TITLE:  FitNet International Corporation, B-291986, May 19, 2003
BNUMBER:  B-291986
DATE:  May 19, 2003
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FitNet International Corporation, B-291986, May 19, 2003

   Decision
    
    
Matter of:    FitNet International Corporation
    
File:             B-291986
    
Date:              May 19, 2003
    
J. Raul Espinosa for the protester.
Maj. Arthur J. Coulter, Department of the Army, and Capt. Karri L.
Garrett, Department of the Air Force, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency's determination to award a contract to a firm other than the
protester is unobjectionable and does not evidence bad faith where the
protester concedes that its proposal, which was evaluated as
*unsatisfactory* with *high risk* by the agency under the technical
factor, was *incomplete,* and the protester failed to submit a final
revised proposal after discussions, as the agency requested.
DECISION
    
FitNet International Corporation protests the award of a contract to
FitnessAge Services, Inc., under request for proposals (RFP) No.
DAHA90-02-R-0018, issued by the National Guard Bureau, for a composite
physiological fitness assessment program. 
    
We deny the protest.
    
The RFP, issued as a set-aside for small businesses, provided for the
award of a fixed-price contract for a *systematic program for the
collection of fitness assessment data, a final individual fitness
assessment summary and executive management reports.*  RFP at 11.  The RFP
stated that award would be made to the offeror whose proposal represented
the best value to the government, based upon technical, past performance,
and price evaluation factors.  The solicitation informed offerors that
*[n]on-price factors, when combined, are significantly more important than
price,* RFP at 1, and included an evaluation matrix listing numerous
evaluation criteria to be considered by the agency in the technical and
past performance evaluations.
Four proposals, including FitNet's and FitnessAge's, were received by the
RFP's closing date.  FitNet's proposal was evaluated as *unsatisfactory*
with *high risk* under the technical factor, and *very good* with *low
risk* under the past performance factor, at a proposed price of $143,375. 
FitnessAge's proposal was evaluated as *good* with *moderate risk* under
the technical factor, and *exceptional* with *low risk* under the past
performance factor, at a price of $605,000.  Agency Report (AR), Tab 16,
Comparative Analysis Report, at 8.
    
The contracting officer determined that each of the four proposals
contained deficiencies and required clarifications, and included all in
the competitive range.  Written discussion questions were forwarded to the
offerors, and responses to the written discussions were received and
evaluated.  The contracting officer determined that further discussions
were necessary, and written discussion questions were forwarded to the
offerors and oral discussions were conducted.  Letters requesting final
revised proposals (FRP) were next provided to the offerors, and FRPs were
received from each of the competitive range offerors, except FitNet.
    
The contracting officer contacted FitNet after the time for FRP submission
had passed to ensure that FitNet's FRP had not been overlooked or
misplaced.  At this time, FitNet requested an extension in order to submit
a FRP.  FitNet's request for an extension was denied by the contracting
officer.  FitNet subsequently informed the contracting officer by
electronic mail that it *wish[ed] to have [its] original proposal*
considered.  AR, Tab 14, E-mail from FitNet to Contracting Officer (Dec.
14, 2002).
    
FitnessAge's FRP was evaluated as *excellent* with *low risk* under the
technical factor, and *exceptional* with *low risk* under the past
performance factor, at a proposed price of $605,000.  AR, Tab 16,
Comparative Analysis Report, at 8.  The contracting officer determined,
while considering FitNet's initial proposal as requested by FitNet (which
had been rated *unsatisfactory* with *high risk* under the technical
factor), that the proposal submitted by FitnessAge represented the best
value to the government.  Award was made to that firm, and after
requesting and receiving a debriefing, FitNet filed this protest.
    
FitNet protests that the specifications pertaining to the measurement of
physiological age *were specific in every detail to the winning bidder's .
. . patent,* and therefore improper.  Protester's Comments at 2.
    
Our Bid Protest Regulations contain strict rules for the timely submission
of protests.  They specifically require that a protest based upon alleged
improprieties in a solicitation that are apparent prior to the closing
time for receipt of proposals must be filed before that time.  4 C.F.R. S:
21.2(a)(1) (2003).  Our timeliness rules reflect the dual requirements of
giving parties a fair opportunity to present their cases and resolving
protests expeditiously without unduly disrupting or delaying the
procurement process.  Dominion Aviation, Inc.--Recon., B-275419.4, Feb.
24, 1998,
98-1 CPD P: 62 at 3.  FitNet's protest here, contending that the terms of
the solicitation were specific to a patent held by the awardee, was
untimely given that it was not filed until after the agency had awarded a
contract under the RFP.[1]
    
FitNet also argues that the agency should have considered FitNet's initial
proposal as amended through its written responses to the clarification
requests and deficiencies identified by the agency, and to discussions,
rather than only its initial proposal, which, according to FitNet, *was
known to be incomplete.*  Protester's Comments at 2.
    
The record establishes that the agency requested in writing that each
competitive range offeror *submit a final proposal, with all the required
documentation.*  The agency's letters to the offerors added here that
*[i]f you elect not to submit a final proposal, or if your original
proposal is still valid, please confirm this in writing.*  AR, Tab 13,
Request for Final Proposals (Dec. 6, 2002).  Notwithstanding the agency's
request, FitNet did not submit a final proposal (or anything else), but
rather, after being contacted by the agency after the time for submission
had passed, specifically stated that it wished to have its original
proposal considered.  Given the protester's failure to respond to the
agency's request for final proposal revisions, as well as the protester's
subsequent request to have its *original proposal* considered, we cannot
object to the agency's consideration of only FitNet's original proposal.
    
FitNet finally contends that the agency's award to FitnessAge, rather than
FitNet, was in retaliation for FitNet's complaints regarding its failure
to receive an award under another solicitation.  We will not attribute
unfair or prejudicial motives to contracting officials on the basis of
inference or supposition.  Holiday Inn; Baymont Inn & Suites, B-288099.3,
B-288099.4, Sept. 20, 2001, 2001 CPD P: 166 at 4.  Here, the record
demonstrates that FitNet's failure to receive an award under this
solicitation is attributable to FitNet's submission of a proposal that it
concedes was incomplete and was evaluated as technically unsatisfactory,
and its failure to submit a FRP after discussions, as requested by the
agency.  In our view, there is nothing in the record
that in any way supports the allegation that the agency's selection of
Fitness Age's proposal for award, rather than FitNet's, was made in bad
faith or in retaliation of any complaints FitNet may have made. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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   [1] We note that FitNet's contentions here appear to be inconsistent with
its position during the competition.  In this regard, the record reflects
that following discussions during which the contracting officer had
informed FitNet that its proposal did not comply with the solicitation's
requirements regarding the development of a physiological age for
individuals, the protester informed the contracting officer that it
believed that FitNet could *meet [the agency's] requirements within the
framework of the proposal that [FitNet had] already submitted* and that
its proposed solution *would not run afoul of another vendor's patents.* 
AR, Tab 14, E‑mail from FitNet to Contracting Officer (Dec. 13,
2002).