TITLE: B-298767, Omega Systems, Inc., November 6, 2006
BNUMBER: B-298767
DATE: November 6, 2006
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B-298767, Omega Systems, Inc., November 6, 2006

   Decision

   Matter of: Omega Systems, Inc.

   File: B-298767

   Date: November 6, 2006

   Tom W. Gilmore for the protester.

   Raymond Fioravanti, General Dynamics C4 Systems, Inc., for the intervenor.

   James B. McCloskey, Esq., U.S. Marine Corps, for the agency.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester's assertion that its proposal should be considered for award
   despite late final proposal revision (FPR) because it was "otherwise
   successful proposal that makes its terms more favorable to the
   government," is denied where record shows agency had determined prior to
   FPR request that protester's proposed price was not reasonable;
   protester's proposal thus was not "otherwise successful proposal."

   DECISION

   Omega Systems, Inc. protests the rejection of its proposal as late under
   request for proposals (RFP) No. M67854-06-R-7017, issued by the U.S.
   Marine Corps to design, integrate, produce and document the Tactical Data
   Network Data Distribution System-Replacement (TDN DDS-R) production model.

   We deny the protest.

   The RFP, issued on April 6, 2006, contemplated the award of a fixed-price
   contract to the firm submitting the proposal determined to be the "best
   value" under the following evaluation factors: technical, program
   management, past performance, and price. The technical factor contained a
   subfactor for integrated logistics support, under which proposals were to
   be evaluated for warranty performance, including warranty administration
   and claims procedures. The solicitation did not specify original equipment
   manufacturer (OEM) warranties, but the protester became aware that such
   warranties were in fact required.

   The agency received initial proposals by April 27 and, after conducting
   discussions with Omega and General Dynamics C4 Systems, Inc. (GDC4S), the
   two offerors in the competitive range, the agency requested final proposal
   revisions (FPR) by 2 p.m. on June 13. On August 17, the agency requested
   second FPRs after advising the offerors of price concerns and amending the
   solicitation to change (among other things) the duration of the required
   warranties. GDC4S was informed at this time, through discussions, that OEM
   warranties were required. The second FPRs were due by 1 p.m. on August 22,
   but Omega did not submit its proposal until 1:02 p.m. The agency
   subsequently rejected Omega's proposal as late.[1] This protest followed.

   Omega asserts that the agency was required to consider its late FPR
   pursuant to a solicitation provision stating that "a late modification of
   an otherwise successful proposal that makes its terms more favorable to
   the government will be considered at any time it is received and may be
   accepted." RFP sect. L-1 (incorporating Federal Acquisition Regulation
   (FAR) sect. 52.215-1). Omega maintains that its proposal was the only
   acceptable one--and thus was the "otherwise successful proposal" prior to
   the request for second FPRs--because it was the only one that offered the
   required OEM warranties; based on discussions it had with component
   manufacturers, Omega believes GDC4S's proposal could not have included the
   required OEM warranties.

   Omega's argument is without merit. An "otherwise successful proposal" is
   one that would result in the award of the contract to the offeror
   regardless of the late modification; generally, this means that the
   government may accept a favorable late modification only from the offeror
   already in line for award. Seven Seas Eng'g & Land Surveying, B-294424.2,
   Nov. 19, 2004, 2004 CPD para. 236 at 4; Robotic Sys. Tech., B-271760, May
   14, 1996, 96-1 CPD para. 229 at 3. The record shows that Omega's proposal
   would not have been in line for award prior to the late modification. In
   this regard, the agency informed Omega in its August 17 discussions (prior
   to the second FPR) that its price proposal was "unreasonably high,
   relative to the other offerors, and is potentially non-competitive."
   Agency Report (AR), exh. 16. Since the agency found that pricing changes
   were necessary in order for Omega's proposed price to be deemed
   reasonable, and required offerors to respond to the amended solicitation,
   its proposal was not the "otherwise successful proposal," and there thus
   was no basis for the agency to accept its late FPR.[2]

   Omega's argument also fails because the record does not support its
   conclusion that GDC4S's proposal was unacceptable. The RFP did not specify
   that OEM warranties were required--as noted, that requirement was
   established through agency communications with the offerors--and did not
   call for any specific showing in the proposals that OEM warranties were
   being offered. GDC4S took no exception in its second FPR to the agency's
   request during discussions that it provide OEM warranties, and provided a
   price for warranties under the appropriate CLIN, as required by the
   agency. See Gentex Corp., B-271381, June 18, 1996, 96-1 CPD para. 281 at 5
   (offer was acceptable where it did not take exception to solicitation
   requirements). Since GDC4S's proposal complied with the terms of the
   solicitation, it was acceptable. See also TransAtlantic Lines, LLC,
   B-296245, B-296245.2, July 14, 2005, 2005 CPD para. 147 at 3-4.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] Omega initially asserted that the agency erred in determining that its
   proposal was late. However, the agency addressed this argument in its
   motion to dismiss, and Omega has not responded to the agency's position in
   its subsequent submissions; we therefore consider this argument abandoned.
   See Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 5 n.6.

   [2] We note that the solicitation language provided only that the late
   modification "may be accepted," not that the agency was required to accept
   it if Omega's was the otherwise successful proposal. However, the parties
   have not argued this point, and we need not address it here.