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

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

   [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.