TITLE:  Gold Cross Safety Corporation, B-296099, June 13, 2005
BNUMBER:  B-296099
DATE:  June 13, 2005
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   Decision

   Matter of:   Gold Cross Safety Corporation

   File:            B-296099

   Date:              June 13, 2005

   Daniel Lanktree for the protester.

   J.R. Cohn, Esq., and Julius Rothlein, Esq., U.S. Marine Corps, for the
agency.

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

   DIGEST

   Agency's failure to evaluate protester's technical submission before
eliminating its quotation from competition was unobjectionable where
agency reasonably determined that protester's quoted price--which was 20
times the awardee's--was not fair and reasonable, and eliminated quotation
from competition on that basis.

   DECISION

   Gold Cross Safety Corporation protests the U.S. Marine Corps's issuance of
a purchase order to Driven2Dare, Inc. under request for quotations (RFQ)
No.A M6700105Q0032, for a vehicle safety promotion campaign.  Gold Cross
principally alleges that the agency improperly rejected the firm's
quotation based on price alone, without evaluating its technical
submission.

   We deny the protest.

   On February 2, 2005, the Corps issued, as a small business set-aside, a
combined synopsis/soliciation for a multimedia-based vehicle safety
promotion campaign at Camp Lejeune, North Carolina.  The promotion
campaign, which was being procured as a commercial item, required 30 days
of presentations over the next year, and also required the contractor to
produce a safe-driving DVD for reproduction and later distribution as a
training resource.  Award was to be made on a "best value" basis, with
three evaluation factors:  technical capability, past performance, and
price.  Technical capability and past performance, when combined, were
signficantly more important than price.

   Gold Cross, the awardee, and a third vendor submitted quotations by the
March 3 due date, quoting prices, respectively, of $2,950,000, $150,000,
and $363,500.  The independent government estimate was $290,000.  Due to
its high price, the agency rejected Gold Cross's quotation without
evaluating the firm's technical submission.[1]  The agency then evaluated
the remaining two vendors' technical submissions, and determined that
Driven2Dare's represented the best value; it thus made award to that firm
on MarchA 4.

   Gold Cross challenges the award on several bases.  First, it alleges that
the agency improperly procured the promotion campaign as a commercial
item; the protester asserts that such a campaign is not a commercial
item.[2]

   We dismiss this protest ground as untimely.  Our Bid Protest Regulations
contain strict rules for the timely submission of protests.  They
specifically require that a protest based upon alleged improprieties
apparent on the face of the solicitation be filed prior to the closing
time for receipt of initial proposals (or quotations).  4 C.F.R.
SA 21.2(a)(1) (2005).  Here, the designation of the items being procured
as commercial items was apparent from the solicitation itself.  Gold Cross
therefore was required to protest on this basis before the initial closing
time.  Because it did not do so, this aspect of its protest is untimely
and will not be considered.

   Gold Cross next asserts that the agency improperly eliminated its
quotation from the competition based on price alone, without considering
the high quality of its technical submission.  This argument is without
merit.  While the RFQ provided for a best value evaluation based on
comparative technical and price considerations, the agency also was
required to consider whether the protester's quoted price was too high in
an absolute sense.  In this regard, before awarding a fixed-price
contract, an agency is required to determine that the price offered is
fair and reasonable.  Federal Acquisition Regulation (FAR) SA 15.402(a). 
Here, the agency states that it rejected Gold Cross's quotation pursuant
to the contracting officer's determination that the quoted price was so
high that award to the firm would not be in the public interest, no matter
the quality of its technical submission.  Contracting Officer's Statement
of Facts at 2.  This was tantamount to finding that Gold Cross's price was
unreasonably high.  A price reasonableness determination may be based on
various price analysis techniques, including comparison of prices received
among themselves and to an independent government estimate (IGE).  FAR
SA 15.404a**1(b)(2).  A price reasonableness determination is a matter of
administrative discretion that we will question only where it is clearly
unreasonable or there is a showing of bad faith or fraud.  The Right One
Co., B-290751.8, Dec. 9, 2002, 2002 CPD PA 214 at 5. 

   The contracting officer considered the prices received and the IGE, and
concluded that Gold Cross's price was so high--approximately 20 times the
awardee's price, 8A times the third vendor's price, and 10 times the
IGE--that award could not be made to the firm.  Given this great disparity
in pricing, there was nothing improper in the contracting officer's
determining that Gold Cross's price was unreasonable and eliminating it
from the competition on this basis.  See, e.g., Rhimco Indus., Inc.,
Ba**247600, June 8, 1992, 92a**1A CPD PA 499 at 2 (a price 42 percent
higher than government estimate constitutes an unreasonable price).  Since
Gold Cross could not receive the award due to its unreasonable price, the
results of any technical evaluation the agency may have subsequently
performed were immaterial; even if Gold Cross's technical submission
received the highest possible rating, it could not receive the award due
to its unreasonable price.  Consequently, there was nothing improper in
the agency's failure to evaluate Gold Cross's technical submission.[3] 

   Gold Cross raises various additional grounds in its protest that challenge
the propriety of the award to Driven2Dare--including allegations that the
awardee does not have the experience or capability to perform the
contract.  Under the bid protest provisions of the Competition in
Contracting Act of 1984, 31 U.S.C. SS 3551-3556 (2000), only an
"interested party" may protest a federal procurement.  That is, a
protester must be an actual or prospective supplier whose direct economic
interest would be affected by the award of a contract or the failure to
award a contract.  Bid Protest Regulations, 4A C.F.R. SA 21.0(a).  A
protester is not an interested party where it would not be in line for
contract award if its protest were sustained.  Four Winds Servs., Inc.,
B-280714, Aug. 28, 1998, 98-2 CPD P 57.  Here, since the protester's
quotation was properly rejected, and the third vendor--whose eligibility
for award Gold Cross does not question--would be in line for award if Gold
Cross's award challenge were sustained, Gold Cross is not an interested
party for purposes of challenging the award to Driven2Dare.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] While the agency's letter advised Gold Cross that its quotation was
eliminated from the "competitive range," it appears that this language was
merely intended to put the protester on notice that its quotation had been
eliminated from the competition.  In this regard, the RFQ provided that
the agency intended to make award without discussions, and the record does
not indicate that the agency ever established a competitive range or
conducted discussions.

   [2] Gold Cross also initially alleged that the agency improperly framed
the statement of work based on the awardee's previous contract for similar
work.  The agency responded to this allegation in its agency report, and
Gold Cross does not challenge the agency's explanation in its comments on
the report.  Consequently, we consider this protest ground to be
abandoned.  See Delco Indus. Textile Corp., Ba**292324, Aug.A 8, 2003,
2003 CPD P 141 at 3 n.2.

   [3] The protester points to various FAR provisions that it claims required
the agency to evaluate its technical submission.  Under these
circumstances, we do not think the referenced FAR sections--governing
source selection procedures--are applicable once an agency has reasonably
determined that a quoted price is not fair and reasonable.  As explained
above, once the agency determined that the protester's price was
unreasonable, the agency could not contract with Gold Cross, and any
subsequent evaluation of Gold Cross's technical submission would have no
bearing on the procurement.