TITLE:  Global Communications Solutions, Inc., B-291113, November 15, 2002
BNUMBER:  B-291113
DATE:  November 15, 2002
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Global Communications Solutions, Inc., B-291113, November 15, 2002

   Decision
    
    
Matter of:   Global Communications Solutions, Inc.
    
File:            B-291113
    
Date:              November 15, 2002
    
Ronald K. Henry, Esq., Kaye Scholer, for the protester.
Marshall J. Doke, Jr., Esq., Gardere Wynne Sewell, for AOS, Inc., an
intervenor.
William Mayers, Esq., Defense Information Systems Agency, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Where a solicitation for an indefinite-delivery/indefinite-quantity
contract contemplates only a single competitive source selection for
specific items, based on the proposals submitted in response to the
solicitation, and is not for work to be assigned based on further
competitions among the awardees, the proscription contained in 10 U.S.C.
S: 2304c(d) against protests of individual task and delivery orders does
not preclude GAO's bid protest jurisdiction.
    
2.  Agency's interpretation of solicitation price evaluation scheme to
consider only  the prices for the first 3 years, rather than the 10-year
pricing solicited from the offerors, in determining the awardees of
certain line items was unreasonable where the solicitation unambiguously
stated that awards were to be made on the basis of 10‑year pricing.
DECISION
    
Global Communications Solutions, Inc. protests the awards of certain
contract line item numbers (CLIN) to AOS, Inc. for International Maritime
Satellite (INMARSAT) services under a multiple-award, delivery-order
contract awarded by the Defense Information Systems Contracting
Organization (DITCO), Defense Information Systems Agency pursuant to
request for proposals (RFP) No. DCA200-01-R-5029.
    
We sustain the protest.
    
The INMARSAT contract provides satellite-based mobile telecommunications
services and equipment for the Department of Defense and other branches of
the federal government.  The principal commodity purchased under this
contract is satellite airtime. 
    
The RFP anticipated awarding multiple,
indefinite-delivery/indefinite-quantity (ID/IQ) contracts utilizing
fixed-price and time-and-material type delivery orders for a 3-year base
period with seven 1-year options.  RFP S: L.3.  To this end, the RFP
(at section B) required that proposals include prices for all CLINs and
sub-line item numbers (SLIN) for each year of the 10 years (120 months)
covered by the solicitation.  RFP S: L.10, Part III.  The CLINs were to
add new INMARSAT services and to replace existing INMARSAT services.  The
RFP stated a minimum guaranteed dollar value for each contract of
$10,000.  RFP S: H.2.b.
    
The RFP stated that two of the evaluation factors, cost/price and past
performance/corporate capability, were of comparatively equal importance,
and were both more important than the third evaluation factor,
technical/management approach.  RFP S: M.4.1.
    
With respect to the conduct of the price evaluation, Section M.4.2.b
specified that:
    
(2)  The Offeror is required to submit all pricing data in the format
indicated in Sections B and L.  Offerors are required to submit their
proposed prices for the entire 120-month period as set forth in Section B.
.     .     .     .     .
    
(5)  The price evaluation will be based on the lowest total discounted
life cycle cost (DLCC) for each proposal.  The DLCC will be determined
based on the proposed prices and quantities listed in Section B (including
options) over a 120-month service period.  Although the evaluation period
will be 120 months of service, this should not be construed to mean that
all option years will be exercised. . .
.                                                     
Section G.6 of the RFP, entitled *AWARD OF EXISTING INMARSAT SERVICES,*
stated:[1]
    
Upon award of this solicitation, all existing INMARSAT air-time services
administered by DITCO, whether on [delivery orders] or contracts, will be
re-awarded to the winning Contractor or Contractors.  Award will be based
on a comparison of all awardee's contract prices.  Selection will be based
upon low price. 
Amendment Number 3 of the RFP, issued on December 14, 2001, clarified that
awards under the RFP would be made on the CLIN, not the SLIN, level. 
    
On June 6, 2002, five contract awards were made.  GCS and AOS were among
the awardees. 
    
There were meetings with the awardees, including GCS, in late July. 
During a July 24 meeting, the agency indicated that it was contemplating
issuing delivery orders to make awards of the CLINs for existing INMARSAT
services on the basis of comparing the awardees' pricing for the 3-year
base period.  On July 25, GCS protested this interpretation to DITCO,
arguing that the solicitation contemplated that the 10-year pricing would
be considered in making the awards for these CLINs.
    
On August 1, GCS received a letter from DITCO in which it was informed
that the awards were *recalculated* and that it would no longer receive
the award of any line items for existing INMARSAT services.  The agency,
in the same letter, went on to state:
    
The original awards were based upon your company's total price at the CLIN
level for the first base year.  The awards were re-calculated to reflect
your company's total prices for all three base years.  Awards were not
calculated using 10 years because there is no guarantee that any of the
option years will be exercised.  In addition, the re‑calculation
indicated that a mistake was made in the initial CLIN total amounts.  As a
result, you are no longer the low offeror for CLINs 0006 and 0009. 
Protest, exh. 1, DITCO Letter (Aug. 1, 2002). 
    
On August 9, GCS protested to our Office the agency's decision to use the
3-year base period, rather than the total 10‑year period priced by
the offerors, to determine low price for the CLINs for existing INMARSAT
services.[2]  In its report, the agency calculates, and the protester
agrees, that for CLIN 0001 (INMARSAT A) and CLIN 0006 (INMARSAT M4), while
AOS is the low-priced offeror if the 3‑year base period was
considered, GCS would be the low-priced offeror if the 10-year pricing is
compared.[3]  Agency Report at 9; Protester's Comments at 4, 8.  GCS
stated, in its agency-level protest, that it prepared its proposal with
the assumption that award would be made at the CLIN-level to the lowest
offeror taking into account 10 years of pricing, as indicated by the RFP,
and that if GCS had known that the agency intended to evaluate only the
first 3 years of pricing to determine who was the low offeror, then *that
would have been a serious consideration in the pricing.*  Agency Report,
Tab 7, GCS Agency-level Protest (July 25, 2002).
    
As a preliminary matter, the agency contends that our consideration of the
protest is precluded by 10 U.S.C. S: 2304c(d) (2000), which provides, with
respect to orders under ID/IQ contracts:
    
A protest is not authorized in connection with the issuance or proposed
issuance of a task or delivery order except for a protest on the ground
that the order increases the scope, period, or maximum value of the
contract under which the order is issued. 
We do not find that this provision precludes our consideration of this
protest.  Where a solicitation for an ID/IQ contract contemplates only a
single competitive source selection for specific items, based on the
proposals submitted in response to the RFP, and is not for work to be
assigned based on further competitions among the awardees, we have found
that 10 U.S.C. S: 2304c(d) does not preclude our bid protest jurisdiction
by virtue of the implementation of these source selections by the issuance
of task or delivery orders.  Teledyne-Commodore, LLC--Recon.,
B‑278408.4, Nov. 23, 1998, 98‑2 CPD P: 121 at 3‑4;
Electro-Voice, Inc., B-278319, B‑278319.2, Jan. 15, 1998, 98-1 CPD
P: 23 at 5.  As discussed in detail below, that is precisely the situation
here, where the RFP contemplated that awards for the CLINs for existing
INMARSAT services would be based on the proposals, including the pricing,
submitted in response to the RFP and would not be based on further
competitions among the awardees of the ID/IQ contracts under this RFP.  
    
With respect to the merits of the protest, the agency basically contends
that there is no language in section M of the RFP stating how CLINs for
existing INMARSAT services would be awarded, so that the awards, based on
the evaluation of 3-year pricing, are consistent with section G.6 because
they may save the government money, inasmuch as it is not certain that the
options would be exercised, as offerors were advised in section M. 
This ID/IQ contract had two types of CLINs.  The CLINs for existing
INMARSAT services were, in accordance with section G.6, to be awarded to
the *winning Contractor* *based on a comparison of all awardee[s']
contract prices.*  The solicitation contemplated no future competitions
for this work among the awardees.  In contrast, work covered by the other
CLINs would, in accordance with section G.5, be generally awarded based on
competition among the awardees.  The agency's basic argument here is that
it is not bound by section M in making the awards of the CLINs for
existing INMARSAT services because section M did not specify how the
awardees of these CLINs would be selected and because it cautioned that
options may not exercised.  However, a solicitation must be read and
interpreted as a whole, and where it is appropriate sections other than
section M of the solicitation must be considered in determining how
proposals should be evaluated.  See Joseph W. Beausoliel, B-285643, Aug.
31, 2000, 2001 CPD P: 26 at 4; Recon Optical, Inc. B-232125, Dec. 1, 1988,
88-2 CPD P: 544 at 8-9. 
    
Here, section G.6 stated that the awards for the existing INMARSAT
services *will be based upon low price,* based on a *comparison of all
awardee[s'] contract prices* with the low price controlling which awardee
would receive the award of these CLINs.  Section M.4.2.b of the RFP then
expressly provided that *the evaluation period is 120 months.*  No other
period of evaluation is provided for in section M.  Thus, we find that the
RFP unambiguously provided that the awards for each CLIN covering existing
INMARSAT services would be made to the awardee offering the lowest
10‑year pricing for these services, as reflected in its proposal
under the RFP.[4]  
    
Procuring agencies have broad discretion to determine the evaluation
scheme they will use, but they do not have the discretion to announce in
the solicitation that one scheme will be used, and then follow another in
the actual evaluation.  10 U.S.C. S: 2305(b)(1)(2000).  Once offerors are
informed of the criteria against which their proposals will be evaluated
the agency must adhere to those criteria or inform all offerors of any
significant changes made in the evaluation scheme.  Marquette Medical
Sys., Inc., B-277827.5, Apr. 29, 1999, 99-1 CPD P: 90 at 8-9.  Here, the
RFP stated that the awards for the CLINs for existing INMARSAT services
would be based on the 10-year pricing, but the agency evaluated these
CLINs based on 3-year pricing.  This was improper.[5] 
We sustain the protest.
    
We recommend that the agency reevaluate CLINs 0001 and 0006 using the
10-year pricing, and, presuming the agency's calculations in the report
are correct and if otherwise appropriate, make award for these CLINs to
GCS and terminate the original orders to AOS for these CLINS.  In the
alternative, if the agency's needs have changed, then the agency should
amend the solicitation, solicit revised proposals, and evaluate
accordingly.  We also recommend that GCS be reimbursed its protest costs,
including reasonable attorney's fees.  4 C.F.R. S: 21.8(d).  The protester
should submit its certified claim for costs, detailing the time expended
and the costs incurred, directly to the agency within 60 days of receipt
of this decision.  4 C.F.R. S: 21.6(f)(1).
    
Anthony H. Gamboa
General Counsel  
    

   ------------------------

   [1] Section G.5 outlined the procedures for ordering new
services/supplies, which generally provided for competition among the
awardees.
[2] The agency argues that GCS's August 9 protest is untimely because it
was filed more than 10 days of the July 24 meeting when GCS was advised of
how these CLINs would be evaluated.  We disagree.  The protester's letter
of July 25 effectively constituted an agency-level protest, because it
expressed dissatisfaction with an agency decision and requested corrective
action.  ST Aerospace Engines Pte. Ltd., B‑275725.3, Oct. 17, 1997,
97-2 CPD P: 106 at 3-4.  Since GCS filed its protest with our Office
within 10 days of the adverse agency action on its July 25 letter, namely,
the agency's August 1 letter, its protest is timely.  4 C.F.R. S:
21.2(a)(3) (2002).
[3] There is no suggestion in the record that indicates that the
evaluation of past performance/corporate capability or
technical/management approach affected or should have affected the award
of CLINs for existing INMARSAT services. 
[4] In justifying its evaluation, the agency makes reference to the
protester's statement to the agency before proposals were due, that the
services to be provided under CLIN 0001 may be terminated during the
10-year period.  However, as noted by the protester, the evaluation period
was not altered by the agency, so that GCS structured its proposal
accordingly, taking into account the risk of increased performance costs,
in pricing this CLIN.  Protester's Comments at 5.
[5] We recognize that FAR S: 17.206(b) authorizes a contracting officer
not to evaluate option prices *when it is determined that evaluation would
not be in the best interests of the Government and the determination is
approved at the level above the contracting officer,* and that this
authority can be exercised after receipt of proposals.  See ACC Constr.
Co., Inc., B-289167, Jan. 15, 2002, 2002 CPD P: 21 at 3.  The agency does
not claim, and the record does not otherwise evidence, that the agency
made any such determination here.  For example, there is no suggestion
that availability of funds for the options is currently perceived to be a
real issue.  See FAR S: 17.206(b).