TITLE: B-299674; B-299743; B-299746, International Garment Processors, July 17, 2007
BNUMBER: B-299674; B-299743; B-299746
DATE: July 17, 2007
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B-299674; B-299743; B-299746, International Garment Processors, July 17, 2007

   Decision

   Matter of: International Garment Processors

   File: B-299674; B-299743; B-299746

   Date: July 17, 2007

   J. C. Viramontes for the protester.

   Christine M. Choi, Esq., Department of the Army, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest alleging bias against protester and favoritism toward awardee
   is denied where record fails to support protester's allegations.

   2. Protest of the scope of solicitation amendment's work requirements is
   denied where record shows amendment reasonably reflects agency's
   anticipated needs.

   3. Protest of agency's rejection of protester's revised quotation as late
   is denied where there is no evidence that the quotation was actually
   received at the designated location prior to the closing time.

   DECISION

   International Garment Processors (IGP) has filed three protests with our
   Office. The firm's initial protest (B-299674) challenges an award to
   Supreme Laundry and Cleaners under solicitation No. W911SG-07-T-3000,
   issued by the Department of the Army for dry cleaning, laundry, and sewing
   services for personnel and programs at Fort Bliss, Texas. IGP primarily
   contends that the agency has made a series of misstatements that call into
   question the credibility of agency contract personnel, and that an agency
   evaluator was biased against IGP and favored Supreme. IGP's second protest
   (B-299743) challenges the terms of request for quotations (RFQ) No.
   W911SG-07-T-0201, issued for limited interim laundry services during the
   pendency of IGP's protest of the Supreme contract. IGP's third protest
   (B-299746) challenges the agency's determination that the protester's
   revised quotation for the interim work was not timely received by the
   agency.

   We deny the protests.

   Award to Supreme

   The solicitation, posted on the FedBizOpps website on February 13, 2007,
   contemplated the award of a fixed-price, requirements-type contract to the
   offeror submitting the technically acceptable, low-priced offer.

   IGP requested and received an emailed copy of the performance work
   statement (PWS) from the agency on February 13. The PWS was forwarded with
   another copy of the solicitation that the contracting specialist explains
   she had retyped to fix formatting problems in the original solicitation
   document; this copy of the solicitation mistakenly included a closing date
   of February 23 instead of the original date of February 26. The protester
   submitted questions about the solicitation to the agency on February 21.
   On February 23, IGP emailed the agency that it had not yet received a
   response to its solicitation questions. The contracting specialist (who
   had initially told the protester that the responses to its questions had
   been posted electronically a day earlier, but subsequently learned that
   the earlier attempt to do so had been unsuccessful) posted the agency's
   responses on the FedBizOpps website on February 23.

   In the meantime, IGP had filed an agency-level protest challenging the
   agency's failure to answer its questions. IGP also argued that, since
   notices posted at Fort Bliss to inform personnel that the on-site laundry
   facility was closing stated that the laundry work would be done
   "downtown," it was apparent, at least to IGP, that the agency had already
   determined that the successful firm would be located "downtown."[1] By
   letter dated February 23, the contracting officer dismissed the protest,
   noting that answers had since been provided and a new closing date of
   March 6 had been scheduled. The agency also assured the protester that
   there was no predetermined contractor for the award and that the reference
   to "downtown" was intended to inform personnel that the work was going to
   be contracted out.[2] On February 26, IGP filed an agency-level challenge
   to the adverse ruling on its protest, reiterating its prior concerns,
   requesting to be treated in a fair manner, and challenging the contracting
   specialist's explanation that the February 23 closing date had only been a
   typographical error in a retyped version of the solicitation. The
   protester also generally suggested that a pattern of questionable behavior
   was evident in the procurement.

   The protester met with contracting personnel on March 2 to discuss its
   concerns, and, after the meeting, submitted a letter dated March 5 in
   which it again questioned certain actions by contracting personnel, such
   as the contracting specialist telling the protester that answers to its
   questions had been electronically posted even though the contracting
   specialist had been sent an electronic message of the failed posting
   attempt.[3] The agency responded by letter dated March 9 in which the
   contracting officer stated that the protest allegations were without
   merit, and assured the firm that its proposal would be reviewed fairly. On
   March 20, IGP appealed the agency's review of its challenges. By letter
   dated April 3 from the Director of Contracting at Fort Bliss, the agency
   advised IGP that the misstatements and errors it had complained about had
   been remedied, that insufficient factual support was found for other
   generally claimed improprieties, that no legal merit was found in the
   protest allegations, and that the firm's proposal would be fairly
   evaluated in accordance with the terms of the solicitation.

   In the meantime, IGP and Supreme submitted timely offers under the initial
   solicitation. Both firms received favorable past performance evaluations
   and facility visit reports. Both firms' proposals were found to be
   technically acceptable. Among the technically acceptable proposals, award
   was made to Supreme on the basis of its substantially lower price.[4]

   IGP filed its initial protest with our Office on April 12, incorporating
   many of its prior generally stated, agency-level protest challenges. [5]
   IGP also alleges bias against IGP by an evaluator whose wife used to work
   at IGP, but whose employment was terminated in a downsizing action years
   earlier. IGP states that it has heard that the evaluator will retaliate
   against the firm for terminating his wife's employment. IGP also contends
   the evaluator favored Supreme for award, since Supreme allegedly offered
   employment to his wife.

   Regarding the firm's allegations of bias and favoritism, government
   officials are presumed to act in good faith and we will not attribute
   unfair or prejudicial motives to procurement officials on the basis of
   inference or supposition. Triton Marine Constr. Corp., B-250856, Feb. 23,
   1993, 93-1 CPD para. 171 at 6. Where a protester alleges bias, it not only
   must provide credible evidence clearly demonstrating a bias against the
   protester or for the awardee, but also must demonstrate that this bias
   translated into action that unfairly affected the protester's competitive
   position. Advanced Sci., Inc., B-259569.3, July 3, 1995, 95-2 CPD para. 52
   at 17. As discussed further below, the record does not support the
   protester's allegations of bias and favoritism.[6]

   IGP generally alleges that the agency "pre-selected" Supreme for award
   based on IGP's suspicion that Supreme's laundry facility, which is located
   within the city of El Paso, is the "downtown" facility referenced in the
   notices posted on the base prior to the competition. The protester
   suggests that favoritism is evident from certain events; for example,
   while the solicitation generally stated that no telephone calls would be
   allowed for solicitation clarifications or inquiries, Supreme spoke with
   the contracting specialist by telephone after the submission of proposals
   to inquire about the status of the award. As stated above, inference and
   speculation are insufficient to show bias, and our own review of the
   record shows no support for any alleged unfair or improper consideration
   of offers. Moreover, in light of Supreme's substantially lower price,
   which has not been challenged, the protester has not shown that the
   actions it complains of, such as Supreme's telephone call to the
   contracting specialist (which does not appear to have been other than a
   routine procedural inquiry), prejudiced the protester's competitive
   position (i.e., that but for the agency's actions, it would have had a
   substantial chance of receiving the award). See NV Servs., B-284119.2,
   Feb. 25, 2000, 2000 CPD para. 64 at 18; Advanced Sciences, Inc., supra, at
   17.

   Regarding the challenged notices informing personnel that the on-site
   laundry services at Fort Bliss were being moved to a facility "downtown,"
   we find reasonable the agency's explanation that the reference simply
   meant that the on-site facility would be replaced with one off the
   military base's property (and within the 60-mile radius set out in the
   solicitation). This interpretation includes IGP's facility, and IGP was
   permitted to compete for the award. In short, no evidence of bias or
   favoritism to the protester's detriment has been shown by the
   protester.[7]

   To the extent IGP argues that one of the evaluators is biased against it,
   the record shows only favorable evaluation findings regarding IGP from the
   evaluator at issue. Similarly, there is no evidence in the record to
   suggest that the evaluator retaliated against the firm in any way in the
   evaluation for any action in the past regarding termination of his wife's
   employment. Further, the record shows that the agency promptly
   investigated the protester's bias allegations as soon as its protest was
   received and concluded that no impropriety existed related to the
   evaluator's involvement in the procurement. For instance, the agency
   confirmed that, contrary to the protester's allegation, the evaluator's
   wife is currently employed and not pursuing a job with Supreme; moreover,
   Supreme confirmed that it has not offered employment to the evaluator's
   wife.

   In sum, the protester's claims of bias against it and favoritism to
   Supreme have no support in the record; the record simply shows that IGP
   lost the competition because it was not the low-priced offeror.

   Interim RFQ

   In light of the suspension of performance of the protested award to
   Supreme, the agency, on April 16, issued RFQ No. W911SG-07-7-0201, for
   limited interim laundry services. IGP submitted questions to the agency
   shortly before the closing time for receipt of quotations on April 18.
   Without protesting its failure to receive a response to its questions
   prior to the closing time, IGP submitted a timely quotation for the work.
   On April 20, the RFQ was amended to substantially reduce the amount of
   laundry work required, and all vendors were asked to submit revised
   quotations by the close of business on April 26. Shortly before the
   closing time, IGP filed a protest of the terms of that amendment with our
   Office.[8]

   IGP alleges that the amendment unreasonably reduced the quantity of work
   to allow the agency to improperly "bid shop" to the protester's
   disadvantage; according to IGP, the reduced amount of work does not allow
   it to lower its prices to reflect the "economies of scale" that are
   available where larger workloads are required.

   We find no basis to question the challenged work reduction in light of the
   agency's reasonable explanation that the amendment reflects a change in
   its anticipated needs. The agency reports that, at the time of the
   amendment reducing the amount of the interim work, it believed IGP's
   initial protest might be dismissed, and, if so, it would not need the
   initially solicited level of interim services. In its comments responding
   to the agency's explanation of the required amended workload, the
   protester does not refute the reasonableness of the agency's asserted
   basis for the amendment's reduced workload. Rather, the firm alleges that
   it has been disadvantaged by having to price a smaller amount of work.
   Since the same amount of work was to be priced by each offeror, however,
   IGP's suggestion that it is put in a disadvantaged position by having to
   compete for a smaller amount of work is without merit, and, in any event,
   provides no basis to sustain its protest.

   Receipt of IGP's Revised Quotation

   IGP filed a third protest with our Office on May 2, having learned on
   April 27 from agency contracting personnel that no revised quotation under
   the interim RFQ was received from IGP by the scheduled closing time (which
   was identified in the amendment as the close of business on April 26). IGP
   states that it timely faxed its revised quotation to the agency prior to
   the closing time and that, on April 27, it forwarded a copy of the
   transmission confirmation report that its fax machine had generated at the
   time of transmission, indicating that the transmission had been
   successful.

   The agency reports that the fax machines in its contracting offices were
   checked for incoming faxes throughout the day on April 26; that the fax
   machines were again checked at 5 p.m. (after the close of business that
   day, the stated closing time for receipt of quotations); that they were
   checked again later that evening before the contracting specialist went
   home, and again the next morning when she arrived; and that no revised
   quotation had been received from the protester. The agency reports that
   two copies of the IGP revised quotation were received on April 27, after
   the closing time and after the source selection had been completed and
   Supreme had been selected as the successful vendor.

   IGP essentially requests that the agency accept its fax machine's
   transmission report as confirmation that the quotation was not only sent
   in a timely manner, but timely received. The transmission report does not
   demonstrate that the revised quotation was actually timely received at the
   designated and intended agency location, only that it was transmitted. See
   The Microscope Co., Inc., B-257015, Aug. 8, 1994, 94-2 CPD para. 157 at 2.
   Since there is no evidence in the record to show actual timely receipt of
   the firm's revised quotation, we find reasonable the agency's
   determination that the quotation was late. In any event, the agency points
   out that IGP's revised quotation was higher-priced than the one received
   from Supreme. Accordingly, IGP's revised quotation would not have been
   selected even if it were considered timely received.

   The protests are denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] As discussed below, IGP explains in its protest to our Office that it
   had interpreted the term "downtown" to mean a location within the city
   limits of El Paso, which would have effectively precluded the firm's
   consideration for award because it is located outside the city boundaries.

   [2] The agency has explained in its report in response to the protest that
   the reference to "downtown" was not intended to mean within the city
   limits, but rather to indicate that the work previously performed at the
   base was to be contracted out to be performed at an outside location off
   the grounds of Fort Bliss.

   [3] The contracting specialist has since explained that she had not yet
   read the message of the failed posting attempt when she told the protester
   the information had been posted.

   [4] We note that IGP does not argue that, but for the agency's allegedly
   improper actions, it would have offered a lower price and been in line for
   award. In its comments on the agency report, IGP does assert that at a
   facility visit months ago, an evaluator indicated that the quantity
   estimates in the solicitation may not have been accurate. Any challenge to
   the offerors' prices on the ground that the estimates in the solicitation
   are inaccurate is untimely, however, since it was not raised until months
   after the information on which it is based was obtained. See 4 C.F.R.
   sect. 21.2(a)(2) (2007). Also regarding prices, we note that while IGP
   claims the contracting specialist misstated Supreme's price in the award
   notice, the record shows no error; rather, the award notice lists the
   firm's price for the base year award, and the higher prices provided at
   the protester's debriefing include the awardee's option year prices.

   [5] Shortly after the protest was filed, the agency requested dismissal of
   the protest as untimely, arguing that it restated agency-level protest
   allegations which had been answered by the agency weeks earlier. We
   declined to dismiss the protest at that time without a full account of the
   prior protest communications between the parties and a response to the
   contentions of bias (which the protester alleged were based on information
   it had only recently received). Upon receipt of the full agency report, we
   again reviewed the timeliness of the protest contentions and now conclude
   that, to the extent the protester's agency-level protest contentions are
   again raised in its protest to our Office, they are untimely. Under our
   Bid Protest Regulations, to be timely, matters previously protested to an
   agency must be protested to our Office within 10 days of learning of the
   initial adverse agency action on the protest. 4 C.F.R. sect. 21.2(a)(3).
   Here, IGP knew the agency had dismissed or denied each of its protest
   challenges more than 10 days prior to filing its protest with our Office.
   While the protester apparently delayed filing a protest with our Office in
   order to continue pursuit of the challenges with the agency, a protester's
   continued pursuit of protest matters with a contracting agency does not
   toll our timeliness rules. See Instruments for Indus., Inc., B-250693,
   Feb. 16, 1993, 93-1 CPD para. 143 at 3.

   [6] IGP has filed a multitude of general allegations of bias in the
   procurement, and although our Office has reviewed the allegations and
   found that they provide no basis to question the propriety of the agency's
   source selection, we discuss only a representative sampling of those
   contentions in this decision. IGP also fails to provide sufficient detail
   or support for many of its allegations. For example, while the firm
   generally complains that documentation shows the contracting specialist
   has also used the job title of procurement clerk, or that procurement
   integrity regulations have been violated, general allegations of
   impropriety (without specifying what procurement statute or regulation the
   protester believes has been violated, along with adequate evidence of the
   alleged violation) do not provide the level of factual detail and legal
   support necessary to constitute valid bases of protest. 4 C.F.R. sect.
   21.5(f).

   [7] The record indicates that, at least initially, IGP too may have read
   the notice to mean what the agency says it had intended, since in an
   earlier email to the contracting specialist, IGP referred to the notice as
   one advising that the work would be performed "off-post" without
   suggesting that it was more restrictive than the solicitation's area of
   consideration for the work. IGP Email to Contracting Specialist, Feb. 22,
   2007.

   [8] To the extent IGP's second protest incorporates the questions IGP
   submitted to the agency prior to the initial closing time, without
   specifically protesting the matters raised in those questions or the
   agency's failure to respond to the questions prior to that initial closing
   time, that portion of the protest is untimely filed. See 4 C.F.R. sect.
   21.2(a)(1).