TITLE:  Worldwide Primates, Inc., B-294481, October 12, 2004
BNUMBER:  B-294481
DATE:  October 12, 2004
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   Decision

   A 

   A 

   Matter of:   Worldwide Primates, Inc.

   A 

   File:            B-294481

   A 

   Date:              October 12, 2004

   A 

   Brooke Block for the protester.

   Douglas Kornreich, Esq., and Doris Gibson, Department of Health and Human
Services, for the agency.

   Paul N. Wengert, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   A 

   Protest is denied where an agency reasonably eliminated the protester's
proposal from the competitive range because, even after discussions, the
protester failed to submit a proposal that addressed the solicitation
requirements.

   DECISION

   Worldwide Primates, Inc. protests the award of seven contracts by the
Department of Health and Human Services, National Heart, Lung, and Blood
Institute (NHLBI) under request for proposals (RFP) No. NHLBI-PS-2003-079.
Worldwide primarily argues that the agency's evaluation of its proposal as
technically unacceptable was unreasonable.

   We deny the protest.

   On July 30, 2003, NHLBI issued the RFP, seeking proposals to supply
non-human primates, and to provide shipping, testing, and holding services
for the animals. 
RFP SA B.1.  The RFP contemplated multiple awards of indefinite-delivery,
indefinite-quantity contracts.  The procurement was conducted under the
procedures for evaluation of commercial items in Federal Acquisition
Regulation (FAR) Part 12. 

   The RFP contained FAR SA 52.212-2(a), specifying that award would be made
"to
the responsible offeror whose offer conforming to the solicitation will be
most advantageous to the Government, price and other factors considered"
and then specified weights for enumerated non-price criteria.  RFP at
27-28.  The RFP identified the following technical evaluation factors: 
demonstrated understanding of the magnitude and scope of work in the
proposed technical approach (25 points); the availability, competence and
experience of the proposed technical personnel directly involved in the
contract (20 points); appropriateness and availability of the necessary
facilities to perform the work (20 points); past performance (20 points);
and proposed method of assuring the achievement of timely and acceptable
delivery of animals and services (15 points).

   As an addendum to that provision, entitled "selection of offerors," the
RFP stated as follows:

   Best-Buy Analysis.  A final best-buy analysis will be performed taking
into consideration the results of the technical evaluation, cost analysis,
and ability to complete the work within the Government's required
schedule.  The Government reserves the right to issue an order to the best
advantage of the Government, technical merit, cost, and other factors
considered.

   RFP at 28. 

   The RFP also required a "detailed work plan . . . indicating how each
aspect of the .A .A . work is to be accomplished," and advised inclusion
of "as much detail as you consider necessary to fully explain your
proposed technical approach or method."  The RFP required that the
technical plan include information on how the project would be organized,
staffed, and managed.  RFP at 29.  The RFP also cautioned that

   [p]lans which merely offer to conduct a program in accordance with the
requirements of the Government's scope of work will not be eligible for
further consideration.  The offeror must submit an explanation of the
proposed technical approach in conjunction with the tasks to be performed
in achieving the project objectives.

   Id.

   Nine firms submitted proposals.  The initial proposal from Worldwide
consisted of a two-page submission accompanying the government-required
forms from the RFP package.  Worldwide stated that "[o]ur technical plan
as such is below.  Since no research is required as part of the proposal,
we are somewhat limited as to presenting a detailed plan since this is a
straightforward purchase of primates."  Agency Report (AR), Tab 3,
Proposal Cover Letter, at 1.  The remainder of the submission, consisting
of several paragraphs, identified one employee and provided several
references.  Id. at 1-2.  In light of Worldwide's failure to provide a
proposal responsive to the solicitation requirements, the agency
evaluators assigned Worldwide's proposal a total score of 5 points (out of
a possible 100 points).  AR, Tab 4, Technical Evaluation Summary
Statement, at 11. 

   The agency determined that only two proposals were acceptable after the
initial review and would be included within the competitive range.  AR,
TabA 5, Determination to Conduct Communications with Offerors Before
Establishment of Competitive Range, at 3.  The agency concluded, however,
that establishing a competitive range of only those two proposals would
not satisfy the agency's need to make as many awards as possible.  Id.  At
the same time, the record shows that the agency concluded that it lacked
sufficient information to include any other proposals in the competitive
range.  Id. at 2.  Therefore, the agency determined that it would conduct
communications with offerors (including Worldwide) prior to establishing a
competitive range.  Id. at 3. 

   Notwithstanding the agency's decision to conduct communications prior to
establishing a competitive range, the record shows the agency's e-mail
sent to Worldwide stated that the firm had been included within the
"competitive range."  Contracting Officer's Statement at 5.  The e-mail
also stated that the responses "will be considered Final Proposal
Revisions."  AR, Tab 6, E-mail from Agency to Protester (Nov. 4, 2003,
2:57 p.m.).  The agency report to our Office includes copies of the
transmittals to the seven successful offerors and the protester, which
show that those offerors, including the two top-ranked offerors (whose
presence in the competitive range was already certain), received
essentially the same notice.  Further, in each case, the offerors were
asked to submit revised proposals responding to substantive questions
concerning their initial proposals.  AR, Part II.  Thus, it appears from
the record that the agency established a competitive range of all of the
offerors' proposals and conducted discussions with all of the offerors.

   As relevant here, the agency, through its questions to Worldwide, invited
Worldwide to provide the required information concerning its technical
approach that it had failed to include in its initial proposal.  For
example, Worldwide was asked to identify the staff it proposed for this
contract and to furnish the staff's qualifications and experience, to
describe the facilities it proposed to use to support the contract, and to
describe its understanding of the scope of work and the methods it
proposed to use to meet RFP requirements.  Worldwide's response by e-mail,
approximately one standard page in length, provided summary responses to
the questions.  For example, concerning the agency's request for staffing
information, Worldwide responded that its "staff have been found competent
and have many years experience in this field."  AR, Tab 7, E-mail from
Protester to Agency (Dec. 8, 2003, 10:15 a.m.).  Concerning its facility,
Worldwide responded that "[o]ur facilities are licensed and inspected by
the regulatory agencies charged with licensing this company," and "has had
zero deficiencies as a result of [these] inspections."  Id. 

   Since Worldwide again failed to provide any detailed explanation of how it
would perform the contract, the agency found Worldwide's proposal
technically unacceptable and excluded it from further consideration. 
Contracting Officer's Statement at 5-6.  The record shows that, after
evaluating all of the revised proposals, the agency established a
competitive range of seven offerors, or, more accurately, it narrowed the
existing competitive range to seven.  The agency conducted another round
of discussions with these offerors and received further proposal
revisions.  After determining that all seven firms had submitted
technically acceptable proposals, the agency awarded contracts to these
firms.

   Worldwide subsequently was simultaneously notified of its proposal's
exclusion from the competitive range, and of the contract awards.  Protest
at 1.  Worldwide then protested the agency's actions.  InA its protest,
Worldwide argues that the agency misevaluated Worldwide's proposal as
technically unacceptable.  Protest at 1-2.  As discussed below, we
disagree.

   In its comments on the agency's report, Worldwide acknowledges that "[t]he
Agency requested us to *explain' our understanding of the scope of work"
and that, in response "we indicated that this is stated very explicitly in
the RFP and we intend to comply with it."  Protester's Comments at 2. 
Worldwide asserts that the agency should have considered the various
licensing and governmental oversight schemes to obviate the need for it to
respond in detail to those aspects of the solicitation.  Worldwide points
out that that "[a]nyone submitting a proposal must be licensed by several
agencies, comply with various regulations and policies, utilize testing
laboratories approved by the Project Officer, supply certain animals of
very specific sex, weight, and country of origin, and guarantee the
animals for a period post delivery," and only approximately ten commercial
entities have the requisite authorizations to import and quarantine
non-human primates.  Protester's Comments at 2.  Therefore, Worldwide
argues, since the contract required contractors to possess the requisite
licenses and inspections, and since Worldwide has significant experience
as an authorized supplier of non-human primates, it should have been
considered acceptable by the evaluators.  Id. 

   Here, in order for a proposal to be evaluated as technically compliant,
the RFP mandated that an offeror provide detailed information concerning
its technical approach to meeting the RFP requirements, including a
discussion of its proposed staff, their qualifications and experience, the
offeror's facilities, and its methods for satisfying the RFP
requirements.[1]  As Worldwide itself appears to recognize, even after
discussions its proposal lacked requisite detailed information concerning
its technical approach.  As a result, and consistent with the terms of the
RFP, this omission reasonably rendered Worldwide's proposal noncompliant
with the terms of the RFP.  The cursory general assurances that it could
perform the work did not comport with the RFP's specific requirement for
detailed information.  Under these circumstances, the agency reasonably
found Worldwide's proposal lacked required information and was technically
unacceptable.[2]  See, e.g., Wyle Labs., Inc., Ba**260815.2, Sept. 11,
1995, 95-2 CPD P 187 at 5.

   Under these circumstances, we have no basis to object to the
reasonableness of the agency's rejection of Worldwide's proposal as
technically unacceptable and, as a consequence, the agency's removal of
Worldwide's proposal from the competitive range.[3]  

   The protest is denied.[4]

   Anthony H. Gamboa
General Counsel

   A 

   A 

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

   [1] To the extent that the protester believes that the agency was
overstating its requirements by requesting such information, an objection
to the terms of the solicitation had to be filed prior to the closing time
for submission of initial proposals in order to be timely under our Bid
Protest Regulations.  4 C.F.R. SA 21.2(a) (2004).

   [2] Contrary to Worldwide's assertion in its protest, referral of a small
business concern's to the Small Business Administration for consideration
under the certificate of competency procedures is not required where, as
here, the rejection of that concern's proposal is for reasons not related
to responsibility.  SBS Tech. Servs., Ba**259934, Apr. 19, 1995,
95a**1A CPD P 205 at 5. 

   [3] Our Office reviewed (in camera, due to the absence of a protective
order) the proposals of the firms awarded contracts, and we note that in
contrast to Worldwide's, the successful proposals contained comparatively
detailed descriptions of their proposed approaches. 

   [4] Worldwide also complains that the agency improperly delayed notifying
the protester of its exclusion from the competitive range, and of the
award of the contracts.  The agency acknowledges that the notifications to
Worldwide were untimely.  Worldwide was excluded from the competitive
range April 20, and contracts were awarded on June 1. Contracting
Officer's Statement at 2.  The contracting officer explains that she
delayed notification until early August in order to be able to include a
"debriefing" with the notice to Worldwide.  Contracting Officer's
Statement at 7.  This delay appears inconsistent with 41 U.S.C. SA 253b
(2000) and FAR Subpart 15.5, and the contracting officer states that she
"regrets the delay . . . and recognizes that this approach is not
appropriate for future acquisitions."  Id.  Worldwide states that an
earlier notification would have resulted in both an earlier protest, and
unspecified "other avenues that [it] could have availed itself of, which
are much less effective post award."  Protester's Comments at 1. 
Notwithstanding the agency's delay in notifying Worldwide, the protester
has not shown, especially in light of our discussion above, how the
agency's failure to give it timely notice prejudiced the firm's chances
for award.  McDonalda**Bradley, Ba**270126, Feb. 8, 1996, 96a**1 CPD PA 54
at 3; see Statistica, Inc., v. Christopher, 102A F.3d 1577, 1581 (Fed.
Cir. 1996).