TITLE:  All Building Services, Inc., B-293519, March 23, 2004
BNUMBER:  B-293519
DATE:  March 23, 2004
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All Building Services, Inc., B-293519, March 23, 2004

   Decision
    
    
Matter of:   All Building Services, Inc.
    
File:            B-293519
    
Date:              March 23, 2004
    
Sam Z. Gdanski. Esq., Jeffrey I. Gdanski, Esq., and Scott H. Gdanski,
Esq., for the protester.
Rita M. Liotta, Esq., General Services Administration, for the agency.
Katherine I. Riback, Esq., and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest against rejection of proposal as unacceptable is denied where,
although proposal included acknowledgment of amendment adding contract
line item number (CLIN) that added additional work, proposal did not
include a price for the new CLIN because offeror submitted the original
rather than the revised price schedule; by not submitting a price or
indicating that the new CLIN would be performed at no charge, the offeror
created doubt as to whether it was obligating itself to perform the
additional work and the proposal therefore was technically unacceptable.
DECISION
    
All Building Services, Inc. (ABS) protests the General Services
Administration*s (GSA) award of a contract to Enovity, Inc., under request
for proposals (RFP) No. GS-09P-03-KSC-0155, for operation and maintenance
services at the Phillip Burton Federal Building in San Francisco,
California. ABS challenges the agency*s rejection of its proposal as
unacceptable.
    

   We deny the protest.
    
The RFP, issued as a small business set-aside for a commercial item,
contemplated the award of a fixed-price contract, for a base year with
four option years, for operation, maintenance and repair services.  Award
was to be made to the responsible offeror whose offer, conforming to the
solicitation, would be most advantageous to the government, price and
other factors considered.  According to the RFP, the technical evaluation
factors, when combined, were significantly more important than price.  The
RFP advised that since the agency intended to evaluate proposals and award
a contract without conducting discussions, an offeror*s initial proposal
should contain the firm*s best terms from a technical and price
standpoint. 
    
On October 15, 2003, prior to the scheduled October 20 closing time for
receipt of initial proposals, the agency issued amendment No. 1, which
deleted and modified significant portions of the solicitation, and added
two additional contract line item numbers (CLINs), CLIN 0005 and 0006. 
CLIN 0005 represented an option, to be exercised at the discretion of the
agency, that the service call desk, already required under the RFP,
receive and input data from utility invoices on all utility accounts in
GSA buildings located throughout GSA*s Pacific Rim Region, which includes
California, Nevada, Arizona and Hawaii.  According to the agency, this
region averages 600 to 700 accounts invoicing monthly, for a maximum
average of 35 invoices per working day.  The contractor would receive the
invoice from the appropriate GSA representative, input the data from each
invoice, point out to the respective GSA official any charges that cannot
be input for that utility company and service, and send the invoices to
the GSA Finance Center within 2 working days.  Amendment No. 1,
Performance Work Statement S: C.4.8.  Under CLIN 0006 offerors were to
specify a credit if the agency *relamped* certain lamps, and provided
certain *lamp stockage* from that point forward.  Amendment No. 1 included
a revised price schedule that included boxes in which offerors were to
provide prices for these two additional CLINs on a monthly basis. 
Amendment No. 1 also extended the closing time to October 24. 
    
Eight proposals were received by the closing date.  The agency was unable
to evaluate two proposals, including ABS*s, because the pricing was
incomplete.  Although ABS acknowledged amendment No. 1, it submitted its
prices on the original price schedule, rather than on the revised price
schedule that was furnished with the amendment; as a result, ABS did not
provide prices for CLINs 0005 and 0006, and its proposal was determined to
be unacceptable.  The agency made award based on initial proposals to
Enovity, which offered the second highest price of $8,680,658 but received
the highest technical score. 
    
ABS states that its failure to submit prices for CLINs 0005 and 0006 was a
minor informality.  According to the protester, by acknowledging amendment
No. 1, it obligated itself to perform in accordance with the terms of the
RFQ as revised by the amendment.  In any case, argues the protester, the
amendment did make a material change to the RFP.
    
We find that GSA properly determined ABS*s proposal to be unacceptable. 
Again, CLIN 0005, an option to be exercised at the discretion of the
agency, requested a per‑month price for having the service call
desk, already required under the RFP, also receive and input data from
utility invoices on all utility accounts in GSA buildings located
throughout GSA*s Pacific Rim Region, pointing out to the respective GSA
official any charges that cannot be input for that utility company and
service.  Although ABS generally acknowledged amendment No. 1, ABS*s
failure to provide unit prices for this additional work, or indicate that
the new CLIN would be performed at no charge, created doubt whether ABS*s
proposal obligated it to input data from the utility invoices in
accordance with CLIN 0005.  HFS, Inc., B-248204.2, Sept. 18, 1992, 92-2
CPD P: 188 at 5, recon. denied, B-248204.3, Nov. 10, 1992, 92-2 CPD P:
337.    
    
Further, we agree with GSA that CLIN 0005 was material.  There is no
precise rule for determining whether a change in requirements evidenced by
an amendment is more than negligible, such that the offeror*s failure to
obligate itself to perform in accordance with the amendment renders the
proposal unacceptable; rather, that determination is based on the facts of
each case.  Doty Bros. Equip. Co., B‑274634, Dec. 19, 1996, 96-2 CPD
P: 234 at 4.  Generally, an amendment that imposes a legal obligation upon
an offeror different from those imposed by the original solicitation is
material, whereas an amendment that merely clarifies an existing
requirement is not.  Navistar Marine Instrument Corp., B-277143, B-
277143.2, Feb. 13, 1998, 98-1 CPD P: 53 at 1; Innovation Refrigeration
Concepts, B‑271072, June 12, 1996, 96-1 CPD P: 277 at 2; Favino
Mech. Constr., Ltd., B‑237511, Feb. 9, 1990, 90-1 CPD P: 174 at 2. 
    
While the protester contends that the cost of an administrative assistant
to staff the service call desk was already included in its price under the
original price schedule, and that the utility invoice entry work in CLIN
0005 could be easily handled by the existing staff, GSA notes that CLIN
0005 would require the contractor to input a considerable volume of
utility invoices, coming not only from the Phillip Burton Federal
Building, but also from every GSA building in GSA*s Pacific Rim Region,
and amounting to 600 to 700 utility invoices per month.  Further, GSA
indicates that it estimated that the cost of complying with CLIN 0005
could approach $50,000 per year, as the contractor would most likely need
to hire an additional staff person.  GSA Comments, Mar. 10, 2004,
at 2.[1]  Thus, the record indicates that CLIN 0005 imposed an obligation
on the contractor which was different from those imposed by the original
solicitation and was not negligible.  Given that ABS failed to provide
unit prices for this additional work, and thus cast doubt on whether ABS*s
proposal obligated it to input data from the utility invoices, ABS*s
proposal was technically unacceptable since it did not conform to a
material term of the RFP.  HFS, Inc., supra, at 5. 
    
ABS claims that the copy of amendment No. 1 that it downloaded did not
contain a revised pricing schedule.  GSA, however, reports that the
amendment included the revised pricing schedule.  Further, GSA*s position
appears to be consistent with the fact that the copy of amendment No. 1
which is accessed through the Federal Business Opportunities (FedBizOpps)
website is contained in a single zipped file which, while comprised of
several files, includes a single file with the solicitation as amended,
including the revised pricing schedule.  Thus, it is not clear from the
record how ABS could have received only a part of amendment No. 1, not
including the revised pricing schedule, when it downloaded the amendment. 
    
In any case, ABS*s assertion constitutes a challenge to an alleged
solicitation impropriety.  Our Bid Protest Regulations contain strict
rules requiring timely submission of protests.  These rules specifically
require that protests based upon alleged improprieties in a solicitation
which are apparent prior to the closing date for receipt of initial
proposals must be filed prior to the closing time.  4 C.F.R. S: 21.2(a)(1)
(2004); International Corporate Sec., B-249562, Nov. 25, 1992, 92‑2
CPD P: 382 at 4.  Here, it is clear that the protester knew, or should
have known, that its copy of amendment No. 1 was incomplete without a
revised price schedule, because the original price schedule, utilized by
the protester, did not include descriptions of CLINs 0005 and 0006, a box
or space to price the additional CLINs for the base year and four option
years, or even an indication as to the unit of pricing (i.e., monthly) to
be used for these CLINs.  Indeed, the record indicates that ABS recognized
the omission of these items from the (original) schedule it used to
prepare its offer; according to ABS in its protest, it did not provide
prices for CLINs 0005 and 0006 because it *did not believe it to be
prudent to modify a Government‑issued form.*  Protest at 3.  Under
our regulations, the protester should have protested the apparent lack of
any provision in the price schedule for pricing CLINs 0005 and 0006 by the
October 24 closing time for receipt of initial proposals.  ABS*s failure
to protest until December 19, almost two months after the closing date,
renders this ground of protest untimely.
    
ABS contends that the agency should have given it an opportunity to submit
prices for these CLINs after receipt of initial proposals (presumably
through the conduct of discussions and submission of final proposal
revisions).  This argument is without merit.  Because the RFP placed ABS
on notice of the agency*s intention to award without discussions, ABS
could not reasonably presume that it would have a later opportunity to
augment its proposal by submitting prices for CLINs 0005 and 0006.  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.  Techseco,
Inc., B-284949, June 19, 2000, 2000 CPD P: 105 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.  There is no
basis on this record to object to the agency*s determination not to
conduct discussions.
    
ABS also challenges the agency*s decision to award to Enovity.  Under our
Bid Protest Regulations, however, a firm is not an interested party to
maintain a protest if it would not be in line for award if the protest
were sustained.  4 C.F.R. S: 21.0(a).  Since ABS*s proposal was properly
determined to be unacceptable, and there were
five technically acceptable, reasonably priced proposals, besides the
awardee*s, eligible for award, ABS is not an interested party to challenge
the award.  U. S. Constructors, Inc., B-282776, July 21, 1999, 99-2 CPD P:
14 at 5.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    
      
    
    
    
     
    
    

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   [1] While ABS correctly points out that the awardee indicated in its
proposal that CLIN 0005 would be performed at no additional charge to the
government, GSA*s position that there was a potential additional cost to
comply with CLIN 0005 that could approach approximately $50,000 per year
is generally confirmed by the per‑year prices offered by the two
offerors that priced that CLIN.