Bid Protest Weekly is researched, written and distributed by the attorneys of General Counsel, P.C.. Bid Protest Weekly provides weekly summaries of recent bid protest decisions, highlighting key areas of law, agencies, and analyses of the protest process in general.
Bid Protest Weekly – December 19, 2011
1. SECO Systems, Inc., B-404905.3; B-404905.4, October 4, 2011
Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Competitive Range
General Counsel P.C. Highlight: If there is no reasonable possibility that a proposal will be considered amount the highest rather offers the GAO is not going to sustain a protest absent a very clear showing that the agency acted unreasonably.
GAO denies the protest of SECO Systems, Inc. where its proposal was excluded from the competitive range under a request for proposals (RFP), issued by the General Services Administration (GSA), Public Buildings Service (PBS), for administrative and technical support services for GSA’s Rocky Mountain Region.
SECO challenges its exclusion from the competitive range, arguing that the contracting officer (CO) told SECO that GSA was looking for “over and above strengths,” which SECO’s proposal did not provide. SECO also complains that GSA downgraded SECO’s proposal because the price proposal did not provide a narrative discussion, and because of SECO’s key personnel. GAO states that it will review an agency’s evaluation and exclusion of a proposal from the competitive range for reasonableness and consistency with the solicitation criteria and applicable statutes and regulations. Contracting agencies are not required to retain in the competitive range proposals that are not among the most highly rated or that the agency otherwise reasonably concludes have no realistic prospect of being selected for award. In this regard, a protester’s mere disagreement with an agency’s evaluation and competitive range judgment does not establish that the agency acted unreasonably.
Here, the record establishes no reasonable possibility that SECO’s proposal would be considered to be among the most highly rated offers, even accepting the protester’s arguments concerning its price proposal and key personnel. The agency determined that, contrary to the RFP’s requirements, SECO failed to provide references for two of its key personnel and failed to identify two projects for its past performance. SECO does not challenge the agency’s determination in this regard. Instead, SECO’s arguments focus upon the two statements in the competitive range determination memorandum that it contends are unreasonable. Even accepting SECO’s arguments, however, SECO’s proposal failed to satisfy all of the RFP’s requirements. GAO cannot say based upon this record that SECO’s proposal should have received higher than a marginal rating, given the proposal’s material deficiencies. Furthermore, SECO’s proposal was substantially higher priced than all but one of the offers included in the competitive range, and the one offer that was slightly lower priced was rated significantly higher technically. Although SECO disagrees with the CO’s competitive range judgment, the protester failed to show that the agency unreasonably concluded that SECO’s proposal was not among the most highly rated offers for inclusion in the competitive range. The protest is denied.
2. SBBI, Inc., B-405754, November 23, 2011
Link: GAO Opinion
Agency: Department of Transportation
Disposition: Protest denied.
Keywords: Uniform Time Act of 1996
General Counsel P.C. Highlight: The time listed in the invitation for bids is always local time for governmental purposes.
GAO denies the protest of SBBI, Inc., under an invitation for bids (IFB), issued by the Department of Transportation (DOT), Federal Highway Administration (FHWA), for a roadway construction project for the Coronado National Forest, Graham County, Arizona.
The protester maintains that although the agency changed the location of the bid opening to Phoenix, Arizona, the agency did not change the time for submission of bids. The protester argues that bids were originally required to be submitted by 1:00 p.m. MST which is actually 12:00 p.m. Arizona time, and that bids received after 1:00 p.m. Colorado time should be rejected. GAO has previously held, that under the Uniform Time Act of 1996, 15 U.S.C. sect. 262 (2006), there is one standard time for most governmental purposes, including the time designated for receipt of proposals or opening bids, and that time is the local time, regardless of whether it is referred to as standard time or as daylight savings time in the solicitation.
The agency responds that both Colorado and Arizona are in the MST time zone, but that Arizona does not observe daylight saving time. The agency states that during the months of daylight saving time Arizona is one hour behind the rest of the MST zone. It is the agency’s position that 1:00 pm MST on the IFB referred to the time in Arizona where the solicitation designated bids were to be received, and that all bids were received timely and opened at the proper time and that the awardee was properly declared the apparent low bidder. GAO agrees and states that all bids were submitted to the FHWA Phoenix, Arizona office as required by the IFB and all were received prior to the 1:00 p.m. scheduled bid opening. Thus, all the bids were timely received at the 1:00 p.m. local time for Arizona, the designated place for receipt of bids. The protest is denied.
3. MICCI Imaging Construction Company, Inc., B-405654, November 28, 2011
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest dismissed.
Keywords: Interested party; set-aside; SDVOSB
General Counsel P.C. Highlight: A protestor must be an interested party as defined in the Competition in Contracting Act of 1994 to successfully protest a contract award. In a set aside if the protestor is not qualified for the set aside it cannot be considered an interested party.
GAO dismisses the protest of MICCI Imaging Construction Company, Inc., under a request for proposals (RFP), issued by the Department of Veterans Affairs (VA) for phase II of a parking garage expansion.
MICCI argues that the VA improperly rejected its proposal because it was not listed in the VA’s database of veteran-owned small business concerns. GAO states that under the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. sections 3551-3556 (2006), only an “interested party” may protest a federal procurement. That is, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. Determining whether a party is interested involves consideration of a variety of factors, including the nature of issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. A protester is not an interested party where it would not be in line for contract award were its protest to be sustained.
Here, MICCI would not be in line for award even if GAO was to sustain the protest because the VA’s Center for Veterans Enterprise (CVE) has denied its application for inclusion in the Vendor Information Pages (VIP) database as a service-disabled, veteran-owned small business (SDVOSB) concern. Although MICCI has filed a request for reconsideration, the determination that MICCI is not an eligible SDVOSB concern remains in effect, and thus provides no basis for GAO to consider the agency’s actions. The protest is dismissed.
4. WingGate Travel, Inc.; AirTrak Travel; and Alamo Travel Group, B-405007.9, November 29, 2011
Link: GAO Opinion
Agency: Department of Defense
Disposition: Protest denied.
Keywords: Risk; Changes clause; equitable adjustment
General Counsel P.C. Highlight: Shifting greater risk to the contractor is not grounds for protest. “The increasing burden of risk in federal contracting” an article published in the Washington Business Journal by Lee Dougherty regarding this protest.
GAO denies the protest of WingGate Travel, Inc., et al., based on the terms of a request for proposals (RFP), issued by the Defense Human Resources Activity (DHRA), on behalf of the Defense Travel Management Office (DTMO), for travel management services to support the commercial travel office (CTO).
The protesters specifically challenge the RFP provision, establishing that fixed transaction fees will not be adjusted as a consequence of variations from the solicitation’s estimated workload quantities absent a determination that the variation constitutes an “out of scope” change. According to the protesters, this provision, which was not included in prior contracts, puts undue risk on prospective small business contractors. GAO states that as a general rule, the contracting agency must give offerors sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. However, the contracting agency has the primary responsibility for determining its needs and the method of accommodating them, including the choice of the appropriate contracting format. GAO will not question an agency’s choice of procurement approach, absent clear evidence that its decision is arbitrary or unreasonable, or in violation of statute or regulation. It is within the administrative discretion of an agency to offer for competition a proposed contract that imposes maximum risks on the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal. Risk is inherent in most types of contracts, particularly fixed-price contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. A mere difference of opinion between the protester and the agency concerning what will best suit the agency does not establish that the agency’s determination as to its requirements placed undue risk on the contractor.
The agency acknowledges that prior procurements for these services have included equitable adjustment provisions based on specified variations in estimated volumes of transactions. It explains, however, that this was done because the agency lacked historical data that would assist offerors in responding to the solicitation and in assessing risk. Having now provided that historical data in this procurement, the agency chose the current solicitation method to ensure that it would pay fixed rates for only those travel services that it required and only as they were required. Contracting agencies are not required to conduct present procurements in a certain manner simply because they conducted past procurements in that manner. Given the agency’s inclusion of extensive historical data in the current solicitation, information that was not available under prior solicitations, the protesters’ challenge, based on the agency’s deviation from former practice, lacks merit.
In addition, the protesters argue that GAO’s decision in BMAR & Assocs., Inc., B-281664, Mar. 18, 1999, 99-1 CPD para. 62, requires a different outcome. In BMAR, GAO sustained a protest on the basis that the solicitation at issue subjected contractors to unreasonable risk because it required fixed lump sum pricing for largely undefined civil engineering services. However, GAO state that here, the agency is procuring specific types of services on a fixed‑price, transaction fee basis; the more transactions a prospective contractor performs, the more fee revenue it will earn. Moreover, the solicitation in BMAR had been issued in connection with a public/private competition under Office of Management and Budget Circular A-76. In the unique context of that competition GAO found that the lump sum pricing arrangement put private sector offerors at a competitive disadvantage in relation to the public sector competitor because the public sector competitor, unlike the private sector competitor, would not need to account for contingencies in its pricing. The solicitation here was not issued in connection with OMB Circular A-76. The protest is denied.
5. Globecomm Systems, Inc., B-405303.2; B-405303.3, October 31, 2011
Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Competitive range; source selection plan
General Counsel P.C. Highlight: A poorly written protest that fails to properly argue the facts and law will not be sustained where the record indicates the agency’s action were reasonable.
GAO denies the protest of Globecomm Systems, Inc. where its proposal was eliminated from the competitive range by the General Services Administration (GSA) under a request for proposals (RFP), issued by GSA for worldwide commercial satellite communications (COMSATCOM) end-to-end solutions.
Globecomm specifically asserts that its proposal fully met the evaluation criteria and should have received ratings that were higher than unacceptable under both the technical/management evaluation factor and the corporate experience evaluation factor. GAO states that it will review an agency’s evaluation and exclusion of a proposal from the competitive range for reasonableness and consistency with the solicitation criteria and applicable statutes and regulations. Contracting agencies are not required to retain proposals in the competitive range that are not among the most highly rated or that the agency otherwise reasonably concludes have no realistic prospect of being selected for award. Further, the evaluation of proposals is a matter within the discretion of the contracting agency, since the agency is responsible for defining its needs and the best method of accommodating them. In reviewing an agency’s evaluation, GAO will not reevaluate proposals, but instead will examine the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and with procurement statutes and regulations. Finally, it is the offeror’s responsibility to submit a well-written proposal, with adequately detailed information to demonstrate compliance with the solicitation requirements, and an offeror’s mere disagreement with the agency’s judgment concerning the adequacy of the proposal is not sufficient to establish that the agency acted unreasonably.
First, based on GAO’s review of the record, GAO finds nothing unreasonable in the agency’s determination that Globecomm’s proposal failed to demonstrate an adequate understanding of the importance of the RFP’s requirement regarding timely delivery where the proposal failed to provide a detailed delivery schedule and simply asserted that Globecomm was committed to timely delivery. Although the protester maintains that, even if the solicitation reasonably contemplated more detailed scheduling information, the proposal’s deficiency in this regard should not be considered a significant weakness, it fails to meaningfully dispute or otherwise show to be unreasonable the agency’s analysis of the specific weaknesses in its proposal regarding the delivery requirement; accordingly, Globecomm’s assertions constitute mere disagreement with the agency’s judgment. On the record here, GAO does not question the agency’s determination that Globecomm’s proposal failed to meaningfully comply with the solicitation’s scheduling and delivery requirements.
Next, nothing in Globecomm’s protest nor its comments refute, and in most instances fail to even address why Globecomm believes the agency’s evaluation of its corporate experience was unreasonable. In pursuing this protest, Globecomm has copied portions of its proposal, yet provided virtually no supporting explanation as to why the various copied portions of its proposal render the agency’s criticisms invalid. Based on the record presented, GAO again finds no basis to question the agency’s evaluation of Globecomm’s proposal as unacceptable with regard to the corporate experience factor.
Globecomm also contends that the agency improperly used a predetermined cutoff score to establish the competitive range based on whether or not an offeror has one or more significant weaknesses for the technical/management evaluation factor. The record fails to support the protester’s argument in this regard. The record shows that all eight of the offerors eliminated from the competitive range were rated unacceptable under both the technical/management factor and the corporate experience factor. The record does not indicate that there was a predetermined cutoff based on the number of weaknesses for the technical/management evaluation factor.
Similarly, the protester asserts that the agency failed to consider all of the evaluation factors in making the competitive range decision. However, the record shows that the competitive range consisted of other offerors. Globecomm and seven other offerors were eliminated based on their ratings of unacceptable for both the technical/management and corporate experience evaluation factors. The record indicates that the agency conducted a detailed evaluation of all offerors under all evaluation factors, including price, to make the competitive range determination. On this record, Globecomm’s assertion that the agency failed to consider all of the evaluation factors is without merit.
Finally, Globecomm argues that the agency failed to comply with the source selection plan when determining the competitive range. An agency’s source selection plan is an internal guide that does not give rights to parties; it is the RFP’s evaluation scheme, not internal agency documents such as source selection plans, to which an agency is required to adhere in evaluating proposals. The protest is denied.
Source: General Counsel, P.C.’s Government Contracts Group helps clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations.
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