TITLE: B-297800.13, INDUS Technology, Inc., June 25, 2007
BNUMBER: B-297800.13
DATE: June 25, 2007
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B-297800.13, INDUS Technology, Inc., June 25, 2007
Decision
Matter of: INDUS Technology, Inc.
File: B-297800.13
Date: June 25, 2007
Ronald K. Henry, Esq., Kaye Scholer LLP, the protester.
Adele Ross Vine, Esq., General Services Administration, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably excluded offeror's proposals from competition where the
cover letters accompanying the proposals provided for an acceptance period
of 180 days, and the solicitation required a minimum acceptance period of
350 days and specifically stated that proposals providing less than the
minimum acceptance period would be rejected.
DECISION
INDUS Technology, Inc. protests its exclusion from consideration for the
award of a contract under request for proposals (RFP) No.
6FG2005MYV000001, issued by the General Services Administration (GSA) for
information technology services. INDUS argues that its proposal was
improperly excluded from the competition for failing to provide the
minimum acceptance period established by the RFP.
We deny the protest.
BACKGROUND
GSA issued the RFP on March 31, 2005, as a set-aside for service-disabled
veteran-owned small business concerns (SDVOSB) for information technology
services. The RFP contemplated the award of a government-wide acquisition
contract (GWAC), referred to as the Veterans Technology Services GWAC
(VETS GWAC), whereby GSA would select and administer a pool of
pre-qualified, SDVOSB firms that would compete for information technology
"task orders" from individual agencies across the federal government. More
specifically, the RFP provided that the GWAC would consist of
approximately 20 indefinite-delivery/indefinite-quantity (ID/IQ) contract
awards in each of two "functional areas," one covering information systems
engineering and the other covering systems operation and maintenance.
Contracts were to be for a 5-year base period, plus five 1-year option
periods, with a total GWAC ceiling of $5 billion over the life of all
contracts.
The RFP provided that awards were to be made on a best value basis
considering two evaluation factors, price and technical merit (which
consisted of two subfactors, past performance (a pass/fail evaluation) and
contract performance plan). The RFP also provided that prior to evaluating
offerors' prices and technical proposals, GSA would review each proposal
for "completeness and adherence to instructions." RFP at M.2. According to
the RFP, proposals that did not pass this "acceptability review" would not
be further evaluated. Id.
As it relates to the protest, offerors were instructed to submit their
proposals using standard form (SF) 33. Section L of the RFP, entitled
"Instructions, Conditions, and Notices to Offerors," contained the
following provision:
L.3. Offer Acceptance Period. The Offeror shall complete Block 12 of
each SF33 submitted with full cognizance of the minimum acceptance
period established herein.
(a) "Acceptance period," as used in this provision means the number of
calendar days available to the Government for awarding a Contract from
the date specified in this solicitation for receipt of offers.
(b) This provision supersedes any language pertaining to the acceptance
period that may appear elsewhere in this solicitation.
(c) The Government requires a minimum acceptance period of not less than
365 calendar days.[1]
(d) Offerors may specify a longer acceptance period than the
Government's minimum requirement.
(e) An offer allowing less than the Government's minimum acceptance
period will be rejected.
(f) The offeror agrees to execute all that it has undertaken to do, in
compliance with its offer, if that offer is accepted in writing within--
(1) The acceptance period stated in paragraph (c), this provision; or
(2) Any longer acceptance period as permitted by paragraph (d) of this
provision.
RFP at L-11.
As explained by GSA, the lengthy acceptance period was considered
necessary due to GSA's expectation that it would receive numerous
proposals in response to the solicitation and the resulting time that it
would take to evaluate those proposals. Contracting Officer's Statement at
3.
Section L of the RFP also incorporated by reference Federal Acquisition
Regulation (FAR) sect. 52.215-1, Instructions to Offeror--Competitive
Acquisition. RFP at L-15. This provision expressly states that
"[p]roposals may be withdrawn at any time before award." FAR sect.
52.215-1(c)(8). The RFP also informed offerors that GSA intended to make
awards without discussions; however, GSA reserved the right to conduct
discussions if they were determined to be in the government's interest.
RFP at L-1.
In response to the RFP, which had a closing date of July 15, 2005, GSA
received 414 proposals between the two functional areas, including two
timely proposals from INDUS (one for each functional area). As explained
by GSA, the agency began its "acceptability review" of proposals in July
and completed this aspect of its evaluation on December 5, 2005. During
the course of its acceptability review, GSA noted that the proposals of
two offerors, including the two proposals submitted by INDUS, provided
acceptance periods which were shorter than that required by the RFP.
Specifically, while the signed cover letters accompanying each of INDUS's
proposals certified that they had been prepared "completely consistent
with the terms and conditions of the solicitation," each cover letter
stated that the offer was "valid for one hundred and eighty (180) days
from date of submission to the Government on June 30, 2005." Since this
statement provided for an acceptance period which was shorter than that
required by the RFP, the agency determined that INDUS's proposals failed
the "acceptability review" and therefore were not further evaluated. See
E-mail from GSA Counsel, June 4, 2007.
Ultimately, the agency completed its evaluation of proposals in April
2006, and made its award determinations between the end of April and early
May 2006. At that time, GSA received one agency-level protest and three
protests were filed with our Office.[2] The three protests filed with our
Office had decision due dates in late August. Since the decision due dates
were after the RFP's minimum proposal acceptance period, GSA was concerned
that the remaining offerors' proposals would expire prior to resolution of
the protests. As a consequence, GSA sent letters to the remaining
offerors, on June 7, 2006, asking them to extend their acceptance periods
through October 2, 2006. As indicated by GSA, none of the remaining
offerors' proposals had then expired. On August 25, after the agency-level
protest and GAO protests were resolved, GSA issued its formal notice
identifying the apparently successful offerors. Our Office then received
two additional protests. The first protest was filed on September 8 and
had a decision due date of December 18. As a consequence of that protest,
GSA, on September 14, issued a second request for offerors to extend their
acceptance periods through December 26, 2006.
On September 7, INDUS learned that its proposal had not been selected for
award and filed a protest with our Office on September 15. We dismissed
INDUS's protest on September 21 for failure to state a valid basis of
protest since the protest allegations were based on "information and
belief" without any supporting explanation or documentation. INDUS filed a
new protest on September 28 alleging that the agency had improperly and
unfairly excluded its proposals from consideration for award. After
receipt of the agency report and comments from INDUS, our Office dismissed
this protest as well because another competitor under the solicitation had
filed suit in the Court of Federal Claims on November 22, challenging
GSA's actions under the solicitation. Thereafter, GSA awarded the VETS
GWAC contracts on December 18. GSA made 40 awards for functional area 1
and 35 awards for functional area 2.
On April 9, 2007, INDUS requested that our Office reopen its protest
challenging GSA's exclusion of its proposal from consideration for award.
INDUS argued that there was no longer a concern that a decision by our
Office would be rendered academic by proceedings in the case pending
before the Court of Federal Claims since the court had issued a decision
indicating that, by stipulation of the parties, the plaintiff would not
seek to have any of GSA's awards under the VETS GWAC procurement
invalidated. See Knowledge Connections Travel, Inc., No. 06-786C, slip op.
at 21 (Fed. Cl. Apr. 3, 2007). We agreed and reopened the earlier protest
filed by INDUS.
ANALYSIS
INDUS challenges GSA's decision to remove its proposals from consideration
for award based on the conclusion that the proposals failed to provide for
the minimum acceptance period required by the RFP. Specifically, INDUS
argues that: (1) the solicitation provision upon which GSA relied to
exclude its proposals is contrary to regulation and therefore invalid; (2)
its proposals did in fact provide for the minimum acceptance period
required by the RFP, notwithstanding statements contained in its cover
letters indicating a shorter acceptance period, and to the extent the
agency had any concerns regarding the acceptance period in its proposals
as a consequence of the cover letters, GSA should have resolved the issue
through clarifications as provided by FAR sect. 15.306(a)(2); and (3) GSA
acted unfairly by not affording it the same opportunity to extend the
acceptance period of its proposals as it did for other offerors during the
course of the procurement.
With regard to the first issue, INDUS contends that the provision in the
solicitation specifying rejection of proposals which allowed for less than
the minimum acceptance period required by the RFP is invalid because it is
in direct conflict with FAR sections 15.208(e) and 52.215-1 (which was
incorporated in the solicitation), both of which provide that an offeror
may withdraw its proposal any time before award. INDUS's challenge to
GSA's inclusion of the above provision in the solicitation is untimely.
Under our Bid Protest Regulations, allegations regarding apparent
solicitation improprieties are required to be filed prior to the closing
date for receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2007). Here,
since any alleged conflict between the RFP and the FAR clauses was
apparent from the face of the RFP, any protest on that ground had to be
filed before the time set for receipt of proposals. HMR Tech, LLC,
B-295968, B-295968.2, May 19, 2005, 2005 CPD para. 101 at 7 n.8. Because
the protest was not filed until almost 2 years after proposals were due,
this ground of protest is untimely.[3]
Regarding the second issue, INDUS asserts that because the language
limiting its acceptance period to 180 days, which INDUS describes as a
"clerical error," only appeared in the cover letters accompanying its
proposals, it was extrinsic to its actual proposals. Since it was not part
of its proposals, INDUS argues, it did not negate its acceptance of the
RFP's required minimum acceptance period as reflected by its signature on
the SF 33 for each proposal and the statement in the cover letters
themselves indicating that INDUS had prepared its proposals consistent
with the terms of the RFP.[4] INDUS, however, does not cite any cases in
support of its fundamental premise that the cover letters to its proposals
were "extrinsic" and therefore should not have been read as part of its
proposals. In fact, this assertion is contrary to the decisions of our
Office, which have long held that cover letters submitted with proposals
are considered part of the offerors' proposals. See System Dynamics Int'l,
Inc.--Recon., B-253957.4, Apr. 12, 1994, 94-1 CPD para. 251 at 3; Sabre
Commc'n Corp.--Recon., B-233439.2, June 30, 1989, 89-2 CPD para. 14 at
2-3; AEG Aktiengesellschaft, B-221079, Mar. 18, 1986, 86-1 CPD para. 267
at 5.
In the alternative, INDUS argues that assuming the 180-day language
contained in its cover letters was properly considered part of its
proposals, the language created at most an ambiguity regarding the
acceptance period; this ambiguity, INDUS asserts, was the result of a
clerical error and should have been addressed through clarifications. Even
accepting INDUS's argument that there was an ambiguity in its proposals
and that the ambiguity was due to a clerical error--an issue we do not
resolve--we see no basis to conclude that the agency was required to seek
clarifications with INDUS.
The solicitation expressly provided that the agency intended to make award
without discussions and the agency did in fact make award without holding
discussions. FAR sect. 15.306(a)(2), which addresses clarifications and
award without discussions, states in relevant part that where an award
will be made without conducting discussions, "offerors may be given the
opportunity to clarify certain aspects of proposals . . . or to resolve
minor or clerical errors." Pursuant to this provision, an agency has broad
discretion to decide whether to engage in clarifications with an offeror.
INDUS contends that the agency acted unreasonably by not allowing it to
correct this aspect of its proposal through clarifications since it had
allowed other offerors to clarify certain aspects of their price
proposals. An agency, however, generally has the discretion to decline to
seek clarifications from an offeror, even where the agency has engaged in
clarifications with other offerors. See General Dynamics--Ordnance &
Tactical Sys., B-295987, B-295987.2, May 20, 2005, 2005 CPD para. 114 at 9
n.4; Landoll Corp., B-291381 et al., Dec. 23, 2002, 2003 CPD para. 40 at
8.
While we recognize that there may be a rare situation where it would be
unfair to request clarification from one offeror but not from another, the
mere fact that an agency requests clarification from one offeror and not
another, does not constitute unfair treatment. General Dynamics--Ordnance
& Tactical Sys., supra; see also, FAR sect. 1.102-2(c)(3) (providing that
"[a]ll contractors and prospective contractors shall be treated fairly and
impartially but need not be treated the same"). As a consequence, INDUS
has not established that the agency acted improperly or in contravention
of the FAR by not seeking to clarify the acceptance period of INDUS's
proposals.
As a final matter, INDUS contends that GSA acted unfairly by not affording
it the opportunity to extend the acceptance periods of its proposals as it
had done for other offerors. This argument, however, is misplaced. GSA
only sought extensions from those offerors whose proposals had been found
to comply with the RFP's requirements, including the provision regarding
the minimum acceptance period. As noted above, INDUS's proposals were
excluded from the competition under the terms of the RFP for failing to
offer the minimum acceptance period. Since its proposals already had
failed the agency's initial "acceptability review," and, as a result, had
been excluded from the competition as noncompliant, GSA did not engage in
unequal treatment of offerors by inviting only those offerors with
compliant proposals, and not INDUS, to extend the acceptance period of
their proposals.
In sum, given the explicit language in the RFP establishing a required
minimum acceptance period of 350 days, and in the absence of a timely
challenge to this provision, we have no basis to object to the agency's
rejection of protester's proposals given the language in its cover letters
limiting the acceptance period of its proposals to 180 days.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] The minimum acceptance period was changed from 365 days to 350 days
through RFP amendment 7.
[2] The three protests filed with our Office were ultimately withdrawn or
denied and are not otherwise relevant to this case.
[3] INDUS notes that our regulations permit us to consider an untimely
protest "for good cause shown" or where we determine that a protest raises
issues significant to the protest system. 4 C.F.R. sect. 21.2(c). The
"good cause" exception is limited to circumstances where some compelling
reason beyond the protester's control prevents the protester from filing a
timely protest. Dontas Painting Co., B-226797, May 6, 1987, 87-1 CPD para.
484 at 2. The significant issue exception is limited to untimely protests
that raise issues of widespread interest to the procurement community, and
which have not been considered on the merits in a prior decision.
Schleicher Cmty. Corrs. Ctr., Inc., B-270499.3 et al., Apr. 18, 1996, 96-1
CPD para. 192 at 7. Here, the "good cause" exception has no application
and there is nothing in the record to suggest that the issue is of
widespread interest to the procurement community warranting its resolution
in the context of an otherwise untimely protest. As a consequence, we
decline to address the issue here.
[4] Block 12 of the SF 33, as issued in the RFP and as completed by INDUS
in its proposals, included a reference to section L of the RFP. As a
consequence, the parties do not dispute that the RFP was structured such
that the SF 33 was tied to section L.3 and thereby provided for a default
minimum acceptance period of 350 days.