BNUMBER: B-271288.2
DATE: October 9, 1996
TITLE: Custom Data Services
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Matter of:Custom Data Services
File: B-271288.2
Date:October 9, 1996
Frank Casey for the protester.
Rose Trafton, Esq., Department of the Navy, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of
the decision.
DIGEST
1. Protest challenging agency's decision to "bundle" agency's
requirements into one procurement rather than issuing multiple
solicitations is dismissed as untimely where agency's "bundling"
approach was apparent from the face of the request for proposals, but
protest was not filed prior to the closing time for receipt of
proposals.
2. Agency properly excluded protester's technically unacceptable
proposal from the competitive range since it had no chance of being
selected for award despite its low price.
3. Protest challenging technical evaluation of proposal is dismissed
as untimely where not filed within 14 days after protester was
informed of deficiencies in its proposal.
4. Where agency holds discussions with competitive range offerors and
requests best and final offers (BAFO), offerors properly may revise
their proposals in their BAFOs.
5. Protester is not an interested party to challenge acceptability of
awardee's proposal where it would not be in line for award even if the
proposal were rejected.
DECISION
Custom Data Services (CDS) protests the award of contracts to SSAI and
Eagle Systems under request for proposals (RFP) No. 68335-95-R-0063,
issued by the Department of the Navy for engineering and technical
services. The protester complains that the agency improperly
"bundled" the solicitation's requirements, and objects to the
technical evaluation of its proposal and its "premature" elimination
from the competitive range.
We deny the protest.
BACKGROUND
The RFP, issued as a small business set-aside on January 31, 1995, and
amended four times prior to closing, sought offers to furnish
engineering and technical services to Navy integrated logistics
support (ILS) managers supporting the design, development, test,
evaluation, procurement, production, deployment, and in-service
support for aircraft launch and recovery equipment, aircraft-platform
interface systems and subsystems, and all Navy/Marine Corps aircraft
support equipment. The solicitation identified six areas ("tasks") in
which support services would be required: ILS planning and
management; maintenance planning/logistics support analysis; supply
support; support equipment; technical data; and training and training
support. Award was to be made to the offeror whose offer constituted
the best value to the government, technical factors and price
considered.
Nine offerors submitted proposals by the April 4 closing date. Six of
the nine proposals, including CDS's, received technical evaluations of
unacceptable; these offerors were informed by letters dated February
15, 1996, that their proposals had been excluded from the competitive
range. The Navy conducted discussions with the three remaining
offerors, upon conclusion of which the competitive range was narrowed
to the proposals from two firms, SSAI and Eagle. The Navy conducted
two additional rounds of discussions with these firms and requested
best and final offers (BAFO) from them. Upon receipt of the BAFOs,
the Navy decided to split the award between the two offerors. The
Navy's rationale for doing so was that one of the two firms offered
superior professional staff experience--but at a higher price--and
while its superior staff competence was required for the more complex
tasks (and thus was worth the price premium), it was not required for
the less complex tasks. On June 4, the Navy awarded contracts to SSAI
and Eagle.
DISCUSSION
CDS first challenges the agency's decision to "bundle" the
requirements into one procurement instead of issuing multiple
solicitations for individual tasks. This contention is untimely. The
agency's "bundling" approach was apparent from the face of the RFP.
Under our Bid Protest Regulations, protest grounds that concern an
alleged impropriety in a solicitation must be filed before the closing
time for receipt of proposals. 4 C.F.R. sec. 21.2(a)(1) (1996). Here,
proposals were due by April 4, 1995. Accordingly, CDS's current
protest, filed on July 3, 1996, is untimely on this ground.[1]
CDS next argues that its proposal should have been retained in the
competitive range given that the agency was considering the
possibility of--and did in fact make--multiple awards. The protester
concedes that there were deficiencies in its proposal, but contends
that an award to it of certain tasks would have allowed the government
to take advantage of the firm's expertise in many of the required
areas. Along the same lines, the protester argues that its proposal
should have been included in the competitive range since it was lower
in price than either awardee's.
The first of these two arguments is premised on the assumption that
the agency divided the award on a task-by-task basis. Such was not
the case, however; the Navy awarded contracts for all tasks to both
awardees. The contracting officer explains that she did not consider
splitting the award on a task-by-task basis to be a viable option
because the projects to be performed often cross task lines and it
would be impracticable to have several different contractors working
to provide a completed product. The protester does not dispute the
reasonableness of the contracting officer's explanation. Since the
protester's argument that its proposal should have been retained in
the competitive range is based on an incorrect assumption concerning
the nature of the award, we see no basis to object to the agency's
action in this respect.
Regarding the second argument, the competitive range consists of those
firms that, based on the technical and cost evaluation factors
identified in the solicitation, have a reasonable chance of being
selected for award. Federal Acquisition Regulation (FAR) sec. 15.609
(FAC 90-31). A firm, like CDS, whose proposal has been determined
technically unacceptable has no chance of being selected for award no
matter how low its price; thus, its exclusion from the competitive
range is proper. Crown Logistics Servs., B-253740, Oct. 19, 1993,
93-2 CPD para. 228.
The protester also challenges the agency's technical evaluation of its
proposal. We will not consider this ground of protest since it was
not raised in a timely manner. CDS was notified--by letter dated
February 15, 1996 and at a debriefing held on February 26--that its
proposal had been determined technically unacceptable. The letter
(and the debriefing) described the proposal's major deficiencies. To
be timely, the protest had to be filed within 14 days after the
protester learned of its basis for protest. 4 C.F.R. sec. 21.2(a)(2).[2]
Thus, CDS had until February 29 (or possibly March 11 if it learned
additional details concerning its technical evaluation at the oral
debriefing held on February 26) to file a timely protest. Since CDS
did not object to the evaluation until it filed its comments on the
agency's protest report on August 27, this ground of protest is
untimely.[3]
CDS next objects to the awards to Eagle Systems and SSAI on various
grounds. First, CDS claims that the awardees improperly were allowed
to "restructure" their offers in their BAFOs. The record shows that
after the competitive range was established, the agency held
discussions and called for BAFOs in accordance with the FAR. See FAR sec.
15.610, 15.611 (FAC 90-31). Thus, to the extent the awardees
"restructured" their initial offers in their BAFOs, this action was
entirely proper. Also, given that a period of approximately 14 months
elapsed between the submission of initial proposals and the submission
of BAFOs and that, in its BAFO, one of the awardees substituted
weighted labor rates for the simple labor rates that it had used in
its initial proposal, we do not think it remarkable (or indicative of
any sort of impropriety) that the offeror increased its price in its
BAFO.
CDS also complains that Eagle did not properly acknowledge the
solicitation amendments; that Eagle must not have proposed a
sufficient work force of its own given that it has hired, or attempted
to hire, nine employees of other contractors since award; that some of
the key personnel identified by SSAI in its proposal will not be
available to perform; and that SSAI is improperly relying on the
resources of a large business to perform the contract. The record
reveals that the first of these assertions is incorrect: Eagle did
properly acknowledge all amendments on the cover page of its offer.
With regard to the second allegation, the fact that some of Eagle's
employees were employed by another contractor prior to Eagle's
receiving the award does not necessarily lead to the conclusion that
Eagle did not identify these individuals in its proposal. The record
in fact confirms that some of the personnel proposed by Eagle were not
Eagle employees at the time proposals were evaluated, but that these
individuals had furnished letters of commitment confirming their
intent to work for Eagle in the event of an award to it. We will not
consider the third and fourth allegations. Since CDS's proposal was
rejected as technically unacceptable and there would be no basis to
cancel and resolicit given that the award to Eagle was proper, CDS
would not be in line for award even if SSAI's proposal were rejected.
Accordingly, CDS is not an interested party to raise these issues.[4]
See American Overseas Book Co., Inc., B-266297, Feb. 9, 1996, 96-1 CPD para.
60.
Next, CDS objects to what it describes as "direct solicitation for
employment for this effort by government personnel of current CDS
employees performing other contracts." According to CDS, two of its
employees were approached by one of the Navy's logistics management
specialists, who inquired about their continued availability to work
under the new contracts. While this behavior may have been
inappropriate, there is no evidence--nor has the protester even
alleged--that the actions of this individual, who was not a member of
the evaluation team, had any impact on the evaluation and award
process. Thus, the allegation does not provide a basis to conclude
that the agency violated applicable procurement laws or regulations in
making the award decisions. Accordingly, CDS fails to state a valid
basis for protest on this ground. See 4 C.F.R. sec. 21.5.
Finally, CDS challenges the agency's release of the synopsis and
abstract 10 days after award was made. This ground likewise fails to
state a valid basis for protest since CDS's contention provides no
basis to find any impropriety in the awards.
The protest is denied.
Comptroller General
of the United States
1. In fact, CDS raised its "bundling" objection in a prior protest
filed February 29, 1996, which also was dismissed as untimely, on
March 4.
2. For protests filed on or after August 8, 1996, the 14-day filing
period has been changed to 10 days. See Bid Protest Regulations,
section 21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified
at 4 C.F.R. sec. 21.2(a)(2)).
3. The protester explains that it did not challenge its technical
evaluation at the time it first learned of it because it did not want
to jeopardize its working relationship with one of the agency
evaluators, who was managing one of its ongoing contracts. The fact
that a protester may have decided that it was not in its best interest
to file a protest at the relevant time does not provide a basis for
waiving our timeliness requirements, however.
4. We note that in response to CDS's general assertions regarding the
unavailability of SSAI's personnel, the agency states that to the best
of the contracting officer's knowledge all key personnel have been
available under SSAI's contract. Also, with regard to the protester's
assertion that SSAI is improperly relying on the resources of a large
business to perform the contract, the contracting officer investigated
the extent to which the firms in the competitive range were relying on
their subcontractors to assure that they complied with FAR sec. 52.219-14
(which requires that, under a contract awarded pursuant to a small
business set-aside, at least 50 percent of the cost of contract
performance incurred for personnel be expended for personnel of the
small business contractor) and determined that SSAI would be
performing more than 50 percent of the work itself. The protester has
presented no evidence to refute this conclusion, and we have no basis
to question it.