TITLE:  	Matrix General, Inc., B-282192, June 10, 1999
BNUMBER:  B-282192
DATE:  June 10, 1999
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Matrix General, Inc., B-282192, June 10, 1999

Decision

Matter of: Matrix General, Inc.

File: B-282192

Date: June 10, 1999

Terry Cowart for the protester.

Justin P. Patterson, Esq., and Sherry K. Kaswell, Esq., Department of the
Interior, for the agency.

Linda C. Glass, Esq., Paul E. Jordan, Esq., and Paul I. Lieberman, Esq.,
Office of the General Counsel, GAO, participated in the preparation of the
decision.

DIGEST

1. Exclusion of protester's proposal from competitive range is
unobjectionable where agency reasonably concluded that, based on its
evaluation of the offerors' capability and price ratings, the proposal was
not among the most highly-rated.

2. Protest of agency's failure to allow adequate time for offerors to
respond to solicitation amendment is untimely where allegation initially was
raised in agency-level protest and subsequent protest to General Accounting
Office was not filed within 10 days after closing date for receipt of
proposals, which constituted initial adverse agency action on the protest.

DECISION

Matrix General, Inc. protests the exclusion of its proposal from the
competitive range and the subsequent award of a contract to Rockford
Corporation, under request for proposals (RFP) No. 1443RP991099902, issued
by the Department of the Interior, National Park Service (NPS) for the
design, furnishing, and installation of a complete underground fuel storage
and distribution system at Glacier Bay National Park, Alaska.

We deny the protest.

The RFP was issued on December 23, 1998, and, as amended, contemplated award
of a fixed-price contract to design, furnish and install a complete
underground fuel storage and distribution system to replace the existing
fuel system. RFP attach. I, at 1. The requirement also included the removal
of the existing fuel storage and distribution system and preparation of
Spill Prevention Control and Countermeasure (SPCC) and Facility Response
Plans for the new system. Id.

The RFP stated that award would be made to the offeror whose offer
represents the best value to the government on the basis of (1) the merits
of the offer and (2) the offeror's capability. RFP sect. M.1. The RFP stated
that the agency would determine the acceptability of each offer on a
pass/fail basis and that an offer is acceptable when it manifests the
offeror's assent, without exception, to the terms and conditions of the RFP.
RFP sect. M.2.a. Under capability of the offeror, the RFP provided that the
government would assess the capability of each offeror on the basis of (1)
its organizational experience, (2) its organizational past performance, (3)
qualifications and experience of key personnel, and (4) its demonstrated
ability to comply with instructions. RFP sect. M.3. The RFP also stated that the
agency would not assess capability on a pass/fail basis, but would use its
assessments of capability as a basis for comparing offerors to determine
best value. Id. The RFP provided that an offeror's capability assessment was
significantly more important than its price. RFP sect. M.4.1. The RFP further
stated that in order to select the winning offeror, the government would
rank the offers from best to worst by making a series of paired comparisons
among them, trading off the marginal differences in capability and price
between the members of each pair. RFP sect. M.5.

The original closing date for receipt of proposals was January 25, 1999. All
vendors on the agency mailing list were notified by telephone during the
week of January 18, 1999, that an amendment would be issued extending the
proposal due date and clarifying information contained in the RFP.
Contracting Officer Statement at 1. Amendment No. 0001 was issued on January
26 which provided responses to clarification requests and changed the
closing date to February 2.

Ten proposals were received by the February 2 closing time. The technical
proposals were evaluated by the technical evaluation panel (TEP) and a
competitive range of three proposals was established. Discussions were held
with the competitive range offerors and final proposal revisions were
received and evaluated. After final proposal evaluation, the Rockford
Corporation's proposal was determined to be the best value based upon a
minimal difference in technical capability but a substantial cost savings
compared to the other two competitive range offerors. On February 23, 1999,
award was made to Rockford in the amount of $141,000 for the design and
response plan preparation phases of the contract. Once the design and
response plans have been approved by the NPS and the State of Alaska, the
construction and demolition phases will be added to the contract by
modification in the amount of $1,650,000. Legal Memorandum at 1. After
requesting and receiving a debriefing on February 25, Matrix filed this
protest with our Office on March 4, 1999.

First, Matrix states that it interpreted the "bid documents to state that
the award would be given to the low responsible bidder who had the technical
qualifications to provide an end product and who had a competitive price."
Protest at 2. Matrix argues that based on this standard it was technically
qualified and was denied further consideration without a reasonable basis.
Matrix also contends that it was unfairly and arbitrarily denied price
consideration. Contrary to Matrix's assumption, the RFP did not provide for
award on the basis of the low, technically acceptable offer; rather, as
explained above, the RFP specifically stated that award would be made to the
offeror whose offer represents the best value to the government on the basis
of (1) the merits of the offer and (2) the offeror's capability. While the
RFP provided for an assessment of acceptability on a pass/fail basis, it
provided for an assessment of capability as a basis for comparing offerors
to determine best value. The RFP also provided that an offeror's capability
was significantly more important than its price. Since the RFP specifically
indicated that technical considerations were more important than price
considerations, technical superiority properly could be considered in the
agency's selection decision. Dynamics Research Corp., B-240809, Dec. 10,
1990, 90-2 CPD para. 471 at 2. Here, while Matrix's proposal was considered
acceptable, it was ranked fifth in capability and, thus, could not be
considered to be in line for award simply on the basis of price.

Matrix essentially objects to its exclusion from the competitive range and
to the agency's establishment of a competitive range of only three
proposals. The determination of whether a proposal is in the competitive
range is principally a matter within the reasonable exercise of discretion
of the procuring agency, and in reviewing an agency's evaluation of
proposals and subsequent competitive range determination we will not
evaluate the proposals anew in order to make our own determination as to
their acceptability or relative merits; rather, we will examine the record
to determine whether the documented evaluation was fair and reasonable and
consistent with the evaluation criteria. Ervin & Assocs., Inc., B-280993,
Dec. 17, 1998, 98-2 CPD para. 151 at  3. A protester's mere disagreement with an
agency's evaluation does not, without more, establish that the evaluation
was unreasonable. Beneco Enters., Inc., B-278591, Feb. 17, 1998, 98-1 CPD para.
91 at 3.

Solicitations issued after January 1, 1998, such as this one, are governed
by the Federal Acquisition Regulation (FAR) as amended by Federal
Acquisition Circular No. 97-02, which includes the Part 15 rewrite. The
current language concerning the composition of the competitive range states
that "[b]ased on the ratings of each proposal against all evaluation
criteria, the contracting officer shall establish a competitive range
comprised of all of the most highly rated proposals, unless the range is
further reduced for purposes of efficiency . . . ." FAR sect. 15.306 (c)(1). We
do not read the revised language to require agencies to retain in the
competitive range a proposal that is not among the most highly-rated ones or
that the agency otherwise reasonably concludes has no realistic prospect of
award. SDS Petroleum Prods., Inc. B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at
5. Here, the record shows that, while Matrix submitted an acceptable
proposal, it was not included in the competitive range because the Matrix
proposal did not address the capability criteria as well as the three
competitive range offerors and, as a result, was not among the most
highly-rated proposals.

In this regard, the RFP required offerors to prepare an experience, past
performance, references form and include a reference for relevant projects.
RFP sect. L.2.b.2. Under relevant experience, offerors were to address the
following specific areas considered most important to this project: ability
to design, furnish, install and start up, for a turnkey operation, a
complete underground fuel storage and distribution facility consisting of
double walled underground tanks; ability to successfully remove underground
tank installations of this size and type; ability to prepare and have
approved SPCC, facility response plans, and related documents; and ability
to mobilize sufficient resources to meet the demands of an accelerated
project in an extremely remote location. Id. Contrary to these instructions,
Matrix's proposal contained significant deficiencies and issues requiring
clarification. For example, its proposal failed to mention names of key
construction personnel licensed for underground tank removal in Alaska;
failed to provide a schedule to indicate how the fuel system installation
portion of the project was to be completed within the required 180 calendar
days; failed to address the requirement for post-construction operation and
maintenance support; and failed to provide references for the material
suppliers/fabricators of the fuel system equipment. Contracting Officer's
Statement

at 9. Additionally, Matrix failed to address how it would provide
operational and maintenance support. Id. In contrast, the three competitive
range offerors addressed all these matters completely in their proposals.

Overall, Matrix was ranked fifth in capability of the ten offerors and
submitted the third lowest price. The three competitive range proposals
received scores of 15.5, 14.25 and 14, while Matrix received a score of 12.
The RFP specifically provided that the government would "consider an
offeror's noncompliance with [proposal] instructions to be indicative of the
type of conduct that it may expect from the offeror during contract
performance." RFP sect. L.1. Primarily because Matrix failed to provide
sufficient capability information, the agency determined that Matrix was
less qualified than four other offerors including the three offerors in the
competitive range, and that Matrix's price was not so significantly low as
to warrant the inclusion of Matrix in the competitive range. Under these
circumstances, we have no basis to conclude that the agency was unreasonable
in determining that Matrix's was not among the most highly rated proposals
and the proposal was properly excluded from the competitive range. [1]

Matrix does not actually challenge the evaluation of its technical proposal,
but rather contends that the RFP was disorganized and that the agency's
failure to adequately respond to its clarification requests resulted in its
failure to provide a complete proposal. In this regard, Matrix states that
it submitted 33 requests for clarifications and the agency responded to only
12. Matrix's protest that the solicitation was disorganized and incomplete
or that the contracting officer failed to adequately respond to its
clarification requests concerns alleged solicitation improprieties. Our Bid
Protest Regulations require that protests based upon improprieties apparent
from the face of a solicitation be filed prior to the time set for receipt
of offers. 4 C.F.R. sect. 21.2(a)(1) (1998). Likewise, alleged improprieties
which do not exist in the initial solicitation but which are subsequently
incorporated into the solicitation must be protested not later than the next
closing time for receipt of proposals following the incorporation. Id. If
Matrix believed that amendment No. 0001 did not adequately address some of
its concerns, it was required to protest on this ground prior to the next
closing date, February 2. As Matrix did not do so, its protest on this basis
is untimely and will not be considered on the merits.

Lastly, Matrix contends that the agency did not give sufficient time to
respond to the clarifications provided in Amendment No. 0001. The record
shows that by letter dated January 28, Matrix informed the agency that it
had not timely received the amendment and needed adequate time to respond to
the clarifications. Matrix specifically requested that the closing date be
postponed. However, the agency did not extend the February 2 due date for
receipt of proposals and Matrix subsequently filed this protest with our
Office on March 4. While Matrix timely protested to the contracting officer
prior to the revised closing dated for receipt of proposals, it did not
subsequently protest to us within 10 days of "initial adverse agency
action." Under our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(3), where a
protest is filed initially with the agency, any subsequent protest to our
Office must be filed no later than 10 days after initial adverse agency
action. The term "adverse agency action" includes the agency's proceeding
with the receipt of proposals in the face of a protest

alleging solicitation improprieties. 4 C.F.R. sect. 21.0(f). Here, proposals
were received as scheduled on February 2 without any action being taken on
the protest. Thus, since Matrix's protest was filed with our Office more
than 10 days after February 2, its protest on this basis is also untimely.

The protest is denied.

Comptroller General

of the United States

Notes

1. To the extent that the agency report suggests that Matrix's proposal
could have been excluded from what otherwise might have been a competitive
range of the five most highly rated proposals on the basis that three
proposals constituted an appropriate competitive range limitation for
purposes of efficient competition, the solicitation did not contain the
requisite notice. While FAR sect. 15.306(c)(2) provides that a contracting
officer may limit the number of proposals to be included in the competitive
range to the greatest number that will permit an efficient competition among
the most highly rated proposals, it requires that the underlying
solicitation contain the notice at FAR sect. 52.215-1(f)(4), which advises that
this limitation may be imposed if the contracting officer determines that
the number of proposals that would otherwise be included in the competitive
range exceeds the number at which an efficient competition can be conducted.
Here, as explained above, the record, which also included a telephone
hearing addressing the mechanics of the competitive range selection process,
reflects that the Matrix proposal properly was never included in the
competitive range because it was reasonably evaluated as not one of the most
highly rated proposals.