BNUMBER: B-272525
DATE: October 21, 1996
TITLE: C-Cubed Corporation
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Matter of:C-Cubed Corporation
File: B-272525
Date:October 21, 1996
James P. Gallatin, Jr., Esq., Popham Haik, for the protester.
Thomas J. Touhey, Esq., Bastianelli, Brown, Touhey & Kelley, for
Semcor, Inc., an intervenor.
Anita Dixon Polen, Esq., Department of the Navy, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency decision to eliminate protester's proposal from consideration
for award was reasonable where it was not clear from best and final
offer that protester had committed to providing personnel meeting the
solicitation's education and experience requirements.
DECISION
C-Cubed Corporation protests the rejection of its proposal under
request for proposals (RFP) No. N00189-94-R-0131, issued by the
Department of the Navy for professional and technical engineering
services for shipboard electronic and electrical equipment.
We deny the protest.
BACKGROUND
The solicitation, which contemplated award of a time-and-materials,
delivery order contract for a 1-year base period, with four 1-year
options, listed categories of personnel that would be required to
perform the contract, as well as specific education and experience
requirements for each. The electronics assembler was required to have
a high school degree, and the junior engineering technologist was
required to have successfully completed 2 years of study at a school
of higher education; there were no experience requirements for either
category. The nine miscellaneous support trades listed required a
high school diploma and experience varying from 2 to 6 years in the
specific trade. Thus, for example, a sheet metal worker was required
to have 5 years of experience fabricating, assembling, installing and
repairing sheet metal products and equipment.
C-Cubed proposed (for the first time) in its best and final offer
(BAFO) to employ individuals from the Virginia Apprenticeship Program.
Its proposal stated that:
"those are the individuals which are bid under the category of
Electronics Assembler. Upon graduation from the program, the
individuals will be elevated to either Jr. Engineering
Technologist or Miscellaneous Support Trades."
The contracting officer rejected C-Cubed's BAFO as unacceptable
because he found it unclear whether the apprentices from the Virginia
program would meet the education and experience requirements for the
positions which they would fill. More specifically, the BAFO did not
indicate that the apprentices would have a high school degree, as
required for the electronics assembler and miscellaneous support
trades; did not indicate that the apprentices would complete the 2
years of higher education required for the junior engineering
technologist; and did not indicate that the apprentices would have the
required years of experience when promoted to the miscellaneous
support trades.
C-Cubed maintains that the information furnished was sufficient to
establish compliance with the education and experience requirements,
and that rejection of its proposal therefore was improper. The
protester points out that the apprentices in the Virginia program
range in age from 16 to 24 years old, a range encompassing apprentices
old enough to have completed high school (as required for the
electronics assembler and miscellaneous support trades), and 2 years
of higher education (as required for the junior engineering
technologist). Similarly, with respect to the experience required for
the various support trade labor categories into which it proposed to
promote apprentices, C-Cubed notes that two trade categories under the
Virginia program (carpenter and pipefitter) have apprenticeship
periods long enough to meet the experience requirements for the
support trade positions listed in the solicitation, and that its BAFO
identified another category under the Virginia program--electrical
worker--with an apprenticeship period (4 to 5 years) sufficient to
meet the experience requirement for all but one category of the
miscellaneous support trades.[1] C-Cubed concludes that it identified
in its proposal a pool from which it could obtain adequately educated
and experienced personnel, and that the Navy, in finding its proposal
unacceptable, improperly assumed that C-Cubed would select from this
pool individuals who do not meet the solicitation requirements;[2]
this conclusion, C-cubed asserts, was inconsistent with the statement
in its proposal that "this proposal is fully responsive to the
mandatory requirements of the RFP."
In a negotiated procurement, any proposal that takes exception to a
material solicitation requirement, or otherwise fails to conform to
the material terms and conditions of the solicitation, is unacceptable
and may not form the basis for an award. See Scientific-Atlanta,
Inc., B-253343 et al., Mar. 14, 1994, 94-1 CPD para. 325. Where an
evaluation is challenged, we will review the matter to determine
whether it was reasonable and consistent with the evaluation factors.
Dylantic, Inc., B-261886, Oct. 30, 1995, 95-2 CPD para. 197. The
Navy reasonably evaluated and rejected C-Cubed's proposal.
While the pool of employees identified in C-Cubed's BAFO contained
some individuals who would be able to satisfy the education and
experience requirements, not all of the individuals in the pool could
satisfy the requirements. By identifying only the pool, without also
indicating that only qualified individuals would be selected from the
pool, C-Cubed's BAFO was unclear as to whether the firm was proposing
to comply with the education and experience requirements, or was
taking exception to those requirements by proposing participation in
the Virginia program as a substitute for the specific education and
experience requirements in the RFP.
C-Cubed's failure to commit to meeting the education requirements was
a sufficient basis for rejecting its proposal as unacceptable.
However, we also note that C-Cubed's BAFO did not adequately
indicate that the experience requirements would be satisfied. C-Cubed
is correct that certain of the apprenticeship periods under the
Virginia program--carpenter, pipefitter, and electrical worker--are
long enough to meet the number of years of experience required for the
corresponding support trades under the RFP. However, C-Cubed's BAFO
did not state that only carpenter, pipefitting, and electrical worker
apprentices would be hired from the Virginia program (for the
electronics assembler positions), or that the individuals hired would
be promoted from the electronics assembler position only into the
carpenter, pipefitter, and electrical worker support trades. In this
regard, C-Cubed's argument ignores the fact that the solicitation
required not just a specific number of years of experience for the
support trades, but that the experience be in the specific trade in
which the individual will be employed. Thus, without some
representation in C-Cubed's proposal that it would hire (and
subsequently promote) only carpenter, pipefitter, and electrical
worker apprentices, the agency had no assurance that the individuals
in the support trade positions would satisfy the experience
requirements for each position.
C-Cubed's argument that there was no basis for the agency to assume
that it would deliberately violate the terms of the solicitation
misses the point. The agency was not assuming that C-Cubed would
violate the RFP terms but, rather, was anticipating that, in
performing the contract, C-Cubed could assert that the agency had
accepted its proposal to substitute apprenticeship in the Virginia
program for the education and experience requirements in the RFP.
While C-Cubed states that it intended to fully comply with the RFP
requirements in selecting and promoting individuals from the Virginia
program, the Navy was not obligated to accept the risk that C-Cubed
would assert that the language of its proposal permitted it to select
or promote individuals who did not meet the RFP requirements. It is
an offeror's obligation to submit a proposal fully demonstrating that
it intends to comply with the solicitation terms. Diagnetics, Inc.,
B-261712, Sept. 28, 1995, 95-2 CPD para. 165. A blanket offer of
compliance, such as C-Cubed's statement that its proposal meets the
requirements of the solicitation, does not meet this burden. See
Marylou's Transp. Serv., supra.[3]
The protest is denied.
Comptroller General
of the United States
1. C-Cubed also states that it was told that the contracting officer
initially found that the apprentices met the requirements of the
solicitation for the Electronics Assembler. The contracting officer's
statement, however, referred to the experience requirement, not the
education requirement.
2. Noting that the technical evaluation team found that its BAFO was
acceptable, C-Cubed questions how the contracting officer could
determine that its BAFO was unacceptable. The technical team,
however, found that C-Cubed's revised proposal, not its BAFO, was
fully acceptable. Where an offeror introduces changes into its BAFO,
it takes the risk that those changes may render its previously
acceptable proposal unacceptable. Marylou's Transp. Serv., B-261695,
Sept. 28, 1995, 95-2 CPD para. 154.
3. C-Cubed asserts that the Navy provided an inadequate debriefing.
This is a procedural matter concerning agency actions after award
which are unrelated to the validity of the award; we generally will
not review such matters. Infotec Dev., Inc., B-258198 et al., Dec.
27, 1994, 95-1 CPD para. 52.