TITLE:  DIY, Inc., B-293105.9, December 20, 2004
BNUMBER:  B-293105.9
DATE:  December 20, 2004

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   Decision

   Matter of:   DIY, Inc.

   File:            B-293105.9

   Date: December 20, 2004

   Malcolm L. Pritzker, Esq., for the protester.

   John H. Horne, Esq., Powell Goldstein Frazer & Murphy, for National Home
Management Solutions of New York, an intervenor.

   Rachael Blackburn, Esq., Department of Housing & Urban Development, for
the agency.

   Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency improperly failed to provide protester with discussion
questions similar to those provided other offerors, and therefore treated
protester unequally, is denied where record shows that protester's
proposal was eliminated from competitive range, so agency was not required
to hold discussions with protester.

   DECISION

   DIY, Inc. protests the award of a contract to National Home Management
Solutions of New York (NHMS) under request for proposals (RFP) No.
R-0PC-22505, issued by the Department of Housing and Urban Development
(HUD) for management and marketing (M&M) services in connection with the
disposition of single-family homes and other property owned by HUD.  The
protester maintains that the agency treated DIY in a disparate manner
because it failed to provide it with detailed discussion questions similar
to those provided other offerors.

   We deny the protest.

   The solicitation contemplated the award of indefinite-delivery,
indefinite-quantity, fixed-unit-price contracts in 24 geographic regions
for M&M services in connection with the disposition of single-family homes
owned by, or in the custody of, HUD.  At issue in this protest is the
contract for Philadelphia Area 3, which covers properties located in New
York and New Jersey.  The RFP advised offerors that the agency would make
award on a `best value' basis, considering price and several technical
evaluation factors.  Price was significantly less important than the
technical factors, which were rated using an adjectival scale of
excellent, good, fair, marginal, and unacceptable. 

   The agency received numerous proposals, including DIY's and NHMS's.  Based
on the evaluation of all proposals, HUD determined that the five firms
whose proposals were the most highly rated would be included in the
competitive range.  The agency found that DIY's proposal, with an overall
fair rating, was technically unacceptable and, by letter dated April 30,
notified DIY that its proposal was eliminated from the competitive range
and from further consideration for contract award.  Award was made to NHMS
on July 30.  Following a post-award debriefing, DIY filed a protest with
HUD challenging the evaluation of its proposal; after that protest was
denied, it filed this protest with our Office.

   DIY argues that it received unequal treatment in the procurement, since
HUD sent other offerors ``4 to 5 pages of questions on April 30, 2004
requesting clarification of `significant weaknesses,' while asking DIY .
. . only a single question on January 21, 2004, not related to clarifying
perceived weaknesses.''  Protest at 1.  DIY maintains that it should have
been provided the same detailed discussions as other offerors.

   This argument is without merit.  DIY never received discussion questions
simply because, as discussed above, DIY's proposal was not included in the
competitive range.  The purpose of a competitive range determination is to
select those offerors with which the agency will hold written or oral
discussions.  PeopleWorks, Inc., Ba-257296, Sept. 2, 1994, 94-2A CPD P 89
at 3.  Contracting agencies are not required to retain a proposal in the
competitive range where the proposal is not among the most highly rated or
where the agency otherwise reasonably concludes that the proposal has no
realistic prospect of being selected for award.  Federal Acquisition
Regulation SA 15.306(c)(1); Americom Gov't Servs., Inc., Ba-292242, Aug.
1, 2003, 2003 CPD P 163 at 3.  Once an offeror's proposal has been
excluded from the competitive range, the agency has no obligation to
conduct discussions with the offeror.  SOS Interpreting, Ltd., B-287505,
June 12, 2001, 2001 CPD P 104 at 12.  Since DIY's proposal was not in the
competitive range, DIY was not entitled to discussions; there thus is no
basis for concluding that the agency accorded DIY unequal treatment, or
otherwise acted improperly.

   In its comments on the agency report, DIY for the first time challenges
the elimination of its proposal from the competitive range, arguing
generally that HUD included other proposals in the competitive range that
were more technically deficient than DIY's.  Protester's Comments at 2. 
Our Bid Protest Regulations provide that a protest must be filed no later
than 10 days after the basis of protest was known or should have been
known.  4 C.F.R. S 21.2(b) (2004).  DIY's competitive range argument is
untimely because it is based on information of which DIY was aware when it
filed its original protest.  Specifically, DIY's assertion that its
proposal had fewer deficiencies than the proposals of competitive range
offerors is based on a comparison of the deficiencies in its own proposal
with the contents of the detailed discussion letter on which its unequal
treatment argument was based.[1]  Since DIY's competitive range argument
is based on the same information as its unequal treatment argument, there
is no reason why it could not have been raised in DIY's original protest. 
Since DIY first raised this issue in its November 1 comments, its protest
on this ground is untimely and will not be considered. 

   DIY maintains that its competitive range argument is timely because it was
in fact raised in its initial protest.  We do not agree.  The only
specific allegation raised in DIY's initial protest concerned HUD's
alleged disparate treatment of DIY, discussed above; the protest lacked
any reference whatsoever to the elimination of DIY's proposal from the
competitive range.  DIY asserts that its competitive range argument `can
at the very least be inferred and understood by the wording' in its
initial protest.  DIY Submission, Nov.A 4, 2004, at 2.  However, DIY does
not point to any specific language supporting such an inference and,
again, we find none.  DIY's competitive range argument is distinct from
its original assertion of unequal treatment, and thus had to independently
satisfy our timeliness rules.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] DIY states in its November 4 submission that it never actually saw the
discussion letter, and that its knowledge of the detailed discussion
questions came from oral conversations.  The period for determining the
timeliness of a protest commences when the basis of protest was (or should
have been) known, not when written documentation is received.  4 C.F.R. S
21.2(b).  Thus, the period for filing DIY's competitive range protest ran
from the time the protester received the oral information, prior to the
filing of its original protest.
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