TITLE: B-298408, WareOnEarth Communications, Inc., July 11, 2006
BNUMBER: B-298408
DATE: July 11, 2006
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B-298408, WareOnEarth Communications, Inc., July 11, 2006
Decision
Matter of: WareOnEarth Communications, Inc.
File: B-298408
Date: July 11, 2006
David W. Burgett, Esq., Allison D. Pugsley, Esq., and Brian C.J. Berry,
Esq., Hogan & Hartson LLP, for the protester.
JoAnn W. Melesky, Esq., Defense Information Systems Agency, 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
Protest challenging agency's issuance of amendments changing basis of
price evaluation is dismissed as untimely where protest was not filed
before the time set for receipt of revised proposals.
DECISION
WareOnEarth Communications, Inc. (WCI) protests the terms of request for
proposals (RFP) No. HC1019-04-R-0008, issued by the Defense Information
Systems Agency, Defense Information Technology Contracting Organization --
Pacific (DITCO). Specifically, WCI challenges the agency's issuance of
amendments altering the basis for the agency's price evaluation.
We dismiss the protest as untimely.
The agency issued the RFP on June 9, 2005, for various telecommunications
services for military installations throughout the state of Hawaii,
referred to as the "Joint Hawaii Information Transfer System (JHITS),"
which encompasses "switched voice and data services, Integrated Services
Digital Network (ISDN) services, dedicated transmission (point-to-point
and multi-point) as well as optional services for the maintenance of
Customer Premise Equipment (CPE) and intra-base Outside Plant (OSP) cable
including fiber optic cable." Agency's Comments on Timeliness at 2. The
RFP contemplates the award of a contract with a period of performance up
to 10 years in length (6-year base period with a 3-year option period,
plus an additional 1-year option period).
As it relates to the protest, the RFP required offerors to submit prices
for approximately 7,600 contract line item numbers and sub-line item
numbers (CLIN/SLIN) covering all required services over the 10 years of
potential contract performance. Each offeror's price was to be evaluated
based on a "Discounted Life Cycle Cost (DLCC)" calculated for the life of
the contract. As explained by the parties, the DLCC was to be based on the
sum of all nonrecurring and recurring costs for all CLINs/SLINs with
future year costs discounted to present value based on a table of discount
factors provided by the agency. The agency also provided offerors with a
software application which automatically calculated their total prices
based on each offeror's price data. Final proposals were due on April 20,
2006.
After receiving final proposals, the agency issued two additional
amendments to the solicitation on Thursday, June 1, amendments 14 and 15,
which are the subject of this protest. Principally, these amendments
changed the basis for determining the offerors' DLCCs by deleting various
CLINs/SLINs from the calculation.[1] While indicating that the revised
DLCC pricing scheme "should not result in changes to the offerors'
proposed pricing," the agency requested offerors to provide their new
proposed total DLCCs by 4 p.m. on Monday, June 5. RFP amend. 0014, at 2.
WCI timely submitted its revised DLCC, which consisted of 2 pages, to the
agency both electronically and via mail. Subsequently, on June 12, WCI
filed the subject protest challenging the revised basis for calculating
offerors' DLCCs as set forth in amendments 14 and 15. (June 12 was the
first business day following the tenth day after WCI received notice of
the amendments (June 11), which fell on a Sunday.) In its protest WCI
argues that the agency lacked a legitimate reason or rational basis for
reducing the scope of the cost evaluation and that even if such reasons
existed, there was no compelling reason to revise the solicitation after
receipt and evaluation of final proposals.[2]
Our Bid Protest Regulations contain strict rules requiring timely
submission of protests. Challenges to alleged solicitation improprieties
that did not exist in the initial solicitation but which are subsequently
incorporated into the solicitation, such as WCI's challenges to amendments
14 and 15, must be filed prior to the next closing time for receipt of
proposals. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006).
Applying this rule, WCI's protest is untimely since it was not filed
before the June 5 closing time following the issuance of amendments 14 and
15.
WCI argues, however, that our Office has recognized an exception to the
above rule where a protester does not have a reasonable opportunity to
file its protest before the due date for proposals. In such cases our
Office has required that the protester challenge the impropriety no later
than 10 days from the time it knew or should have known of its basis for
protest--in this case, when WCI learned of amendments 14 and 15. Applying
this exception, WCI's protest would be timely.
According to WCI, the exception should apply in this case because WCI did
not have a reasonable opportunity to file a protest with our Office prior
to the June 5 closing date due to the numerous steps required to file the
protest, including: (1) analyzing "the likely differential impact of the
evaluation changes on the WCI proposal relative to the competition"; (2)
the need for WCI, a small business concern without in-house counsel, to
identify and obtain outside counsel; (3) researching and clearing any
potential conflicts of interest by outside counsel; (4) researching and
analyzing the bases of protest; and (5) drafting and filing the protest,
as well as the complex nature of the procurement and protest issues.
Protester's Letter on Timeliness at 3. WCI further argues that if we do
not apply the exception in this instance, agencies will have "a strong
incentive to game the system and avoid review of dubious procurement
actions" by imposing short closing times for the receipt of revised
proposals requiring offerors to file "precipitous protests" to protect
their rights. Id. at 6.
We conclude that application of the exception is not appropriate in this
instance. Our timeliness rules reflect the dual requirements of giving
parties a fair opportunity to present their cases and resolving protests
expeditiously without unduly disrupting or delaying the procurement
process. Air Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129
at 2. In order to prevent these rules from becoming meaningless,
exceptions are strictly construed and rarely used. Id. The cases where we
have concluded that an offeror did not have a reasonable opportunity to
protest solicitation terms, and thus applied the exception advocated by
WCI, are those where the protester faced an extremely limited timeframe
within which to challenge the solicitation provisions at issue. See, e.g.,
Dube Travel Agency & Tours, Inc.; Garber Travel, B-270438, B-270438.2,
Mar. 6, 1996, 96-1 CPD para. 141 at 6 n.7 (amendment not received until 1
day before proposals due); Skyline Indus., Inc., B-257340, Sept. 22, 1994,
94-2 CPD para. 111 at 3 (time for receipt of proposals was "practically
simultaneous with solicitation itself"); Ling Dynamic Sys., Inc.,
B-252091, May 24, 1993, 93-1 CPD para. 407 at 3 (protester learned basis
for challenging solicitation only 2 hours before bid opening); G. Davidson
Co., Inc., B-249331, July 14, 1992, 92-2 CPD para. 21 at 2 n.1 (concluding
that 2 hours and 45 minutes was not a reasonable period of time within
which to file a protest); Bardes Servs., Inc., B-242581, Apr. 29, 1991,
91-1 CPD para. 419 at 3 (protest not feasible since protester was informed
of basis of protest only 1 day before proposals due); ImageMatrix, Inc.,
B-243170, Mar. 11, 1991, 91-1 CPD para. 270 at 1 (protester did not
receive amendment until 1 day before proposals were due); The Big Picture
Co., B-210535, Feb. 17, 1983, 83-1 CPD para. 166 at 2 (solicitation
amendment not received until 1 day before proposals due); Culligan, Inc.,
58 Comp. Gen. 307 (1979) (protester received solicitation amendment less
than 3 hours before bid opening); Ampex Corp., B-190529, Mar. 16, 1978,
78-1 CPD para. 212 at 3 ("the time for receipt of proposals was
practically simultaneous with the solicitation, the entire process
apparently taking only 10 minutes").
Here, the protester received the amendments 4 days--or, as the protester
describes them, 2 working days--before revised proposals were due and was
able to prepare and timely submit the revised pricing information required
by the agency. In other cases we have found that a similar period of
time--2 or 3 days--prior to a bid or proposal closing date afforded an
offeror a reasonable opportunity to file a protest challenging the terms
of a solicitation. See, e.g., Concepts to Operations, Inc., B-248606,
Sept. 10, 1992, 92-2 CPD para. 164 at 2 (dismissing protest as untimely
where 3 calendar days, 1 business day, was sufficient time to file
protest); Mobile/Modular Express, B-246183, Nov. 13, 1991, 91-2 CPD para.
459 at 2-3 (2 days reasonable period of time to file protest); Pacific
Instruments, Inc., B-228274, Oct. 21, 1987, 87-2 CPD para. 380 ( "only 2
working days" as argued by protester was reasonable opportunity to file
protest); R&B Equip. Co., B-219560.2, Sept. 5, 1985, 85-2 CPD para. 272 at
2 (afforded "only 2 working days"); Reliance Steel Prods. Co., B-206754,
Jan. 23, 1983, 83-1 CPD para. 77 at 2 (2 days reasonable); Cybermedic,
B-200628, May 19, 1981, 81-1 CPD para. 380 at 3 (2 days reasonable
opportunity to file protest); Clarke & Lewis, Inc., B-196954, Jan. 8,
1980, 80-1 CPD para. 24 at 2 (2 days sufficient period of time to file
protest); Irvin Indus., Inc., B-187849, Mar. 28, 1977, 77-1 CPD para. 217
at 2 (2 days reasonable period of time to file protest).[3]
As factors in favor of waiving our timeliness rule, WCI points to the
purported complexity of the protest issues in this case--a factor which
appears overstated given the limited nature and detail of the arguments
raised in WCI's protest--as well as its status as a small business concern
without the aid of in-house counsel. In our view, it is not appropriate to
take such factors into account as part of our determination. Giving weight
to such considerations would undermine the bright-line nature of our
timeliness rules, which serve as a predictable guide to the procurement
community and, as noted above, strike an appropriate balance between two
principal goals of our bid protest forum, giving parties a fair
opportunity to present their cases and resolving protests expeditiously
without unduly disrupting or delaying the procurement process. Air
Inc.--Recon., supra.
The protest is dismissed.
Gary L. Kepplinger
General Counsel
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[1] The amendments explained, however, that all CLIN/SLIN prices,
including those not utilized for calculating the DLCC, would be evaluated
for completeness and reasonableness. RFP amend. 0014, at 2.
[2] For the purpose of establishing competitive prejudice, WCI posits that
the amended price evaluation scheme appears to favor the incumbent, citing
three CLINs/SLINs which were not removed from the revised calculation.
[3] In support of its position that our Office should apply the exception
to the general rule regarding timely filing of challenges to solicitation
improprieties, the protester relies on Morrison Knudsen Corp., B-247160,
Jan. 7, 1992, 92-1 CPD para. 35 at 2, holding that a period of 5 days, or
3 working days, did not afford the protester a reasonable opportunity to
file its protest before proposals were due and therefore applying the
10-day rule. This decision appears to be a departure from our case law and
will no longer be followed in this respect.