TITLE: B-299408, Dellew Corporation, May 1, 2007
BNUMBER: B-299408
DATE: May 1, 2007
*****************************************
B-299408, Dellew Corporation, May 1, 2007

   Decision

   Matter of: Dellew Corporation

   File: B-299408

   Date: May 1, 2007

   Kelsey Lewis for the protester.

   Terry Hart Lee, Esq., Department of Commerce, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Although as a general matter a contracting agency has broad discretion
   with regard to the scheduling of site visits, the agency*s exercise of
   that discretion was unreasonable where the protester was unable to attend
   a timely requested site visit because the agency first informed the
   protester only one day before the date and time of the site visit that the
   site visit had been scheduled and unreasonably declined the protester*s
   reasonable request for a later site visit to allow that firm a meaningful
   opportunity to compete.

   DECISION

   Dellew Corporation protests the terms of request for proposals (RFP) No.
   AB133F-07-RP-0017, issued by the National Oceanic and Atmospheric
   Administration, Department of Commerce, for operation and maintenance
   services at the Newport Research Center, Newport, Oregon.[1] The protester
   also argues that the agency failed to reasonably accommodate its request
   for a site visit.

   We sustain the protest.

   The RFP, issued on December 21, 2006, provided for the award of a
   fixed-price contract for a base period of 1 year with four 1-year options.
   The RFP included a detailed statement of work and proposal preparation
   instructions, and advised potential offerors that *all questions
   concerning [the] solicitation* were to be received by the agency no later
   than 20 days after December 21.[2] RFP at 70. The RFP provided that award
   would be made to the offeror submitting the proposal determined to
   represent the best value to the agency, based upon the listed evaluation
   factors of past performance, technical approach and expertise, management
   approach, key personnel, and price. The solicitation also advised offerors
   as follows with regard to site visits to the facility:

   Offerors are urged and expected to inspect the site where services are to
   be performed and to satisfy themselves regarding all general and local
   conditions that may affect the cost of contract performance, to the extent
   that the information is reasonably obtainable. In no event shall failure
   to inspect the site constitute grounds for a claim after contract award.
   However, due to heightened security, offerors are required to call [the]
   Contract Specialist or email in advance to make arrangements for a site
   visit and security access to the site.[3]

   RFP at 71. Proposals were due to be submitted by January 30, 2007.[4]

   The record reflects that on Wednesday, January 10, the designated contract
   specialist received by e-mail from Dellew a number of questions regarding
   the solicitation and acquisition, with one of the questions asking when
   the site visit would take place. AR, Tab F(1), Dellew E-mail. The contract
   specialist replied by e-mail the next day advising, among other things,
   that Dellew would need to make arrangements for a site visit in advance,
   and that *[c]urrently, Jan. 17, 18, or 19^th (Wednesday-Friday) are dates
   being made available.* AR, Tab F(1), Contract Specialist E-mail. Dellew
   asserts that it did not receive this e-mail (until it was later resent, as
   explained below).

   According to the contract specialist, she received a voice-mail the
   following day (Friday, January 12) from an unidentified caller stating
   that the caller had *questions regarding Newport,* and requesting that the
   contract specialist return the call at the telephone number provided. The
   contract specialist adds that her voice-mail greeting stated that she
   would be out of the office on January 12, and to leave a message and that
   she would return the call. The contract specialist states that she was out
   of the office on January 12 (Friday), January 13 (Saturday), January 14
   (Sunday), January 15 (Monday, a federal holiday), and that she *update[d]*
   her voice mail greeting on January 16 to reflect that she would not be in
   the office on that day because of *hazardous weather conditions.* Contract
   Specialist*s Statement at 2.

   The contract specialist states that she returned to the office on January
   17, and received another voice-mail message *from an unidentified caller
   [from the same phone number], essentially reiterating the message left for
   [her] on January 12.* Contract Specialist*s Statement at 2. The contract
   specialist returned the call, spoke with a representative of Dellew, and
   concluded as a result of this conversation that the *unidentified caller*
   of January 12 was this same Dellew representative. Id. According to the
   contract specialist, the Dellew representative asked during this January
   17 call to schedule a site visit, and was told by the contract specialist
   that such a request was required to be made in writing or by e-mail.
   Contract Specialist Statement at 3. The Dellew representative submitted
   the site visit request by e-mail shortly thereafter, and the contract
   specialist provided the Dellew representative by e-mail later that same
   day the name and telephone number of the agency facilities operations
   manager for Newport, who would be conducting the site visit. AR, Tab F(3),
   Contract Specialist E-mail. The record also reflects that the contract
   specialist informed the facilities operations manager of Dellew*s request.

   The facilities operations manager states that she left a telephone message
   for the Dellew representative on the morning of January 18, informing him
   that she *had set aside January 19 at 1 p.m. for [Dellew] to visit the
   research facility.* Facilities Operations Manager*s Statement at 1. The
   facilities operations manager explains that she understood that the Dellew
   representative was *located in Washington State, [and] thought that this
   was enough time to allow him or another Dellew Corp. representative to
   travel* to the agency*s facility in Oregon. Id.

   The facilities operations manager states that she received a telephone
   message from the Dellew representative on January 18 *at around noon . . .
   requesting a site visit,* and again *at about 3:30 p.m.* Statement of the
   Facilities Operations Manager at 2. The facilities operations manager
   explains that she was unable to return the calls until *about 4 p.m.*
   because of *pressing needs in the facility,* and that during this call the
   Dellew representative requested that the site visit be scheduled for the
   following week, rather than the next day at 1 p.m. Id. The facilities
   operations manager responded that she could not *accommodate* the request
   for a later site visit, and told the Dellew representative that based on
   his location in Washington she calculated that *it would take about six
   hours* for him to drive to the agency facility. Id. The record reflects
   that the Dellew representative expressed his disagreement to the
   facilities operations manager as to the reasonableness of the agency*s
   scheduling of the site visit, and that on the following day, the president
   of Dellew contacted the contract specialist and complained about the
   agency*s scheduling of the site visit. Contract Specialist*s Statement at
   3. The president of Dellew also complained at this time that the agency
   had not responded to the questions submitted by Dellew on January 10. The
   contract specialist responded that in her view *the Government had made a
   reasonable attempt to schedule a site visit* for Dellew, and that she
   would *resend* her response to Dellew*s January 10 questions which
   according to Dellew had never been received. Id. at 3-4.

   Dellew, in addition to challenging a number of terms in the solicitation,
   argues that the agency *did not provide ample time for our representative
   to attend a site visit.* Protester*s Comments at 1. The protester explains
   in this regard that it had contacted the agency on numerous occasions
   regarding its request for a site visit, that it is a Hawaii-based firm,
   and that its president, who would have attended the site visit in addition
   to the Dellew representative located in Washington, simply could not get
   to the agency*s facility *overnight.* [5]

   A contracting agency is generally required to provide enough information
   through the solicitation or otherwise to allow offerors to compete
   intelligently and on relatively equal terms. Int*l Resources Co.,
   B-248050.3, Feb. 16, 1993, 93-1 CPD para. 138 at 2-3; A&C Bldg. & Indus.
   Maint. Corp., B-230270, May 12, 1988, 88-1 para. 451 at 3; see 41 U.S.C.
   sect. 253 (a). With regard to site visits, the scheduling of such visits
   is within the discretion of the contracting agency, and there is no
   obligation on the part of the contracting agency to accommodate the
   individual preferences of every prospective offeror by providing unlimited
   access to facilities for the purpose of site visitations. See Caltech
   Service Corp., B-240726, Dec. 18, 1990, 90-2 CPD para. 497 at 5; BECO
   Corp., B-217573, May 15, 1985, 85-1 CPD para. 548 at 3. While recognizing
   that the contracting agency has considerable discretion with regard to the
   scheduling of site visits, the agency*s discretion in this regard is not
   unfettered, and we will review the agency*s determinations to ensure that
   they are reasonably based. See Caltech Serv, Corp., supra; see also
   Intellectual Properties, Inc., B-280803.2, May 10, 1999, 99-1 CPD para. 83
   at 5-6 (although our Office has recognized that in numerous areas
   contracting agencies have broad discretion, the exercise of that
   discretion is nevertheless subject to the test of reasonableness).

   We find based upon this record, including the explanations and argument
   provided by the agency in response to the protest, that the agency did not
   act reasonably with regard to the scheduling of Dellew*s site visit, and
   that under the circumstances here, this deprived Dellew of an opportunity
   to compete intelligently and on relatively equal terms. As indicated
   below, our conclusion is not based on any one event or factual bit of
   information, but rather, on the totality of the circumstances surrounding
   Dellew*s request for a site visit and the agency*s response.

   As an initial matter, we disagree with the agency*s position that its
   e-mail of January 11 provided Dellew with notice of the dates for the site
   visit.[6] First, although the agency points out that its January 11 e-mail
   response to the protester*s January 10 e-mail provided that *[c]urrently,
   Jan. 17, 18 or 19^th (Wednesday-Friday) are being made available* for site
   visits, the phrasing of this response does not restrict the conduct of a
   site visit to January 17, 18, or 19, but only provides through the use of
   the adverb *currently* that as of January 11 those dates were *being made
   available.* In any event, the protester claims that it did not receive
   this e-mail from the agency until it was resent on January 19, and while
   the agency argues in its supplemental report that *it is not credible that
   the protester did not receive that . . . e-mail,* the agency concedes that
   it cannot verify that the e-mail was received by Dellew. Agency Supp.
   Report at 1-2; Contracting Officer*s Statement at 4. Additionally, even if
   Dellew had received the January 11 e-mail, the record reflects that Dellew
   would not have been able to contact the contract specialist to schedule
   the site visit any earlier than it was able to here, given that the
   contract specialist was out of the office from January 12 through January
   16.

   We further disagree with the agency*s apparent assertion that it made a
   reasonable attempt to provide Dellew with a site visit when it returned
   Dellew*s telephone calls 5 days after Dellew placed its first telephone
   call. That is, although on January 17 the contract specialist did return
   Dellew*s telephone calls, the contract specialist required a written
   request for a site visit before one could be scheduled, even though this
   was not required by the RFP. Additionally, while the facilities operations
   manager advised Dellew by telephone message in the morning of January 18
   that the site visit was scheduled for the next day (January 19), she did
   not return Dellew*s telephone calls on this subject until 4 p.m. on
   January 18, and then only to advise Dellew that the site visit would not
   be scheduled for a different day, even though the closing date for receipt
   of proposals was not until January 30, and that the Dellew representative
   should be able to attend the site visit as scheduled because, based on her
   calculations, the Dellew representative was 6 hours driving time away. The
   record does not establish a reasonable basis for the agency*s
   unwillingness to accommodate what appears to have been a reasonable
   request on Dellew*s part that its site visit be scheduled during the week
   of January 22.

   With regard to Dellew*s actions, the record reflects, as referenced above,
   that Dellew made six attempts to contact the agency to schedule a site
   visit, beginning with its e-mail of January 10, and continuing with four
   telephone calls and an additional e-mail. These requests were not untimely
   made, as suggested by the agency, because they commenced on January 10
   (almost 3 weeks before proposals were due and by the deadline established
   by the RFP for submitting questions), and Dellew*s telephone calls to the
   contract specialist--the method established by the RFP for scheduling site
   visits, see RFP at 71--started on January 12 (but were not returned until
   January 17 because the contract specialist--the only individual designated
   for arranging site visits--was out of the office).[7]

   We recommend that the agency reopen the competition, provide a reasonable
   time and date for the conduct of Dellew*s site visit, and allow Dellew to
   submit a proposal.[8] We also recommend that the agency reimburse Dellew
   for the costs of filing and pursuing this protest. The protester*s
   certified claim for costs, detailing the time expended and the costs
   incurred must be submitted to the agency within 60 days of receiving this
   decision. 4 C.F.R. sect. 21.8(f)(1) (2007).

   The protest is sustained.

   Gary L. Kepplinger

   General Counsel

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

   [1] The Newport Research Center consists of three office/laboratory
   buildings and two support structures, and is located on the campus of the
   Oregon State University.

   [2] The agency calculates that, in accordance with the solicitation,
   questions regarding the RFP were to be received by January 10, 2007.
   Agency Report (AR) at 3.

   [3] The RFP*s site visit clause is a modified version of Federal
   Acquisition Regulation (FAR) sect. 52.237-1, Site Visit, which is to be
   inserted *in solicitations for services to be performed on Government
   installations, unless the solicitation is for construction.* FAR sect.
   37.110(a).

   [4] The agency issued one amendment to the solicitation on January 19,
   2007, which provides, among other things, the square footage of each of
   the three main buildings to be serviced by the successful contractor.
   Agency Report, Tab B, RFP amend. 1. The amendment did not change the
   proposal due date of January 30.

   [5] The importance of a site visit attached by the agency to prospective
   offerors is evidenced by the terms of solicitation, which, as noted above,
   provided that *[o]fferors are urged and expected to inspect the site where
   services are to be performed and to satisfy themselves regarding all
   general and local conditions that may affect the cost of contract
   performance.* RFP at 71.

   [6] We note that the solicitation did not establish or provide any day or
   dates for the conduct of site visits, or establish any deadline for an
   offeror to request a site visit. See RFP at 71.

   [7] While Dellew does not rebut the contract specialist*s claim that the
   Dellew representative failed to identify himself in his voice-mail message
   of January 12, it can be reasonably presumed that the contract specialist
   would have returned that call on that date if she had been in the office,
   given the contract specialist*s return of Dellew*s telephone call of
   January 16 where Dellew*s representative again failed to identify himself.

   [8] We note that the protester also argues that the agency failed to
   answer certain questions regarding the facility, and that it was unable to
   obtain the applicable collective bargaining agreement (CBA) and wage
   determination referenced in the RFP, and that the agency should provide
   *the accrued vacation and sick leave hours for the union workers.* Protest
   at 4. The protester points out here that as instructed by the agency it
   requested a copy of the CBA from the relevant union, and that the union
   informed Dellew that it was to obtain the CBA and wage determination from
   the agency. The agency responds, and the record confirms, that the
   protester*s questions regarding the facility were answered through
   Amendment No. 1 to the solicitation (Jan. 19, 2007). With regard to the
   CBA and wage determination, the agency states that it was unaware that the
   protester was unable to obtain the CBA or wage determination until the
   protester filed its protest. Given that the agency has this information
   readily available, the agency may want to consider providing the protester
   with copies of the CBA and applicable wage determination as part of its
   corrective action.