TITLE: B-296902; B-296902.2, Delphinus Engineering, Inc., September 20, 2005
BNUMBER: B-296902; B-296902.2
DATE: September 20, 2005
*********************************************************************
B-296902; B-296902.2, Delphinus Engineering, Inc., September 20, 2005

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Delphinus Engineering, Inc.

   File: B-296902; B-296902.2

   Date: September 20, 2005

   Joseph G. Billings, Esq., and Philip A. Tordella, Esq., for the protester.

   Terence Murphy, Esq., and Patrick H. O'Donnell, Esq., Kaufman & Canoles,
   for Q.E.D. Systems, Inc.; Daniel R. Weckstein, Esq., Stephanie M.
   Himel-Nelson, Esq., and Michael L. Sterling, Esq., Vandeventer Black LLP,
   for Tecnico Corporation; and Michael J. Gardner, Esq., Troutman Sanders,
   for George G. Sharp, Inc., the intervenors.

   Catherine Kellington, Esq., Department of the Navy, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. The protester--a section 8(a) qualified business--had no basis to
   expect that the agency would award it a contract as the only 8(a) offeror
   submitting a technically acceptable proposal, where the solicitation was
   issued on an unrestricted basis and stated that award would be made to the
   offerors submitting the proposals determined to be most advantageous to
   the agency considering the listed technical factors and cost.

   2. The agency's evaluation of the protester's response to a sample task
   order did not have to consider protester's performance on another contract
   not identified in the protester's proposal.

   DECISION

   Delphinus Engineering, Inc. protests its failure to receive a contract
   under request for proposals (RFP) No. N65540-03-R-0001, issued by the
   Department of the Navy, for engineering and technical support services to
   support the installation and repair of various ship habitability areas.
   Delphinus argues that the agency was required to award it a contract
   because Delphinus was the only firm certified under the Small Business
   Administration's (SBA) section 8(a) program to have submitted a
   technically acceptable, competitively priced proposal, and that the
   agency's evaluation of its proposal was unreasonable.[1]

   We deny the protest.

   The RFP, issued on an unrestricted basis on June 25, 2003, provided that
   the agency would award a single or multiple
   indefinite-delivery/indefinite-quantity cost-plus-fixed-fee task order
   contract or contracts for the required services. The solicitation stated
   that awards would be made to the offerors submitting the proposals
   "determined most advantageous to the Government" based upon the following
   evaluation factors: cost, corporate experience/past performance, sample
   task order/technical approach, personnel, management/quality assurance
   plan, and facilities. The RFP, as amended, informed offerors that all of
   the evaluation factors other than cost, when combined, would be
   significantly more important than cost. With regard to the non-cost
   factors, the RFP provided that the corporate experience/past performance
   factor was most important, with the sample task order/technical approach,
   personnel, and management/quality assurance plan factors being equal in
   importance and each more important than the facilities factor.[2] RFP at
   72. The solicitation included detailed proposal preparation instructions
   and informed offerors that oral presentations would be required.

   The agency received proposals from five offerors, including Delphinus, by
   the September 5, 2003 closing date. The offerors' technical and cost
   proposals were evaluated, and all five proposals were included in the
   competitive range. Agency Report (AR) at 4; Tab 21, Pre-Negotiation
   Business Clearance Memorandum (BCM), at 1. Discussions were conducted, the
   offerors' responses were received and evaluated, and final revised
   proposals (FRP) were requested and received. AR at 4; AR, Tab 21, Written
   Discussion Letters; Tab 24, FRP Requests. The agency's final evaluation
   results were as follows:

  +--------------------------------------------------------------------------+
  |       Offeror        |    Technical Score[3]    |     Evaluated Cost     |
  |----------------------+--------------------------+------------------------|
  |        Sharp         |          91.99           |      $392,770,263      |
  |----------------------+--------------------------+------------------------|
  |       Tecnico        |          88.73           |      $421,483,740      |
  |----------------------+--------------------------+------------------------|
  |        Q.E.D.        |          86.15           |      $413,762,176      |
  |----------------------+--------------------------+------------------------|
  |      [DELETED]       |          71.92           |      $417,681,683      |
  |----------------------+--------------------------+------------------------|
  |      Delphinus       |          71.10           |      $412,161,109      |
  +--------------------------------------------------------------------------+

   AR, Tab 25, Post-Negotiation BCM, at 5. The agency determined that the
   proposals of Sharp, Tecnico, and Q.E.D. represented the best value to the
   agency, and awarded contracts to those firms.[4] After requesting and
   receiving a debriefing, Delphinus filed this protest.

   Delphinus primarily argues that because it was certified under the section
   8(a) program, and submitted a technically acceptable, competitively priced
   proposal, the agency was required to award Delphinus a contract. The
   protester explains that the services sought under the RFP had
   "[h]istorically . . . been performed under the 8(a) program," and that
   when the agency "sought to remove the Habitability work from the 8(a)
   program," Delphinus objected, and an agreement was reached "to remove the
   requirements under RFP N65540-03-R-0001 from the 8(a) program," but this
   "agreement was predicated on several conditions, including that [the
   agency] would award at least one contract to an 8(a) concern as long as
   the 8(a) concern submitted a technically acceptable, competitive offer."
   Protest at 1. While Delphinus has not provided a written copy of this
   agreement, it points to certain correspondence as well as declarations
   submitted by a former employee of the SBA to show the existence of the
   agreement. Delphinus also notes that one of the notices of this
   procurement action, posted in Federal Business Opportunities (FedBizOpps)
   on January 10, 2003, announced that although the procurement was
   "unrestricted" it "is anticipated that at least one award will be made to
   a small business and one to an 8A business provided that they are
   technically acceptable and competitive pricing is obtained." AR, Tab 7,
   FedBizOpps Notice (Jan. 10, 2003), at 2.

   As explained below, we find no merit to Delphinus's arguments that the
   agency was required to award it a contract under the RFP because it was
   the only 8(a) firm to submit an acceptable proposal, and to the extent
   that Delphinus's arguments are intended as challenges to the terms of the
   solicitation, the arguments are untimely.

   The Competition in Contracting Act of 1984 (CICA), as implemented by the
   Federal Acquisition Regulation (FAR), requires that solicitations include
   a statement of evaluation factors and their relative importance, and
   further requires that agencies evaluate and select proposals for award
   based solely on the terms of the solicitation. 10 U.S.C. sections
   2305(a)(2)(A), 2305(a)(3)(A), 2305(b)(1) (2000); FAR sections 15.203(a);
   15.303; 15.304; 15.305; 15.308. As set forth above, the RFP here included
   cost and non-cost evaluation factors, and provided for award based upon a
   determination, consistent with the evaluation of proposals under the
   stated evaluation factors, as to which proposals were most advantageous to
   the government. The solicitation did not indicate in any manner that
   awards would be made to a small business and/or an 8(a) concern provided
   its proposal was determined technically acceptable and competitively
   priced (as opposed to being the most advantageous to the government); nor
   did the solicitation provide that any evaluation preference would be
   applicable to proposals submitted by either small businesses or 8(a)
   concerns; nor did the solicitation state that it was totally or partially
   set-aside for eligible section 8(a) concerns.[5] As such, and contrary to
   Delphinus's position, it would have been wholly improper under the terms
   of the RFP for the agency to have awarded a contract to Delphinus on the
   basis that Delphinus had submitted a technically acceptable, competitively
   priced proposal.

   Delphinus nevertheless argues that the agency is required to award it a
   contract because it was assertedly orally advised by the cognizant
   contracting officer that because the solicitation provided for multiple
   awards, it was consistent with the purported agreement--that is, that the
   agency would award a contract to an 8(a) concern as long as it submitted a
   technically acceptable, competitively priced proposal. Protester's
   Comments at 13.

   Delphinus's interpretation of the solicitation's award provisions is
   unreasonable. The fact that the solicitation provided for multiple awards
   cannot reasonably be interpreted as requiring that one of the contracts be
   awarded on a completely different basis than that authorized by the
   solicitation's terms. Regardless of what any agency official may have
   said, the RFP simply did not provide for the award of a contract to an
   8(a) concern that submits a technically acceptable proposal. Accordingly,
   any verbal assurances that Delphinus believes it received in this regard
   are without effect. In this regard, the unambiguous terms of the
   solicitation control, even if we assume for the sake of argument that
   agency officials provided conflicting oral advice; oral advice even from a
   contracting officer is not binding on the government, and an offeror
   relies on oral advice that is inconsistent with a solicitation's terms at
   its peril. Accurate Automation Corp., B-292403; B-292403.2, Sept. 10,
   2003, 2003 CPD para. 186 at 6; Diamond Aircraft Indus., Inc., B-289309,
   Feb. 4, 2002, 2002 CPD para. 35 at 2. In short, Delphinus had no
   reasonable basis to believe that an award was required to be made to an
   8(a) concern submitting an acceptable proposal, and to the extent it
   believes that RFP should have so provided, the allegation is an untimely
   challenge of an alleged impropriety in the terms of the solicitation,
   which was required to have been filed prior to the closing date for
   receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2005).

   The protester also asserts, in a supplemental protest and in its comments
   on the agency report, that the agency's "removal of the procurement from
   the 8(a) program" was improper. Protester's Comments at 2. The protester
   specifically argues here that "the Agency failed to follow the regulations
   relating to locating 8(a) sources before determining that the habitability
   work should be procured on an unrestricted basis," and "did not follow the
   regulations for justifying bundling habitability work where the work was
   previously performed by two 8(a) contractors." Supplemental Protest at
   24-25. The protester also argues that the agency improperly failed to
   provide the SBA with the appropriate documents prior to proceeding with
   the issuance of the solicitation on an unrestricted basis, and
   "fraudulently induced the SBA into agreeing to remove the habitability
   work from the 8(a) program and procuring the work on an unrestricted
   basis." Supplemental Protest at 25.

   These arguments, raised well after the award of contracts under the RFP,
   are untimely and not for consideration. The record reflects that the
   protester was clearly aware of the agency's "removal of the requirement
   from the 8(a) program" as early as December 2002 and was aware of the
   unrestricted nature of the RFP upon its issuance. Accordingly, any protest
   challenging the agency's issuance of the solicitation on an unrestricted
   basis should have been filed by the solicitation's September 3, 2003
   closing date. 4 C.F.R. sect. 21.2(a)(1); Global Bus. and Legal Servs.,
   B-290381.2, Dec. 26, 2002, 2002 CPD para. 222 at 5; JCI Envtl. Servs.,
   B-250752.3, Apr. 7, 1993, 93-1 CPD para. 299 at 8 n.6.

   Delphinus also argues that the agency's evaluation of its proposal under
   the sample task order/technical approach factor was unreasonable.[6] In
   reviewing protests against allegedly improper evaluations, it is not our
   role to reevaluate proposals. Rather, our Office examines the record to
   determine whether the agency's judgment was reasonable and in accord with
   the evaluation factors set forth in the RFP. The protester's mere
   disagreement with the agency's judgment does not establish that an
   evaluation was unreasonable. Hanford Envtl. Health Found., B 292858.2,
   B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 4.

   The RFP required that proposals include, among other things, the offeror's
   response to a sample task order, including the submission of a "written
   proposal documenting the labor categories, labor hours, materials,
   subcontracts and Other Direct Costs" for the sample task order's
   performance. The solicitation explained that, among other things, the
   offerors' responses would be evaluated to assess the "offerors['] overall
   understanding of the work required, the alteration process, their ability
   to assign the proper personnel, and their ability to perform the work."
   RFP at 63. The RFP also informed offerors of the specific types of
   questions that the agency would consider as proposals were evaluated under
   the sample task order portion of the sample task order/technical approach
   factor, such as "To what extent has the offeror identified a proper mix of
   management/engineering and technician/trade personnel?" or "Does the
   offeror provide a reasonable explanation for the costs of materials,
   subcontracts, travel, and other miscellaneous expenses?" RFP at 64.

   The agency evaluated Delphinus's initial proposal, and determined that
   while Delphinus's "QA [quality assurance] workbook was good," its "cost
   estimate was questionable compared with the government estimate." AR, Tab
   20, Initial TEB Report, at 9; see Tab 21, Pre-Negotiation BCM, at 54. The
   agency also noted that "[a] few labor category man-hour estimates were low
   while some material costs were high." Id. Delphinus's proposal received a
   rating of 12.17 out of 20 points under the sample task order/technical
   approach factor.

   Written discussions were held with each of the offerors, including
   Delphinus. With regard to its response to the sample task order, the
   agency identified the following as one of the "Prime Technical Issues":

   Delphinus needs to revisit the technical requirements and costs submitted
   as part of the sample task order. Some costs as well as labor hour
   estimates were not comparable to the Government estimate. In addition, the
   contractor needs to revisit timeframes associated with the tasks.

   The agency' s discussion letter concluded by requesting that Delphinus
   "submit an explanation" regarding each of the issues raised, including
   Delphinus's response to the sample task order. AR, Tab 22, Agency
   Discussion Letter to Delphinus (Oct. 27, 2004).

   The agency evaluated Delphinus's response to discussions, and found that
   Delphinus's revised response to the sample task order "proposed changes in
   labor hours required and the shortening of the time frame from 11 to 9
   weeks." AR, Tab 23, Supplemental TEB Report, at 7; Tab 25,
   Post-Negotiation BCM, at 36. Given the agency's determination that
   Delphinus's estimate was "considerably under the government estimate,
   which was used as a benchmark," the agency concluded that Delphinus's
   proposed "unrealistic timeframe does not provide support that Delphinus
   maintains the technical expertise to perform valid estimates." AR, Tab 23,
   Supplemental TEB Report, at 7; Tab 25, Post-Negotiation BCM, at 36. The
   agency thus reduced Delphinus's proposal's rating under the sample task
   order/technical approach factor from 12.17 to 11.5 out of 20 points.

   In challenging the agency's evaluation of its proposal under the sample
   task order/technical approach factor, Delphinus argues that the sample
   task order "involved the same work that personnel at Delphinus Engineering
   had performed on the USS ABRAHAM LINCOLN," and that "[i]t should have been
   clear to the Agency that the shortened time frame and reduced costs
   resulted from efficiencies generated by experience gained by Delphinus
   Engineering in performing the same work on another ship." Protest at 16;
   see Protester's Comments at 37. Delphinus asserts that the agency "had the
   ability to verify Delphinus Engineering's statements regarding shorter
   time frames and lower costs . . . by checking with the Navy customer for
   the USS Abraham Lincoln," and that the agency was required to do so.
   Protester's Comments at 37. Delphinus also attached the declaration of a
   Delphinus employee to its comments on the agency report that explains the
   development of Delphinus's response to the sample task order and why in
   Delphinus's view its proposed labor hours and costs were realistic.
   Protester's Comments, attach., Declaration of Delphinus Program
   Manager/Business Development.

   We find the agency's evaluation of Delphinus's proposal under the sample
   task order/technical approach factor reasonable. Specifically, the record
   reflects that the agency found Delphinus's proposed response to the sample
   task order to be unrealistic with regard to certain of the labor hours and
   costs proposed, and requested that Delphinus review its estimates and
   provide an explanation regarding its response to the sample task order.
   The record provides that Delphinus did not provide any explanation
   regarding the costs and labor hour estimates set forth in its response to
   the sample task order. See Protest at 16; AR, Tab 11E, Delphinus's Revised
   Response to the Sample Task Order. Although the protester submitted in its
   comments on the agency report an explanation regarding the development of
   its sample task order and why it believes that its proposed costs and
   labor hours are reasonable, this analysis provides no basis on which to
   question the agency's evaluation of Delphinus's proposal, given the
   protester's failure to provide any such analysis or explanation to the
   agency during the conduct of the procurement. GEC-Marconi Elec. Sys.
   Corp., B-276186; B-276186.2, May 21, 1997, 97-2 CPD para. 23 at 7.

   Additionally, and contrary to the protester's assertion, Delphinus's
   response to discussions did not explain or otherwise state that Delphinus
   had performed the same or similar work on the USS Abraham Lincoln.[7]
   Moreover, even if we assume that Delphinus had informed the agency that it
   had performed the same or similar work on the USS Abraham Lincoln, this
   alone would not render the agency's evaluation unreasonable. The
   solicitation specifically advised that "offerors must provide details
   concerning what the contractor will do and how it will be done," including
   "a full explanation of the techniques, disciplines, and procedures
   proposed to be followed." RFP at 62. Given the solicitation's requirements
   that offerors provide details regarding their proposals, the agency could
   reasonably decline to accept Delphinus's cost and labor hour estimates
   supported solely by a statement that Delphinus had performed the same or
   similar work previously. We also note that contrary to the protester's
   assertion, the agency was not required to "verify Delphinus Engineering's
   statements regarding shorter time frames and lower costs . . . by checking
   with the Navy customer for the USS Abraham Lincoln," even assuming such
   statements were made. See Protester's Comments at 37. This is so because
   an offeror bears the burden for failing to submit an adequately written
   proposal, and contracting agencies are not obligated to go in search of
   needed information which the offeror has omitted or failed to present.
   Fluor Daniel, Inc., B-262051, B-262051.2, Nov. 21, 1995, 95-2 CPD para.
   241 at 8.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Section 8(a) of the Small Business Act authorizes the SBA to contract
   with government agencies and arrange for the performance of such contracts
   by awarding subcontracts to socially and economically disadvantaged small
   businesses. 15 U.S.C. sect. 637(a) (2000).

   [2] Each of the technical factors included subfactors.

   [3] The technical scores are out of a possible 100 points.

   [4] The three awardees will compete for delivery orders for the required
   services. AR at 5.

   [5] Generally, an evaluation preference for SDB concerns provides that the
   price of each non-SDB offeror will be evaluated by adding a factor of 10
   percent to the actual price offered. See FAR sect. 52.219-23, Notice of
   Price Evaluation Adjustment for Small Disadvantaged Business (SDB)
   Concerns. Additionally, solicitations may be set aside for section 8(a)
   concerns under section 8(a) of the Small Business Act, 15 U.S.C. sect.
   637(a), which, as noted previously, authorizes the SBA to enter into
   contracts with government agencies and to arrange for performance through
   subcontracts with socially and economically disadvantaged small business
   concerns. These subcontracts may be awarded on a competitive or
   noncompetitive basis. FAR sect. 19.800.

   [6] In its initial protest, but in no later submission, Delphinus also
   argued that the agency improperly evaluated it under the corporate
   experience/past performance evaluation factor and did not conduct
   meaningful discussions. Where, as here, an agency submits a detailed
   response to protest arguments, and the protester makes no further mention
   of an issue, we deem the issues abandoned. Citrus Coll.; KEI Pearson,
   Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD para. 104 at 8.

   [7] There is nothing in the contemporaneous record that supports
   Delphinus's assertion that it told the agency that the sample task order
   involved the same work that Delphinus had performed on the USS Abraham
   Lincoln, and Delphinus has not provided a declaration or other statement
   during the course of this protest in support of this assertion.