BNUMBER: B-261837.2; B-261837.3
DATE: December 19, 1995
TITLE: FMB Laundry, Inc.
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Matter of:FMB Laundry, Inc.
File: B-261837.2; B-261837.3
Date: December 19, 1995
Richard A. Monfred, Esq., and Cynthia L. Leppert, Esq., Neuberger,
Quinn, Gielen, Rubin & Gibber, P.A., for the protester.
L. James Gardner, Esq., and Eric Lile, Esq., Department of the Navy,
for the agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest against solicitation provision requiring that offerors
provide new laundry equipment is denied where record establishes that
the agency had a reasonable basis for excluding used equipment.
2. Protest that solicitation did not adequately identify technical
factors used to determine product acceptability is denied where
technical acceptability requirements on a "go/no-go" basis were
explicitly included in the solicitation's statement of work.
3. Protest that solicitation did not adequately detail the "base
closure status" of a facility to be serviced under laundry contract is
denied where closure date was added by amendment and was after the end
of the contract term, including options.
DECISION
FMB Laundry, Inc. protests the conduct of a procurement under request
for proposals (RFP) No. N68836-95-R-0126, issued for the fixed price
rental of laundry equipment (washers and dryers) at the Orlando Naval
Training Center, from date of award through September 1996, with
1-year options through September 1988. FMB challenges the terms of
the RFP.
We deny the protest.
BACKGROUND
The RFP was issued on June 1, 1995, with a closing time of 2 p.m. on
Monday, July 3. Award was to be made to the low-priced technically
acceptable offeror. Technical acceptability was to be determined on a
"go/no-go" basis by examination of descriptive literature submitted by
an offeror regarding the washers and dryers to be installed and
maintained under the contract to see if they met the minimum technical
requirements set forth in the statement of work. All equipment under
the contract was required to be new.
On June 23, FMB--the incumbent contractor at Orlando--sent the
contracting officer a request for clarification of 28 items which the
protester maintains were necessary to make an "accurate bid in
response to [the] solicitation." On June 27, FMB filed its first of
three protests with our Office[1] alleging that: (1) the RFP should
be amended to permit the use of used equipment; (2) the RFP failed to
set forth technical evaluation factors and their relative weights in
relation to price; and (3) the RFP failed to adequately detail what
effect the status of the planned base closure at Orlando would have on
the contract.
On Thursday, June 29, the contracting officer received FMB's June 23
request and, on Friday, June 30, responded by issuing amendment No.
0001 which addressed the 28 items of concern to the protester. The
amendment did not extend the 2 p.m. closing time on July 3. Prior to
the time set for closing, FMB filed an agency-level protest alleging
that amendment No. 0001 did not fully address its concerns and
requesting additional time to prepare an offer. The agency proceeded
with closing as scheduled.
Five proposals were received. FMB's offer was the highest priced by a
substantial margin and submitted "under protest" because, in its view,
the technical concerns raised on June 23 had not been adequately
addressed. The cover letter to the proposal stated
"The prices submitted in our proposal may not truly reflect the
costs involved in performing . . . depending on the answers to
the questions we had submitted."
The agency found FMB's proposal to be acceptable with respect to the
technical requirements in the RFP but overall unacceptable because it
failed to submit firm fixed prices.
On August 10, FMB filed a second protest with our Office challenging
the determination that its proposal was unacceptable, alleging that
the agency's failure to respond to its inquiries and its agency-level
protest requesting additional time to prepare an offer precluded the
firm from submitting an accurate price proposal. Parallel arguments
were set forth in FMB's comments to the agency report filed on the
same date.
The agency subsequently changed its position with respect to the
acceptability of FMB's proposal and, by amendment No. 0002 dated
September 25, invited all offerors to engage in negotiations and
submit revised proposals by 2 p.m. on September 27. On September 26,
FMB's counsel submitted a letter to the contracting officer stating
its position that negotiations should be postponed until its protests
before our Office were resolved and posing nine questions which, in
FMB's view, required resolution before the firm could submit a revised
proposal.
The nine questions were discussed in oral negotiations on September
26. FMB submitted a revised proposal on September 27 and a best and
final offer (BAFO)--in response to amendment No. 0003 on September 28.
FMB then filed its third protest with our Office on September 29
alleging that the negotiations had been improperly conducted,
principally because the agency had not responded to the September 26
letter from FMB's counsel and because the time allotted for proposal
revision was insufficient.
PRELIMINARY MATTERS
As indicated above, FMB first protested the agency's decision to
proceed with the July 3 closing to our Office on August 10. In that
protest, FMB complained that its agency-level protest requesting an
extension to prepare an offer had not been answered because the 28
questions it submitted on June 23 had not been adequately addressed
and because the agency had not afforded offerors a sufficient proposal
preparation period.
These allegations are untimely.[2] Under our Bid Protest Regulations,
4 C.F.R. 21.2(a)(3) (1995), a protest to our Office must be filed
within 10 working days after actual or constructive notice of initial
adverse agency action on a protest filed initially with the
contracting agency. Generally, where a protest concerning an alleged
solicitation impropriety has been filed with the contracting agency
and the agency proceeds to receive proposals without taking corrective
action requested in the agency-level protest, closing constitutes
initial adverse agency action on the protest. Zapata Gulf Marine
Corp., B-235249, July 27, 1989, 89-2 CPD 85. Since FMB's protest
was filed in our Office on August 10, more than a month after the July
3 closing date, it is clearly untimely.
FMB's allegations concerning the failure of the agency to delay
negotiations and the submission of BAFOs, which were filed on
September 29, are also untimely. The timetables for negotiations and
the submission of BAFOs were established in amendment Nos. 0002 and
0003, respectively. By the terms of amendment No. 0002,
post-negotiation revised proposals were due on September 27. By the
terms of amendment No. 0003, BAFOs were due on September 28. Under
our Bid Protest Regulations, alleged solicitation improprieties which
are apparent on their face and added by amendment must be protested by
the closing time established by the amendment. 4 C.F.R. 21.2(a)(1).
Since FMB waited until both closing times had passed to file its last
protest, it is untimely.
PROTEST AND ANALYSIS
The issues for resolution by this Office on their merits are those
raised in the initial protest, i.e., (1) whether the requirement for
new equipment is overly restrictive; (2) whether the RFP failed to set
forth technical evaluation factors with weights relative to price; and
(3) whether the RFP adequately informed offerors of the effect of a
planned base closure at Orlando on the contract to be awarded.
The protester asserts that the useful life of the machines it
possesses at Orlando is between 7 and 10 years and that all of those
machines are less than 2-1/2-years old. Based on this assertion, FMB
argues that the specification requirement for new equipment is
wasteful and restrictive of competition by excluding vendors with used
equipment.
In response, the agency notes that during a 6-year period where used
machines were permitted at Orlando a significant and deleterious
amount of downtime was experienced. In addition to reviewing this
contract administration history, the agency contacted the manufacturer
of the 2-1/2-year old machines presently at Orlando and was informed
that, while their normal useful lifespan was, as FMB states, 7 to 10
years, in an environment where 3,800 people were using the machines
the lifespan would likely decrease to 3 to 4 years "with no
guarantees." The agency also argues that permitting FMB's use of the
machines it now possesses at Orlando would be tantamount to
restricting the competition to the protester.
Because contracting officials are most familiar with their minimum
needs and the conditions under which they can be met, our Office will
not disturb a contracting agency's decision regarding how to best
fulfill those needs absent a clear showing that the decision was
unreasonable and a protester's mere disagreement with the agency's
judgment does not establish that it was unreasonable. Robertson and
Penn, Inc., B-226992, June 9, 1987, 87-1 CPD 582.
While the protester criticizes the agency's determination that new
machines will decrease downtime and disrupt operations at Orlando, the
record shows that this position is reasonably based on the agency's
experience with used machines over a 6-year period. The record shows
that the agency reasonably relied on the manufacturer's advice that
the average lifespan of laundry equipment will significantly decrease
from the 7 to 10 years claimed by FMB when the equipment is subject to
heavy use by 3,800 people in the Orlando environment. At best, FMB
has expressed its disagreement with the agency's technical judgment;
such a disagreement, without more, provides us with no basis upon
which to sustain the protest. Id.
FMB also asserts that the RFP is deficient because it fails to specify
what technical factors will be used to determine acceptability and
what weight will be accorded to these factors in relation to price in
making the award determination.
Contrary to this assertion, section M stated
"Award will be made to that . . . offeror submitting the lowest
priced, acceptable proposal. An acceptable proposal is one that
conforms to . . . the proposal submittal requirements of Section
L. . . ."
Section L, in turn, required the submission of descriptive literature
to enable the agency to determine that the products offered conformed
to requirements specified elsewhere in the RFP; these requirements
were set forth in section C which contained minimum design and
performance specifications. Thus, the technical requirements for
acceptability were detailed in the RFP. As for FMB's concern that the
relative weight of acceptability versus price was not spelled out, the
solicitation did not contemplate gradations in acceptability
rankings--it was essentially a "go/no-go" determination--and in the
context of such a procurement "weight" in relation to price is
meaningless. Moreover, there is nothing legally inappropriate with
limiting the determining award factor to price in a negotiated
procurement. Blane Corp., B-234887, Apr. 24, 1989, 89-1 CPD 403.
Finally, the protester notes that Orlando is scheduled for base
closure and argues that the RFP lacked detail of the "status" of the
closure which precluded offerors from submitting accurate prices
because they could not determine the impact of the closure on how many
machines the government would actually need.
In amendment No. 0001, the agency stated that the base would close on
October 31, 1988. Since the RFP was for a contract with options
through September 30, 1988, and there is nothing in the record to
indicate that the estimated quantities set forth in the schedule of
items for washers and dryers are inaccurate, we fail to see what
additional information the agency could supply offerors regarding base
closure that could affect pricing strategies.
The protest is denied.
Comptroller General
of the United States
1. The June 27 protest did not mention FMB's request for clarification
on 28 items.
2. To the extent that the August 10 protest objects to the initial
agency decision to eliminate FMB's proposal from the competitive range
because it did not contain firm fixed prices, the protest is academic
in light of the subsequent inclusion of the proposal.