BNUMBER:  B-277497 
DATE:  October 17, 1997
TITLE: Vistron, Inc., B-277497, October 17, 1997
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Matter of:Vistron, Inc.

File:     B-277497

Date:October 17, 1997

Allan Johnson for the protester.
Col. Nicholas P. Retson and Capt. Bryant S. Banes, Department of the 
Army, for the agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency failed to evaluate and consider the alleged 
technical superiority of a proposal for a commercial item is denied 
where the solicitation did not include any technical evaluation 
factors and it is clear that award was to be made on the basis of low 
price.

DECISION

Vistron, Inc. protests the award of a contract to Paging Network of 
Philadelphia (Pagenet) under request for proposals (RFP) No. 
DAKF29-97-R-0011, issued by the Department of the Army for the lease 
of pagers and related services.  Vistron alleges that the agency 
improperly failed to consider the technical superiority of Vistron's 
proposal and instead made award on the basis of low price. 

We deny the protest.

The requirement at issue was originally solicited by the Army under 
invitation for bids (IFB) No. DAKF29-97-B-0009, which was canceled on 
January 17, 1997, 
because all bidders had failed to acknowledge an amendment.  
Thereupon, the procurement was converted to competitive negotiation 
procedures under RFP 
No. DAKF29-97-R-0006 (R-0006).

Proposals under R-0006 were submitted by January 29.  On February 3, 
Vistron was informed that its prices were too high, that it needed to 
sign a procurement integrity certification, and that best and final 
offers (BAFO) were due on 
February 12.  Three amendments were issued to R-0006 in response to 
questions submitted by Vistron.  Amendment 0001, issued on February 7, 
deleted three line items; amendment 0002, issued on February 10, 
postponed BAFOs indefinitely; and amendment 0003, issued on February 
20, revised the schedule and set March 6 as the new closing date for 
BAFOs. 

On March 13, Pagenet was awarded a contract under R-0006 on the basis 
of its lowest-priced offer.  On March 24, Vistron filed an 
agency-level protest challenging the award.  In considering Vistron's 
protest, the Army discovered that it had mistakenly mailed amendment 
0003 calling for BAFOs to Intel Corporation (which the agency believed 
to be Vistron's proposed subcontractor) instead of to Vistron.  As a 
result of this error, Vistron did not have an opportunity to submit a 
BAFO under R-0006.  Accordingly, the agency terminated the award to 
Pagenet and planned to resolicit its requirement; on March 27, Vistron 
was notified of the corrective action taken in response to its 
agency-level protest.

The requirement was resolicited on April 23 under RFP No. 
DAKF29-97-R-0011, which contemplated a fixed-price delivery contract 
for a 3-month base period beginning July 1, with two 1-year options.

Six offers were received as follows:

  Offerors Price

  Pagenet  $115,947.84

  Offeror A$128,008.65

  Offeror B$212,116.79

  Offeror C$340,471.55

  Offeror D$412,769.48

  Vistron  $919,365.92
The Army awarded a contract to Pagenet on June 26 on the basis of its 
low price and notified Vistron of the award the same day.  Vistron 
filed another agency-level protest on July 3 raising various 
allegations which are repeated in this protest.  The agency denied 
Vistron's protest on July 10, and this protest was filed with our 
Office on July 14, principally alleging that, in its decision to 
select Pagenet, the agency improperly failed to take into account the 
superior technical merits of Vistron's proposal.[1]  Vistron 
essentially alleges that the technical superiority of its proposal 
should have been evaluated as outweighing the substantial price 
advantage presented by Pagenet's proposal.[2]

Vistron's argument is misplaced because the solicitation neither 
contained any technical evaluation factors nor provided for an 
evaluation of the relative technical merits of the proposals.  This 
acquisition is for commercial items and, as such, falls under Federal 
Acquisition Regulation (FAR) Part 12.  FAR Subpart 12.3 sets forth 
four clauses which must be incorporated into solicitations for 
commercial items and one clause which is optional.  As a general rule, 
such solicitations are to include "only those clauses . . . [r]equired 
to implement provisions of law or executive orders applicable to the 
acquisition of commercial items . . . or . . . [d]etermined to be 
consistent with customary commercial practice."  FAR  sec.  12.301(a).

FAR  sec.  12.301(b) lists the four mandatory clauses:  (1) "Instructions 
to Offerors--Commercial Items" (FAR  sec.  52.212-1); (2) "Offeror 
Representations and Certifications--Commercial Items" (FAR  sec.  
52.212-3); (3) "Contract Terms and Conditions--Commercial Items" (FAR  sec.  
52.212-4); and (4) "Contract Terms and Conditions Required to 
Implement Statutes or Executive Orders--Commercial Items (FAR  sec.  
52.212-5).  All of these clauses were either set forth or incorporated 
by reference in the RFP.

FAR  sec.  12.301(c) provides for the optional use of technical evaluation 
clauses "[w]hen the use of evaluation factors is appropriate."  That 
section permits the inclusion of a clause set forth in FAR  sec.  52.212-2 
entitled "Evaluation--Commercial Items" or a "similar provision 
containing all evaluation factors required . . . ."  The contracting 
officer elected not to include any technical evaluation clause in the 
RFP at issue.  In short, the solicitation contained no technical 
evaluation factors and otherwise did not contemplate the type of 
evaluation of technical proposals now urged by Vistron.[3]

Because this is a commercial item acquisition which did not include 
the technical evaluation clause called for by FAR  sec.  12.301(c) where a 
relative technical evaluation is contemplated, it is clear that award 
to the lowest-priced offeror submitting a technically acceptable 
proposal is contemplated.  Further, where a solicitation does not 
contain evaluation factors other than price, the general rule is that 
price is the sole evaluation criterion.  AMBAC Int'l, B-234281, May 
23, 1989, 89-1 CPD  para.  492 at 3 n.2.  Since the agency made the award 
after determining that Pagenet's technically acceptable proposal 
offered the low price, we have no basis to disturb that decision.

The protest is denied.
  
Comptroller General
of the United States
 
1. Vistron also raised a number of other issues which we dismiss for 
failure to state a valid basis of protest.  Bid Protest Regulations, 4 
C.F.R.  sec.  21.5 (1997).  In particular, the protester's allegation that 
Pagenet submitted a below-cost offer is not for consideration on its 
merits because the submission of a such an offer is legally 
unobjectionable and the question of whether an offeror can perform at 
its proposed
 price concerns the offeror's responsibility.  Shel-Ken Properties, 
Inc.; McSwain and Assocs., Inc., B-261443, B-261443.2, Sept. 18, 1995, 
95-2 CPD  para.  139 at 3.  Here, by virtue of the award, the agency made an 
affirmative determination of the awardee's responsibility--a matter 
which this Office will not review absent circumstances not present 
here.  Id.

The protester also alleges various errors in the conduct of the 
predecessor procurements, including a failure to send Vistron a BAFO 
request.  To the extent that the allegations of the procurement errors 
are intended to call into question the propriety of the procurement 
under protest, they are irrelevant, since each procurement stands on 
its own.  SEAIR Transp. Servs., Inc., B-274162, Nov. 25, 1996, 96-2 
CPD  para.  198 at 3 n.2.

2. We also note that, in lieu of filing comments on the agency report, 
the protester challenged our determination that because Vistron was 
not represented by counsel, we would not issue a requested protective 
order.  Our Regulations do not contemplate admitting anyone other than 
counsel or consultants retained by counsel to a protective order; 
accordingly, since Vistron was not represented by counsel, no useful 
purpose would have been served by issuing a protective order here.  
See 4 C.F.R.  sec.  21.4(c).  

3. To the extent that Vistron is alleging that the solicitation should 
have provided for a comparative technical evaluation, the allegation 
is untimely.  Protests based upon alleged improprieties in a 
solicitation which are apparent prior to the time set for receipt of 
initial proposals must be filed prior to that time.  4 C.F.R.  sec.  
21.2(a)(1).