TITLE: B-298568, Brian X. Scott, October 26, 2006
BNUMBER: B-298568
DATE: October 26, 2006
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B-298568, Brian X. Scott, October 26, 2006

   Decision

   Matter of: Brian X. Scott

   File: B-298568

   Date: October 26, 2006

   Brian X. Scott for the protester.

   Daniel J. Donohue, Esq., Akerman Senterfitt Wickwire Gavin, P.C., for CACI
   Dynamic Systems, Inc., an intervenor.

   Capt. Christopher L. Krafchek, Department of the Army, for the agency.

   Paul N. Wengert, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest is denied where the protester's proposal was properly eliminated
   from competitive range because, among other reasons, the proposal
   requested addition of an advance payment term to the contract, and
   acknowledged that without the advance payment the protester could not
   perform, and the protester's objections to contracting officer's
   affirmative responsibility determination did not show a failure to
   consider available relevant information.

   DECISION

   Brian X. Scott protests the elimination of his proposal from the
   competitive range by the Department of the Army under request for
   proposals (RFP) No. W91GXQ-06-R-0002 for "the full range of pre-award
   contracting functions (with the exception of contract award) . . . in
   support of U.S. Government and multi-national agencies" in Iraq. Legal
   Memorandum at 1-2. The protester argues that his proposal was misevaluated
   and improperly eliminated from the competitive range, leaving a single
   remaining offeror, CACI Dynamic Systems, Inc. (CACI), and that the
   contracting officer improperly made an affirmative determination of
   responsibility with respect to CACI.

   We deny the protest.

   The Army's Joint Contracting Command--Iraq/Afghanistan issued the RFP on
   June 2, 2006 as a commercial item solicitation, seeking proposals to
   provide various personnel, including 24 contracting specialists, a systems
   administrator, and a property specialist. The RFP provided for proposal
   evaluation and risk assessment with regard to the following factors:
   technical/management approach, quality assurance plan, past performance,
   and price. Offerors were advised that the agency intended to award a
   contract for a 6-month base performance period, with three 6-month option
   periods. RFP at 2-8.

   The protester submitted a proposal on June 20. While that proposal
   declared that the protester was not taking exception to any RFP
   requirements, the proposal thereafter requested the Army to change three
   terms of the RFP. As relevant here, the first requested change was as
   follows:

     I request that FAR [Federal Acquisition Regulation] Clause 52.232-12,
     Advance Payment, be added, and that an advance payment be made at
     contract start. This will ensure that sufficient operating capital is
     available exclusively for this effort so that mobilization and initial
     operation go smoothly. Without this provision, and this Advance Payment,
     I am unable to perform this contract.

   Protester's Proposal Cover Letter at 2.[1]

   The evaluators found that the protester's proposal had numerous weaknesses
   and risks, resulting in a rating of unacceptable and high risk under both
   the technical/management approach factor and the quality assurance plan
   factor.[2] Technical Evaluation Report at 2-3. Upon review, the source
   selection authority agreed with the evaluator's assessments, concluding
   that various aspects of the protester's proposal rendered the proposal
   unworkable or even "catastrophic." Competitive Range Determination
   Document at 3. Accordingly, the protester's proposal was excluded from the
   competitive range. Among the reasons cited by the source selection
   authority was the fact that "Brian Scott proposed three additional
   contract provisions to which the Government does not agree." Id.

   On July 17, the protester was notified of its exclusion from the
   competitive range. This protest followed.

   The protester first argues that it was improper for the agency to exclude
   its proposal from the competitive range, leaving a competitive range of
   only one offeror.[3]

   The FAR provides that an agency "shall establish a competitive range
   comprised of all of the most highly rated proposals." FAR
   sect. 15.306(c)(1). Agencies are not required to retain proposals in the
   competitive range that the agency reasonably concludes have no realistic
   chance for award. SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998,
   98-2 CPD para. 59 at 5. Consequently, an agency may exclude a proposal
   from the competitive range where it is determined to have no reasonable
   prospect of award, even where its exclusion will result in a competitive
   range of one proposal. TekStar, Inc., B-295444, B-295444.2, Feb. 18, 2005,
   2005 CPD para. 53 at 8. While a competitive range of one means that the
   competition is at an end, we will not question a determination to
   establish a competitive range of one where the contracting officer had a
   reasonable basis to find that the excluded proposals lacked a reasonable
   chance of being selected for award. Information Sys. Tech. Corp.,
   B-291747, Mar. 17, 2003, 2003 CPD para. 72 at 4.

   Here, the record fully supports the agency's determination to exclude the
   protester's proposal from further consideration due to its multiple
   deficiencies.[4] In particular, as quoted above, the protester's own
   proposal conceded that the protester would be unable to perform the
   contract under the terms of the RFP.

   Next, the protester challenges the likely award of a contract to CACI[5]
   on the grounds that the Army erred in finding CACI to be responsible.[6]
   Although no contract has been awarded, the contracting officer states, in
   response to this protest, that "[t]he Government re-affirms the
   determination that CACI is a responsible source." Contracting Officer's
   Statement at 5. In challenging the agency's responsibility determination,
   the protester refers to various news articles and published reports
   discussing CACI's prior contract performance, asserting that, "[b]ased on
   what is publicly known about CACI's failures in Iraq, there is no way that
   the incumbent [CACI] could ever be rated other than `unacceptable' in a
   fair and impartial process." Protest at 3.

   The underlying premise of every federal contract award is that contracts
   are only awarded to "responsible prospective contractors." FAR sect.
   9.103(a). Our Bid Protest Regulations provide that we will consider
   protests challenging an agency's affirmative responsibility determination
   where there is evidence raising serious concerns that, in reaching a
   particular responsibility determination, the contracting officer
   unreasonably failed to consider available relevant information. 4 C.F.R.
   sect. 21.5(c).

   In responding to this issue, the contracting officer indicates that he was
   aware of the various published reports regarding CACI's prior performance,
   but that he also considered CACI's recent performance on other government
   contracts, including the predecessor contract. In this regard, the
   contracting officer concluded: "my prior experience as the Contracting
   Officer's Representative in monitoring CACI's performance on the
   predecessor contract . . . provided ample basis for me to assess CACI's
   capability to responsibly perform this follow-on effort." Contracting
   Officer's Statement at 5. On the record here, there is no basis to
   conclude that the contracting officer unreasonably failed to consider
   available relevant information regarding CACI's responsibility. The
   protester's mere disagreement with the contracting officer's judgment
   regarding CACI's responsibility does not provide a basis to challenge the
   contracting officer's affirmative responsibility determination.
   See FN Mfg., Inc., B-297172; B-297172.2, Dec. 1, 2005, 2005 CPD para. 212
   at 12 (contracting officer properly considered protester's allegations in
   making affirmative responsibility determination).

   Finally, the protester argues that a government official "acted very
   suspicious when I asked if CACI personnel participated in any way in that
   source selection process" in a debriefing for another contract. Protest at
   14. The protester then candidly admits that "on pure speculation, I
   protest the possible involvement of CACI personnel in the evaluation of my
   proposal, of their own proposal, or of otherwise participating or
   providing input to the process." Id. The record, which includes the
   identification of personnel involved in the procurement,[7] provides no
   support for the protester's explicitly speculative assertions.[8]
   Accordingly there is no basis to sustain the protest.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] The protester's proposal went on to specify that the initial
   multi-million dollar advance payment--an amount in excess of one-third of
   the protester's base period evaluated price--would need to be made "within
   7 business days of Contract Award date." Protester's Proposal at 2.
   Additionally, the protester requested that the RFP be changed to provide
   for payment of contract line items on a cost-reimbursement basis, and that
   the awarded contract include an economic price adjustment clause. Id.
   at 2-3.

   [2] Among other things, the agency concluded that the protester failed to
   propose all required personnel, failed to submit a sufficient number of
   resumes, and failed to include an adequate quality control plan. Technical
   Evaluation Report at 2; Competitive Range Determination Document at 3.

   [3] The protester also argues that other offerors' proposals were
   improperly excluded from the competitive range. No other offeror has filed
   a protest with our Office challenging its exclusion, and the protester is
   not an interested party to challenge the agency's actions with regard to
   other offerors' proposals. Intown Properties, Inc., B-249036.3, Jan. 15,
   1993, 93-1 CPD para. 45 at 8 n.5 (protester was not an interested party to
   raise the allegedly improper elimination of other offerors from
   competitive range).

   [4] On October 11, the protester challenged additional irregularities in
   the procurement, such as the fact that on July 13, 2006, the Army issued
   amendment 3, which purported to amend the RFP to "delete all commercial
   item terms and conditions," and provided this amendment only to CACI even
   though the protester was not notified of his elimination from the
   competitive range until July 17. Since the existence of amendment 3 became
   known to the protester no later than its receipt of the agency report on
   September 1, the protester's new objections are untimely, and will not be
   considered, because they were raised more than 10 days after the protester
   knew or should have known of the basis for possible additional grounds of
   protest. See 4 C.F.R. sect. 21.2(a)(2) (2006).

   [5] The record establishes that the Army anticipates awarding a contract
   to CACI, subject to our decision in this protest. Competitive Range
   Determination at 1.

   [6] Although the elimination of a protester from a competitive range would
   ordinarily render the protester not an interested party to challenge award
   to an offeror remaining in the competitive range, here the protester is an
   interested party to raise this ground of protest because the Army has
   limited the competitive range to only CACI.

   [7] The protester proceeded with its protest without an attorney who could
   obtain access to nonpublic information pursuant to the terms of a
   protective order. Accordingly, our discussion of certain matters is
   necessarily general in nature to avoid reference to nonpublic information.
   Our conclusions, however, are based on our review of the entire record,
   including proprietary and source selection sensitive information.

   [8] In its comments responding to the agency report, the protester
   acknowledges that his "hunch" was not supported by the redacted record.
   Protester's Comments at 9. A protest must include a detailed statement of
   the legal and factual grounds for protest. 4 C.F.R. sections 21.1(c)(4)
   and (f). Our Office does not consider a protester's unsupported
   speculation to meet these requirements. Siebe Envtl. Controls, B-275999.2,
   Feb. 12, 1997, 97-1 CPD para. 70 at 2.