TITLE:  Techseco, Inc., B-284949, June 19, 2000
BNUMBER:  B-284949
DATE:  June 19, 2000
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Techseco, Inc., B-284949, June 19, 2000

Decision

Matter of: Techseco, Inc.

File: B-284949

Date: June 19, 2000

Ron Brown for the protester.

Susan W. Boyette for Flowmeter Services & Energy Management Consultants,
Inc., an intervenor.

Mary E. Clarke, Esq., Defense Logistics Agency, for the agency.

Jacqueline Maeder, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably rejected as technically unacceptable a proposal that was
noncompliant with material solicitation requirements that proposed service
engineers possess current training certifications issued by specified
equipment manufacturers.

DECISION

Techseco, Inc. protests the rejection of its proposal as technically
unacceptable and the award of a contract to Flowmeter Services & Energy
Management Consultants, Inc. under request for proposals (RFP) No.
SP3100-00-R-0005, issued as a small business set-aside by the Defense
Logistics Agency (DLA) for preventive maintenance and repair services on
certain metering and data collection systems located at the Defense
Distribution Depot Norfolk (DDNV) complex at the Norfolk Naval Station.

We deny the protest.

The RFP contemplated the award of a fixed-price contract to the low-priced,
technically acceptable offeror for a base year with four 1-year options. RFP
at 4, 11. Regarding the equipment to be maintained, the statement of work
noted that the meters and meter processors at DDNV had been manufactured by
Engineering Measurements Company (EMCO), and that the facility had Enersave
II and/or Energy Manager NT data collection systems manufactured by
Lifespring Resources. RFP attach. 1, at 1. The solicitation advised offerors
that proposals would be evaluated for technical acceptability only and set
forth three evaluation factors to determine acceptability, as follows:

  1. Service Engineers . . . shall demonstrate practical working knowledge
     maintaining and repairing steam meter equipment.
  2. Service Engineers . . . shall possess a current certification issued by
     Engineering Measurements Company (EMCO) to install, maintain and repair
     its flow meters and processors.
  3. Service Engineers . . . shall possess a current certification issued by

Lifespring Resources to operate and maintain the Enersave II

and/or the Energy Manager NT data collection system.

RFP at 11.

The RFP specified that the three technical factors listed above established
the minimum criteria required by the agency to determine a proposal
acceptable, and cautioned offerors that "[i]n order for a proposal to be
determined technically acceptable, it must be technically acceptable under
each of [these] . . . technical factors." Id. In addition, the RFP at page
10 incorporated by reference a modified version of the standard provision
"Instructions to Offerors - - Commercial Items," FAR sect. 52.212-1, informing
offerors that the government intends to evaluate offers and award a contract
without discussions, therefore initial offers should contain the offeror's
best terms from a price and technical standpoint.

Techseco and Flowmeter were the only firms that submitted proposals by the
February 18 closing time. Techseco submitted the low-priced offer, but its
proposal was found to be technically unacceptable because its proposed
service engineers did not possess the required certifications. Specifically,
Techseco proposed two named service engineers and provided information
demonstrating that they had the required practical working knowledge
maintaining and repairing steam metering equipment, but provided a
certificate issued by EMCO for only one of the proposed service engineers,
and even that certification had an expiration date of February 28, 1986.
Agency Report, Tab 9, Techseco Proposal, at 6-7. Techseco provided no
certification from Lifespring for either proposed engineer. Instead, in its
proposal cover letter, Techseco referenced an enclosed February 16 letter
addressed to Lifespring, which indicated that Techseco's proposed service
engineers did not currently possess Lifespring certification but were
seeking to obtain training and certification at an unspecified later date.
Techseco requested that Lifespring "consider us registered for your next
training session." Id. at 5.

Because the agency had determined not to conduct discussions and Techseco
had not submitted all the information required to be determined technically
acceptable and specifically had submitted evidence of noncompliance with the
Lifespring certification requirement, Techseco's proposal was eliminated
from consideration for award as technically unacceptable. Agency Report, Tab
10, Prenegotiation Memorandum, at 3.

By letter dated March 10, DLA notified Techseco that award had been made to
Flowmeter. Agency Report, Tab 21, Notice of Award, at 1. After a debriefing,
Techseco filed a protest with the agency. By letter dated March 16, Techseco
also submitted a training certificate from EMCO for one of its proposed
service engineers with a March 31, 2005 expiration date. Agency Report, Tab
13, Techseco's Current EMCO Certification, at 2. By letter dated March 17,
Techseco filed this protest with our Office.

Techseco argues that its proposal should not have been rejected, complaining
that the agency improperly ignored the current EMCO training certificate
submitted to DLA after award and its offer "to acquire a certificate of
training from Lifespring Resources on their particular product." Protest at
1-2. The protester states that the letter to Lifespring which it submitted
with its proposal "was our formal registration notice to Lifespring
Resources." Id. at 2. The protester also contends that the agency "asks too
much of a contractor . . . to pay the price for Lifespring Resources
training prior to award." Protester's Comments at 3. Finally, the protester
argues that the agency should have conducted discussions with the protester
regarding the shortcomings in its proposal. Techseco points out that there
was limited competition, Techseco submitted the low price, and one of its
proposed engineers is highly experienced, Protester's Comments at 3-4, and
argues that if the agency had held discussions, Techseco would have had a
"reasonable chance of being selected for award." Id. at 3.

In a negotiated procurement, a proposal that fails to conform to material
solicitation requirements is technically unacceptable and cannot form the
basis for award. Green Shop, Inc., B-278125, Dec. 1, 1997, 97-2 CPD para. 154 at
2. Here, DLA reasonably determined that Techseco's proposal failed to
satisfy two of the three mandatory RFP requirements. As noted above, the RFP
required that proposed service engineers possess current certifications from
EMCO and Lifespring Resources, establishing the engineers' ability to
perform maintenance on each company's products. Techseco's proposal included
an expired training certification from EMCO for one of its two proposed
service engineers, no EMCO certification at all for the other, and a letter
indicating its intent to register for Lifespring training, which established
that the two engineers lacked Lifespring certification. Thus, Techseco
failed to satisfy either requirement.

Techseco's contentions that the agency should have accepted the protester's
offer to acquire training from Lifespring and the current EMCO certification
that the protester submitted after award are without merit. The RFP required
offerors to possess specified current certifications from the two companies,
not to offer to obtain such certifications in the future. Because the RFP
placed Techseco on notice of the agency's intention to award without
discussions, Techseco could not reasonably presume that it would have a
later opportunity to improve its proposal by submitting subsequently
acquired certifications. There is generally no obligation that a contracting
agency conduct discussions where, as here, the RFP specifically instructs
offerors of the agency's intent to award a contract on the basis of initial
proposals. McShade Enters., B-278851, Mar. 23, 1998, 98-1 CPD para. 90 at 4. The
contracting officer has broad discretion in deciding whether to hold
discussions, which our Office will review only to ensure that it was
reasonably based on the particular circumstances of the procurement. Id.

Here, the record provides no indication that the contracting officer abused
his discretion in deciding not to conduct discussions with Techseco. As
noted above, the agency reasonably evaluated Techseco's proposal as
technically unacceptable. Techseco's position that it would have had a
reasonable chance of being selected for award if the agency had conducted
discussions is not supported by the record. Even if Techseco had been given
the opportunity to revise its proposal after discussions regarding the
status of the EMCO certification for one of its proposed service engineers,
Techseco does not assert that its other proposed service engineer has the
required EMCO certification, and the record is clear (and this was evident
from Techseco's proposal) that its proposed service engineers do not hold
the required current certifications from Lifespring. Discussions would not
have enabled Techseco to correct these deficiencies to make its proposal
technically acceptable. [1]

The protest is denied.

Comptroller General
of the United States

Notes

1. That Techseco would not have corrected these deficiencies had it been
afforded discussions is confirmed by its argument that the agency asks too
much of a contractor by imposing the RFP requirement that contractors
propose engineers with Lifespring training before being awarded the
contract. That is, Techseco is really objecting to the RFP certification
requirement. However, this issue is untimely under our Bid Protest
Regulations since protests based on alleged defects which are apparent on
the face of a solicitation must be filed prior to the initial closing time.
4 C.F.R. sect. 21.2(a)(1) (2000).