TITLE: SuccessTech Management & Services, B-294174, July 6, 2004
BNUMBER: B-294174
DATE: July 6, 2004
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Decision
Matter of: SuccessTech Management & Services
File: B-294174
Date: July 6, 2004
Sheila Pannell for the protester.
Mark R. Gleeman, Esq., Winthrop & Weinstine, for DECO, Inc., an
intervenor.
Damon Martin, Esq., Naval Facilities Engineering Command, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester*s proposed 30-day transition period was inconsistent with
material solicitation requirement for contract performance to begin within
15 days of notice of award, and thus rendered proposal unacceptable;
remaining protest arguments challenging evaluation of proposal therefore
are academic.
DECISION
SuccessTech Management & Services protests the elimination of its proposal
from the competition under request for proposals (RFP) No.
N62470-03-R-2083, issued by the Department of the Navy for guard services.
SuccessTech asserts that the agency*s evaluation was flawed.
We deny the protest.
The RFP, a 100-percent section 8(a) small business set-aside, sought
proposals to provide security guard services at the Norfolk Naval Shipyard
and other Navy installations. Proposals were to be evaluated under three
technical factors--management/organization, past performance, and
financial capability--and price. The RFP contemplated a *best value*
award of a fixed-price, indefinite-delivery, indefinite-quantity contract
for a base year, with 4 option years.
After an initial evaluation, the agency conducted discussions with
SuccessTech; it subsequently found that the firm*s revised proposal did
not fully correct the identified deficiencies. In the final evaluation,
the agency rated SuccessTech*s proposal as marginal under the
management/organization factor due to the firm*s lack of contracts for
similar work requirements and due to its proposal of a 30-day phase-in
plan, which was inconsistent with the RFP*s requirement for a maximum
15‑day startup. The agency also rated SuccessTech*s proposal as
poor under the financial capability factor because the firm*s credit
report did not contain a credit rating and it failed to produce evidence
of a current line of credit, both requirements under the RFP. The agency
eliminated SuccessTech*s proposal from the competition and the firm then
filed this protest.
SuccessTech asserts that the evaluation under the management/organization
factor was flawed because its proposal and discussion responses were
sufficient based on the experience of its key personnel and that of its
subcontractor, the incumbent. In addition, it asserts that the RFP did
not require phase-in and full operation within 15 days of award. With
regard to the financial capability factor, SuccessTech asserts that it
submitted all the information it could and that the RFP*s requirements for
a credit rating and letter of credit represented bias against small
businesses (like SuccessTech) that have not been in business long enough
to obtain them.
In reviewing a protest of an agency*s evaluation of proposals, our review
is confined to a determination of whether the agency acted reasonably and
consistent with the terms of the solicitation and applicable statutes and
regulations. United Def. LP, B‑286925.3 et al., Apr. 9, 2001, 2001
CPD P: 75 at 10‑11.
Here, SuccessTech*s proposal failed to meet a material RFP requirement,
and therefore was unacceptable. A firm delivery or service commencement
date set forth in a solicitation is a material requirement, precluding
acceptance of any proposal not offering to meet that date. Hawaiian Tel.
Co., B-187871, May 2, 1977, 77‑1 CPD P: 298 at 9. In a negotiated
procurement, any proposal that fails to conform to material terms and
conditions of the solicitation is unacceptable and may not form the basis
for an award. Plessey Elec. Sys. Corp., B‑236494, Sept. 11, 1989,
89-2 CPD P: 226 at 2; Telenet Communications Corp., B‑224561, Feb.
18, 1987, 87‑1 CPD P: 181 at 3. The RFP stated that the
performance period (contract term) *shall be for a period of 12 months
commencing or within 15 days after notice/date of award.* RFP S: F.2.
The RFP*s statement of work provided that within *15 calendar days after
award, the Contractor shall begin work for the Contract period.* RFP
S: C.9.b. SuccessTech*s initial startup plan did not include any
identifiable time frames or schedule. When permitted to supplement its
plan in discussions, SuccessTech stated that it assumed *at least thirty
days advanced notice of contract award* and provided a 30‑day
transition schedule leading up to a start date when transition was to be
completed and the firm would *assume all duties.* Protest attach. 9, at
2-3. Since SuccessTech*s plan did not call for contract performance to
begin within the required 15 days of award, it could not be accepted for
award.
SuccessTech does not claim that its phase-in plan meets the 15-day
requirement. Rather, it asserts that the RFP *does not firmly state that
contractor will phase in and be fully operational within 15 days notice of
award.* Protest at 5. However, this assertion ignores the plain language
of the RFP, quoted above, which clearly required the successful contractor
to commence work not later than 15 days after the notice of award.
SuccessTech asserts that the issue is moot because its proposed
subcontractor is the incumbent, so that its workforce would be on site
within the required 15 days. Comments at 2. However, notwithstanding
that its workforce may be on site, SuccessTech*s proposal, as modified by
its discussion responses, made clear that the firm was not offering to be
contractually bound to perform all duties until 30 days after notice of
award. In this regard, SuccessTech claims that *[e]ven with [its
incumbent subcontractor] already in place new weapon qualifications,
uniform exchanges, vehicle acquisition/up-fitting, new equipment purchase
and training take time to ensure compliance with all federal, state, and
local regulations,* and make a 15-day phase-in impractical. Protest at
6.
We do not reach the merits of SuccessTech*s remaining protest grounds
concerning the evaluation, because its failure to meet a material RFP
requirement rendered its proposal ineligible for award, notwithstanding
any errors in the evaluation. Since SuccessTech thus would not have
received the award even if we agreed that the evaluation was flawed, this
aspect of the protest is academic. Galen Med. Assocs., Inc., B-288661.4,
B‑288661.5, Feb. 25, 2002, 2002 CPD P: 44 at 4.
The protest is denied.
Anthony H. Gamboa
General Counsel