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.