TITLE:  Cooperativa Maratori Riuniti-Anese, B-294747, October 15, 2004
BNUMBER:  B-294747
DATE:  October 15, 2004
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   Decision

   A 

   A 

   Matter of:   Cooperativa Maratori Riuniti-Anese

   A 

   File:            B-294747

   A 

   Date:              October 15, 2004

   A 

   Reed L. von Maur, Esq., for the protester.

   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

   A 

   Protester's proposal to complete one of three construction projects 5 days
after date specified in solicitation rendered proposal unacceptable for
failure to comply with material solicitation requirement. 

   DECISION

   A 

   Cooperativa Maratori Riuniti-Anese (CMR/Anese) protests the award of a
contract to Impresa Costruzioni Giuseppe Maltauro S.p.a. (ICGM) under
request for proposals (RFP) No. N33191-02-R-1076, issued by the Department
of the Navy for construction of airplane parking areas at the Aviano Air
Base, Italy. CMR/Anese challenges the agency's evaluation of proposals and
source selection.

   A 

   We deny the protest.

   A 

   The RFP sought proposals to construct three airplane parking pads--South
Ramp, North Ramp, and Zulu Arm/Dearm Pad.  Proposals were to be evaluated
under three technical factors--organizational experience, organizational
past performance, and schedule--and price.  The RFP warned that a marginal
rating under any factor would result in the overall proposal being rated
marginal (unless corrected through discussions), and that a proposal had
to be rated at least satisfactory in order to be eligible for award.  The
RFP contemplated a "best value" award of a fixed-price contract. 

   A 

   The RFP set a specific performance period for each of the three
projects--540 days for the South Ramp, and 360 days each for the Zulu Pad
and North Ramp projects.  RFP at 00710-16.  As to schedule, proposals were
required to include the total number of days proposed for completion from
the date of award.  For purposes of evaluation, offerors were to base
their proposed schedule(s) on the assumption that all options would be
awarded and exercised with the award, which offerors were to assume would
be September 15, 2004.  RFP at 00202-4.  Proposals were also to include a
computer-generated critical path method (CPM) schedule with the number of
days to complete the projects. 

   A 

   Eight offerors, including CMR/Anese and ICGM, submitted proposals, which
were evaluated by a technical evaluation board.  CMR/Anese's proposal, at
an offered price of *7.5 million, was rated marginal overall based on
satisfactory ratings under the experience and past performance factors and
a marginal rating under the schedule factor.  ICGM's proposal, at an
offered price of *7.9 million, was rated as good-plus overall.  The agency
determined that ICGM's proposal represented the best value and awarded it
the contract without conducting discussions. 

   A 

   At its debriefing, CMR/Anese learned that its marginal schedule rating was
based on the agency's (erroneous) finding that its North Ramp schedule
exceeded the allowed schedule by 5 days.  When CMR/Anese showed the agency
that, in fact, its North Ramp schedule was fully compliant with the RFP,
the agency acknowledged its mistake and suspended the debriefing to
reevaluate the protester's proposed schedule.  Protest at 4.  Upon further
review, the agency recognized that it was CMR/Anese's schedule for the
Zulu Pad that exceeded the completion date.  Specifically, based on the
RFP-required assumptions of a start date of September 15, 2004, the 360
days allotted for performance would expire on September 10, 2005. 
Although CMR/Anese proposed to perform the work in 324 days, a shorter
period than the 360 days allowed by the RFP, its CPM schedule showed a
start date of October 26, 2004 and a completion date of September 15,
2005, that is, 5 days beyond the assumed completion date.  Based on this
review, the Navy notified CMR/Anese that its proposal rating remained at
marginal.  The protester maintains that this evaluation conclusion was
unreasonable.

   A 

   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, Ba**286925.3 et al., Apr. 9, 2001, 2001 CPD
P 75 atA 10a**11. 

   A 

   The evaluation here--and resultant rejection of the protester's
proposal--was reasonable.  Under the schedule factor, the RFP provided
that proposals would be evaluated on the basis of standards of
acceptability, including "[t]he extent to which the offeror presents a
comprehensive, logical and feasible approach to finish the construction
within the time frame for each project specified . . . [and] will include
a determination of the probability that the proposed schedule will
successfully meet the required completion time."  RFP at 00202-3 to
00202--4.  Relevant to this standard were four subfactors, the first of
which related to the number of days proposed for completion based on a
start date of September 15, 2004.  It is undisputed that CMR/Anese's CPM
schedule identified a completion date of September 15, 2005, which did not
meet the completion deadline--SeptemberA 10a**-implied by the 360-day
schedule set forth in the RFP.  A firm delivery schedule or completion
date set forth in a solicitation is a material requirement, precluding
acceptance of any proposal not offering to meet that date.  See Hercules
Constr. Corp., B-271872, July 26, 1996, 96a**2A CPD P 46 at 2.  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.  SuccessTech Mgmt. & Servs., B-294174, July 6,
2004, 2004A CPD P __ at 2; Plessey Elec. Sys. Corp., Ba**236494, Sept. 11,
1989, 89-2 CPD PA 226 at 2.  Since CMR/Anese's proposal did not provide
for timely completion of the project, the agency reasonably rated the
proposal marginal under the schedule factor; under the terms of the RFP,
this rating made the proposal ineligible for award.  RFP atA 00202-2.    

   A 

   CMR/Anese asserts that the marginal rating was undeserved because the
agency focused on only one of four relevant schedule subfactors.  However,
since the schedule was a material requirement and CMR/Anese's proposal
ratings under the other subfactors could not alter its failure to meet
that requirement, the ratings under the other subfactors are irrelevant. 
The agency reasonably could rate the proposal marginal under the schedule
factor. 

   A 

   Noting that its Zulu Pad schedule had been designated a strength in the
evaluation, CMR/Anese asserts that, once the Navy identified the
completion date problem and evaluated the proposal as marginal, it was
required to open negotiations with the firm.[1]  In this regard, the
protester states that the perceived problem could have been easily
corrected by adjusting the start date for the Zulu Pad.  This argument is
without merit.  There generally is 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.  FAR SA 15.306(a)(3); Colmek Sys. Eng'g., Ba**291931.2,
July 9, 2003, 2003 CPD PA 123 at 7.  The contracting officer's discretion
in deciding not to hold discussions is quite broad.  Our Office will
review the exercise of such discretion only to ensure that it was
reasonably based on the particular circumstances of the procurement. 
Colmek Sys. Eng'g, supra.  We find no circumstances that call into
question the agency's decision not to engage in discussions here. 
Contrary to the protester's assertions, the fact that it may have
erroneously entered the wrong start date in its CPM schedule does not give
rise to an obligation on the agency's part to hold discussions where
discussions are not otherwise necessary.  See Omega World Travel, Inc.,
B-283218, Oct. 22, 1999, 2002 CPD PA 5 at 6.

   A 

   Our conclusion is not changed by CMR/Anese's characterization of
correcting its "clerical error" in its start date as a matter of
clarification.  Response to Dismissal Request at 5, n.2.  "Clarifications"
are limited exchanges between the government and offerors that may occur
when award without discussions is contemplated.  Such communications with
offerors are not to be used to cure proposal deficiencies or material
omissions, materially alter the technical or cost elements of the
proposal, or otherwise revise the proposal."  FAR S 15.306(a).  Since the
completion schedule date in the RFP was a material requirement, correction
through clarification would not have been proper.

   A 

   CMR/Anese asserts that the agency's evaluation of its proposal under the
organizational experience and organizational past performance factors was
flawed, and also challenges any higher ratings given to ICGM's proposal
under these factors.  We do not reach the merits of these arguments
because--based on the terms of the RFP and our prior
decisions--CMR/Anese's failure to propose a compliant schedule rendered
its proposal ineligible for award, notwithstanding any other errors in the
evaluation.  Since CMR/Anese thus would not have received the award even
if we agreed that the evaluation was flawed, this aspect of the protest is
academic.  See Galen Med. Assocs., Inc., Ba**288661.4, Ba**288661.5, Feb.
25, 2002, 2002 CPD P 44 at 4.

   A 

   The protest is denied.

   A 

   Anthony H. Gamboa

   General Counsel

   A 

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

   [1] In fact, CMR/Anese asserts that the agency "essentially" engaged in
discussions with the firm during its debriefing when it resolved its
mistake regarding CMR/Anese's North Ramp schedule.  Response to Dismissal
Request at 6.  This assertion is without merit.  Discussions or
negotiations are exchanges between the government and offerors that are
undertaken prior to award with the intent of allowing offerors to revise
their proposals.  Federal Acquisition Regulation (FAR) SA 15.306(d).  The
debriefing here, held after award, was conducted for the purpose of
advising CMR/Anese of the reasons for its failure to receive the award,
not to permit the firm to revise its proposal to improve its chances of
being selected for award.