TITLE: B-297280, Alluviam LLC, December 15, 2005
BNUMBER: B-297280
DATE: December 15, 2005
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B-297280, Alluviam LLC, December 15, 2005

   Decision

   Matter of: Alluviam LLC

   File: B-297280

   Date: December 15, 2005

   Greg Ouzounian for the protester.

   Capt. Joseph V. Fratarcangeli, Department of the Army, for the agency.

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

   DIGEST

   Agency properly eliminated protester's proposal from consideration for
   failure of its offered equipment to be included on the Federal Supply
   Schedule (FSS); although inclusion of protester's equipment on the FSS was
   pending, this was not sufficient where solicitation indicated that
   equipment had to be on the FSS at time of proposal submission.

   DECISION

   Alluviam LLC protests the rejection of its proposal under
   synopsis/solicitation

   No. W9124Q-05-R-EPGDH53, issued by the Department of the Army for
   commercially available equipment to prevent, deter and respond to
   terrorist attacks. Alluviam's proposal was rejected because its equipment
   was not on the General Services Administration (GSA) Federal Supply
   Schedule (FSS).

   We deny the protest.

   The combined synopsis/solicitation, issued August 4, 2005, contemplated
   the award of a fixed-price contract for commercially available equipment
   for the Department of Homeland Security, Office of State and Local
   Government Coordination and Preparedness Commercial Equipment Direct
   Assistance Program, to assist smaller communities in acquiring equipment
   to prevent and respond to terrorist attacks. The procurement was to be
   completed in two phases--proposal evaluation (based on factors set forth
   in the solicitation) in phase I and, for the most highly-rated proposals,
   a demonstration of equipment for a panel of subject matter experts in
   phase II. Proposals not selected for phase II demonstrations would be
   ineligible for award. The solicitation stated that "Vendors interested in
   submitting a proposal must be on and have the equipment available from the
   [GSA] schedule." Solicitation at 2. Offerors were to provide their GSA
   contract number on the title page of their proposals. Id. at 3.

   The agency received a number of proposals, including Alluviam's, by the
   August 31 due date. On the title page of its proposal, Alluviam indicated
   that it did not currently hold an FSS contract, but that GSA was
   expediting review of its equipment for inclusion on the FSS. Alluvium
   specified the FSS on which its equipment would be listed, and also listed
   a GSA employee's name and phone number to call to check on its pending
   award.

   During the phase I evaluation, the Army concluded that Alluviam's proposal
   was unacceptable for failure to comply with the solicitation requirement
   that offerors be on and have the equipment available from the FSS
   schedule. By letter dated September 14, the agency notified Alluviam of
   this determination, and that its proposal would not be considered for
   award.

   Alluviam essentially challenges the agency's interpretation of the
   solicitation; it does not read the solicitation as requiring offerors'
   equipment to be on the FSS before the time of award, and asserts that its
   proposal should have been found acceptable based on the fact that the
   proposal clearly indicated its pending FSS award status, and included the
   name of the cognizant GSA official to allow the agency to verify that
   status.

   Where a protester and agency disagree over the meaning of solicitation
   language, we will resolve the matter by reading the solicitation as a
   whole and in a manner that gives effect to all its provisions; to be
   reasonable, and therefore valid, an interpretation must be consistent with
   the solicitation when read as a whole and in a reasonable manner. Fox Dev.
   Corp., B-287118.2, Aug. 3, 2001, 2001 CPD para. 140 at 2.

   We agree with the agency that the solicitation required offerors'
   equipment to be included on an FSS contract prior to the time of award. In
   this regard, the solicitation's statement that offerors interested in
   submitting proposals must be on and have their equipment available from
   the FSS, and the requirement that offerors must provide their FSS contract
   number with their proposals, clearly connoted the agency's intention that
   offerors hold an FSS contract at the time of proposal submission.
   Conversely, there was nothing in the solicitation to indicate that the FSS
   requirement could be satisfied up until the time of award. This
   requirement was a logical one when viewed in light of the two-phase
   evaluation scheme--the agency had to be able to determine during phase I
   whether the FSS requirement was met in order to determine which proposals
   would advance to the phase II evaluation. While the protester believes the
   agency should have assumed that its equipment would be included on the FSS
   based on its assurances to that effect, there is no basis for requiring an
   agency to make such an assumption where, as here, the solicitation
   requires proposals to contain evidence of inclusion on the FSS.

   We conclude that Alluviam's proposed equipment properly was evaluated as
   not satisfying the FSS requirement, and that the agency properly rejected
   the proposal on this basis.[1]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] To the extent that Alluviam argues that offerors should not have been
   required to hold an FSS contract until the time of contract award, its
   protest is based on an alleged impropriety on the face of the
   solicitation. Such protests are untimely where, as here, they are filed
   after the closing time for receipt of initial proposals. Bid Protest
   Regulations, 4 C.F.R. sect. 21.2 (a)(1) (2005).