TITLE: B-298865; B-298865.2, Joint Venture Penauillie Italia S.p.A.; Cofathec S.p.A.; SEB.CO S.a.s.; CO.PEL.S.a.s., January 3, 2007
BNUMBER: B-298865; B-298865.2
DATE: January 3, 2007
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B-298865; B-298865.2, Joint Venture Penauillie Italia S.p.A.; Cofathec S.p.A.; SEB.CO S.a.s.; CO.PEL.S.a.s., January 3, 2007

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Joint Venture Penauillie Italia S.p.A.; Cofathec S.p.A.; SEB.CO
   S.a.s.; CO.PEL.S.a.s.

   File: B-298865; B-298865.2

   Date: January 3, 2007

   T. Wayne Gray, Esq., Kristen E. Ittig, Esq., and David J. Craig, Esq.,
   Holland & Knight LLP for the protester.

   Reed L. von Maur, Esq., for Team BOS/Naples--Gemmo S.p.A./DelJen, an
   intervenor.

   Damon Martin, Esq., and Richard G. Welch, Esq., Naval Facilities
   Engineering Command, for the agency.

   Jonathan L. Kang, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging agency's rejection of protester's proposal as
   incomplete is denied where the proposal lacked required information
   regarding option year pricing, and the agency was not legally required to
   allow the protester to revise its proposal.

   DECISION

   Joint Venture Penauillie Italia S.p.A., Cofathec S.p.A., SEB.CO S.a.s.,
   and CO.PEL.S.a.s. (JVP) protests the award of a contract to Team
   BOS/Naples--Gemmo S.p.A./DelJen (BOS/Naples) under request for proposals
   (RFP) No. N33191-06-R-0001, issued by the Department of the Navy, Naval
   Facilities Engineering Command, for base operations. The protester
   contends that the agency improperly determined that its proposal was
   incomplete, and therefore ineligible for award.

   We deny the protest.

   BACKGROUND

   The RFP sought proposals to provide base operations services for the Navy
   in the Naples, Italy area. Offerors were required to propose janitorial,
   grounds maintenance, refuse collection and disposal, building maintenance,
   elevator maintenance, alarm system maintenance, and maintenance
   construction. The RFP anticipated the award of a fixed-price contract with
   indefinite-delivery orders, with a 1-year base performance period and nine
   1-year option periods, and advised offerors that proposals would be
   evaluated on the basis of the following factors: experience/past
   performance; management plan; staffing plan and resources; and price. The
   three non-price factors were of equal weight and, combined, were "slightly
   more important than price." RFP sect. M-1, para. 1.

   As relevant here, the RFP evaluation criteria stated that the agency would
   examine offerors' price proposals based on the "total price of the base
   period and all option periods," and that price proposals would be
   evaluated on the basis of realism, completeness, balance and
   reasonableness. RFP sect. M, para. M-2. Offerors were instructed to submit
   "unit prices and amounts (in EURO) for contract line items (CLINS)
   contract subline items (SLINS), and exhibit line items (ELINS) as
   indicated in the schedules and accompanying exhibits." RFP sect. B, para.
   B.2. With regard to these price items, offerors were required to submit
   price proposals that contained "Completed Section J, Attachment 1,
   Exhibits A thru K, ELINs." RFP sect. L-8, para. b.1.C.

   The solicitation also specifically cautioned offerors to include schedules
   for ELIN prices for the base period and all nine of the option periods. In
   this regard, the agency highlighted the fact that, although the RFP
   provided an ELIN schedule for only the base year, offerors were required
   to submit schedules for ELIN prices for the option years as well, stating:

     CAUTIONS TO OFFERORS . . .

     THE BASE PERIOD OF THE CONTRACT IS FOR 12 Months

     THE CONTRACT HAS FOUR OPTION Periods and the possibility of earning 5
     additional award option periods

     BIDDERS SHALL OFFER THEIR PRICE FOR BASE PERIOD AND ALL 9 OPTION
     PERIODS.

     Please note that the ELIN schedule provided is only for the Base Period
     and it is the responsibility of the Offeror to develop and submit an
     ELIN schedule for each of the Option Periods including the Award Option
     Periods. See Section J, Attachment A.

   RFP sect. B, Additional Data for sect. B.

   The RFP required offerors to submit proposals via e-mail. On or before the
   April 4, 2006 closing date, the agency received proposals from 11
   offerors, including JVP and BOS. In this regard, the agency received nine
   e-mails from JVP, each of which contained a single "zip" file[1] comprised
   of individual proposal files, such as JVP's schedule J and ELIN files.
   Agency Report (AR), attachs. 8-16. The proposal files received by the
   agency from JVP contained total CLIN prices for the base and all option
   years, but only contained ELIN prices for the base year.

   After receipt of proposals, the agency realized that the original RFP had
   not provided spaces for offerors to include their total proposed prices,
   that is, the total of CLINs for all of the base and option years. The
   agency explains that although it could have calculated offerors' total
   proposed contract prices based on the information submitted in their
   proposals, it decided for the sake of "certainty" to request that each
   offeror "confirm the sum of the prices previously submitted in its
   original price proposal." Contracting Officer's Statement at 5. The agency
   sent offerors an e-mail instructing them to submit the total contract
   prices for CLINS 0001-0021, but advised offerors that "these prices must
   match ELIN totals in Section J." AR, attach. 20, e-mail from Agency
   Contracting Specialist to offerors, Apr. 21, 2006. The agency then issued
   an extension of time for submission of the price totals, and further
   reminded offerors that the agency was requesting that offerors provide the
   total of prices already submitted, but that price revisions were not
   allowed, stating:

     Should the government decide to enter "discussions" you may have the
     opportunity to modify your price proposal. However, during [these]
     "clarifications" changes/modifications to prices will not be accepted. .
     . .

   AR, attach. 22, e-mail from Agency Contracting Specialist to offerors,
   Apr. 25, 2006.

   The protester submitted its total contract price as required, and also
   resubmitted its ELIN schedule. Again, however, JVP only submitted ELIN
   pricing for the base year, and not the option years. AR, attachs. 23-24,
   JVP e-mail responses, Apr. 26, 2006.

   The agency determined that JVP had not submitted the required ELIN prices
   for the option years, and that its proposal therefore suffered from a
   "material failure which the government considers a deficiency." AR,
   attach. 26, Price Analysis Report, at 2; see also attach. 27, Source
   Selection Board Report, at 7. The agency's source selection decision
   confirmed this determination, stating that JVP's failure to submit ELIN
   prices for the option years was a "material omission," and that JVP's
   proposal was "not eligible for further consideration." AR, attach. 28,
   Source Selection Decision, at 1, 3.

   After the agency had completed its review of JVP's proposal and selected
   BOS/Naples' proposal for award, but prior to the agency's issuance of the
   notice of contract award, JVP submitted an unsolicited proposal revision.
   AR, attachs. 30-37, JVP Proposal Pevisions, Sept. 14, 2006. The protester
   stated that it was resubmitting its price proposal, based on its belief
   that the proposal files it had originally submitted were damaged,
   explaining as follows:

     We have performed an additional detailed analysis of all of our
     documentation and, as a result of your amendment, we have notice[d] that
     our file including ELIN schedule of all Option Periods was damaged and
     may not have been received by your office and or was impossible to view.
     Therefore, as per section L-5 52.215-1, instructions to the Offerors
     para. (6) if you have experienced the same difficulty we are submitting
     an additional non-damaged copy of the file that includes the ELIN
     schedule from the 1st Option period through 5th Award Option Period. We
     would like to remind you that all Option Period Totals remain the same
     to those indicated in the file "JV Penauille Cofathec Seb.Co Co.Pel
     Section B total amount" submitted on April 4th, 2006 and certainly in
     your possession.

   AR, attach. 35, Letter from JVP to Agency, Sept. 14, 2006.

   Also on this date, JVP submitted a revised proposal price. AR, attach. 38,
   JVP Letter from JVP to Agency, Sept. 14, 2006. Although the revised
   proposal files submitted by JVP contained the full ELIN prices for the
   option years, the agency did not revise its determination that JVP's
   proposal was incomplete and ineligible for award. Contracting Officer's
   Statement at 8.

   The agency awarded the contract to BOS/Naples on September 15, 2006.
   Following a debriefing by the agency, JVP filed this protest.

   DISCUSSION

   Incomplete Proposal Submission

   JVP argues that the agency improperly determined that its proposal was
   unacceptable based on JVP's omission of ELIN prices for the option years,
   maintaining that its proposal did, in fact, contain the required
   information.[2] An offeror bears the burden of submitting an adequately
   written proposal that contains all information required under a
   solicitation. Sam Facility Mgmt., Inc., B-292237, July 22, 2003, 2003 CPD
   para. 147 at 5. As discussed above, the RFP stated that offerors were
   required to submit ELINs for the base and all option years, and that the
   agency would evaluate offerors' price proposals, including ELINs, for
   realism, completeness, balance and reasonableness.

   In its report on the protest, the agency produced copies of the e-mails in
   which JVP transmitted its proposal. The JVP proposal files contained in
   the e-mails clearly lack the required option year ELINs. Although the
   protester acknowledges that the proposal files produced by the agency lack
   the required ELINs, JVP nonetheless contends that it's proposal included a
   file containing those ELINs that is not now reflected in the
   agency-produced record. The protester effectively concedes, however, that
   it is unable to prove this assertion. In this regard, JVP states that it
   no longer has copies of the e-mails it submitted, nor does it have copies
   of its proposal files in the format in which they were submitted to the
   agency, that is, the zip files that contained the individual proposal
   files.[3] The protester explains its inability to produce its proposal as
   follows:

     Unfortunately, JVP no longer has in its possession, nor can it obtain,
     the only direct evidence of the information that was contained in the
     e-mails that JVP sent with the different elements of its proposal
     attached. That direct evidence is the actual electronic version of the
     e-mails themselves. [Deleted]

   Protester's Comments on the Agency Report, Nov. 9, 2006, at 4-5.

   Accordingly, the protester acknowledges that the only available copies of
   the e-mails that contained its proposal are those produced by the agency.
   See Protester's Comments on the Agency Report, Nov. 9, 2006, at 5.

   The agency states that it did not experience any difficulties in receiving
   or handling JVP's proposal e-mails. Contracting Officer's Statement at 4.
   In fact, the only suggestion of an error in the transmission or receipt of
   JVP's proposal is JVP's own statement that "we have noticed that our file
   including ELIN schedule of all Option Periods was damaged and may not have
   been received by your office and or was impossible to view." AR, attach.
   35, Letter from JVP to Agency, Sept. 14, 2006.

   Nonetheless, the protester maintains that the agency may have altered or
   modified the protester's proposal after receipt, and contends that some of
   the zip files produced in the agency report show evidence of modification
   after the time that the protester transmitted those files via e-mail. The
   protester suggests that the ELINs for the option years may have been
   deleted by the agency after receipt of the e-mails.

   During a conference call held to discuss this matter, the agency
   contracting specialist who was responsible for the receipt and
   distribution of proposals unambiguously stated that she had not modified
   any of the protester's proposal e-mails or files. She further stated that
   she followed routine procedures for receiving and handling all offerors'
   proposals, did not recall any difficulties with JVP's proposal, and did
   not recall taking any actions that could have resulted in the deletion of
   any proposal files.

   As discussed above, the protester has not provided evidence that
   establishes the contents of the e-mails it submitted or the zip files that
   the e-mails contained. In this situation, even assuming the record
   indicated that the agency had mishandled JVP's submission, which it does
   not, JVP would not likely be entitled to relief. In this regard, agencies
   have a fundamental obligation to have procedures in place to receive
   submissions from competitors under a solicitation, to reasonably safeguard
   submissions received, and to fairly consider all submissions. As a
   practical matter, however, even with appropriate procedures in place, an
   agency may occasionally lose or misplace a submission and such occasional
   loss does not generally entitle an aggrieved competitor to relief.
   Shubhada, Inc., B-292437, Sept. 18, 2003, 2003 CPD para. 161 at 3-4;
   American Material Handling, Inc., B-281556, Feb. 24, 1999, 99-1 CPD para.
   46 at 3. This result obtains because the only means generally available to
   establish the content of allegedly lost information is for an offeror to
   reconstruct that information. However, allowing an offeror to establish
   the content of its "lost" proposal after the closing date has passed is
   inconsistent with maintaining a fair competitive system. Shubhada, Inc.,
   supra, at 4.

   In any event, in light of the contracting specialist's explanation that
   she followed routine procedures to handle the receipt of proposals, the
   contracting specialist's statement that she did not knowingly modify the
   protester's proposal, and does not recall any actions that would have
   resulted in modification, and the protester's inability to provide
   evidence regarding its proposal, we find no basis to sustain the protest
   based on these allegations. On the record here, we believe the agency
   reasonably determined that JVP's proposal was incomplete and that its
   proposal was, therefore, ineligible for award. There simply is no evidence
   of agency mishandling of JVP's proposal. To the contrary, it appears
   likely that, as JVP essentially acknowledges, JVP's file that included the
   mandatory option-year pricing was damaged and not received by the agency,
   or was not otherwise viewable by the agency. See AR, attach 35, Letter
   from JVP to Agency, Sept. 14, 2006.

   Discussions

   The protester next argues that the agency was required to inform JVP of
   its proposal deficiency because, the protester contends, the agency
   conducted discussions during the course of the procurement. We disagree.

   Federal Acquisition Regulation (FAR) sect. 15.306 describes a spectrum of
   exchanges that may take place between an agency and an offeror during
   negotiated procurements. Clarifications are "limited exchanges" between
   the agency and offerors that may allow offerors to clarify certain aspects
   of proposals or to resolve minor or clerical mistakes. FAR sect.
   15.306(a)(2). Discussions, on the other hand, occur when an agency
   indicates to an offeror significant weaknesses, deficiencies, and other
   aspects of its proposal that could be altered or explained to materially
   enhance the proposal's potential for award. FAR sect. 15.306(d)(3). When
   an agency conducts discussions with one offeror, it must conduct
   discussions with all other offerors in the competitive range. FAR sect.
   15.305(d)(1). The "acid test" for deciding whether discussions have been
   held is whether it can be said that an offeror was provided the
   opportunity to modify its proposal. National Beef Packing Co., B-296534,
   Sept. 1, 2005, 2005 CPD para. 168 at 11.

   JVP argues that the agency's request that offerors submit their total
   proposed costs constituted discussions. The agency, however, specifically
   stated that those total prices must be the same as the existing CLIN
   totals submitted with the original proposals. This exchange with offerors
   neither invited nor permitted offerors to submit proposal revisions, and
   thus did not constitute discussions.

   The protester also argues that its own unsolicited submission of revised
   pricing constituted discussions in that "JVP actually submitted a small
   price revision, that apparently was accepted, or at least not rejected by
   the government." Protester's Comments on the Agency Report, Nov. 9, 2006,
   at 15. However, the record is clear that the agency neither sought nor
   accepted JVP's proposal revision. An offeror cannot initiate
   "discussions," with all of the attendant rights and obligations triggered
   by such exchanges, simply by submitting an unsolicited proposal
   revision.[4]

   Correction of Mistake

   Finally, the protester argues that the agency was required to provide JVP
   with an opportunity to correct what JVP characterizes as a "mistake"--that
   is, the omission of the ELIN option year prices. In this regard, JVP
   argues that the agency was obligated to allow JVP to submit a correction
   to its "mistake," through submission of its "non-damaged" ELIN prices for
   the option years.

   An agency may allow an offeror to correct a clerical error in a cost or
   price proposal through clarifications, as opposed to discussions, where
   the existence of the mistake and the amount intended by the offeror is
   clear from the face of the proposal. Joint Threat Servs., B-278168,
   B-278168.2, Jan. 5, 1998, 98-1 CPD para. 18 at 12-13; see also FAR sect.
   15.306. However, both the existence of an error and the intended pricing
   must be apparent from the face of the proposal. CIGNA Gov't Servs., LLC,
   May 4, 2006, B-297915.2, 2006 CPD para. 74 at 9.

   JVP argues that the failure to submit these prices was a mere "omission of
   pages." Protester's Comments on the Agency Report, Nov., 9, 2006, at 12.
   We disagree, as the RFP clearly stated that submission of ELIN prices was
   mandatory, and that they would be evaluated by the agency. Thus, any
   attempt to correct JVP's supposed "mistake" would have resulted in the
   correction of a material proposal defect and, therefore, would have
   constituted discussions. See University of Dayton Research Institute,
   B-296946.6, June 15, 2006, 2006 CPD para. 102. Although the absence of the
   option year ELINs was obvious on the face of JVP's proposal, it was not
   obvious what JVP intended to propose for those missing ELINs.

   In sum, we do not believe that JVP's incomplete proposal suffered from a
   minor, correctable error, nor do we believe that the agency was legally
   required to advise JVP of its error or allow correction of the error.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] "Zip" refers to a file format used for data storage and compression. A
   zip file contains other files which have been compressed to reduce their
   size. A user can access the zip file to retrieve the individual compressed
   files contained within.

   [2] It its protest submissions, JVP also challenged the evaluation of
   offerors' technical proposals and the agency's source selection decision.
   Because we conclude that the agency reasonably determined that JVP's
   proposal was unacceptable and could not be further considered, and that
   discussions were not conducted, we need not address issues concerning the
   evaluation of other offerors' proposals, as JVP is not an interested party
   to challenge those evaluations. Bid Protest Regulations, 4 C.F.R.
   sect. 21.0(a) (2006). JVP has also raised other protest grounds that we do
   not discuss here; we have reviewed all of JVP's arguments and find no
   basis for sustaining the protest.

   [3] The protester submitted with its comments a compact disc (CD)
   containing the proposal files it asserts were submitted in the e-mails to
   the agency, including a file that contains ELINs for the option years.
   This CD, however, is simply a collection of JVP's files, and is not a copy
   of what was submitted to the agency, that is, the zip files or the e-mails
   that transmitted the zip files.

   [4] The protester also contends that the agency conducted discussions with
   another unsuccessful offeror, JV Pedus Services S.r.l. (Pedus). As
   evidence, the protester cites an e-mail disclosed in the record in which
   the agency contracting specialist requested that Pedus advise how many
   ELINs it submitted. Because Pedus's proposal was not selected for award,
   and no discussions were conducted with the awardee, even if this exchange
   constituted discussions, which it did not, JVP was not prejudiced. Where
   an agency conducts discussions with one offeror, but does not conduct
   discussions with the protester or the awardee, the protester cannot
   demonstrate prejudice. See OMV Med., Inc.; Saratoga Med. Ctr., Inc.,
   B-281387 et al., Feb. 3, 1999, 99-1 CPD para. 52 at 7; McDonald-Bradley,
   B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v.
   Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).