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.