as required by the Competition in Contracting Act.
Sunshine Kids Service Supply Company, B-292141, June 2, 2003.
DIGEST: Where agency rejected proposal submitted by sole HUBZone offeror in HUBZone set-aside based on finding of unreasonable price, and subsequently determined that proposal also was technically unacceptable, agency decision to cancel solicitation was unobjectionable, even if original basis for rejection--unreasonable price--was not supported by the record.
Chant Engineering Company, Inc., B-292140, May 29, 2003.
DIGEST: In a "best value" procurement conducted using simplified acquisition procedures, protest of agency's evaluation of quotation is denied where review of record shows evaluation was reasonable.
Tishman Construction Corporation, B-292097, May 29, 2003.
DIGEST: In a negotiated procurement that required offerors to submit both paper and electronic versions of proposals, rejection of the protester's proposal as late because the paper version of the proposal was not delivered by the time set for receipt of proposals was not reasonable, where a complete copy of protester's proposal was timely received in accordance with the solicitation instructions; the late delivery of the paper version was a minor informality that should have been waived.
SeaArk Marine, Inc., B-292195, May 28, 2003.
DIGEST: 1. Agency need not hold discussions with offerors concerning product demonstration test results in order to permit design changes, where the solicitation provides that remediation will not be permitted and agency provided results only to ensure that testing was properly performed.
2. Awardee did not receive unfair competitive advantage from prior contract experience where there was no evidence of unfair or preferential treatment, improper discussions, or involvement in developing solicitation.
CMC & Maintenance, Inc., B-292081, May 19, 2003.
DIGEST: 1. In evaluating past performance, agency's assignment of neutral rating for past performance to the protester was reasonable where the protester's referenced past performance was either of far less magnitude than, or different from, the work being solicited.
2. Agency is not required to refer a neutral past performance evaluation to the Small Business Administration for a possible certificate of competency.
EDPEnterprises, Inc., B-284533.6, May 19, 2003.
DIGEST: Protest that food services are improperly bundled with other logistics support functions, thereby unduly restricting the private-sector portion of the competition conducted pursuant to Office of Management and Budget Circular A-76, is sustained where the agency has failed to provide a reasonable justification that this bundling is necessary to meet its needs.
Specialty Marine, Inc., B-292053, May 19, 2003.
DIGEST: Agency properly rejected protester's quotation based on protester's failure to hold an Agreement for Boat Repair (ABR), where presolicitation synopsis put potential vendors on notice that ABR was a precondition to receiving award. [GAO stated it was inclined to adopt protestor's view that the prequalification requirement was a responsibility issue, but deferred to the SBA which disagreed.]
InkiTiki Corporation, B-291823.4; B-291823.5, May 16, 2003.
DIGEST: Protest of agency's decision not to invite the protester to submit a Phase II proposal under the Department of Defense Small Business Innovation Research program is denied where the agency reasonably determined, based on the lack of details in the protester's Phase I written products and post-award conference, that it could not be determined whether the protester's approach was innovative or feasible.
Information Ventures, Inc., B-291952, May 14, 2003.
DIGEST: Protest that agency improperly canceled presolicitation notice of intent to procure services under small business set-aside solicitation in order to instead solicit quotations from Federal Supply Schedule (FSS) vendors is denied, where agency reasonably determined that such services were available under the FSS; agencies need not consider small business programs when purchasing from the FSS.
Triune Associates, B-292005, May 13, 2003.
DIGEST: 1. Because an agency's choice of a particular North American Industry Classification System (NAICS) code is a matter for review exclusively by the Small Business Administration, protester's argument that acquisition for canned juice could reasonably have been classified under more than one NAICS code will not be considered by the General Accounting Office.
2. Pursuant to Federal Acquisition Regulation § 19.1102(a), it is the NAICS code applied to an acquisition, as opposed to the NAICS code that applies to an offeror, that governs whether a small disadvantaged business price evaluation adjustment applies.
AAR Aircraft Services--Costs, B-291670.6, May 12, 2003.
DIGEST: General Accounting Office recommends that the protester be reimbursed for the costs of filing and pursuing its protests, where the agency unduly delayed taking corrective action until after submission of the agency report and the protester's comments, and the protests were clearly meritorious.
TN-KY Contractors, B-291997.2, May 5, 2003.
DIGEST: Solicitation for fixed-price grass cutting contract does not impose an unreasonable cost risk upon offerors, where the solicitation, which does not have an unlimited scope of work, provides sufficient information upon which offerors can base their prices.
All Star Services Joint Venture, B-291903, April 30, 2003.
DIGEST: 1. Agency reasonably rejected protester's proposal for failing to meet solicitation requirements regarding emergency work, and for protester's introduction into its final revised proposal of a proposed program to reduce preventative maintenance staffing that was incomplete and inconsistent with other portions of the protester's final revised proposal.
2. Agency engaged in meaningful discussions with protester where agency conducted two rounds of written discussions and two rounds of oral discussions during which protester was reasonably led into all areas of its proposal that required correction or amplification.
Symplicity Corporation, B-291902, April 29, 2003.
DIGEST: 1. Contracting agency's award of a task order to a firm pursuant to the firm's Federal Supply Schedule (FSS) contract is improper where the agency failed to consider whether the services offered by the firm are covered by its FSS contract, and the record establishes that the firm's quotation was based on providing personnel under labor categories not contained in its FSS contract.
2. Agency's evaluation of quotations submitted in response to a competitive procurement under the Federal Supply Schedule program was unreasonable, where the record reflects that the protester included its price for the performance of a particular task in its quotation while the awardee's quotation used a pricing structure for that task that did not provide a basis for a fair comparison of vendors' prices.
Satellite Services, Inc., B-288848.3, April 28, 2003.
DIGEST: Agency's decision to cancel solicitation used to obtain and evaluate private-sector proposals in conducting an Office of Management and Budget Circular A-76 cost comparison, after selection of a private-sector offeror, two cost comparisons, and two General Accounting Office protests, is denied where agency reasonably based its decision on the cumulative impact of uncertainty generated by pending agency management decisions with the potential to substantially affect the solicitation's workload, workload changes that occurred before and after a recent agency reorganization, and the uncertainty associated with the full impact of that reorganization.
SDS International, Inc., B-291183.4; B-291183.5, April 28, 2003.
DIGEST: 1. Agency reasonably exercised discretion in implementing recommendation made in GAO decision, which sustained a protest on the basis that the agency misevaluated one of the three evaluation subfactors of the mission capability factor included in the solicitation, when it decided to not reopen discussions, to not reevaluate past performance (because GAO denied the protest of this evaluation), and to evaluate all subfactors of the mission capability factor.
2. Agency reasonably determined that the strengths in the awardee's proposal that were found to be a significant benefit to the agency were sufficient to offset the price advantage of the protester's proposal, which did not offer comparable strengths.
Atlantic Coast Contracting, Inc., B-291893, April 24, 2003.
DIGEST: Protest that requirement in solicitation for a food services procurement for clean, available dinnerware and utensils with zero deviation unduly restricts competition is denied where the protester fails to refute agency's position that these performance standards are necessary to protect the health of its personnel.
Exelon Services Federal Group, B-291934, April 23, 2003.
DIGEST: Agency evaluation of past performance is unobjectionable where protester's past performance record included adverse information, the agency pointed out the evaluated problem past performance areas during discussions and considered the protester's explanations, including its disagreement with aspects of the underlying negative information, and reasonably concluded that a moderate risk rating was warranted.
MarLaw-Arco MFPD Management, B-291875, April 23, 2003.
DIGEST: 1. Discussions were meaningful where agency provided the offeror with written questions that specifically identified the areas of concern with the offeror's technical proposal and provided the offeror with an opportunity to revise its proposal.
2. Where offeror's price was reasonable based on the agency's price analysis, the agency was not required to inform the offeror during discussions that its price was significantly higher than competing offerors' prices.
3. Protest that incumbent's specific experience in property disposition inventory for the Department of Housing and Urban Development (HUD) should have resulted in its proposal being rated superior to proposals from offerors with extensive property management service experience but not HUD property disposition inventory experience, is denied, where the solicitation considered property management experience of the type and purpose of these offerors to be comparable to experience managing HUD's property disposition inventory, and the protester's advantages as the incumbent were offset by other aspects of its proposal.
M.K. Taylor, Jr. Contractors, Inc., B-291730.2, April 23, 2003.
DIGEST: Where agency's required quantity of services increased substantially after issuance of solicitation, agency improperly failed to issue amendment notifying all offerors of the changed requirements; however, since, by protester's own calculations, increased quantities would not have led protester to reduce its price sufficiently to give it a substantial chance of receiving the award, protester was not prejudiced by agency's actions and there thus is no basis to sustain protest.
Martin Electronics, Inc.--Costs, B-291732.2, April 22, 2003. Army procurement.
DIGEST: Agency unduly delayed taking corrective action until after submission of the supplemental agency report, the protester's comments on that supplemental report, and a hearing notice, in the face of a clearly meritorious protest that the agency's selection of one awardee was unreasonable and unsupported and that the agency's evaluation of another awardee's proposal was inconsistent with the solicitation's stated evaluation criteria; accordingly, General Accounting Office recommends that the protester be reimbursed for the costs of filing and pursuing its protest.
T Square Logistics Services Corporation, B-291851, April 15, 2003.
DIGEST: Agency's evaluation of the awardee's oral presentation under two subfactors to the technical approach evaluation factor as blue/excellent in all respects was unreasonable where the awardee did not address the subfactors during its oral presentation.
East Penn Manufacturing Company, Inc.--Costs, B-291503.4, April 10, 2003.
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.
Computer Universal, Inc., B-291890; B-291890.2, April 8, 2003.
DIGEST: Protester was not unfairly denied opportunity to compete under Federal Supply Schedule acquisition, where it does not hold schedule contract to provide requested services, and agency reasonably determined that protester was not capable of providing such services.
Paragon Van Lines, Inc., B-291820.2; B-291913, April 8, 2003.
DIGEST: Agency had compelling reason to cancel an invitation for bids containing inconsistent provisions regarding the performance period and outdated Service Contract Act wage determinations.
Verestar Government Services Group, B-291854; B-291854.2, April 3, 2003.
DIGEST: 1. Allegation that agency improperly made affirmative determination of responsibility does not raise serious concern that the contracting officer failed to consider available relevant information where the developed record establishes that extant adverse information cited in protest as evidencing the impropriety of the determination was considered by the contracting officer, who concluded that it did not warrant a nonresponsibility determination in light of an array of mitigating information that was also assessed by the contracting officer.
2. Cost realism analysis of proposal for fixed-price contract was not required where the solicitation provided for waiver where, as here, more than one acceptable proposal was received; to the extent such an analysis was performed, agency reasonably concluded that awardee's particular technical approach and industry cost trends established realism of proposed price, even though that price is substantially below both the protester's price and the price at which the awardee/incumbent is currently performing the requirement.
3. Under a “best value” procurement in which non-price factors are more important than price factors, award on the basis that the significantly lower priced proposal represents the best value to the government is unobjectionable because it is consistent with the evaluation criteria where the proposals were reasonably evaluated as essentially equal overall under the non-price factors.
EADS North America, Inc., B-291805, March 26, 2003.
DIGEST: Statutory provision precluding use of appropriated funds to lease aircraft “under any contract entered into under any procurement procedures other than pursuant to” the Competition in Contracting Act of 1984 (CICA) did not preclude agency from awarding a lease on a sole-source basis; although CICA generally mandates use of competitive procedures, 10 U.S.C. § 2304(a)(1)(A) (2000), it also specifically provides that “other than competitive procedures” may be used under certain limited circumstances, including where, as here, the agency determines that the agency's need can be met by only one responsible source. 10 U.S.C. § 2304(c)(1).
GROH GmbH, B-291980, March 26, 2003.
DIGEST: Protest that contracting agency improperly rejected proposal sent by facsimile as late is denied where the record does not establish that the agency timely received the protester's proposal and where, in any event, the solicitation did not include the clause authorizing submission of proposals by facsimile; notwithstanding the e-mail advice sent to the protester by the agency's point of contact, authorization for submission of facsimile proposals concerns the preparation of proposals and must be furnished to all offerors.
Gentex Corporation--Western Operations, B-291793; B-291793.2; B-291793.3, March 25, 2003.
DIGEST: 1. Notwithstanding notice that competition was limited to firms that held prior contracts under a program definition and risk reduction contract for aircrew masks, a subcontractor was reasonably found to be eligible to compete under the terms of the subsequent solicitation for the development contract for the aircrew masks.
2. Protest that agency's inadvertent release of evaluation material resulted in an unfair competition is denied, where the record shows that the release did not provide the awardee with an unfair competitive advantage or competitively prejudice the protester.
3. Agency reasonably evaluated awardee's proposal under a solicitation for the development of aircrew masks, where the record shows that the agency fairly and reasonably considered the respective strengths and weaknesses of each proposal in accordance with the evaluation criteria and determined that the awardee's proposal was superior.
4. In a solicitation for the development of aircrew masks, agency did not hold unequal discussions regarding the affordability of one aspect of the masks, even though the agency asked the awardee, but not the protester, a specific question on this matter, where the record shows that the protester was already aware of the information provided to awardee and was permitted an equal opportunity to respond.
5. Agency reasonably assigned a weakness to the protester's proposal for failing to comply with the funding profile identified by the agency, where consideration of funding constraints was reasonably encompassed within solicitation evaluation criteria.
6. Where agency inquired whether awardee would consider variation in quantities and warranty clauses, technical transfusion did not occur, even though these clauses had been previously offered by the protester, because agency did not disclose innovative and unique approaches of the protester and the questions on these matters were neutral on their face.
7. Agency performed a reasonable cost realism analysis on the cost-reimbursement component and a reasonable price analysis on the fixed-price components of a procurement for the development of aircrew masks.
Kellogg Brown & Root, Inc., B-291769, B-291769.2, March 24, 2003
DIGEST: Agency reasonably eliminated protester's proposal from consideration on the basis of the proposal's failure to propose adequate staffing levels to perform multiple solicitation requirements and the proposal's unacceptable phase-in plan reflecting an intent to begin contract performance with a majority of employees who were not completely trained and certified to perform all contract requirements.
LBM, Inc., B-291775, March 21, 2003.
DIGEST: 1. Protest that agency miscalculated in-house performance costs (associated with federal pay raise assumptions) in Office of Management and Budget Circular A-76 cost study is denied where record shows that agency's calculations were in accordance with policy guidelines, and calculations reflect actual costs agency will experience during first period of performance.
2. Protest that agency improperly failed to include certain direct costs in preparing agency in-house cost estimate is denied where record shows that agency properly treated costs as “wash” costs, consistent with applicable guidance.
3. Protest allegations that involve dollar amount insufficient to change outcome of Office of Management and Budget Circular A-76 cost study are denied where, even if protester were correct in its allegations, correction of the alleged errors would not change the study's outcome.
QuanTech, Inc.--Costs, B-291226.3, March 17, 2003.
DIGEST: General Accounting Office declines to recommend that protester be reimbursed its protest costs where the agency promptly took corrective action in response to a supplemental protest.
C Construction Co., Inc., B-291747, March 17, 2003.
DIGEST: 1. Technical evaluation of protester's proposal resulting in less than highest ratings under the past performance, management, and small business factors was unobjectionable where record establishes that agency followed stated evaluation criteria and ratings have a reasonable basis.
2. Protest that agency improperly evaluated awardees' bonding capability is denied where evaluation scheme did not call for the same level of information as a bid bond evaluation in sealed bid procurement, and awardees' proposals included sufficient information for agency reasonably to conclude that the offerors possessed the requisite capability.
Performance Excavators, Inc., B-291771, March 17, 2003.
DIGEST: The Presidio Trust, a wholly-owned government corporation, is not subject to the General Accounting Office's bid protest jurisdiction under the Competition in Contracting Act of 1984 (CICA), since the Trust is statutorily exempt from all federal procurement laws and regulations but for certain enumerated exceptions that do not include CICA.
Admiral Towing and Barge Company, B-291849; B-291849.2, March 6, 2003.
DIGEST: Agency properly amended solicitation to become a 100-percent set-aside for small businesses where the agency reasonably determined, based upon the proposals it received from small businesses, that it could reasonably expect after discussions to receive proposals from at least two small business concerns capable of performing the contract and that award would be at a fair market price.
Alpha Marine Services, LLC, B-291721; B-291721.3, March 5, 2003.
DIGEST: 1. Protester's interpretation of solicitation provision as requiring agency to make award based on lowest overall cost (to be determined by application of various cost-related factors not specified in the solicitation) is unreasonable when the solicitation is read as a whole and in a manner giving effect to all of its provisions; the only reasonable interpretation is that award would be made to the offeror with the lowest overall price proposed, calculated using only those factors set out in the solicitation.
2. Protest that awardee's proposal for tugboat services should have been found technically unacceptable in various areas is denied where the record shows that the agency reasonably concluded that the proposal demonstrated that the tugboats to be used to perform the services would comply with the technical requirements in the solicitation and protest essentially reflects disagreement with the agency's judgment.
Cherokee Information Services, Inc., B-291718, March 3, 2003.
DIGEST: Protest that agency failed to make award on the basis of the lowest-priced proposal that had been included in the competitive range is denied where this contention is based on the protester's unreasonable interpretation of the solicitation, which contemplated award on the basis of a price/technical tradeoff.
SAMS El Segundo, LLC, B-291620.3, February 25, 2003.
DIGEST: 1. Reasonableness of agency's evaluation of offerors' proposed costs or prices is governed by the type of contract to be awarded.
2. Protester's challenge that contracting agency improperly evaluated the prices proposed by the selected offeror is denied where the record shows that the evaluation was reasonable and consistent with the stated evaluation criteria.
SRS Technologies, B-291618.2; B-291618.3, February 24, 2003.
DIGEST: Under a solicitation for a cost reimbursement contract for services that did not prohibit or limit the use of uncompensated overtime, the agency unreasonably raised the protester's evaluated costs in the cost realism analysis to remove the impact on the protester's proposed labor rates based on its use of uncompensated overtime from its labor costs.
Integration Technologies Group, Inc., B-291657, February 13, 2003.
DIGEST: Protest that small business concern awardee, under solicitation for nationwide computer and printer maintenance, misrepresented status of a large business firm as a member of its team is sustained where discussions between the awardee and its proposed large business subcontractor had consisted of essentially nothing more than the large firm's transmittal of a proposal to perform nearly all of the work, which the awardee recognized was unacceptable under the solicitation limitation on subcontracting; and the misrepresentation regarding the large firm's participation had a significant impact on the evaluation.
Garner Multimedia, Inc., B-291651, February 11, 2003.
DIGEST: On a competition among Federal Supply Schedule vendors, where technical proposals are requested and award was to be to the vendor submitting lowest priced technically acceptable quotation, agency lacked reasonable basis to reject lowest priced quotation as technically unacceptable where the solicitation contained no information about what information was expected in the technical proposal and the proposal addressed, and did not simply repeat, the statement of work tasks incorporated into the solicitation.
Nutech Laundry & Textiles, Inc., B-291739, February 10, 2003.
DIGEST: Agency properly cancelled solicitation, issued as a small business set-aside, where the agency could not determine that the protester's proposed price, which exceeded the government estimate by more than 50 percent and was almost double the offer of a large business, was fair and reasonable.
Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003.
DIGEST: Protest sustained where agency effectively determined small business, which submitted sole proposal on section 8(a) set-aside, to be nonresponsible based solely on what amounted to pass/fail evaluation of the protester's past performance, without referring the matter to the Small Business Administration under certificate of competency procedures.
Payne Construction, B-291629, February 4, 2003.
DIGEST: Agency should have considered protester's quotation where it was received prior to agency's commencement of quotation evaluation and other vendors would not have been prejudiced.
SAMS El Segundo, LLC, B-291620; B-291620.2, February 3, 2003.
DIGEST: 1. General Accounting Office has bid protest jurisdiction to consider protest where, notwithstanding the concomitant sale of government real property, the transaction includes the procurement of property or services by the government.
2. Protest that contracting agency improperly evaluated selected offeror's technical proposal is denied where the record shows that the evaluation was reasonable and consistent with the stated evaluation criteria.
3. Where solicitation provides for evaluation of past performance on the basis of projects completed within the 5 years preceding the closing date for receipt of proposals, agency properly elected not to consider selected offeror's past performance outside this 5-year period.
4. Protest challenging agency's source selection decision is denied where the record shows that the decision was reasonable and consistent with the stated “best value” evaluation criteria; the source selection authority reasonably determined that the proposals were technically equal, notwithstanding the assigned evaluation ratings, and that the selected offeror's proposal represented a lower overall cost to the government.
AllWorld Language Consultants, Inc., B-291409.3, January 28, 2003.
DIGEST: Protest that agency was biased against protester is denied where evidence does not demonstrate that agency acted to harm the protester and, in any case, there is no showing that any alleged bias affected the protester's competitive position.
Use of Appropriated Funds to Purchase Light Refreshments at Conferences, B-288266, January 27, 2003.
DIGEST: 1. The General Services Administration (GSA), through its travel regulation on conference planning, purports to authorize federal agencies to pay for light refreshments at official government-sponsored conferences where a majority of the attendees are in travel status. 41 C.F.R. § 301-74.11. While GSA is authorized to define subsistence for travelers to include light refreshments, 5 U.S.C. § 5702, GSA does not have the authority to authorize agencies to pay for light refreshments for those not in travel status.
2. The Comptroller General is required to settle the accounts of the United States. 31 U.S.C. § 3526(a). Pursuant to his account settlement authority, the Comptroller General can take exception to an improper transaction and refuse to relieve a certifying officer from personal liability for the amount of money improperly expended. Certifying officers are afforded protection from personal liability by relying on decisions of the Comptroller General concerning the legality of payments disbursing officers may make, or of expenditures covered by vouchers presented to certifying officers for certification. 31 U.S.C. § 3529. Since Congress reposed the authority in the Comptroller General to settle the accounts of the government, certifying officers should not rely on GSA's travel regulation on conference planning to authorize light refreshments at meetings for employees in nontravel status.
3. As a general proposition, absent statutory authority, appropriated funds are not available to feed government employees at their duty station. The Comptroller General has identified other authorities that, in certain circumstances, permit the use of appropriated funds to pay for meals and light refreshments. Agencies (and their accountable officers) should rely on existing, relevant statutory authority as interpreted by the Comptroller General to determine whether they may provide food to federal employees.
Datastream Systems, Inc., B-291653, January 24, 2003.
DIGEST: Protest that contracting agency improperly relaxed solicitation's technical requirement that a computerized maintenance management system be web-based by accepting for award a system that requires the use of a software “plug-in” program (which was not included in the awardee's proposal) in order to be fully web-based is denied where the protester has not established competitive prejudice as a result of the waiver.
Burns and Roe Services Corporation, B-291530, January 23, 2003.
DIGEST: 1. Agency properly considered the particular benefit associated with an offeror’s experience as the incumbent contractor in making its source selection where the solicitation advised offerors that corporate experience was an evaluation factor.
2. Agency’s evaluation of the protester’s proposal under a small business program support evaluation criterion was unreasonable where the protester submitted its proposal as a teaming agreement/joint venture between a large business and a small business, and the agency considered only the protester’s reliance on small business subcontractors, but not whether the protester’s performance entailed the participation of a small business.
HpkWebDac, B-291538.2, January 22, 2003.
DIGEST: Protest of agency's evaluation of protester's quotation is denied where the record shows that evaluation was reasonable and consistent with solicitation evaluation criteria.[FN—HpkWebDac's assertion that the individual representing the agency in preparing the agency report on this protest is not a lawyer provides no basis to challenge the award. There is no requirement that a lawyer represent the agency in a protest.]
Synoptic Systems Corporation; Contract Services, Inc., B-290789.4, B-290789.5, January 22, 2003.
DIGEST: 1. Protester's assertion that solicitation was “devoid” of any requirements regarding proposal content is without merit where request for proposals (RFP) § M listed multiple evaluation factors and subfactors, RFP § L contained separate instruction paragraphs for each evaluation factor and subfactor describing information offerors were expected to provide, and the solicitation advised offerors that “proposals may be considered technically unacceptable due to lack of minimum content or failure to address all evaluated areas.”
2. Agency reasonably evaluated protesters' proposals as unacceptable where evaluation record supports source selection authority's conclusion that both protesters' proposals failed to comply with multiple solicitation requirements.
Northrop Grumman Technical Services, Inc.; Raytheon Technical, B-291506; B-291506.2; B-291506.3; B-291506.4, January 14, 2003.
DIGEST: 1. In a negotiated procurement contemplating award based upon a cost/technical tradeoff, protest that the agency abandoned the point-scoring feature of an evaluation tool identified in the solicitation is denied, where the point scoring feature was not required by the award evaluation scheme announced in the solicitation and the agency's use of an adjectival evaluation comported with the solicitation's “best value” scheme.
2. Protest asserting that protester's proposal was unreasonably downgraded for low proposed staffing level is denied where the agency reasonably determined, consistent with the solicitation, that the proposed staffing level, although acceptable, was low and posed performance risks.
3. Protest objecting to agency's cost evaluation and assessment of weaknesses and risk in protester's technical proposal relating to the protester's proposed personnel based upon the cost evaluation analysis of protester's labor rates is denied, where the agency's assessment was reasonably based upon information provided by protester in its proposal and during discussions, and the solicitation provided that the agency may consider the cost evaluation in the evaluation of technical proposals.
4. Protest challenging awardee's “excellent” past performance rating is denied where, in evaluating the past performance of a joint venture, the agency, consistent with the solicitation, reasonably considered the past performance of the awardee's joint venture members and major subcontractor.
SKJ & Associates, Inc., B-291533, January 13, 2003.
DIGEST: Agency did not have a reasonable basis to reject the protester's quotation under request for quotations (RFQ) for training services where the RFQ required submission of a technical proposal but gave no guidance as to its content or how it would be evaluated; the protester submitted a technical proposal; and the agency then rejected the proposal as “unresponsive” because it was too short and too general and failed to provide evidence that the firm understood how to perform the work or to include a plan showing how the firm would implement the substance of the work.
Department of the Army--Request for Modification of Recommendation, B-290682.2, January 9, 2003.
DIGEST: Agency request for modification of recommendation in LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD ¶ 157, to recognize that the agency may limit the competition to small business holders of indefinite-delivery/indefinite-quantity contracts in conducting a small business set-aside required by Federal Acquisition Regulation § 19.502-2(b) is denied because the Competition in Contracting Act of 1984 provides for full and open competition among eligible small business concerns for acquisitions required to be set aside for small businesses.
The Austin Company, B-291482, January 7, 2003.
DIGEST: In procurement for the design and construction of a laboratory to conduct research of toxic chemical warfare agents, agency properly excluded protester's proposal from the competitive range where protester's proposal was reasonably evaluated as requiring a virtual rewrite due to its failure to comply with the solicitation requirements under each of four evaluation factors.
Kira, Inc.; All Star Maintenance, Inc., B-291507; B-291507.2, January 7, 2003.
DIGEST: Where proposals were reasonably evaluated as technically equal in the area of past performance (the only technical evaluation factor), agency reasonably selected for award the proposal of the firm proposing the lowest price. [Only evaluation factors were past performance and price.]
Raytheon Company, B-291449, January 7, 2003.
DIGEST: In making source selection on procurement for development of advanced beyond-line-of-sight terminals, source selection authority (SSA) acted within scope of authority and reasonably in (1) lowering awardee's proposal's risk rating from high risk, assessed by lower‑level evaluators because of concerns about its antenna design on two of seven proposed platforms, to low risk, based on SSA's determination that this did not represent significant weakness because of non‑technical programmatic considerations and awardee's mitigation plan addressing this weakness, and (2) increasing a weakness, assessed by lower-level evaluators to protester's proposal associated with protester's proposed reuse of legacy code written using Ada computer language, to a significant weakness, because this weakness had systemic effect that could inhibit long-term benefits of entire system.
MCI WorldCom Deutschland GmbH, B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6, January 2, 2003.
DIGEST: Agency's inclusion of a clause in solicitations for telecommunication circuits between various United States military installations located in European nations that are members of the North Atlantic Treaty Organization (NATO), requiring that telecommunication providers (TP) be accredited by the National Long Lines Agency (NALLA) of the NATO nation or nations where the military installations are located, is unobjectionable, where the record establishes that the provision of the services by NALLA-accredited TPs is reasonably related to the agency's needs.
U.S. Department of Education's Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, December 30, 2002.
DIGEST: We conclude that (1) for grants, the principle of severability is irrelevant to a bona fide need determination, (2) a bona fide need analysis in the grant context focuses on whether the grants are made during the period of availability of the appropriation charged and further the authorized purposes of program legislation, (3) beginning in fiscal year 2002, Education's award of Early Childhood Educator program grants up to 4 years in duration is explicitly permitted by program authority and fulfills a bona fide need of the period for which the funds used are available, and (4) Education's award of 5-year GEAR UP grants during fiscal year 2001 and 2002 and 2-year Early Childhood Educator grants during fiscal year 2001 is in accordance with the program legislation and fulfills a bona fide need of the period for which the funds used are available.
USA Information Systems, Inc., B-291417, December 30, 2002.
DIGEST: 1. The provisions of the Small Business Act, as amended, concerning bundling are not applicable to a solicitation that does not reflect the consolidation of services previously performed under separate smaller contracts; all of the services covered by the solicitation at issue were performed under one predecessor contract.
2. Agency has a reasonable basis to require a single web-based information retrieval system for on-line documentation as opposed to obtaining this information from multiple vendors, where it has reasonably determined that a “one stop shop” solution is critical to the agency's national defense mission.
Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002.
DIGEST: Protest that agency established unreasonably short deadline to respond to request for quotations issued under the Federal Supply Schedule program is denied, where protester essentially admits it could have timely responded but chose not to.
The CDM Group, Inc., B-291304.2, December 23, 2002.
DIGEST: Where an agency solicited a requirement under the Federal Supply Schedule (FSS) program, it properly rejected a quote from a vendor that did not possess a FSS contract covering the solicited requirement.
Consolidated Engineering Services, Inc., B-291345; B-291345.2, December 23, 2002.
DIGEST: Protest is sustained where the record fails to reasonably support the agency's decision to eliminate from consideration as technically unacceptable the only proposal received from a commercial offeror in the private-sector portion of the competition conducted pursuant to Office of Management and Budget Circular A-76.
Martin Electronics, Inc., B-290846.3; B-290846.4, December 23, 2002.
DIGEST: Protest is sustained where agency conducted exchanges with offerors in a manner that favored one over the other and where, in evaluating awardee's past performance, agency failed to include consideration of negative past performance information that occurred within the period defined by the solicitation as “recent” contract performance.
Landoll Corporation, B-291381; B-291381.2; B-291381.3, December 23, 2002. Air Force
DIGEST: 1. Agency reasonably evaluated awardee's past performance as “exceptional/high confidence” and protester's past performance as “satisfactory/confidence” where record shows that awardee's exemplary past performance was on “very relevant” contracts, while protester's generally positive past performance was on “semi‑relevant” contracts.
2. Contention that agency acted improperly in seeking clarification of one matter from awardee but not requesting clarification of other matters from protester is denied where agency is not generally required to seek clarification from all offerors and protester has not explained how its competitive position would have been affected if agency had sought the clarifications at issue here.
3. Protest that agency unreasonably evaluated the protester's and awardee's proposals is denied where the record shows the agency's evaluation of the proposals was reasonable and the protester's contentions represent only its disagreement with the agency's evaluation.
4. Protest that awardee's price was ambiguous is denied where the proposal was clear with regard to its proposed prices and conforms to the terms of the RFP.
Alpha Data Corporation, B-291423, December 20, 2002.
DIGEST: 1. Agency reasonably ranked protester's proposal lower than other offerors' proposals under past performance evaluation factor where prime contractor had not performed the type of work solicited, and prime contractors for other offerors had performed such work.
2. Where solicitation provided for price reasonableness to be established through price competition and by comparing proposed labor rates to industry labor rates or labor rates from other contracts for similar work, agency was not required to compare sample task prices to government baseline to determine price reasonableness.
U.S. Textiles, Inc., B-289685.3, December 19, 2002.
DIGEST: Agency reasonably attributed experience/past performance of an affiliated, foreign company to a domestic offeror where the offeror proposed to relocate required specialized equipment from the foreign affiliate's facilities to new domestic production facility, train senior supervisory personnel at the foreign affiliate's facilities (where item being procured currently is being produced), and have the foreign affiliate's management and senior technical personnel be involved in training and be “hands on” at the new domestic facility.
Jacobs COGEMA, LLC, B-290125.2; B-290125.3, December 18, 2002.
DIGEST:1. Statutory provision enacted after proposals were evaluated but before source selection decision was made, which directs Secretary of Energy to, “notwithstanding any other provision of law,” ask offerors to confirm or reinstate their offers within a certain time, select for award of a contract the “best value of proposals” for the solicitation's scope of work within 30 days of enactment, and negotiate with the awardee for certain contract modifications, does not remove the procurement from the coverage of the ordinarily applicable procurement laws and regulations, including those governing General Accounting Office jurisdiction over a protest of the procurement, where the statutory provision's requirements are not inconsistent with these ordinarily applicable procurement laws and regulations.
2. Protest that contracting agency improperly evaluated offerors' technical and cost proposals is denied where the record shows that the evaluation was reasonable and consistent with the stated evaluation criteria; source selection decision based upon the evaluation results was also reasonable, consistent with the stated evaluation criteria, and well supported.
Engineering Services Unlimited, Inc., B-291275; B-291275.2, December 17, 2002.
DIGEST: 1. Contracting agency did not induce or coerce the protester into raising its proposed labor rates where the agency was reasonably concerned with protester's ability to attract and retain incumbent personnel, as the protester proposed, due to its low proposed labor rates and asked the protester during discussions to explain how it intended to attract and retain incumbent personnel at the rates proposed; the protester's decision to increase its proposed labor rates reflected the exercise of the firm's business judgment.
2. Protest that agency's negotiating techniques led to an impermissible auction is denied; agency's disclosure that an offeror's proposed labor rates were in certain instances materially lower than current wage rates did not constitute prohibited communications.
Bureau of Land Management: Payment of Pocatello Field Office, B-290901, December 16, 2002.
DIGEST: Photocopying services procured by a Bureau of Land Management field office from a commercial source in violation of 44 U.S.C. § 501, requiring that all such services be procured through the Government Printing O