| United States Department of Commerce
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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.
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.
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.
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?]
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 ãessentially 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.
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.
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.