TITLE: B-299041, Planning And Development Collaborative International, January 24, 2007
BNUMBER: B-299041
DATE: January 24, 2007
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B-299041, Planning And Development Collaborative International, January 24, 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: Planning And Development Collaborative International
File: B-299041
Date: January 24, 2007
Kenneth A. Martin, Esq., The Martin Law Firm, PLLC, for the protester.
Richard P. Rector, Esq., Robert M. Reiser, Esq., DLA Piper US LLP, for The
Services Group, Inc., an intervenor.
John B. Alumbaugh, Esq., U.S. Agency for International Development, 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 was not required to hold discussions regarding area of protester's
proposal that was weak, but acceptable, and that did not prevent the
protester from having a reasonable opportunity for award.
DECISION
Planning and Development Collaborative International (PADCO) protests the
award of a contract to The Services Group, Inc. under request for
proposals (RFP) No. 111-05-033, issued by the U.S. Agency for
International Development (USAID) for technical assistance and support for
the Government of Armenia. PADCO principally argues that the agency failed
to hold meaningful discussions regarding a significant weakness in its
proposal.
We deny the protest.
The RFP, issued on January 23, 2006, contemplated the award of a
cost-plus-fixed-fee contract with a 3-year base period and two 1-year
options, to implement USAID's Social Protection Systems Strengthening
(SPSS) Program for improving the social protection systems in Armenia,
while, at the same time, increasing opportunities for self-reliance and
reducing the Armenian citizens' dependence on public support to meet basic
needs. To achieve these ends, USAID sought a contractor to provide
technical assistance and support for capacity-building training,
commodities, and public education to select public and private sector
entities targeting four key areas: (1) social insurance; (2) employment
services; (3) occupational safety and labor code; and (4) social
assistance programs for vulnerable populations. RFP at C-1. For each of
the four key areas, the RFP set forth expected results for the 3-year base
period as well as the full 5-year contract term (base plus two option
periods) and sought from each offeror their expected results for the
program as well.
Proposals were to be evaluated on a "best value" basis considering the
following three technical factors listed in descending order of
importance: (1) technical approach, management approach, and personnel,
(2) past performance, and (3) small disadvantaged business (SDB)
participation. The technical approach, management approach, and personnel
factor, which was "significantly more important than all other factors
combined," consisted of three equally weighted sub-factors: (i) clarity
and demonstrated effectiveness of offeror's proposed strategies and
activities, (ii) relevance of the proposed activity work, and (iii)
proposed management and staffing plan. RFP at M-2. The past performance
factor was composed of five sub-factors of equal weight and the SDB
participation factor was composed of four equally weighted sub-factors. In
its evaluation of proposals, the RFP indicated that the agency was to use
the following adjectival rating scheme: outstanding, better, acceptable,
marginal, and unacceptable. As it relates to the protest, ratings of
better and acceptable were defined as follows:
"Better" . . . Fully meets all solicitation requirements and
significantly exceeds many of the solicitation requirements. Response
exceeds an "Acceptable rating." The areas in which the Applicant exceeds
the requirements are anticipated to result in a high level of efficiency
or productivity or quality.
"Acceptable" . . . Meets all solicitation requirements. Complete,
comprehensive, and exemplifies an understanding of the scope and depth
of the task requirements as well as the Applicant's understanding of the
Government's requirements.
RFP at M-2.
With respect to cost, which was identified as being of "significantly less
importance" than the technical evaluation factors, offerors were
instructed to include a detailed budget for the 5-year contract term. RFP
at M-4. Offerors' cost proposals were to be evaluated on (i) realism and
risk mitigation, (ii) consistency with the technical proposal, (iii)
overall cost control, and (iv) amount of proposed fee. While cost was the
least important evaluation factor, the RFP stated that where the agency
considered proposals to be essentially equal, "cost may be the determining
factor." RFP at M-4.
By the RFP's closing date of April 10, 2006, the agency had received
proposals from four offerors, including PADCO and The Services Group. For
the purpose of evaluating proposals, USAID composed a technical evaluation
committee, which was responsible for evaluating offerors' technical
proposals while the contracting officer concurrently evaluated offerors'
cost proposals. Based on its evaluation of initial proposals, the agency
rated the proposals of PADCO and The Services Group as follows:
+------------------------------------------------------------------------+
|Evaluation Criteria | PADCO |The Services|
| | | Group |
|------------------------------------------------+----------+------------|
|Technical Approach, Management Approach, and | Better | Acceptable |
|Personnel | | |
|------------------------------------------------+----------+------------|
|i. Clarity and demonstrated effectiveness of the| Better | Better |
|offeror's proposed strategies and activities and| | |
|their rationale | | |
|------------------------------------------------+----------+------------|
|ii. The relevance of the proposed Activity Work |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|iii. Proposed Management and Staffing Plan | Better | Acceptable |
|------------------------------------------------+----------+------------|
|Past Performance |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|1. Quality of product or service | Better | Acceptable |
|------------------------------------------------+----------+------------|
|2. Cost control |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|3. Timeliness of performance | Better | Acceptable |
|------------------------------------------------+----------+------------|
|4. Customer satisfaction |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|5. Effectiveness of key personnel |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|Small Disadvantaged Business Participation | Better | Acceptable |
|------------------------------------------------+----------+------------|
|a. The extent to which SDB concerns are |Acceptable| Acceptable |
|specifically identified | | |
|------------------------------------------------+----------+------------|
|b. The complexity and variety of the work SDB | Better | Acceptable |
|concerns are to perform | | |
|------------------------------------------------+----------+------------|
|c. Past performance of offerors in complying |Acceptable| Acceptable |
|with subcontracting plan goals for SDB concerns | | |
|and monetary targets for SDB participation | | |
|------------------------------------------------+----------+------------|
|d. The extent of participation of SDB concerns | Better | Acceptable |
|in terms of the value of the total acquisition | | |
|------------------------------------------------+----------+------------|
|OVERALL TECHNICAL RATING | Better | Acceptable |
|------------------------------------------------+----------+------------|
|TOTAL PROPOSED COST |18,477,785| 17,023,789 |
+------------------------------------------------------------------------+
Agency Report, Tab 133, Negotiation Memorandum, at 8.
In its evaluation of PADCO's proposal, the TEC noted several strengths and
weaknesses under the technical approach, management approach, and
personnel subfactors. Specifically, the TEC noted three strengths and five
weakness under the subfactor "clarity and demonstrated effectiveness of
the offeror's proposed strategies and activities and their rationale," one
strength and two weaknesses under the "activity work plan" subfactor, and
two strengths and two weaknesses under the "management and staffing plan"
subfactor. As it relates to the protest, the two strengths under the
"management and staffing" subfactor were described as follows:
Strength 1: PADCO has proposed [an] overall, personnel mix that is well
matched to the technical proposal and to [] fulfilling the objectives of
the SPSS project. The technical management approach meets the proposal
and requirements of the RFP extremely well. PADCO has proposed and
respectively budgeted for an excellent mix of expatriate long- and
short-term advisors and local Armenian "champions" for all four
components, through the entire life-cycle of the project. . . .
Qualifications of cross-cutting intervention managers match the areas
identified in the RFP.
Strength 2: Proposed Chief of Party Daniel Wartonic has an outstanding
record of hands-on professional and managerial experiences in a mix of
major social protection technical assistance activities under the SPSS.
. . . Mr. Wartonic is very well suited to span key SPSS project's areas
-- pension and overall social insurance reform and social assistance. .
. .
AR, Tab 54, TEC Selection Memorandum, at 18-19.
In its evaluation of The Services Group's proposal, the TEC identified
various strengths and weaknesses, one of which was described as a
"significant weakness." Specifically, under the management and staffing
plan subfactor, while the TEC noted two strengths, it indicated that
"[t]he quantity and quality of [The Services Group's] proposed team of
local long-term technical experts does not meet the RFP's requirement on
ensuring that the project's Armenian staff play major roles in project
decision making and implementation," which, in the view of the TEC,
constituted a "significant weakness." AR, Tab 54, TEC Selection
Memorandum, at 26.
The TEC presented its initial evaluation findings to the contracting
officer and recommended that three of the four proposals, including those
of PADCO and The Services Group, be included in the competitive range for
the purpose of discussions. The contracting officer, considering the TEC's
recommendation and the results of the cost evaluation, agreed with the TEC
and decided to hold further negotiations with three firms. In deciding on
the competitive range, the contracting officer considered in detail the
level of effort proposed by each offeror, as reflected in their cost
proposals. The competitive range decision memorandum in fact included, for
each offeror, a detailed break-down of the offeror's proposed level of
effort by labor category, for each year of the contract.[1] AR, Tab 55,
Competitive Range Determination, at 28, 37. Based on this review, the
contracting officer noted that PADCO's level of effort was sufficient for
implementation of the program and echoed the comments of the TEC in
concluding that The Services Group's proposed level of effort contained a
"significant weakness" since it relied heavily on expatriate as opposed to
local advisors. AR, Tab 55, Competitive Range Determination, at 9.
On July 18, 2006, the agency sent discussion letters to the competitive
range offerors identifying the various weaknesses in their proposals, with
revised proposals due August 3. Thereafter, as explained in the discussion
letters, the agency scheduled oral presentations with the competitive
range offerors, which were to be used to "augment" their written proposals
in accordance with Federal Acquisition Regulation (FAR) sect. 15.102. Oral
presentations consisted of a 90-minute presentation by the offeror
followed by a 2-hour period for questions and answers. On August 18, the
agency received final proposal revisions from the three offerors.
In evaluating the revised technical proposals, the TEC considered the oral
presentations as well as the offerors' revised proposals. The record
reflects that the agency viewed The Services Group's performance during
oral presentations more favorably than PADCO's. Specifically, with respect
to The Services Group, the agency commented as follows:
During the oral presentation the Offeror's team exhibited real teamwork
and genuine engagement by the home office representatives. Each team
member demonstrated clear understanding of the conditions in Armenia's
social sector as well as the details and vision of the proposal. The
Offeror's oral presentation and responses to the TEC's questions
demonstrated the quality and cohesiveness of the Offeror's proposed team
and provided assurance that they could be effective in accomplishing the
project's objectives . . . the Offeror's oral presentation appreciably
strengthened and improved its technical proposal and convincingly
demonstrated the validity and effectiveness of its technical approach.
AR, Tab 133, Negotiation Memorandum, at 56.
However, as to PADCO, the agency stated that its
oral presentation demonstrated that, despite the fact that the offeror
pulled together a cadre of international experts of very good quality,
they did not act as a team working towards a common goal. The offeror
failed to demonstrate also sound understanding of the objectives of the
oral presentation and was not able to manifestly present the proposal.
AR, Tab 133, Negotiation Memorandum, at 55.
In addition, the record reflects that PADCO's overall technical score was
reduced from "better" to "acceptable," while The Services Group's overall
score increased from "acceptable" to "better." In evaluating PADCO's final
proposal submission, the TEC indicated that PADCO had addressed each of
the weaknesses identified in its proposal in discussions; however, the TEC
noted a new weakness with respect to the management and staffing
subfactor, which had not been previously raised with PADCO. Specifically,
the TEC described this weakness as follows:
Weakness 1: The proposed [level of effort] contrasts sharply in our
minds with the stated plan of action, which is significantly based on
cultivating Armenian champions. This mismatch in the intent versus the
amount of allocated human resources left us concerned that the intended
transfer of skills and expertise would be at risk. For example, Local
[long term technical advisors] is relatively high and steady in years
1-3, but then declines by 35% from year 3 to year 4 and 60% from year 3
to 5. The reduced levels of Expatriate [long-term technical advisors]
and local [long-term technical advisors] appear at odds with the desire
to cultivate Armenian champions and offer no security against
unanticipated disruptions in the political climate, key government
counterparts, or other factors which could affect progress in any or all
of the project components.
RFP, Tab 126, Final TEC Report, at 12.
It appears from the record that this newly identified weakness resulted
from the TEC's obtaining information regarding the specific distribution
of PADCO's level of effort by labor category for each year of the project.
This information appears to have been drawn from PADCO's cost proposal,
which the contracting office provided to the TEC as part of its final
technical evaluation. See AR, Tab 109, E-mail Regarding Level of Effort
Analysis; AR, Tab 111, E-mail Regarding Draft Final Scores. While the
weakness identified was new, it was not the result of any change to
PADCO's proposal. In this regard, one of the members of the TEC questioned
whether the weakness identified should be considered a weakness as opposed
to "an overall comment," since, as the evaluator noted "[t]o be fair and
consistent, we did not raise this during the initial evaluation . . . and
PADCO did not change their original approach to the staffing and
management plan." AR, Tab 116, E-mail Regarding TEC Memorandum.
Ultimately, PADCO's initial rating of "better" under the management and
staffing plan subfactor was changed by the TEC to reflect a final rating
of "acceptable."
The final evaluation results were as follows:
+------------------------------------------------------------------------+
|Evaluation Criteria | PADCO |The Services|
| | | Group |
|------------------------------------------------+----------+------------|
|Technical Approach, Management Approach and |Acceptable| Better |
|Personnel | | |
|------------------------------------------------+----------+------------|
|i. Clarity and demonstrated effectiveness of the| Better | Better |
|offeror's proposed strategies and activities and| | |
|their rationale | | |
|------------------------------------------------+----------+------------|
|ii. The relevance of the proposed Activity Work |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|iii. Proposed Management and Staffing Plan |Acceptable| Better |
|------------------------------------------------+----------+------------|
|Past Performance | Better | Acceptable |
|------------------------------------------------+----------+------------|
|1. Quality of product or service | Better | Acceptable |
|------------------------------------------------+----------+------------|
|2. Cost control |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|3. Timeliness of performance |Acceptable| Acceptable |
|------------------------------------------------+----------+------------|
|4. Customer satisfaction | Better | Acceptable |
|------------------------------------------------+----------+------------|
|5. Effectiveness of key personnel | Better | Acceptable |
|------------------------------------------------+----------+------------|
|Small Disadvantaged Business Participation | Better | Acceptable |
|------------------------------------------------+----------+------------|
|a. The extent to which SDB concerns are | Better | Acceptable |
|specifically identified | | |
|------------------------------------------------+----------+------------|
|b. The complexity and variety of the work SDB | Better | Acceptable |
|concerns are to perform | | |
|------------------------------------------------+----------+------------|
|c. Past performance of offerors in complying | Better | Acceptable |
|with subcontracting plan goals for SDB concerns | | |
|and monetary targets for SDB participation | | |
|------------------------------------------------+----------+------------|
|d. The extent of participation of SDB concerns | Better | Acceptable |
|in terms of the value of the total acquisition | | |
|------------------------------------------------+----------+------------|
|OVERALL TECHNICAL RATING |Acceptable| Better |
|------------------------------------------------+----------+------------|
|TOTAL REVISED COST |17,221,335| 16,873,454 |
+------------------------------------------------------------------------+
AR, Tab 133, Negotiation Memorandum, at 56.
As part of the final cost evaluation and best value determination, the
contracting officer closely examined the distribution of offerors' level
of effort between expatriate and local advisors, as well as their level of
effort distribution between the base and option year periods. In this
regard, while the TEC maintained that the overall level of effort proposed
by The Services Group in its revised proposal presented a weakness, albeit
not a significant weakness, the contracting officer concluded that the
distribution of local labor cost and level of effort proposed by The
Services Group "greatly contributes to capacity building and
sustainability." AR, Tab 133, Negotiation Memorandum, at 138. With regard
to the distribution of effort between the base and option periods, the
contracting officer noted that Armenia would be facing parliamentary
elections in 2007 and presidential elections in 2008 with resulting
changes of the government and key counterparts for the project, and stated
that The Services Group's "approach with proportional distribution of
[level of effort] and especially [expatriate level of effort] between the
base and option periods of the program will greatly support the
sustainability of reforms to be initiated during the base period of the
contract. . . ." AR, Tab 133, Negotiation Memorandum, at 138. This was
contrary to the level of effort proposed by PADCO, which was "heavily
loaded on the base period of the program." Id. Ultimately, the contracting
officer concluded that the proposal submitted by The Services Group, which
was higher rated and reflected a lower evaluated total cost as compared to
PADCO's, represented the best value to the government.
After learning of the agency's decision, PADCO requested a debriefing,
which the agency provided on October 17, 2006. During the debriefing, the
agency identified the strengths of PADCO's proposal as well as its one
weakness regarding the distribution of its level of effort between the
base and option periods. Regarding this weakness, the agency explained
that while it increased the risk of project implementation, it was not
considered to be a significant weakness or deficiency. AR, Tab 132, PADCO
Debriefing Notes, at 3. This protest followed.
LACK OF MEANINGFUL DISCUSSIONS
The protester primarily argues that it did not receive meaningful
discussions concerning the weakness identified by the TEC regarding the
distribution of its level of effort between the base and option periods
since this issue was not raised during discussions. The protester
maintains that the "weakness" should have been addressed during
discussions since it proved to be a primary discriminator in the agency's
best value decision and because the "weakness" was significant since it
directly resulted in a downgrading of its technical proposal from "better"
to "acceptable."
Where contracting agencies conduct discussions with offerors whose
proposals are within the competitive range, the discussions must be
meaningful; that is, an agency must, at a minimum, point out deficiencies
and significant weaknesses that must be addressed in order for the offeror
to have a reasonable chance for award. FAR sect. 15.306(d)(3); PAI Corp.,
B-298349, Aug. 18, 2006, 2006 CPD para. 123 at 8. An agency, however, is
not required to afford offerors all-encompassing discussions, or to
discuss every aspect of a proposal that receives less than the maximum
score. Id.
Here, USAID initially conducted discussions with PADCO (as well as other
offerors whose proposals were in the competitive range), which were
followed by submission of revised proposals. The record reflects that
while PADCO adequately addressed each of the weaknesses raised by the TEC
in discussions, the TEC subsequently attributed a new weakness to PADCO's
revised proposal, specifically, the distribution of its level of effort
for the SPSS project between the base and option periods. As explained
above, this weakness does not appear to have arisen because of changes
made through PADCO's proposal revisions; that is, the weakness appears to
relate to PADCO's proposal as it was prior to the discussions.
If an agency holds discussions and, in the context of evaluating offerors'
revised proposals, identifies concerns that should have been raised had
they been identified before discussions were held, the agency is required
to reopen discussions in order to raise the concerns with the offerors.
The key fact is that the concerns (while identified after discussions have
been closed) relate to the proposals as they were prior to discussions.[2]
Al Long Ford, B-297807, Apr. 12, 2006, 2006 CPD para. 68 at 8.
The question thus posed by PADCO is whether the agency acted improperly by
not reopening discussions to raise the additional, later-identified
"weakness" in its proposal.
As a preliminary matter, however, the issue of PADCO's lack of an evenly
distributed level of effort between the base and option periods, as
reflected in the best value decision, was not identified by the
contracting officer as a weakness at all. Rather, in the context of a very
close competition, the agency's best value decision reflects a comparative
judgment between the proposals of PADCO and The Services Group, which had
a lower total evaluated cost, and a preference for The Services Group's
proposed technical approach, which, as compared to PADCO's, provided a
more even distribution of level of effort across the base and option
periods. Thus, rather than being viewed as a weakness of PADCO's proposal,
the level of effort issue in the context of the best value decision, was
principally viewed as a distinguishing strength of The Services Group's
proposal since it enhanced the likely success of the SPSS program. In this
regard, the contracting officer's best value decision states as follows:
All three offerors proposed adequate level of [effort] for project
implementation. However, TSG's [level of effort] distribution among
expat and [local] labor is the most reasonable and contributes to
capacity building and sustainability.
It is worth to mention that Armenia will be facing parliamentary
elections in 2007 and presidential elections in 2008 with following
changes of the government and key counterparts for the project. [The
Services Group's] approach with proportional distribution of [level of
effort] and especially expat [level of effort] between the base and
option periods of the program will greatly support the sustainability of
reforms to be initiated during the base period of the contract and will
ensure continue[d] dialogue with the post elections Government of
Armenia. In [contrast] the proposals from [offeror A] and PADCO are
heavily loaded on the base period of the program with [level of effort]
and other resources and have not taken the above mentioned factor into
account.
AR, Tab 133, Negotiation Memorandum, at 138.
We recognize, as PADCO points out, that the TEC did in fact describe the
level of effort feature of its proposal as a "weakness." Contrary to
PADCO's argument, however, discussions are not inadequate simply because a
weakness, which was not addressed during discussions, subsequently becomes
a determinative factor in choosing between two closely ranked proposals,
as was the case here. See, e.g., Gracon Corp., B-293009 et al., Jan. 14,
2004, 2004 CPD para. 58 at 3; Hines Chicago Inv., LLC, B-292984, Dec. 17,
2003, 2004 CPD para. 5 at 3-4.
Further, regarding PADCO's contention that the weakness must have been
significant because its final ratings were decreased, the agency reports,
and the record confirms, that this weakness was not viewed by the agency
as significant. At PADCO's debriefing, USAID expressly stated that it did
not consider the above weakness to be significant. Consistent with this
statement, the evaluation documents show that none of the evaluation
comments characterize PADCO's distribution of its level of effort as a
"significant weakness," a term the agency had used to describe other
weaknesses it identified in its evaluation. See, e.g., AR, Tab 55,
Competitive Range Determination, at 9 (discussing a "significant weakness"
in the initial proposal submitted by The Services Group). While the
distribution of PADCO's level of effort presented a "risk," as indicated
by the TEC, there is nothing to suggest that it created an unacceptable
level of risk or "appreciably" increased the risk of PADCO's proposal. See
FAR sect. 15.001 (defining a "weakness" as "a flaw . . . that increases
the risk of unsuccessful contract performance" and a "significant
weakness" as "a flaw that appreciably increases the risk of unsuccessful
contract performance"). Ultimately, under both the management and staffing
plan subfactor and the overall technical approach factor, PADCO's proposal
received a rating of "acceptable," which, as noted above, was defined by
the RFP as a proposal which meets all solicitation requirements, is
"complete" and "comprehensive," and exemplifies an understanding of the
tasks required. RFP at M-2.
PADCO also argues, for the first time in its comments, that "USAID
actually may have misled PADCO" regarding the adequacy of its staffing
plan since the TEC had identified as a strength in PADCO's proposal, that
its staffing plan was "excellent" "through the entire life-cycle of the
project." AR, Protester's Comments at 9. PADCO, however, alleges only that
it "may" have been misled without pointing to any evidence that the
allegedly misleading strength was ever identified to PADCO. Based on our
review, there is nothing in the record reflecting that this information in
fact was provided to PADCO during its discussions with the agency. As a
consequence, there is no basis for our Office to conclude that the
agency's discussions were misleading.
MISCELLANEOUS UNTIMELY ISSUES
PADCO also contends that it was unfairly and unequally treated as compared
with The Services Group. These arguments are untimely.[3]
As a general matter, under our Bid Protest Regulations, protests based on
other than solicitation improprieties must be filed within 10 calendar
days of when the protester knew or should have known their bases. 4 C.F.R.
sect. 21.2(a)(2) (2006). Moreover, where a protester initially files a
timely protest, and later supplements it with independent grounds of
protest, the later-raised allegations must independently satisfy the
timeliness requirements, since our Regulations do not contemplate the
unwarranted piecemeal presentation or development of protest issues. FR
Countermeasures, Inc., B-295375, Feb. 10, 2005, 2005 CPD para. 52 at 9.
In this regard, where a protester raises a broad ground of protest in its
initial submission but fails to provide details within its knowledge until
later, so that a further response from the agency would be needed to
adequately review the matter, these later, more specific arguments and
issues cannot be considered unless they independently satisfy the
timeliness requirements under our Bid Protest Regulations. Biospherics,
Inc., B-285065, July 13, 2000, 2000 CPD para. 118 at 12-13. In this
regard, we have found supplemental protest grounds untimely which present
"examples" of flaws in the agency's evaluation generally alleged in the
initial protest since such staggered presentation of issues, each of which
involves different factual circumstances and requires a separate
explanation from the agency, constitutes precisely the type of piecemeal
presentation of issues that our timeliness rules do not permit. QualMed,
Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13.
Here, in its initial protest, PADCO raised a general allegation that USAID
unfairly and unequally evaluated and treated PADCO and The Services Group.
In its comments on the agency report, which were filed more than 10
calendar days after receipt of the agency report due to the protester's
request for an extension of time, PADCO identified specific examples of
how the agency's treatment of PADCO was unfair and unequal as compared to
The Services Group. These challenges are untimely because they were raised
more than 10 calendar days after PADCO knew the basis for these issues.[4]
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] In preparing its report the agency indicated that it had discovered
errors with its calculations of the levels of effort in the offerors'
initial proposals. AR, Tab 135, Errata Sheet. The agency maintains that
its calculations of the offerors' final proposed levels of effort are
correct.
[2] This contrasts with the situation where an offeror introduces an
element in a post-discussion revision to its proposal that the agency
views as a deficiency or a weakness. In that situation, the agency is not
required to reopen discussions to address the new concern. See Ogden
Support Servs., Inc., B-270354.2, Oct. 29, 1996, 97-1 CPD para. 135 at 7.
[3] Because we conclude that PADCO's allegations regarding the propriety
of discussions and the evaluation of proposals are without merit or
otherwise not for consideration, PADCO's objection to the best value
decision--based solely on these alleged improprieties--likewise provides
no basis to sustain the protest.
[4] An extension of time period for filing comments does not waive the
timeliness requirements pertaining to the filing of new grounds of
protest. SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD
para. 59 at 3-4 n.3. Accordingly, the arguments raised for the first time
by PADCO in its December 1 comments are untimely because they were not
raised within 10 days of PADCO's receipt of the agency report, which put
PADCO on notice of these arguments.