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 Office absent a waiver, were not authorized and may not be paid with federal funds.
CSE Construction, B-291268.2, December 16, 2002.
DIGEST: 1. In a negotiated procurement for a fixed-price construction contract, based upon a price/technical tradeoff, the selection of the higher-rated, higher-priced proposal was unreasonable where the source selection authority did not credit the protester for its substantially lower proposed price, but improperly viewed the protester's low price as too low and demonstrating the protester's lack of understanding of contract requirements, where the solicitation did not provide for an evaluation of offerors' understanding.
2. Agency evaluated protester's and awardee's proposals unequally, where the two firms provided similar sparse information in response to a technical evaluation subfactor, but the protester's proposal received a lower technical rating.
ITT Federal Services International Corporation, B-289863.4; B-289863.6; B-289863.7; B-289863.8, December 16, 2002.
DIGEST: Protest challenging agency's cost realism evaluation is sustained where record shows that evaluation contained errors that, if corrected, could significantly reduce the amount of awardee's cost advantage, and also could affect the agency's technical evaluation of proposals, so that the award decision could be different.
The Right One Company, B-290751.8, December 9, 2002.
DIGEST: Protest that the agency improperly excluded protester's proposal from consideration for award is denied where the decision to eliminate the protester's proposal was reasonably based on a finding that protester's proposed rates for certain line items were unreasonably high.
Warden Associates, Inc., B-291238, December 9, 2002.
DIGEST: Agency was not required to conduct discussions with protester regarding evaluated weaknesses in its quotation where the quotation was effectively eliminated from consideration as unacceptable and, in any case, agency did not conduct discussions with other vendors.
All Seasons Construction, Inc., B-291166.2, December 6, 2002.
DIGEST: Contracting officer reasonably determined bid bond accompanied by power of attorney bearing computer printer-generated signatures unacceptable because signatures were not applied to the document after its creation and thus do not serve to authenticate its contents.
Ashland Sales and Service Company, B-291206, December 5, 2002.
DIGEST: 1. Protester's offered product demonstration model of jacket did not comply with unambiguous purchase description requirement that bartack stitches go through all plies of a jacket.
2. Under a solicitation where technical quality was more important than price, the source selection authority's (SSA) price/technical tradeoff determination selecting a slightly lower-priced proposal over a slightly higher-rated proposal was unreasonable, where the SSA relied on incorrect evaluation information that made the technical superiority of the higher-rated proposal appear significantly smaller than it actually was.
SDS International, Inc., B-291183; B-291183.2, December 2, 2002.
DIGEST: Selection of higher-priced, higher-rated proposal, instead of lower-priced, lower-rated one, was unreasonable where it was based in material part on an unsupported reported strength in the awardee's proposal. [But see subsequent protest]
USA Information Systems, Inc., B-291488, December 2, 2002.
DIGEST: In a procurement conducted by electronic commerce, where the solicitation materials were available only on the Internet, protest that it was improper for the agency to post an amendment with a short response time without specifically advising the protester is denied where the record shows that the protester failed to avail itself of every reasonable opportunity to obtain the amendment by either registering for e-mail notification or checking the Internet site, and that this failure was the reason the protester allegedly had insufficient time to protest the solicitation's terms.
ViaSat, Inc., B-291152; B-291152.2, November 26, 2002.
DIGEST: 1. Evaluation of protester's past performance as presenting a moderate performance risk is unobjectionable where the agency reasonably based the assessment on consideration of significantly negative performance evaluations under contracts that protester specified as relevant in its proposal; protester's explanations and attempts during discussions to minimize or disavow the relevance of the unfavorably rated performance and to disassociate itself from the adverse performance information were considered by the agency, which reasonably concluded that the explanations did not provide any basis to ignore the poor performance under relevant contracts listed and performed by the protester
2. Uniformly favorable assessments of awardee's past performance under numerous contracts that explicitly satisfied the relevancy criteria under the solicitation provided a reasonable basis for the agency to evaluate the awardee's past performance as presenting a low performance risk
3. Protester's contention that various alleged technical enhancements under its proposal were not considered and credited by agency is contradicted by the evaluation record, which reflects that the agency recognized the items at issue and gave protester evaluation credit in several instances where it was warranted, but reasonably declined to credit the protester for other features that constituted nothing beyond satisfying the solicitation requirements, or consisted of unsupported assertions that were not substantiated by the technical proposal
4. Where the record reflects that agency's evaluation of technical proposals is reasonable and consistent with the solicitation evaluation criteria, protester's repeated disagreements concerning the relative merits of different areas of the respective proposals does not provide a valid basis to question the propriety of the evaluation
5. Agency's cost realism analysis was reasonably based in part on favorable Defense Contract Audit Agency (DCAA) reports that were provided orally to agency during course of evaluation, as evidenced by e-mail, even though a final DCAA report confirming the previously conveyed interim evaluations was not transmitted until after the award determination had been made
6. Agency's cost/technical tradeoff and resulting award determination which is reasonable, documented and consistent with the solicitation criteria is unobjectionable.
Northeast Military Sales, Inc.; Fevata's Bakery, Inc.; Tony's Fine Foods;, B-291384, November 20, 2002.
DIGEST: Protest challenging the application of the Service Contract Act to a procurement for delicatessen and bakery operations at military commissaries is dismissed, where the Department of Labor (DOL) issued a wage determination applicable to the procurement in response to the procuring agency's notice of intent to make a service contract and the protesters did not request that DOL review the wage determination and its applicability to this particular procurement, as provided for in DOL's regulations.
Semont Travel, Inc., B-291179, November 20, 2002.
DIGEST: Award based on quotation that the agency considered unbalanced is unobjectionable where the agency considered the risk of unreasonably high prices for contract performance and reasonably determined that the unbalanced pricing did not pose an unacceptable level of risk to the government.
Global Communications Solutions, Inc., B-291113, November 15, 2002.
DIGEST: 1. Where a solicitation for an indefinite-delivery/indefinite-quantity contract contemplates only a single competitive source selection for specific items, based on the proposals submitted in response to the solicitation, and is not for work to be assigned based on further competitions among the awardees, the proscription contained in 10 U.S.C. § 2304c(d) against protests of individual task and delivery orders does not preclude GAO's bid protest jurisdiction.
2. Agency's interpretation of solicitation price evaluation scheme to consider only the prices for the first 3 years, rather than the 10-year pricing solicited from the offerors, in determining the awardees of certain line items was unreasonable where the solicitation unambiguously stated that awards were to be made on the basis of 10‑year pricing.
The Honorable Robert C. Byrd Chairman, Committee on Appropriations United States Senate, B-300192, November 13, 2002.
Summary: This responds to your letter of October 18, 2002, requesting our
opinion on the effect of section 117 of Pub L. No. 107-229, 116 Stat.
1465 (September 30, 2002) (the fiscal year 2003 Continuing
Resolution), as amended by section 4 of Pub. L. No. 107-240, 116 Stat.
1492 (October 11, 2002). Public Law 107-240 extended the fiscal year
2003 Continuing Resolution. For the reasons explained below, we
conclude that, under section 117, agencies are prohibited from using
any funds to implement the Office of Management and Budget (OMB)
Memorandum M-02-07 (hereafter, Memorandum),[1] including private
sector printing, and no funds are available to pay for the printing of
the President's Budget other than through the Government Printing
Office (GPO). Failure to abide by section 117 would constitute a
violation of the Antideficiency Act.
Network Security Technologies, Inc., B-290741.2, November 13, 2002.
DIGEST: 1. GAO finds convincing evidence that protester sought to obtain for purposes of drafting its comments on the agency's report--and did obtain from its attorney, who was admitted to GAO protective order--information to which it was fully aware it was not entitled because the information was covered by protective order; while deciding this case on the merits, GAO provides notice that, in a future case, it may impose the sanction of dismissal to protect the integrity of GAO's bid protest process, where, as here, protester has abused that process.
2. Protest challenging awardee's past performance evaluation is denied where agency properly considered the past performance record of the various member firms of the joint venture proposed to perform the contract.
Maryland Office Relocators, B-291092, November 12, 2002Where solicitation required that an offeror's fixed price for basic moving services include the cost of all required packing materials, but also specifically required the offeror to specify how many crates were included in its fixed price and the cost of additional crates, agency reasonably adjusted protester's evaluated price upward to reflect its finding that protester's proposal did not include a sufficient number of crates to perform the work.
ABF Freight System, Inc.; Old Dominion Freight Line, Inc.; Overnite, B-291185, November 8, 2002.
DIGEST: 1. Under a solicitation that provides for the award of multiple indefinite-delivery, indefinite-quantity contracts for freight transportation services, protest that the minimum order quantity is inadequate is denied, where the guaranteed minimum amount is sufficient to support a binding contract and reflects the minimum amount the agency is fairly certain to order from each contractor.
2. Protest that solicitation for an acquisition, conducted under the commercial item provisions of Federal Acquisition Regulation (FAR) Part 12, violates FAR § 47.207‑6(b) because the solicitation specifies unit pricing that offerors must use for “accessorial services” is denied, because the agency is not required to apply the requirements in FAR § 47.207-6(b) in a commercial item acquisition.
3. Protest objecting to solicitation requiring that certain accessorial services be provided at no additional charge and that the costs for these services be factored into offerors' line-haul rates is denied where the protesters did not show that the solicitation's allocation of cost risk to the contractors was unreasonable.
Priority One Services, Inc.--Costs, B-288836.5, November 8, 2002.
DIGEST: Request for reimbursement of costs of filing and pursuing a protest, which was recommended in a decision sustaining a protest of a procurement set-aside for small businesses, is denied where the protester was ineligible for award under the protested procurement because it was not a small business and the protester did not comply with the 13 C.F.R. § 121.1009(g)(3) (2001) requirement that it immediately notify responsible officials of an adverse size determination under the same size standard as included in the protested procurement.
OMNIPLEX World Services Corporation, B-291105, November 6, 2002.
DIGEST: Protest that contracting agency's award of a blanket purchase agreement to a firm pursuant to its federal supply schedule (FSS) contract was improper and contrary to the solicitation's terms is sustained where it is unclear from the record whether the services to be provided are within the scope of the offeror's FSS contract; the agency unreasonably determined that the offeror's proposal was technically acceptable; and the agency improperly failed to conduct the price realism evaluation required by the solicitation.
HMX, Inc., B-291102, November 4, 2002.
DIGEST: 1. Under a procurement conducted by the National Aeronautics and Space Administration (NASA) under a NASA research announcement (NRA) that required proposals to include detailed cost/price and technical data, and did not identify the procurement as one for commercial items under either Federal Acquisition Regulation Part 12 or the Commercial Space Act of 1998, a protest challenging the agency's rejection of a proposal for a commercial item that took exception to the NRA's stated data requirements is an untimely challenge to the terms of the NRA where the protest is first filed with the agency after the closing time for submitting proposals.
2. Agency evaluation reasonably found significant weaknesses in a proposal that failed to provide adequate data to support material aspects of the proposal, reasonably determined that proposal deserved a low overall rating, and reasonably rejected that proposal from further consideration.
Cantu Services, Inc., B-289666.2; B-289666.3, November 1, 2002.
DIGEST: Under solicitation subject to Randolph-Sheppard Act preference (establishing priority for the blind in the award of contract for cafeteria services), agency reasonably determined to include proposal by state licensing agency for the blind (SLA) in the competitive range where it was one of two proposals submitted, and received a higher technical evaluation, notwithstanding the fact that the SLA's proposal's most probable cost was higher.
Sea Box, Inc., B-291056, October 31, 2002.
DIGEST: Protest that agency improperly rejected proposal as late is denied where proposal was submitted electronically, and was not received at the initial point of entry to the government infrastructure by 5:00 p.m. 1 working day prior to the deadline for submitting proposals; the exception that permits consideration of late proposals that are received at the government installation, and under the government's control, prior to the deadline for submitting proposals, is inapplicable to proposals submitted electronically.
Forest Regeneration Services LLC, B-290998, October 30, 2002.
DIGEST:Challenge to agency's evaluation of protester's proposal is denied where the record shows that the agency reasonably evaluated the proposal in accordance with the solicitation's evaluation factors.[A rather unremarkable decision except for a remark by the GAO that the purpose of a debriefing is to furnish a basis for selection and award and the agency's discussion of other issues to help protestor write a better proposal the next time were misleading to protestor.-JAW]
Mnemonics, Inc., B-290961, October 28, 2002.
DIGEST: Where solicitation provided that technical evaluation factors would be evaluated against specified requirements on a “pass/fail” basis, and agency concluded that protester's proposal met all the stated “pass/fail” requirements, agency improperly excluded protester's proposal from the competitive range [deleted] because protester's proposal was “not among the most highly rated,” where the agency's determination was based on an assessment of proposals' “strengths” “weaknesses” and “deficiencies” under the factors that the solicitation indicated would be evaluated on a “pass/fail” basis, as well as under other undisclosed evaluation factors.
Intermark, Inc., B-290925, October 23, 2002.
DIGEST: Agency improperly withdrew small business set-aside in favor of full and open competition on basis that Randolph-Sheppard Act (RSA) State Licensing Agency (SLA), which is not a small business concern, expressed interest in requirement, and agency is required to consult with Secretary of Education with a view to making award to SLA under the RSA if its proposal is in competitive range; there is no basis for eliminating the set-aside altogether, since agency can serve the purpose of the RSA by issuing a solicitation that is generally restricted to small businesses but also provides for participation by the SLA in the procurement.
J.W. Holding Group & Associates, Inc., B-285882.11; B-285882.12, October 23, 2002.
DIGEST: Agency's new price realism determination was consistent with limitation on reopened discussions (which essentially restricted changes to price proposals) where, although it was based on staffing not clearly indicated in awardee's prior technical proposal, that staffing level was reflected in prior price proposal.
XO Communications, Inc., B-290981, October 22, 2002.
DIGEST: Agency reasonably determined that protester was nonresponsible where, in making the nonresponsibility determination immediately prior to the protester's bankruptcy filing, the contracting officer performed a detailed financial review which established that the firm's unsatisfactory and deteriorating financial condition made it an unacceptable financial risk; the contracting officer had recognized the implications of an anticipated bankruptcy filing and reasonably concluded that it was unlikely that the bankruptcy reorganization plan would significantly reduce the financial risk, and that, even if successful, the bankruptcy reorganization was itself likely to create contract performance risk.
Wrap-Up Insurance for the Capitol Visitor Center, B-290162, October 22, 2002.
The general rule is that the federal government self-insures its own risk of loss. 21 Comp. Gen. 928, 929 (1942); B-237654, Feb. 21, 1991. The rationale underlying the rule is that the magnitude of the government's resources makes it more economical and advantageous for the government to carry its own risks than to have them assumed by private insurers. 19 Comp. Gen. 211, 214 (1939). For the reasons stated below, if you determine that purchasing wrap-up insurance is reasonably necessary or incident to the accomplishment of the construction of the CVC and demonstrate that the rule's rationale does not apply to your situation, we would not object to the use of appropriated funds to purchase wrap-up insurance covering both the government's risks and the contractors' risks for the CVC project. To meet this burden, you could demonstrate that the use of wrap-up insurance would result in a savings or that a benefit, not otherwise obtainable, would be gained through the use of wrap-up insurance.
Servizi Aeroportuali, Srl, B-290863, October 15, 2002.
DIGEST: 1. Agency reasonably evaluated price proposals and properly tailored discussions where it advised the protester of the agency's concerns about the use of an employment tax credit on which the protester's proposal indicated its price was premised and did not similarly consider this matter in evaluating the awardee's price because there was no indication that the awardee's price was similarly premised.
2. Agency reasonably assigned the protester's and awardee's past performance the same rating of “better” where protester's performance on the most relevant contract was improving, but, considering the past 3 years was reasonably considered not “outstanding,” and the awardee's performance on less relevant contracts was highly rated.
3. Protest that the contracting agency unreasonably evaluated the protester's and awardee's oral presentations is denied where the record shows that the evaluation was reasonable; the protester's mere disagreement with the evaluation does not render the agency's judgment unreasonable.
PMTech, Inc., B-291082, October 11, 2002.
DIGEST: Protest challenging the agency's rejection of the protester's proposal as late under a negotiated procurement that required the electronic submission of proposals is denied, where the protester waited until 13 minutes before the time set for receipt of proposals to transmit its proposal electronically to the agency's web-site and only the cover sheet of the electronic proposal was received by the agency by the time specified.
Sprint Communications Company LP; Global Crossing, B-288413.11; B-288413.12, October 8, 2002.
DIGEST: Protests alleging material misrepresentation of an offeror's financial information submitted to the agency for the purposes of determining the offeror's responsibility is dismissed where the totality of circumstances make it inappropriate for the General Accounting Office to review this matter.
Networks Electronic Corporation, B-290666.3, September 30, 2002.
DIGEST: Protest challenging agency's decision to conduct recompetition as corrective action taken in response to a General Accounting Office protest is denied; there is no basis to conclude that the only legally permissible option is for the agency to make a directed award to the protester where the agency had conducted discussions after receipt of final proposals with only one offeror. The agency's remedy consisting of disclosure of comparable information to both offerors, after which new final proposals will be received, is unobjectionable in view of the broad discretion afforded to agencies in fashioning corrective action.
Shumaker Trucking and Excavating Contractors, Inc., B-290732, September 25, 20021.
DIGEST:
DIGEST: 1.Challenge to agency's evaluation of protester's proposal is denied where the record shows that the agency reasonably evaluated the protester's proposal in accordance with the solicitation's evaluation factors.
2. Agency's decision to select a higher technically rated, higher priced proposal is unreasonable where the record shows that the agency mechanically applied the solicitation's evaluation methodology; neither the source selection documentation nor the evaluation record establish a valid rationale for why the agency found the higher priced, higher technically rated proposal to be most advantageous to the government.
KPMG Consulting LLP, B-290716; B-290716.2, September 23, 2002.
DIGEST: 1. Under a request for quotations (RFQ) issued in a competitive procurement under the Federal Supply Schedule, where the RFQ does not contain a late quotation clause, the contracting agency may accept quotation modifications received prior to the source selection if acceptance will not prejudice the other competitors.
2. In a competitive procurement under the Federal Supply Schedule program with a stated “best value” evaluation plan whereby the technical factor is significantly more important than all the other factors combined and price is the least important factor, the contracting agency's decision to select a substantially higher-priced quotation, even though the lower-level evaluation did not produce ratings that showed a significant overall difference in technical merit between the quotations, is reasonable where the higher-level evaluators and source selection authority reasonably identified significant advantages in technical merit in the higher-priced quotation, consistent with the evaluation criteria stated in the solicitation, which justified an award based on the higher-priced quotation.
LBM, Inc., B-290682, September 18, 2002.
DIGEST: 1. The statutory limitation on General Accounting Office's bid protest jurisdiction over challenges to the award or proposed award of a task order under an indefinite-delivery/indefinite-quantity contract does not apply to a protest challenging the transfer to that contract vehicle of an acquisition for services that had been previously set aside exclusively for small businesses without regard to the Federal Acquisition Regulation § 19.502‑2(b) requirements pertaining to small business set‑asides; this is a challenge to the terms of the underlying solicitation.
2. Protest that the transfer of the acquisition of motor pool transportation services at a particular installation to a multiple-award, indefinite-delivery/indefinite-quantity (ID/IQ) task order contract violates the requirement in Federal Acquisition Regulation § 19.502-2(b) to set aside acquisitions for small businesses where there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns is sustained, where the record shows that the agency did not consider the application of this regulation in transferring the acquisition of these services to the ID/IQ contract, even though this work had been set aside for small businesses, and there were at least two small businesses who have performed these services.
REEP, Inc., B-290665, September 17, 2002.
DIGEST: Protest against agency's issuance of delivery orders under Federal Supply Schedule (FSS) is sustained, where agency issued orders to firm that was only vendor on one schedule within the FSS, identical services were available at lower price from protester and other vendors on another schedule within the FSS , and agency had knowledge that the services were available under the second schedule; since agency must review information reasonably available before awarding FSS delivery orders, it could not make award without reviewing vendors' prices on second schedule.
TRS Research, B-290644, September 13, 2002.
DIGEST: 1. Protest of consolidated procurement is sustained where solicitation consolidated procurement requirements previously provided under separate smaller contracts, and was likely to be unsuitable for award to a small business, and thus constituted a bundled procurement, and record shows that agency failed to comply with requirements to demonstrate that bundling was justified.
2. Agency improperly failed to coordinate its anticipated consolidated procurement with the Small Business Administration, as required by statute and regulation, since small business contractors currently perform work included in the consolidated procurement and magnitude of the consolidated procurement renders small business participation unlikely.
Colorado Construction Corporation, B-290960, September 6, 2002.
DIGEST: Agency's rejection of a bid submitted in response to a solicitation set-aside for Indian economic enterprises is unobjectionable where the agency reasonably questioned whether the Native American owner of the enterprise would be involved in the daily business management of the enterprise and whether the majority of the earnings from the contract would accrue to the Native American owner.
M&S Farms, Inc., B-290599, September 5, 2002.
DIGEST: Agency's source selection decision under a “best value” selection plan is unreasonable where the evaluation and selection decision contain material defects under all of the evaluation criteria, including price, such that the agency has not made a cost/technical tradeoff determination that reasonably considers the relative merits of the proposals.
Shinwha Electronics, B-290603; B-290603.2; B-290931; B-290932, B-290932.2, B-291064, September 3, 2002.
DIGEST: 1. Protest that offeror was improperly suspended from receiving government contracts is denied where there is no evidence that the agency acted arbitrarily to avoid making an award to an offeror otherwise entitled to award and where the minimum standards of due process have been met.
2. General Accounting Office, under its bid protest function, will no longer review protests that an agency improperly suspended or debarred a contractor, as the contracting agency is the appropriate forum for suspension and debarment disputes.
Information Ventures, Inc., B-290785, August 26, 2002.
DIGEST: Protest that contracting agency improperly failed to investigate whether competition existed to perform requirements prior to awarding a sole-source contract to perform such requirements is denied where the procurement was under simplified acquisition procedures and where the record showed that the contracting officer reasonably determined that, under the circumstances of the contract action, only one source was reasonably available.
Omega World Travel, Inc.; SatoTravel, Inc., B-288861.5; B-288861.6; B-288861.7, August 21, 2002
DIGEST: 1. Agency consideration of discount offered by firm for award of contracts for all regions listed under solicitation, and award to that firm of contracts for all regions, is unobjectionable and consistent with solicitation evaluation and award provisions, which contemplated multiple awards but permitted awards for any combination of regions.
2. Agency properly declined to consider contingent discount offered by protester under solicitation that called for fixed prices.
3. Agency properly declined to consider “alternative” monthly management fee pricing structure that did not provide any prices on the basis of transaction fees, as required by the solicitation.
4. Agency reasonably did not downgrade proposal under past performance evaluation factor because of 5-year old contract fee dispute under predecessor contract that did not affect contract performance and that had been resolved by a settlement favorable to the offeror.
Sabreliner Corporation, B-290515; B-290515.2; B-290515.3, August 21, 2002.
DIGEST: 1. Agency's evaluation of the protester's and awardee's past performance is unobjectionable where the evaluation was reasonably based and consistent with
the evaluation criteria set forth in the solicitation and applicable statutes and regulations.
2. The integrity of the protest process does not permit a protester to argue that the agency improperly interpreted the solicitation and governing regulations as allowing the successful contractor to purchase materials for use in the contract directly from the government where the protester was informed of, shared, and benefited from that interpretation during the procurement process.
3. Agency's determination that the awardee's proposal was acceptable cannot be considered reasonable where the contemporaneous record does not evidence that the agency meaningfully evaluated a relevant and apparently significant section of the awardee's technical proposal, and the agency, in defending the protest, states that its intent is to enter into post-award negotiations with the awardee regarding
the protested aspects of the awardee's technical approach that should have been evaluated during the procurement process.
Bath Iron Works Corporation, B-290470; B-290470.2, August 19, 2002.
DIGEST: 1. Protest that agency failed to conduct competition (for naval surface combatant design and risk reduction work) on a common basis when it denied protester use of a decommissioned destroyer for at-sea testing while at the same time accepting for purposes of the evaluation awardee's proposed use, is denied where there would have been no material technical benefit to protester from proposing the destroyer and its failure to propose it did not materially affect the evaluation; protester therefore was not competitively prejudiced by any unequal treatment.
2. Protest that likely cost of awardee's proposed effort would exceed solicitation cap on research, development, test and evaluation costs is denied where (1) agency in fact has additional money available, and (2) protester has not shown that it would have increased its proposed effort so as to materially improve its competitive position had it known that additional funding in the amount of any likely overrun were available; there thus is no basis for finding competitive prejudice as a result of the alleged waiver.
Inter-Con Security Systems, Inc., B-290493; B-290493.2, August 14, 2002.
DIGEST: 1. Where solicitation for local guard services provided for 10 percent price evaluation preference for offerors qualifying as “U.S. persons,” fact that awardee firm was being acquired by foreign firm, and thus would not be owned and controlled by U.S. citizens, did not preclude awardee from receiving the preference, since nothing in the solicitation or underlying statute required offerors to establish ownership and control by U.S. citizens to qualify for the preference.
2. Where solicitation provided that offerors would qualify for evaluation preference as “U.S. person” if required certification showed U.S. citizens were employed in at least 80 percent of “principal management positions in the U.S.,” awardee's reporting of a non-U.S. citizen in one of three positions amounted to a showing of less than the required 80 percent; awardee's proposal therefore was not entitled to application of the preference, and protest is sustained on this basis.
Gemmo Impianti SpA, B-290427, August 9, 2002.
DIGEST: Agency's source selection decision is unreasonable where the evaluation supporting the cost/technical tradeoff selection decision contains material defects under two of the three technical factors, and the tradeoff analysis is based on an erroneous assumption about the relative price difference.
Pacific Support Group, LLC, B-290467, August 8, 2002.
DIGEST: 1. Protest against determination to retain in-house certain real property maintenance functions as a result of a cost comparison conducted pursuant to Office of Management and Budget Circular A-76, alleging that agency improperly failed to include costs for all of the personnel required to meet the requirements of the performance work statement (PWS), or to appropriately reduce the evaluated cost of contractor performance, is denied; the record provides no basis to question the reasonableness of the agency's finding that, as adjusted, the cost of in-house performance included all staffing necessary to meet the PWS requirements, and that after appropriate reduction to the evaluated cost of contractor performance had been taken as well, the cost of in-house performance remained low by a substantial margin.
2. Adjustment to the most efficient organization (MEO) staffing cost estimate as necessary to satisfy the performance work statement requirements, based on findings by the agency administrative appeals board after consultation with MEO study team, is an appropriate element of agency-level A-76 appeal process, the adoption of which does not provide a basis to object to the propriety of the cost comparison determination.
Vantex Service Corporation, B-290415, August 8, 2002.
DIGEST: Protest against agency's bundling of portable latrine rental services with waste removal services, each of which is classified under a different North American Industrial Classification System code and is generally performed by a different set of contractors, is sustained, where the agency has not shown that bundling the services is necessary to meet its needs.
CMS Information Services, Inc., B-290541, August 7, 2002.
DIGEST: Where a competitive request for quotations issued under the Federal Supply Schedule limits competition to small business vendors, procuring agency properly may require firms to certify as to their small business size status as of the time they submit their quotations.
National City Bank of Indiana, B-287608.3, August 7, 2002.
Flight Safety International, B-290595, August 2, 2002.
DIGEST: Protest that solicitation for pilot training is defective because it lacks a separate contract line item number (CLIN) for the cost of flight simulator modifications is denied where the agency provided sufficient information in the solicitation to allow offerors to reasonably use their business judgment to amortize and recover the costs of such modifications in its CLINs covering the pilot training.
Military Agency Services Pty., Ltd., B-290414; B-290441; B-290468; B-290496, August 1, 2002.
DIGEST: 1. General Accounting Office (GAO) will not consider protests that awards under solicitations for services breach the protester's requirements contract because this is a contract administration matter and therefore outside GAO's bid protest jurisdiction.
2. Protest of solicitation requirement as unduly restrictive is denied, where the requirement relates to safety and reliability, and the protester has not shown the requirement is unreasonable or unachievable.
3. Agency's request for near-immediate responses to requests for quotations for picket boat services conducted under simplified acquisition procedures is unobjectionable, where the requirements were needed shortly after when responses were due, the contracting office was only requisitioned to obtain the requirements shortly before requesting quotes, only prices were solicited, and all requested sources timely submitted quotes.
4. Defense agency was not required to comply with the public notice requirements contained in Federal Acquisition Regulation part 5 where the acquisitions were for services performed outside the United States and only local sources were solicited.
5. Where no evaluation factors are specified in a request for quotations, which only requests prices, price is the sole evaluation factor.
6. Even assuming agency improperly failed to solicit the protester under a request for quotations (RFQ) issued under simplified acquisition procedures for picket boat services, the protester was not prejudiced where under the particular circumstances there was no suggestion that it would have been successful under the RFQ.
HG Properties A, LP, B-290416; B-290416.2, July 25, 2002.
DIGEST: Lease modification changing location of site for construction of offered building space remains within the scope of the underlying lease, so that resolicitation of agency's space requirements is not necessary, where substituted site meets solicitation's geographical requirements and modification does not change lease price, performance period, basic responsibilities of parties to the lease, or the nature and purpose of the lease, so that overall effort under modified lease remains essentially the same as was contemplated under the original solicitation for offers.
Galen Medical Associates, Inc.--Costs, B-288661.6, July 22, 2002.
DIGEST: 1. Where claim for bid protest costs includes amounts for time spent by company personnel, outside counsel and consultant that far exceed the amount of time that a prudent person would spend pursuing the protest and, moreover, documentation presented in support of claim is inadequate in numerous respects, the entire amount claimed for this time is disallowed.
2. Protester may be reimbursed out-of-pocket expenses to the extent that they are adequately supported by documentation reflecting the actual costs incurred.
Federal Prison Industries, Inc., B-290546, July 15, 2002.
DIGEST: General Accounting Office will not review protest of agency's determination that Federal Prison Industry's (UNICOR) product was not comparable to private sector products, since UNICOR's enabling statute provides for binding resolution of such disputes by an arbitration board. [GAO rejects the argument that Unicor is not an interested pasdrty. See FN 3]
Sodexho Management, Inc., B-289605.2, July 5, 2002.
DIGEST: Protest that contracting agency improperly used nonappropriated funds instrumentality (NAFI) employees to constitute the overwhelming majority--more than 80 percent--of the labor force in its "most efficient organization" (MEO) as part of an Office of Management and Budget Circular A-76 cost study is sustained; while the A-76 guidance does not explicitly prohibit the use of NAFI employees in an MEO and may, in fact, be read to permit at least limited use of NAFI employees, where, as here, the level playing field promised by the A-76 guidance is tilted toward the in-house plan in a way that could not be reasonably anticipated by a commercial offeror based upon the A-76 guidance and the solicitation, the agency deprived the commercial offeror of the ability to make an intelligent business judgment concerning whether, and how, to compete.
Starfleet Marine Transportation, Inc., B-290181, July 5, 2002.
DIGEST: 1. Protest concerning the award of a concession contract is for consideration under General Accounting Office's bid protest function where the concession contract includes the delivery of property or services to the government.
2. Decision by the National Park Service to cancel a concession contract prospectus in order to review agency requirements is unobjectionable where the action was reasonable and consistent with applicable regulations. [Good discussion on issue of when GAO considers a concession contract to be a procurement of goods or services and within its bid protest jurisdiction-jaw.
Brickwood Contractors, Inc., B-290444, July 3, 2002.
DIGEST: 1. Contracting officer acted properly where the record reflects that he diligently reviewed the protester's responsibility, found the protester nonresponsible, and then promptly referred the matter to the Small Business Administration (SBA) under certificate of competency (COC) procedures, and because of the length of time required to complete these reviews, the bidders were requested to extend their bids; there was no regulation or other legal requirement that provides that a contracting officer's referral of a small business bidder to the SBA for a COC must take place at such a time in the process so as to permit the SBA to make its COC determination prior to the expiration of the bidder's initial bid acceptance period.
2. Bidder that allegedly submitted its bid extension by facsimile transmission assumed the risk of nonreceipt by the agency, and the bidder's evidence of its facsimile transmission does not establish receipt where, as here, the agency denies receipt and there is no other evidence of receipt.
J. L. Malone & Associates, B-290282, July 2, 2002.
DIGEST: Protest against agency's acceptance of late hand-carried bid is denied where the bid was received at the government installation and was effectively under the government's control prior to the scheduled bid opening, notwithstanding the role played by a contractor in receiving and controlling the bid.
Avalon Integrated Services Corporation, B-290185, July 1, 2002.
DIGEST: 1. Protest that task order exceeds scope of vendor's Federal Supply Schedule (FSS) contract is denied where vendor holds FSS contract for pertinent schedule item number and vendor's FSS contract includes each of the labor categories designated in the task order.
2. In competitive procurement under the FSS program, agencies are not required to conduct discussions, even in the absence of a solicitation clause warning vendors that award might be made without discussions.
3. In competitive procurement under the FSS program, where solicitation provided for evaluation of written proposals followed by oral presentations by “offerors found to be in the competitive range,” contracting agency was not required to hold discussions with vendors prior to selecting vendor with which to place order; at least in the context of an FSS purchase, retention of proposal in a competitive range does not create a right to discussions.
United Payors & United Providers Health Services, Inc., B-282075.4, June 26, 2002.
DIGEST: Protest that agency improperly rated proposals under a tiebreaker evaluation factor--business management competence--on a pass/fail, rather than a comparative, basis is denied; solicitation did not provide that the factor would be evaluated in a particular way, and there was nothing inherently unreasonable in the agency's assessing only whether offerors' business management competence was at an acceptable level.
Champion Business Services, Inc., B-290556, June 25, 2002.
DIGEST: Protest that agency acted improperly in determining that protester was qualified to make an oral presentation even though it had no chance for award, and request for reimbursement of oral presentation costs, does not come within GAO's bid protest jurisdiction and is dismissed. [GAO will no longer follow earlier decisions where it did consider protests based on assertion that a protestor's proposal should not have been included in the competitive range.]
Integrity Management Enterprises, Inc., B-290193; B-290193.2, June 25, 2002.
DIGEST: 1. Agency conducting a commercial activities study under Office of Management and Budget Circular A-76 did not act improperly in amending the performance work statement (PWS) during its review of the in-house management plan where the agency determined at that time that the PWS did not accurately reflect its minimum needs and the changes to the PWS were provided to the private-sector offerors through amendment of the request for proposals.
2. Agency reasonably determined, during a commercial activities study under Office of Management and Budget Circular A-76, that the in-house management plan reasonably established the ability of the government to perform the requirements of the performance work statement (PWS), and identified and included all costs necessary to perform the PWS requirements.
3. Agency, which during its evaluation of private-sector proposals submitted as part of a commercial activities study under Office of Management and Budget Circular A‑76 found that the selected “best value” proposal merely met the requirements of the request for proposal's performance work statement (PWS) and did not identify any strengths in the proposal, was not required to make any adjustments to the
in-house management plan, which also was found to meet the minimum PWS requirements.
Mitchell Roofing & Contracting, B-290462, June 25, 2002.
DIGEST: Where record shows that agency misread electronic version of awardee's bid as incomplete at the time of bid opening, and that, in fact, complete bid was received prior to bid opening time, there is no basis for questioning agency's award decision.
Global Crossing Telecommunications, Inc., B-288413.6; B-288413.10, June 17, 2002.
DIGEST: Agency reasonably determined that the protester was nonresponsible, even though the agency had determined the firm to be responsible before it filed for bankruptcy, where the updated pre-award survey, on which the contracting officer relied in making her nonresponsibility determination, included a detailed financial analysis reasonably concluding that the firm's poor financial condition made the firm a high financial risk and that the bankruptcy action created unacceptable contract performance risks. [Wonder how much the intervenor was pushing for this result?]
L-3 Communications, KDI Precision Products, Inc., B-290091; B-290091.2; B-290091.3, June 14, 2002.
DIGEST: Agency reasonably determined that awardee's performance of certain prior contracts was not relevant for purposes of evaluating past performance, where contracts involved more complex and challenging technology than that under the solicitation; agency reasonably relied instead principally on awardee's performance on predecessor contract for the solicited work.
Northrop Grumman Information Technology, Inc., B-290080; B-290080.2; B-290080.3, June 10, 2002.
DIGEST: 1. Protest that awardee engaged in “bait and switch” with respect to key personnel is denied where agency chose not to incorporate awardee's key personnel provision into contract for administrative convenience, not because the awardee's proposal evidenced intent not to have the key personnel available to perform.
2. Protest that agency should not have assigned protester and awardee the same risk rating for systems management/program management factor is denied, where record shows that agency recognized the risks in each proposal, and concluded that both translated into moderate risk; protester's mere disagreement with this conclusion does not demonstrate that evaluation was unreasonable.
3. Agency engaged in meaningful discussions with protester where, during discussions, it pointed out significant weaknesses.
Safety and Health Consulting Services, Inc., B-290412, June 10, 2002.
DIGEST: Post-award protest that agency should now consider protester's quotation because the agency lost and thus failed to consider it prior to award is denied; it is not permissible to make award to a firm whose quotation was lost by the government prior to the closing date because to do so would be inconsistent with preserving the integrity of the competitive system. Protester's claim for quotation preparation and protest costs is also denied since mere negligence or lack of due diligence by the agency, standing alone, does not rise to the level of arbitrary or capricious action which provides a basis for the recovery of quotation preparation and protest costs.
Snell Enterprises, Inc., B-290113; B-290113.2, June 10, 2002.
DIGEST: 1. Protest alleging that a firm should be excluded from competition under a solicitation for information technology services because it assisted in the preparation of the solicitation is denied, where the allegation is based on inference and suspicion rather than substantial facts or hard evidence, and the agency unequivocally and credibly asserts that the firm did not assist in the preparation of the solicitation.
2. Protest that a firm should be excluded from competition under a solicitation for information technology services because the firm, through its performance of a delivery order for the agency, was given access to information that the protester now claims as proprietary, is denied, where the information was furnished voluntarily and without restrictions on its use.
3. With regard to a solicitation that consolidates services previously performed by two contractors under separate delivery orders into one contract, protest by one of the contractors that the other contractor (a competitor) gained an unfair competitive advantage by obtaining from the agency the names and home telephone numbers of the contractor's employees is denied where the contractor's competitor was already familiar with the contractor's employees and there is thus no indication that the agency's actions resulted in any unfair competitive advantage.
4. Prior performance of similar requirements by a firm does not give rise to a prohibited conflict of interest or provide an unfair competitive advantage where any advantage the firm may have is merely that of an incumbent contractor.
Department of the Navy--Reconsideration, B-286194.7, May 29, 2002.
DIGEST: 1. Prior GAO decision sustaining a protest that challenged an agency's decision to retain in-house performance of certain activities under a Circular A-76 study properly characterized the team tasked with preparing the agency's in-house management plan as essentially a competitor.
2. The nature and status of an agency team tasked with preparing the in-house management plan in a Circular A-76 study do not justify exempting that team from the conflict of interest limitations generally applied to private-sector competitors.
3. In complying with the conflict of interest requirements of Federal Acquisition Regulation (FAR) subpart 3.1, government officials involved in A-76 procurements should consider the instruction and guidance provided by FAR subpart 9.5.
4. Where a protest establishes facts that constitute a conflict of interest or an apparent conflict of interest, GAO will presume prejudice unless the record affirmatively demonstrates its absence.
5. Recommended corrective action addressing conflict of interest portion of prior decision is modified to provide for only prospective application.
Marshall-Putnam Soil and Water Conservation District, B-289949, May 29, 2002.
DIGEST: Under solicitation for offers for leased office space, proposal that failed to conform to material solicitation requirements for architectural elevation and landscape plans could not form the basis for award.
Johnson Controls World Services, Inc., B-289942; B-289942.2, May 24, 2002.
DIGEST: Protest challenging the agency's "best value" source selection decision is sustained where the record shows that there is insufficient information and analysis in the record, which includes both a contemporaneous source selection statement and a post-protest addendum to that statement, to determine that the award selection was reasonable.
Aulson & Sky Company, B-290159, May 21, 2002.
DIGEST: Contracting officer reasonably determined that the protester was nonresponsible and, therefore, ineligible for award where the pre-award survey revealed that the protester's recent record of past performance of construction-type requirements included repeated delays in contract performance.
DynCorp International LLC, B-289863;B-289863.2, May 13, 2002.
DIGEST: 1. Protest is sustained where source selection authority discounted weaknesses in awardee's proposal identified by technical and cost evaluators,and record does not establish that her disagreement had a rational basis.
2. Protest that agency improperly assigned high performance risk rating to protester's proposal based on potential cost growth, while not assigning a similar rating to awardee's proposal, is sustained where agency had concern about cost growth as to both proposals.
Lyons Security Services, Inc., B-289974, May 13, 2002Where agency denies issuing amendment extending due date for proposals, and record contains no evidence supporting protester's claim that it received such an amendment by electronic mail, there is no basis for questioning rejection of protester's proposal--submitted by alleged extended due date--as late.
PADCO, Inc.--Costs, B-289096.3, May 3, 2002.
DIGEST: 1. Protest challenging reasonableness of the agency's cost realism analysis of the awardee's proposed indirect costs was clearly meritorious where the agency accepted, without any analysis, the awardee's unexplained final proposed rates, which were substantially less than those initially proposed, its historical rates, and its proposed ceiling rates.
2. General Accounting Office (GAO) recommends that protester be reimbursed the costs of filing and pursuing its initial protest where the agency unduly delayed taking corrective action in response to the initial protest, which was clearly meritorious, until almost 2 months after the initial protest was filed and after submitting a report on the protest; GAO does not recommend the reimbursement of the costs of filing and pursuing supplemental protest grounds, which were clearly severable from the initial protest bases, because the agency did not unduly delay, but took corrective action in response to these protest grounds within 2 weeks of these grounds being raised, before the agency report on the supplemental protest grounds was due.
A&D Fire Protection Inc., B-288852.2, May 2, 2002.
DIGEST: An agency's selection of the higher-priced awardee based upon a cost/technical tradeoff was unsupported by the record, where the agency's tradeoff analysis was primarily based upon the agency's erroneous judgment that the awardee had offered an accelerated performance schedule (when in fact the awardee had promised only to perform the required contract schedule), which outweighed the protester's price advantage.
Alatech Healthcare, LLC--Protest; Custom Services International, Inc.--,B-289134.3; B-289134.4, April 29, 2002.
DIGEST: 1. Protest against agency's post-award corrective action that includes opportunity to revise cost proposals is denied where record shows that agency made change to requirements that will affect field of firms that may be able to meet agency's requirements.
2. Protest that agency was required under Federal Acquisition Regulation 15.507 to provide original awardee with information relating to unsuccessful offeror proposal prior to obtaining revised proposals is denied; regulation requires only that agency provide a successful offeror information relating to its own proposal in situations where the agency reopens an acquisition as a consequence of a protest.
3. Request for protest costs is denied where record shows that agency did not unduly delay implementation of corrective action proposed prior to submission of agency report.
TyeCom, Inc., B-287321.3; B-287321.4, April 29, 2002.
DIGEST: Protest against proposal reevaluation is denied where the reevaluation was performed by the agency in response to, and consistent with, corrective action suggested during alternate dispute resolution conducted in conjunction with a predecessor protest of the same procurement to the General Accounting Office, and the protester has not provided any persuasive evidence that the reevaluation was improper or unreasonable.
Instrument Control Service, Inc.; Science & Management Resources,, B-289660; B-289660.2, April 15, 2002.
DIGEST: 1. Agency is not required to include in a solicitation a wage conformance from the prior service contract for employee classes not included in the applicable Service Contract Act wage determination.
2. Protests that solicitation requirement that items be calibrated within 5 workdays is unnecessary and unattainable are denied where the agency has reasonably explained its need for the requirement and why it is not unattainable, and the protesters have not shown the requirement is unnecessary or unattainable.
Wilson Beret Company, B-289685, April 9, 2002.
DIGEST: Protest of exclusion of protester's proposal from the competitive range is sustained where evaluation under one factor was unreasonable, and correct evaluation could have resulted in a different competitive range determination.
Chicataw Construction, Inc., B-289592; B-289592.2, March 20, 2002.
DIGEST: 1. Protester's challenge to the evaluation of its past performance is denied where the record shows that the agency made reasonable efforts to contact the required minimum of three past performance references, and ultimately used a neutral rating for the reference it was unable to reach.
2. Agency's post-protest recalculation of the protester's past performance score, and corresponding redetermination that the awardee's proposal still represents the best value to the government, will be considered where the reevaluation is limited in scope, primarily involves a straightforward recalculation with little room for subjective judgment, and there is nothing in the record to support a conclusion that the resulting increase in the protester's score would materially alter the agency's selection decision.
Lockheed Martin Systems Integration--Owego--Costs, B-287190.5, March 20, 2002.
DIGEST: Costs associated with responding to requirement for common avionics architecture system did not constitute proposal preparation costs where agency did not solicit proposals but, rather, was investigating requester's viability as potential source; costs incurred thus are not proposal preparation costs, and General Accounting Office has no authority to recommend their reimbursement.
Sonetronics, Inc., B-289459.2, March 18, 2002.
DIGEST: Contracting agency's past performance evaluation of awardee, based solely on a supply contract that the awardee had yet to perform, lacks a reasonable basis and is inconsistent with the solicitation, which required vendors to identify three "completed" contracts for the past performance evaluation.
Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002.
DIGEST: In a procurement under simplified acquisition procedures where the agency elected to establish a competitive range and conduct discussions, the agency improperly excluded the protester's low-priced quote from the competitive range and conducted discussions with only the awardee, where the protester's and awardee's quotes failed to satisfy the same solicitation requirements and the record did not support the agency's determination that the protester would not have had a realistic chance of receiving award if it had been afforded discussions.
Rockwell Electronic Commerce Corporation--Modification of, B-286201.8, March 5, 2002.
DIGEST: General Accounting Office (GAO) modifies recommendation to include reimbursement of protester's costs of preparing its proposal where agency declines to implement GAO's recommendation to reopen discussions with the protester, thus depriving protester of a meaningful opportunity to compete.
Quality Trust, Inc., B-289445, February 14, 2002.
DIGEST: Where, following a contracting officer's determination that the protester is not responsible, the Small Business Administration declines to issue a certificate of competency, the contracting officer is not required to again review the protester's responsibility where the protester does not present new information on this subject.
MCS of Tampa, Inc., B-288271.5, February 8, 2002.
DIGEST:1. Agency reasonably assigned the protester's past performance a neutral rating where the reference listed by the protester for the only contract considered relevant to the solicited work declined to respond to the past performance questionnaire, despite repeated requests by the agency.
2. Agency's determination to not consider the past performance of the protester's proposed subcontractor was reasonable where the subcontractor's performance under the solicited work was not major or critical to the overall effort and thus not reasonably indicative of the protester's performance under the contract.
Uniband, Inc., B-289305, February 8, 2002.
DIGEST: 1. Agency's post-protest reevaluation of one aspect of price realism of awardee's quote will be considered and weighed appropriately by the General Accounting Office in rendering its decision, where the agency conceded its error, the reevaluation was limited in scope (given that much of the agency's initial price realism evaluation was unobjectionable), and the reevaluation primarily required only the application of rather simple arithmetic calculations.
2. Agency's determination that awardee's quote was reasonable and realistic with regard to price is unobjectionable where the agency's price evaluation was relatively detailed and applied a variety of price analysis techniques and considered, among other things, the awardee's proposed approach to accomplish the work required and familiarity with the work as the result of the awardee having served as the incumbent subcontractor; fact that the agency's initial price realism analysis was flawed in one respect does not render the agency's determination unreasonable where this problem was reasonably addressed in a reevaluation performed during the course of the protest and the other aspects of the price analysis supported the agency's determination.
3. Agency conducted meaningful discussions where it brought its principal concerns about the protester's quote to the protester's attention; the agency was not required to inform the protester that its proposed price was high relative to the awardee's where the agency did not consider the protester's proposed price excessive or unreasonable.
[Extensive discussion of Boeing Sikorsky Aircraft Support, and post hoc justifications by the government.]
E. F. Felt Company, Inc., 2B-289295, February 6, 2002.
DIGEST: General Accounting Office will not review challenges to the Small Business Administration's (SBA) decision not to issue a certificate of competency unless there is a showing that the certificate of competency denial resulted from possible bad faith on the part of a government official, or from a failure to consider vital information because of how information was presented to, or withheld from, the SBA by the procuring agency.
Diamond Aircraft Industries, Inc., B-289309, February 4, 2002.
DIGEST:1. Protest that agency misled protester into offering an unacceptable item is denied where protester relied on agency official's informal advice in response to protester's request for clarification of solicitation; offerors rely on such informal advice at their own risk.
2. Protest that agency misevaluated protester's proposal is denied where proposal offered to comply with solicitation requirements, but did not provide any information to support its statements of compliance. [GAO equates e-mail with oral advice.]
Innovative Logistics Techniques, Inc.--Costs, B-289031.3, February 4, 2002.
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 and comments on the agency report that, for the first time, identified alleged flaws in the evaluation of quotations which the corrective action was designed to remedy.[GAO reinforces position that the reimbursement of protests costs "... is not intended to ensure the fairness of agency-level processes occurring prior to the filing of a protest..."]
Crofton Diving Corporation, B-289271, January 30, 2002.
DIGEST: Agency evaluation of proposals and resulting determination to make a combined award are unobjectionable where they are reasonable and consistent with the solicitation evaluation and award criteria; protest that agency was required to conduct procurement in a manner that would afford preference to a split award to different offerors for each of two zones being solicited is denied where solicitation does not provide for such preference and states that either a combined or a split award could be made, based on which is most advantageous to the government.[Query: Does such a complicated valuation make sense? Did the incumbent "game" the process?]
Engineering & Professional Services, Inc., B-289331, January 28, 2002.
DIGEST: Contract modification resulting from an engineering change proposal (ECP) to provide technologically advanced ruggedized handheld computers is not beyond the scope of the basic contract where the original request for proposals (RFP) called for a wide array of hardware and software; the RFP contemplated that the successful contractor would use the ECP process to incorporate technological advances to the required products; and the modification does not change the fundamental nature and purpose of the underlying contract.
Del-Jen, Inc., B-287273.2, January 23, 2002.
DIGEST: Protest challenging cost comparison conducted pursuant to Office of Management and Budget Circular A-76 is sustained where the determination of the appropriate contract administration costs was unreasonable, and did not result in a fair comparison; record indicates that agency did not properly account for, and thereby understated, the contract administration effort, and associated costs, that should be included as costs of in-house performance, and that, in addition, agency may have overstated the contract administration effort, and associated costs, that should be included as costs of performance by the private-sector offeror.
John Carlo, Inc., B-289202, January 23, 2002.
DIGEST: 1. Protester's proposal for the rebuilding of a runway was reasonably evaluated by the agency as unacceptable where the protester's proposed organizational structure for accomplishing the project was unclear and where a protester's representative conceded during the presentation/discussion session that he had not read a critical section of the solicitation's specifications.
2. Agency's record of the protester's presentation/discussion session, which consists of only the evaluator's notes, is unobjectionable, where there is no prejudicial difference regarding the protester's and agency's descriptions of what was stated during the session.
SelRico Services, Inc., B-286664.4; B-286664.5; B-287481.2; B-287481.3, June 22, 2001.
DIGEST: Even where price is the least important evaluation factor for award under a best-value procurement, agency may award to an offeror with a lower-priced, lower-rated proposal if it determines that the price premium involved in awarding to an offeror with a higher-rated proposal is too great to justify.
Elementar Americas, Inc., B-289115, January 11, 2002.
DIGEST: Procuring agency unreasonably evaluated the protester's quote of an "equal" product under a "brand name or equal" solicitation conducted under simplified acquisition procedures where the procuring agency did not reasonably consider the protester's descriptive literature describing the characteristics of its product.
Imagine One Technology & Management, Ltd., B-289334, January 10, 2002.
DIGEST: Protest that discussion questions improperly established new requirements, and that the questions reveal other improprieties in the evaluation, is denied where record shows that discussion questions in fact reflected solicitation requirements, and that evaluation was reasonable. [GAO also notes i response to a technical leveling allegation: "The short answer is that technical leveling is no longer specifically prohibited by the FAR."]
Downtown Legal Copies, B-289432, January 7, 2002.
DIGEST: Contention that agency wrongly rejected protester's low bid for copying services after determining that it was not responsible is denied where the record as a whole shows that the agency's nonresponsibility determination was not unreasonable.
NVT Technologies, Inc., B-289087, January 3, 2002.
DIGEST: 1. Protest challenging agency decision to retain base operations and maintenance support services in-house as a result of a cost comparison pursuant to Office of Management and Budget Circular A-76, which alleges that the in-house cost estimate failed to use predetermined or "plug-in" material costs that private-sector offers were required to offer is denied, where the agency states that the proposed in-house material costs were derived from the same historical data from which the plug-in prices were calculated and it is undisputed that the in-house material costs were higher than the plug-in costs used by the protester.
2. Agency's determination, under a cost comparison pursuant to Office of Management and Budget Circular A-76, that the "most efficient organization" for in-house performance identified and stated costs for all positions necessary to perform the performance work statement requirements was reasonable.
3. Protest challenging a cost comparison pursuant to Office of Management and Budget Circular A-76, which alleges that the amount of contract administration costs added to the protester's proposed price was unreasonable because the grade structure of contract administrators was too high, is denied, where the protester did not show that the agency's explanation for the grade structure was unreasonable.
Wyle Laboratories, Inc., B-288892; B-288892.2, December 19, 2001.
DIGEST:1. Contracting agency reasonably determined that contractor's performance of both a contract for operation of the agency's highest echelon calibration laboratory and a contract for operation of lower echelon calibration laboratories did not pose an organizational conflict of interest where government personnel who are responsible for monitoring and measuring contractor performance under both contracts rely primarily on information other than feedback from other contractors in performing these functions.
2. Protest alleging that agency unreasonably failed to recognize several positive aspects of protester's proposal as strengths is denied where protester fails to demonstrate that agency's assessment of the significance of these aspects of its proposal was unreasonable.
3. Protest alleging that agency should have adjusted awardee's cost proposal upward to account for its offering of a lower fringe benefit rate than the rate paid by the incumbent contractor is denied where agency reasonably determined that the awardee's proposed fringe benefit rate, which was [deleted] the rate required in the Department of Labor wage determination included in the solicitation, was realistic.
Priority One Services, Inc., B-288836, December 17, 2001.
DIGEST: 1. Agency failed to perform a proper cost realism evaluation in awarding a cost reimbursement contract where the agency made no probable cost adjustments even where it identified costs that it believed were unrealistic and did not consider the proposed costs in light of the offeror's proposed technical proposals.
2. Agency's communications after submission of final proposal revisions with one offeror constituted discussions where the agency required the offeror to replace unacceptable personnel, and solicited other proposal revisions from that offeror, which entailed an increase in its proposed costs; thus, the agency was required to conduct discussions with all offerors whose proposals had been determined to be in the competitive range.
Apex Support Services, Inc., B-288936; B-288936.2, December 12, 2001.
DIGEST: Protest against performance bond and bid guarantee requirements is sustained where agency fails to demonstrate that it reasonably determined that bonding requirements were necessary to protect the government's interest.
A&D Fire Protection Inc., B-288852, December 12, 2001.
DIGEST:Protest challenging the agency's "best value" selection, which was to consider both technical factors and price, is sustained where the agency failed to consider the technically acceptable protester's lower proposed price.
Deutsche Bank, B-289111, December 12, 2001.
DIGEST: Protest alleging that, in connection with procurement for loan support services, the awardee had an organizational conflict of interest that was not properly mitigated, is denied where the record shows that the contracting agency reasonably determined that the awardee's proposal adequately mitigated any conflict of interest through the use of a subcontractor to perform loan servicing on those properties where the awardee had previously been involved in handling administrative matters for the agency related to the same properties.
The Jones/Hill Joint Venture, B-286194.4; B-286194.5; B-286194.6, December 5, 2001.
DIGEST: 1. A conflict of interest existed in an Office of Management and Budget Circular A-76 commercial activities study where a Navy employee and a private-sector consultant wrote and edited the performance work statement and then prepared the management plan for in-house performance.
2. The Navy Independent Review Official's certification (pursuant to Office of Management and Budget Circular A-76) that the government is able to perform the requirements set forth in the performance work statement with the resources provided in the in-house management plan, and that all costs in the in-house cost estimate were fully justified, cannot be found reasonable where it is unsupported by either the contemporaneous documentation or the arguments, explanations, or testimony in the record.
3. Agency's in-house management plan submitted under an Office of Management and Budget Circular A-76 commercial activities study was misevaluated, where the in-house management plan was based on the use of personnel that were not part of the "most efficient organization" to accomplish certain requirements in the performance work statement, and the record does not show that the costs of these personnel were included in the in-house cost estimate.
4. Agency's determination, pursuant to Office of Management and Budget Circular A-76, that the management plan for in-house performance offered a comparable level of performance and performance quality to the selected private-sector proposal, was unreasonable, insofar as it did not account for several strengths identified during the "best value" competition in the selected private-sector proposal.
Lackland 21st Century Services Consolidated, B-285938.7; B-285938.8, December 4, 2001.
DIGEST: 1. Protester's contention that it was procedurally improper for an agency to use its in-house auditors to perform a limited review of the soundness of any decision it might make before proceeding to a decision in a cost comparison conducted pursuant to Office of Management and Budget (OMB) Circular A-76 is denied where the agency sought the review after two prior reversals and a critical Inspector General report raised questions about whether any decision made could withstand scrutiny.
2. Protest alleging that the agency improperly canceled solicitation and reinitiated the A-76 cost comparison process is denied where a limited review of previous appeal and protest issues performed by in-house auditors led the agency reasonably to conclude that several problems with the solicitation may have resulted in a flawed private-sector competition.
Ocean Technical Services, Inc., B-288659, November 27, 2001
DIGEST: Where agency is not required to hold discussions or otherwise communicate with vendors regarding past performance information, and where agency has no reason to question the validity of past performance information received, agency can reasonably rely on information furnished without seeking to verify it or permitting the protester an opportunity to rebut it.
Johnson Controls World Services, Inc., B-288636; B-288636.2, November 23, 2001.
DIGEST: 1. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 and alleging that the supporting management study failed to directly compare all of the positions identified in the agency's "most efficient organization" with the labor force at the start of the study is denied, since there is no legal requirement for such a detailed, "position-by-position" comparison.
2. Protest challenging agency decision to retain in-house logistics and public works functions as a result of a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 and alleging that agency improperly failed to include costs for all of the personnel required to meet the requirements of the performance work statement (PWS), is denied, where the record provides no basis to question the reasonableness of the agency's finding that the government's "most efficient organization" had identified and costed all positions necessary to meet PWS requirements.
Myers Investigative and Security Services, Inc., B-288468, November 8, 2001.
DIGEST:1. Protest contention that evaluation was unreasonable is sustained where the record shows that the agency treated offerors unequally in its assessment of the past performance information used to justify the selection decision.
2. Protest allegation that an agency's affirmative determination of awardee's responsibility must have been made in bad faith is denied where the record shows that, even though the agency received information raising questions about how the awardee could have properly certified to state authorities that it had taken the required steps for receiving the state permits needed to perform the instant contract, the information received was not sufficient to require a conclusion that the firm lacked integrity.
Computer Technology Associates, Inc., B-288622, November 7, 2001.
DIGEST:Where protester's employees, including two management personnel, improperly obtained and reviewed other vendors' proposal material during course of procurement, agency reasonably determined to disqualify protester from further participation in the competition.
Professional Landscape Management Services, Inc.--Costs, B-287728.2, November 2, 2001.
DIGEST: General Accounting Office recommends that the protester be reimbursed the costs of filing and pursuing its protest where the agency unduly delayed taking corrective action in the face of a clearly meritorious protest; protest is clearly meritorious when a reasonable agency inquiry into the protester's allegations would have revealed that the agency had not taken reasonable steps to determine whether the procurement needed to be set aside for HUBZone small businesses.
Royal Hawaiian Movers, Inc., B-288653, October 31, 2001.
DIGEST: Notwithstanding a provision in a request for proposals that price revisions could only be made during a reverse auction, the agency reasonably determined to request revised price proposals after the end of the auction, in response to an agency-level protest, where the solicitation was ambiguous concerning when the auction would end and the agency reasonably believed that offerors may have been misled.
Goode Construction, Inc., B-288655; B-288655.2; B-288655.3, October 19, 2001.
DIGEST: 1. Protest that agency improperly converted technical evaluation process into responsibility determination is denied where record shows that award was based on a comparative evaluation of the relevant past performance of awardee and protester.
2. Protest that agency improperly failed to adjust protester's proposal evaluation score upward following discussions is denied where record shows that protester did not adequately respond to agency's request for additional information during discussions, and that increased score therefore was not warranted.
COBRO Corporation, B-287578.2, October 15, 2001.
DIGEST: Protest of cost comparison pursuant to Office of Management and Budget Circular No. A-76 is sustained where the solicitation inviting private-sector proposals erroneously required offerors to provide facilities for new inventory rather than making available existing government facilities, without the agency's having a reasonable basis for the restrictive requirement--specifically, without having conducted the study needed to justify the restriction.
Finlen Complex, Inc., B-288280, October 10, 2001.
DIGEST:1. Notwithstanding statement in solicitation that simplified acquisition procedures were being used and authority at Federal Acquisition Regulation (FAR) § 12.602(a) not to disclose the relative weight of evaluation factors when using simplified procedures, an agency's failure to disclose the relative weight of evaluation factors was unreasonable because basic fairness dictated disclosure of the relative weights where the agency required offerors to prepare detailed written proposals addressing unique government requirements.
2. Protester's contention that an agency's decision to assign a weight of 5 percent to a solicitation's past performance evaluation factor violates FAR § 12.206 (providing that past performance should be an important element of every evaluation) is denied as the FAR provision is discretionary, not mandatory.
3. Even in a commercial acquisition using simplified procedures, where an agency requests detailed written proposals, a selection decision is improper where it lacks a rationale which sets forth a basis for the tradeoffs made, including an explanation of any perceived benefits associated with additional costs.
Consortium Argenbright Security-Katrantzos Security, B-288126; B-288126.2, September 26, 2001.
DIGEST:Request for proposals providing for the submission of offers priced in local currency cannot reasonably be interpreted as prohibiting the submission of offers priced in euros where the euro has been adopted as a country's national currency.
Signals & Systems, Incorporated, B-288107, September 21, 2001.
DIGEST: 1. Protest of an agency's justification for a noncompetitive procurement on the basis of unusual and compelling urgency is sustained, where the agency sought to buy enough engine electrical start systems to replace an earlier, vehicle control unit system that could no longer be used due to safety considerations and the agency did not know, and made no reasonable effort to discover, how many vehicle control units would have to be replaced.
2. An agency failed to conduct reasonable advanced procurement planning, where, despite knowing of safety concerns with a vehicle control system that would have to be replaced, the agency took nearly 2 years to draft performance specifications that it intended to use to conduct a competitive procurement.
The Arora Group, Inc., B-288127, September 14, 2001.
DIGEST:1. In a negotiated procurement in which award was made to the offer representing the best value to the government, a protester is an interested party under the General Accounting Office Bid Protest Regulations to protest the award and evaluation of proposals, even where the protester's offer is ranked fifth of seven offers, since, if its protest were sustained, it could be in line for award.
2. Terms incorporated into solicitation for designing outpatient clinics are latently ambiguous and resulted in unequal competition where the record shows that offerors prepared their proposals based on different, yet reasonable, assumptions.
Sabreliner Corporation, B-288030; B-288030.2, September 13, 2001.
DIGEST:Agency's proposed award of a sole-source contract for engineering and overhaul services for helicopter engines, on the basis that only one firm is capable of meeting the agency's needs, is not reasonably based where the justification and approval prepared in support of the proposed sole-source award, other agency documentation, and the agency's submissions prepared in response to this protest as well as the testimony of the agency representatives at the hearing held at our Office in connection with this protest, are inconsistent and inaccurate.
S3 LTD, B-287019.2; B-287019.3; B-287021.2; B-287021.3, September 14, 2001.
DIGEST: 1. Protest contention that an agency conducted misleading discussions by orally changing the terms of the solicitation is denied because, even if the agency made the claimed change, offerors cannot reasonably rely on an oral modification to a solicitation which is inconsistent with its written terms, absent a written amendment, or confirmation of the modification, as required by Federal Acquisition Regulation § 15.206(f).
2. Protester's assertion that an awardee's outstanding past performance rating is unreasonable as it was partially based on the responses of an agency reference who provided a photocopy of identical performance ratings and narrative responses as an answer to a request for his assessment of the awardee's performance under each of four separate contracts is denied where the record shows that, while the reference's approach was less than ideal, his answers were consistent with the answers of other references, and consistent with his responses in a telephonic interview conducted by the contract specialist, and where there is no showing that the photocopied responses were inaccurate for any of the four contracts.
IT Corporation, B-288507, September 7, 2001.
DIGEST: Protest objecting to possible agency actions in response to the decision of an administrative appeal authority under Office of Management and Budget Circular A-76 is dismissed as premature, where the appeal authority upheld the protester's appeal and remanded the matter to the agency to take corrective action and the agency has not yet determined what action it will take.
Rockwell Electronic Commerce Corporation, B-286201.6, August 30, 2001.
DIGEST: Protest of agency's corrective action in response to a General Accounting Office decision sustaining earlier protest is sustained where the agency reopened discussions and requested proposal revisions from only one offeror in the competitive range, and where the agency's corrective action did not resolve the improprieties that were the basis for the prior decision.
LaBarge Products, Inc., B-287841; B-287841.2, August 20, 2001.
DIGEST: Agency reasonably excluded from the competitive range as unacceptable proposal with significant informational deficiencies. [Note: See FN 1, GAO acknowledged that agency may limit hyperlinks in a proposal submitted by means of electronic media to local documents only.]
Maryland State Department of Education, B-288501; B-288502, August 14, 2001.
DIGEST: Protests filed by a state licensing agency for the blind alleging solicitation improprieties in two requests for proposals issued pursuant to the Randolph-Sheppard Act are dismissed because the Act gives authority for review of disputes between federal agencies and state licensing agencies regarding these procurements to the Secretary of Education, not the General Accounting Office.
Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products, B-286797.3, August 13, 2001.
DIGEST: Agency reasonably determined to reprocure defaulted requirement from other than protester, a joint venture that was the evaluated next low bidder on the original procurement, where preaward survey information indicated that protester and component companies had performed late on numerous recent contracts, while awardee had recently performed similar work successfully.
Integrated Technology Works, Inc.-Teltara, Inc., B-286769.5, August 10, 2001.
DIGEST: Where protester submitted proposal that failed to comply with requirement that type be no smaller than 12 pitch, agency's reformatting of the proposal into required type size--as a result of which, proposal exceeded the 30-page limit--was unobjectionable, where agency's reformatting approach was reasonable.
Lynwood Machine & Engineering, Inc., B-287652, August 2, 2001.
DIGEST:It was reasonable for agency to consider poor performance record of protester's proposed special projects manager in evaluating protester's past performance, where protester itself lacked a performance record with respect to the required services, and the information available to the agency indicated that the special projects manager would play an important role in performing the contemplated contract.
Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001.
DIGEST: Protest is sustained where agency chooses not to defend against the protest and effectively concedes that the challenged evaluation and selection decision were not properly done by acknowledging that no adequate documentation of the agency's actions exists.
East Bay Elevator Company, Inc.--Costs, B-286315.2, July 26, 2001.
DIGEST: Request for reimbursement of protest costs based on agency delay in implementing promised corrective action is denied where the issues raised by the protester were not clearly meritorious, and the agency determined to take corrective action because of its concern with a matter that was not raised in the protest.
Bank of America, B-287608; B-287608.2, July 26, 2001.
DIGEST: Where agency knew or should have known that the protester interpreted the solicitation as limiting technical proposals to 100 pages, discussions with the protester were not meaningful when the agency did not advise protester that the solicitation permitted 200 page proposals, declined to advise the protester of the agency's repeatedly expressed concerns that the protester's proposal lacked detail, and advised the protester there were no technical weaknesses in its proposal.
Gulf Group, Inc., B-287697; B-287697.2, July 24, 2001.
DIGEST: 1. Protest that agency improperly applied undisclosed evaluation factor regarding specific experience of offerors is denied; agency properly may consider specific experience where, as here, solicitation provides for evaluation of experience.
2. Agency reasonably considered past performance reference in evaluating protester's proposal, even though protester claims the reference mistakenly rated its performance too low, where nothing on the face of the reference rating gave agency reason to look behind it.
McRae Industries, Inc., B-287609.2, July 20, 2001.
DIGEST: 1. Protester is an interested party to challenge contracting agency's alleged waiver of solicitation testing requirements notwithstanding that it did not submit a proposal where, if protest were sustained, the protester would have an opportunity to compete under a revised solicitation.
2. Allegation that in connection with a procurement for boots agency improperly waived solicitation's strict sample test requirements is denied where the agency reasonably determined that all offerors' samples would have passed the omitted tests, the end items will be subjected to the solicitation's strict field performance requirements, and the protester was not prejudiced by the agency's actions.
DynCorp Technical Services LLC, B-284833.3; B-284833.4, July 17, 2001.
DIGEST: 1. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 is sustained, where the agency did not consider the cost of government-furnished material as a common cost item, as it should have, but accepted the in-house cost estimate, which deducted the value of government-furnished material to be supplied to the winner of the competition, and did not adjust the protester's proposal for a cost-reimbursement contract, which did not deduct the value of the government-furnished material.
2. In a negotiated procurement conducted pursuant to Office of Management and Budget Circular No. A-76, in which the private-sector offer was to be selected on the basis of a cost/technical tradeoff, and where the solicitation encouraged offerors to exceed the solicitation's minimum performance schedule, the agency improperly failed to ensure that the in-house cost estimate and the protester's offer were based upon the same scope of work and performance standards, where the protester proposed an accelerated performance schedule, which exceeded the minimum requirements and contributed to the protester's selection as the offeror to compete against the agency's most efficient organization (MEO), and the MEO proposed to satisfy the minimum performance schedule requirements.
Pacific Island Movers, B-287643.2, July 19, 2001. Reverse Auction Protest
DIGEST: In a negotiated procurement which provided for a reverse auction, an agency reasonably determined to request revised price proposals after the end of the auction, in response to a protest which raised reasonable concerns that there were errors in the conduct of the reverse auction.
Lackland 21st Century Services Consolidated--Protest and Costs, B-285938.6, July 13, 2001.
DIGEST: 1. Protest seeking reinstatement of an earlier protest, and a decision on the merits of that protest because, in the protester's view, the agency has unduly delayed taking the corrective action promised in response to the earlier protest, is dismissed since the protester would have us consider a proposed course of action that has been abandoned, and any dispute about that action has been rendered academic.
2. 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 No. A-76 on the basis that the agency has not yet awarded it the contract (the promised corrective action that led to the dismissal of the earlier protest) is denied where the record shows that the agency reasonably elected to delay award until completion of a review by the agency's Office of Inspector General, which was, apparently, completed approximately 5 months after our Office dismissed the earlier protest as academic.
Summit Research Corporation, B-287523; B-287523.3, July 12, 2001.
DIGEST: 1. Protest challenging an agency's conclusion that an evaluation of small business participation should reflect only the offeror's reliance on small business subcontractors--and not also whether the offeror is itself a small business--is sustained where the record shows that the evaluation clause at issue, on its face, advised that the agency would assess small business participation, not small business subcontracting, and where the solicitation and the agency's own evaluation forms, request information about, and reflect consideration of, the aggregate use of small business in performance of the total contract.
2. Protest alleging that agency evaluators unreasonably ignored information received from the Defense Contract Audit Agency (DCAA) advising that one of an offeror's proposed key personnel was no longer employed by the company is sustained where the record shows that the DCAA advised the agency of the employee's departure more than a month before contract award, and the agency took no steps to change its evaluation or consider the impact of the employee's departure, despite acting on several other recommendations provided in the same communication.
Medical Information Services, B-287824, July 10, 2001.
DIGEST: 1. Challenge to the evaluation of protester's proposal is denied where the record shows that the technical evaluation board (TEB) evaluated the proposal in accordance with the criteria announced in the solicitation and the record supports the TEB's conclusions.
2. A proposal found deficient following a comparative evaluation of proposals (rather than on a pass/fail basis) under traditional responsibility factors such as experience, past performance, and personnel qualifications is not a matter of responsibility subject to the Small Business Administration's certificate of competency procedures.
SatoTravel, B-287655, July 5, 2001.
DIGEST: Awardee took no exception to the terms of the solicitation by proposing to provide commercial travel office services at no cost to the government in any of the performance periods as evidenced by its insertion on the solicitation's price schedule of "$zero" for the base period and a discount fee/rebate (an amount less than "$zero") for each of the option periods.
Eurest Support Services, B-285813.3; B-285813.4; B-285813.5; B-285882.4; B‑285882.5; B-285882.7, July 3, 2001.
DIGEST: Protest against award of primarily fixed-price incentive contracts for regional garrison food service at U.S. Marine Corps installations is sustained where agency did not properly assess realism of awardee's low proposed target price, which was the principal basis for determination that awardee's evaluated price was low.
J W Holding Group & Associates, Inc., B-285882.3; B-285882.6, July 2, 2001.
DIGEST: Regulation requiring source selection authority (SSA) to exercise “independent judgment” does not preclude SSA from acting as head of the price evaluation team.
W R Systems, Ltd., B-287477; B-287477.3, June 29, 2001.
DIGEST: 1. Contention that contracting officer's (CO) decision to reject initial evaluations and convene a new technical evaluation panel was designed to ensure that the protester was improperly eliminated from consideration is denied, where there is no evidence in the record that the CO's decisions were not made in good faith or that they were designed with the intent of changing technical rankings or avoiding an award to the protester.
2. Allegation that protester was prejudiced because in preparing its proposal it assumed that offerors were prohibited from proposing certain individuals as core personnel on the basis of their work history is denied where the solicitation did not impose any restrictions, limits, or prohibitions on the individuals that could be proposed to fill the required core positions due to their prior work.
3. Protest challenging agency's evaluation of awardee's past performance is denied where the record shows that the evaluation was reasonable and consistent with the evaluation criteria set forth in the solicitation.
Cox & Associates CPAs--Costs, B-286753.3, June 19, 2001.
DIGEST: General Accounting Office recommends that protester be reimbursed the costs of filing and pursuing its protest where the agency unduly delayed taking corrective action in response to the protests, which were clearly meritorious; corrective action was not taken until more than 3 months after the initial protest was filed and only after the GAO attorney handling the protest conducted "outcome prediction" alternative dispute resolution.
Strategic Resources, Inc., B-287398; B-287398.2, June 18, 2001
DIGEST: 1. Contracting agency reasonably determined that protester's performance under predecessor contract was entitled to greatest weight in its past performance evaluation and that performance of protester's proposed subcontractor on related contracts was entitled to little weight where subcontractor was to perform only approximately 20 percent of the solicited effort.
2. Contracting agency reasonably attributed past performance of subcontractor's subsidiary to the subcontractor where subsidiary and subcontractor share key management personnel.
3. Contracting agency reasonably viewed awardee's proposal as stronger than protester's under management approach factor where awardee furnished more detailed information regarding risk mitigation and staff recruitment procedures in its proposal.
Beacon Auto Parts, B-287483, June 13, 2001.
DIGEST: 1. Agency's evaluation of the protester's proposal, submitted in response to a solicitation for maintenance, repair, and overhaul of vehicles, is unobjectionable where the protester provides no basis to find unreasonable the agency's determinations regarding the qualifications of the protester's proposed on-site manager, tools and equipment, and past performance.
2. Protest challenging the agency's best value source selection is sustained where the record shows that the agency failed to consider whether the awardee's higher-rated proposal was worth its higher price.
Cox & Associates CPAs, PC, B-287272.2; B-287272.3, June 7, 2001,
DIGEST: 1. Protest challenging an agency's corrective action in response to a General Accounting Office protest is denied where the corrective action--the cancellation of a defective request for quotations that sought competition among Federal Supply Schedule vendors for highly complex and costly services and the conduct of a new, full and open negotiated competition for the services--is not shown to be unreasonable.
2. General Accounting Office will not recommend that protester be reimbursed protest costs where the agency promptly took corrective action in response to a protest prior to the date for filing the agency report.
Oceaneering International, Inc., B-287325, June 5, 2001.
DIGEST: 1. 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.
2. Agency reasonably evaluated the comparative degree of relevance of the past contract experience of offerors under the experience factor, and not under the past performance factor, consistent with the solicitation's evaluation scheme.
3. Agency's determination that the corporate experience of the awardee was equivalent to that of the incumbent is reasonable where the awardee performed contract work very similar to the work required under the solicitation and where the awardee's proposed key management personnel possessed significant experience.
4. Agency was not required by the solicitation to contact sources of information relating to an offeror's past performance, but has the discretion to consider only the references listed in the proposal.
5. Agency may have a reasonable basis to consider one proposal superior to another under an evaluation factor, even though both proposals are awarded the same rating for the factor.
6. Agency's evaluation of an oral presentation in response to a solicitation for an international undersea search, salvage and rescue operations contract did not use an unstated evaluation factor in considering whether offerors discussed alternative ports of mobilization where this element is intrinsic to one of the matters that was to be addressed in the oral presentation--mobilization.
7. Agency's failure to obtain or consider supporting cost data for subcontractor costs in the cost evaluation is unobjectionable, where the solicitation stipulated for evaluation purposes an amount for the cost reimbursable subcontract costs, the solicitation only required the submission of such data "as appropriate," and neither the protester nor the awardee submitted this supporting cost data.
Lockheed Martin Systems Integration--Owego, B-287190.2; B-287190.3, May 25, 2001.
DIGEST: Protest that agency improperly awarded requirement on a sole-source basis because it determined that only one firm could meet its requirements is sustained where record shows that another potential vendor was given an incorrect understanding of the agency's requirements; agencies are required to provide potential sources an opportunity to demonstrate their ability to meet the agency's requirements based on an accurate portrayal of the agency's needs.
Rice Services, Ltd.--Costs, B-284997.2, May 18, 2001.
DIGEST: Request for recommendation that agency reimburse protester for the costs it incurred in pursuing an administrative appeal of the agency's initial cost comparison decision under Office of Management and Budget Circular No. A-76 is denied because GAO's authority to recommend reimbursement of protest costs does not extend to costs incurred by a protester in litigating in another forum.
Belleville Shoe Manufacturing Company; Altama Delta Corporation;, B-287237; B-287237.2; B-287237.3, May 17, 2001.
DIGEST: 1. Protest is sustained where, although agency reasonably determined that small total business set-asides were not appropriate for more than one portion of boot manufacturing requirement, it improperly failed to consider whether non-set-aside portions should be partially set-aside.
2. Where procuring agency treats each of three contracts to be awarded under single solicitation as separate requirements, it is appropriate to perform a small business set-aside determination for each requirement, rather than a partial set-aside determination for the solicitation as a whole.
3. Solicitation providing for best value evaluation, with technical factors more important than price, is subject to the regulations requiring agency to determine whether requirement should be partially set-aside for small business.
4. In considering whether a small business concern is a responsible prospective offeror for purposes of a small business set-aside determination, agency properly considered that the concern had never mass-produced the item, and that another generally capable small business had experienced problems on a prior similar contract.
5. Agency reasonably declined to set aside a second portion of boot manufacturing requirement for small business, where each awardee can receive only one contract, and there are only two prospective responsible small business concerns likely to compete, so that, after award of the first set-aside portion to one of the small businesses, there would not be two small business offers left to be considered for a second set-aside award.
RS Information Systems, Inc., B-287185.2; B-287185.3, May 16, 2001.
DIGEST: . Where flaws in original cost evaluation require agency to reopen competition, prior disclosure of awardee's contract price and request for revised cost proposals do not create an improper auction.
2. Allegation that agency misled protester by advising it that its original evaluated cost was lowest among all offerors, is denied where agency's detailed cost discussions provided protester with all information necessary to prepare competitive offer; protester's decision not to submit lower cost proposal reflects its own business judgment and was not the result of misleading advice from the agency.
BAE Systems, B-287189; B-287189.2, May 14, 2001.
DIGEST: 1. Protester challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 was not required to file or participate in an appeal to the agency's administrative appeals board (AAB) as a prerequisite to filing a protest at the General Accounting Office, where the protester's private-sector offer had been determined to be more economical than performance in-house before this determination was reversed by the AAB and where the revisions made by OMB Transmittal Memorandum No. 22 to the Circular's Revised Supplemental Handbook that arguably require protester to file an appeal were not applicable to this cost comparison.
2. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 is sustained, where the agency did not reasonably determine that the in-house plan satisfied the performance work statement's requirements.
3. Protest of the agency's administrative appeals board's decisions, which reversed the original cost comparison determination in favor of the protester, is sustained where the board's determination as to how much staffing was required to be added to the in-house "most efficient organization" to perform the performance work statement requirements lacked a reasonable basis.
4. In a negotiated procurement conducted pursuant to Office of Management and Budget Circular No. A-76, in which the private-sector offer was to be selected on the basis of a cost/technical trade-off, the agency improperly failed to consider the protester's offer to meet a performance standard that appeared to exceed the performance work statement requirements.
Social Security Administration; MCI WorldCom,-Reconsideration B-286201.4; B-286201.5, April 19, 2001.
Systems Management, Inc.; Qualimetrics, Inc., B-287032.3; B-287032.4, April 16, 2001.
DIGEST: Protest is sustained where the procuring agency improperly relaxed for the awardee a mandatory solicitation requirement that the weather observation system be certified by the Federal Aviation Administration, yet did not notify the offerors of its changed requirements, and the record evidences that the protesters were prejudiced because they could have proposed different systems if they had been apprised of the agency's actual requirements.
Labat-Anderson, Inc., B-287081; B-287081.2; B-287081.3, April 16, 2001.
DIGEST: Protest that contracting agency improperly eliminated proposal from consideration for award because it failed to comply with solicitation requirement to clearly explain the rationale for including hard-coded entries in electronic version of its priced estimating model is denied where the record shows the agency reasonably found the protester's explanation for these entries insufficient, and where the solicitation specifically provided that this failure could result in the elimination of a proposal from consideration.[Note: A FSS competitive buy using "FAR Part 15 procedures".]
Wilcox Industries Corporation, B-287392, April 12, 2001.
DIGEST: Allegation that the agency improperly failed to publicize solicitation or award in the Commerce Business Daily (CBD) is denied where the record clearly shows that the acquisition was synopsized in the CBD Online (CBDNet) and in the printed version of the CBD on two separate occassions, including a notice announcing a change to the solicitation number; the notices advised that the solicitation and related documents could be downloaded from the agency's Internet home page; and the notices provided a link to that site, along with the contracting officer's e-mail address and telephone number, and the protester failed to fulfill its obligation to avail itself of every reasonable opportunity to obtain the solicitation.
FC Construction Company, Inc., B-287059, April 10, 2001.
DIGEST: 1. Protester's challenge to the agency's assessment of past and present performance is denied where the record shows that the agency evaluation was reasonable, and that offerors were treated equally, despite insignificant differences in the agency's approach to gathering the information due to requests from the protester's references.
2. Protester's assertion that the agency wrongly transcribed the telephonic responses of commercial references identified by the protester's subcontractor is denied where the commercial references apparently declined to make themselves available for a hearing that would permit assessment of the relative credibility of witnesses whose version of the same event is in conflict.
United Defense LP, B-286925.3; B-286925.4; B-286925.5, April 9, 2001.
DIGEST: Protest against award of single contract for both infantry carrier vehicle (ICV) and mobile gun system (MGS) variants of new family of armored vehicles is denied where (1) awardee's proposal for ICV, accounting for approximately 89 percent of new vehicles in contemplated brigade, was reasonably evaluated as offering significant performance and supportability advantages which outweighed protester's schedule and price/cost advantages, and (2) although awardee's schedule for deploying MGS was very disadvantageous and evaluation did not fully reflect certain disadvantages with respect to ammunition storage in awardee's MGS, its proposal nevertheless offered other performance and supportability advantages, and selection of awardee's MGS would result in commonality between ICV and MGS, such that award for both variants was not unreasonable.
Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001.
DIGEST: Proposal that failed to conform to a material solicitation requirement was technically unacceptable and could not form the basis for award.
Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001.
DIGEST: 1. Agency improperly awarded a contract on the basis of the lowest priced proposal where the proposal failed to comply with a material solicitation requirement.
2. Where solicitation provided for contract award on the basis of a cost-technical tradeoff emphasizing technical merit over cost/price, it was improper for the agency to evaluate technical proposals on a pass/fail basis and then make its source selection decision on the basis of what it perceived to be the lowest priced, technically acceptable proposal without advising offerors of this change in the source selection criteria.
Day Zimmermann Hawthorne Corporation, B-287121, March 30, 2001.
DIGEST: 1. Protest that contracting agency improperly failed to include the clause at Federal Acquisition Regulation § 52.250-1, "Indemnification Under Public Law 85-804," in solicitation that includes requirements for ordnance handling and support services is denied where the record shows that the Navy's decision was reasonable.
2. Protest that solicitation that includes requirements for ordnance handling and support services imposes inordinate and unjustified risks that unduly restrict competition is denied where the solicitation provided offerors with extensive detail in order to inform them about any risks that might exist in the performance of the contract and imposed numerous safety requirements that limit those risks, and where competition does not appear to have been unduly restricted; the mere presence of risk in a solicitation does not make it improper.
Government Business Services Group, B-287052; B-287052.2; B-287052.3, March 27, 2001.
DIGEST: 1. General Accounting Office (GAO) will not review contention that contracting agency is required under the Freedom of Information Act (FOIA) to provide protester copies of certain operation manuals and processing instructions the agency developed and placed in reading rooms for offerors to review in connection with solicitation to acquire background investigations services, because GAO has no authority under FOIA regarding the release of documents in the possession of an agency. Protester must pursue the remedy it seeks under the disclosure remedies of FOIA.
2. Allegation that solicitation's restriction on photocopying documents the agency developed and placed in reading rooms for offerors to review is unduly restrictive of competition is denied, where offerors were permitted to view the documents at issue for at least 2 weeks prior to closing, and when viewed together with the information the agency provided with the solicitation, the agency provided sufficient information for offerors to compete intelligently and on an equal basis.
3. Protest that offeror under solicitation for background investigation services has an organizational conflict of interest that renders that firm ineligible for award is dismissed as premature where contracting agency has made no final determination regarding the status or eligibility of the offeror.
The Jones/Hill Joint Venture--Costs, B-286194.3, March 27, 2001.
DIGEST: 1. Protest challenging the propriety of the Department of the Navy's determination, pursuant to Office of Management and Budget Circular No. A-76, that the most efficient organization/management study (MEO/MS) for in-house performance offered the same level of performance and performance quality as the selected private-sector proposal was clearly meritorious, where certain strengths in the selected private-sector proposal that were identified during the best value competition were not considered by the agency in determining that the MEO/MS offered the same level of performance and performance quality, the agency accepted without adequate analysis unsupported claims made by the MEO/MS team regarding the MEO/MS's ability to achieve the same level of performance and performance quality as the best value private-sector proposal, and the MEO/MS provided for the performance of a certain task by individuals who were not part of the MEO/MS and whose labor costs were not accounted for in the MEO/MS.
2. General Accounting Office recommends that the protester be reimbursed for the costs of filing and pursuing its protest challenging the Department of the Navy's determination, pursuant to Office of Management and Budget Circular No. A-76, that it would be more economical to perform base operations and support services in-house, rather than contract for these services with the protester, where the protest was clearly meritorious and the contracting agency did not take corrective action in response to the protest until after the submission of an agency report, the protester's comments, a supplemental agency report, supplemental comments, and an alternative dispute resolution conference during which the GAO attorney assigned to the protest informed the agency that it had significant litigation risk with regard to a number of issues raised by the protest.
GTSI Corporation, B-286979, March 22, 2001.
DIGEST: 1. Protest by an awardee of an agency's stated intent to take corrective action in accordance with an agency-level protest decision holding that the awardee's contract violated the terms of the solicitation and should be set aside, is not premature, even though the agency has not yet announced whether it will simply terminate the awardee's contract (leaving another offeror as the only awardee) or reopen the competition among the awardee and the remaining unselected offerors, because the awardee faces harm under either of the corrective action options available.
2. The submission of a below-cost or low profit offer is not illegal and provides no basis for challenging an award of a fixed-rate contract to a responsible contractor.
3. Agency-level protest decision sustaining an offeror's challenge to an award may not form the basis for agency corrective action where the agency protest decision erroneously concludes that (1) the awardee's offer of $0.00 for certain contract line items (CLIN) violated the terms of the solicitation, and (2) accepting the awardee's $0.00 prices, while advising another offeror during discussions that it could not enter the acronym "NSP" (not separately priced) for certain other CLINs, gave the awardee an impermissible competitive advantage.
Kruger Construction, Inc., B-286960, March 15, 2001.
DIGEST:In a sealed bid procurement which provided for adding the prices for option items to the price bid for the basic item to determine the total evaluated bid price, except where it was not in the best interests of the government, the procuring agency could not properly add together the price of two alternate option items in its price calculation, where the agency knew that it could not exercise both options.
Inter-Con Security Systems, Inc.; CASS, a Joint Venture--Costs, B-284534.7; B-284534.8, March 14, 2001.
DIGEST: 1.General Accounting Office (GAO) recommends that protesters be reimbursed the reasonable costs of filing and pursuing their protests challenging the evaluation and selection process where the contracting agency unduly delayed taking corrective action in response to the protests, which were clearly meritorious; corrective action was taken only after a GAO attorney conducted "outcome prediction" alternative dispute resolution.
2. The Federal Acquisition Streamlining Act of 1994 provides the head of an executive agency with the authority to pay protest costs and proposal preparation costs where, in connection with a protest, the head of the agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation.
Digital Systems Group, Inc., B-286931; B-286931.2, March 7, 2001.
DIGEST: 1. Protester's allegation that the evaluation of its technical proposal as posing a "high" risk contradicts the rating of its cost proposal as "low" risk is denied, where the record shows that technical and cost proposals were rated separately by different evaluation teams which considered different factors, and the different ratings merely reflect the independent judgments of the evaluators and are reasonably supported by the record.
2. Agency was not required to conduct discussions regarding two weaknesses identified in the protester's proposal regarding its past performance since the two weaknesses (which pertained to only 2 out of 20 performance questionnaire items) were not considered significant, and protester's performance record was rated acceptable overall. Agencies are not required to point out every element of acceptable proposals that receive less than the maximum evaluation rating.
3. Protester's allegation that the agency improperly conducted discussions is denied, where the record shows that during several rounds of discussions, the agency reasonably led the protester into areas of its proposal requiring revision, and the protester's failure to make those revisions because it feared jeopardizing its favorable cost rating reflected its own business judgment, rather than any improper agency action.
4. Discussions with offeror whose otherwise acceptable proposal took exception to certain solicitation requirements were unobjectionable where agency reasonably determined that proposal could be made acceptable through discussions and that exceptions were primarily the result of defects in solicitation; ultimate decision to amend the solicitation to cure defects was unobjectionable since agency advised all offerors of the changed requirements and all offerors responded to the amended solicitation in final proposals.
5. Allegation that contracting officer's (CO) multiple roles impermissibly compromised his independence is denied, where there is no evidence in the record that the CO had any influence over the evaluation of technical or cost proposals, or that the CO's carrying out of his responsibilities in any way compromised the source selection.
Cortland Memorial Hospital, B-286890, March 5, 2001.
DIGEST: Protest of agency's source selection is sustained where contemporaneous documentation does not establish that the selection was consistent with the solicitation's evaluation criteria.
Johnson Controls World Services, Inc., B-286714.2, February 13, 2001.
DIGEST: 1. Protest that awardee had unfair competitive advantage due to organizational conflict of interest is sustained where awardee's proposed subcontractor possessed information through its work as a government contractor, the information was not available to other offerors, the agency took no steps to identify or mitigate the conflict in advance, and there were no meaningful procedures in place to prevent interaction between the employees possessing the information and the employees preparing the proposal.
2. Protest that awardee has impaired objectivity type of organizational conflict of interest is sustained where record shows that, under the terms of another contract, proposed subcontractor will be making recommendations that could benefit the awardee, and the proposed subcontractor could be called upon to evaluate the performance of the awardee team.
Schrepfer Industries, Inc., B-286825, February 12, 2001.
DIGEST: Agency properly determined bid bond accompanied by photocopied power of attorney unacceptable because photocopied power of attorney does not establish unequivocally at the time of bid opening that the bond would be enforceable against the surety in the event that the bidder fails to meet its obligations.
Newfield Construction, Inc., B-286912, February 6, 2001.
DIGEST: Agency improperly accepted bid that was nonresponsive where bidder failed to submit a price for one line item and submitted two different prices for a second line item; the bid, as submitted, precluded a determination of the exact nature of the error and the intended price for the omitted bid item.
G & J Small Construction, Inc., B-286716, February 5, 2001.
DIGEST: A bid containing signatures of the president that differed in appearance was improperly rejected where the agency failed to consider the post-bid-opening explanation of the bidder regarding who had signed the bid and why the signatures were different, which should have removed any concern about the signatures.
Jackson Enterprises, B-286688, February 5, 2001
DIGEST: Agency improperly rejected bid for failure to acknowledge amendment where amendment does not contain material information and does not alter bidders' legal obligations.
International Resources Group, B-286663, January 31, 2001. [This appears to be the first case where the GAO has considered the timeliness issue where an email enters the recipient's computer system after business hours and is not read until the first business day after an intervening weekend/holiday]
DIGEST: 1. For purposes of Federal Acquisition Regulation § 15.505(a)(1), which provides that an offeror may request a preaward debriefing by submitting a written request for debriefing to the contracting officer within 3 days after receipt of the notice of exclusion from the competition, where e-mail notification of an offeror's exclusion from the competitive range enters the offeror's computer system after close of business or on a weekend or holiday and is not opened before the following business day, receipt of the notice is considered to have occurred on that business day.
2. Agency improperly reopened discussions with only one of several offerors in the competitive range after receipt of final revised proposals.
Lawson's Enterprises, Inc., B-286708, January 31, 2001.
DIGEST: A solicitation for the rehabilitation of a residence can only reasonably be read as requiring the submission of bid guarantees with all bids, including those under $100,000, and the protester's bid of under $100,000, which did not include a bid guarantee, was properly rejected as nonresponsive.[Case also reaffirms proposition that-"Where an IFB requires all bids to include a bid guarantee, any bid (even one under the Miller Act threshold) failing to provide the required guarantee by bid opening must be rejected as nonresponsive."]
Farmland National Beef, B-286607; B-286607.2, January 24, 2001.
DIGEST: Where awardee's proposal to provide beef products to Department of Defense commissaries stated that the awardee was taking "exception" to the solicitation's mandatory delivery schedule, and the awardee's subsequent submissions further explained that it was proposing a "flexible" schedule under which the awardee would determine on a week-by-week basis when deliveries would be made to the various commissaries, award was improper in that the awardee's proposal failed to conform to a material solicitation requirement.
SWR Inc., B-286161.2, January 24, 2001.
DIGEST: Rejection of protester's proposal as unacceptable because it allegedly did not show specific required experience was unreasonable, where the proposal specifically represented that it had the required experience, the basis for the rejection was the omission of information concerning this experience in documents that were provided by the protester to the agency at a site visit for another purpose and which did not reasonably establish that the protester did not have the experience required, and the alleged deficiency was not identified to the protester during discussions.
Satellite Services, Inc., B-286508; B-286508.2, January 18, 2001.
DIGEST: Protest that agency's source selection decision was unreasonable is sustained where the evaluation did not comport with the solicitation's evaluation criteria and the source selection decision failed to reasonably assess the significance of the technical differences (in particular, the substantial difference in the proposed level of effort) between the lower-rated proposal of the awardee and the higher-rated proposal of the protester.
Aquila Fitness Consulting Systems, Ltd., B-286488, January 17, 2001.
DIGEST: 1. A bid that is based upon the incorrect premise that only three full-time and two part-time positions were required under a solicitation for services where the invitation for bids clearly requires five full-time positions may not be corrected.
2. Protest is sustained, even though the agency properly rejected the protester's low bid due to a mistake in bid, where it then made award to a higher-priced bidder whose bid contained the same mistake, notwithstanding that the higher-priced bidder submitted worksheets to the agency, prior to award in response to the agency's request for bid verification, that clearly evidenced the mistake, and then after award raised the contract price to account for this mistake.
OSI Collection Services, Inc., B-286597; B-286597.2, January 17, 2001.
DIGEST: Protests against award of federal supply schedule task order contracts for private collection agency services are sustained where the record shows that the contracting agency's evaluation of offerors' past performance, which largely relied upon a mechanical comparison of past performance scores for incumbent contractors, was unsupported and unreasonable.
Menendez-Donnell & Associates, B-286599, January 16, 2001.
DIGEST: Agency reasonably found protester's proposal technically unacceptable under experience and past performance evaluation criterion, where record shows that protester failed to submit required detailed information showing that its proposed key subcontractors had previously performed contracts similar to the solicited effort; offerors have an affirmative duty to prepare an adequately written proposal.
Hernandez Engineering, Inc.; ASR International Corporation, B-286336; B-286336.2; B-286336.3; B-286336.4, January 2, 2001.
DIGEST: 1. Protest that contracting agency improperly evaluated awardee's past performance as "very good" is denied, even though the agency considered references of the awardee's parent corporation in the past performance evaluation, where the solicitation did not require any specific minimum of reference questionnaire responses and the agency received a reference questionnaire response regarding a comparable contract performed by the awardee rating its performance as "very good" to "excellent."
2. Consistent with the solicitation's evaluation factors, agency reasonably found significant strengths in awardee's proposal that justified a technical rating that was significantly higher than that of protesters.
3. In calculating probable costs of protesters' proposals, agency reasonably upwardly adjusted their costs where protesters proposed less staffing than forecasted in the solicitation for some of the required services without adequate explanations of the methodology used to develop the proposed lesser levels of staffing and/or accounting for the enhanced levels of services contemplated by the solicitation.