TITLE: B-309947, Central Texas College, October 12, 2007
BNUMBER: B-309947
DATE: October 12, 2007
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B-309947, Central Texas College, October 12, 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: Central Texas College
File: B-309947
Date: October 12, 2007
James R. Lindley, Esq., Lindley, Wiley & Duskie, P.C., for the protester.
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., and Lei B. Greenspan,
Esq., Smith, Pachter, McWhorter, PLC, for Richard Milburn High School,
Inc., an intervenor.
Peter F. Pontzer, Esq., Department of the Army, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency properly could make award on basis of initial proposals where
solicitation advised offerors of this possibility and contracting
officer's decision not to engage in discussions was reasonable.
2. Protest challenging agency's rejection of protester's proposal because
the protester submitted an unacceptable subcontracting plan is denied
where the solicitation specifically stated that the quality and
completeness of the subcontracting plan would be evaluated, and advised
that no award would be made to an offeror whose proposal did not include
an acceptable subcontracting plan.
DECISION
Central Texas College (CTC) protests the award of a contract to Richard
Milburn High School, Inc. (RMHS) under request for proposals (RFP) No.
W911SE7-07-R-0005, issued by the Department of the Army for foreign
language training at various locations. The protester principally contends
that the agency unreasonably determined that its subcontracting plan was
unacceptable, and improperly elected not to hold discussions.
We deny the protest.
The RFP sought proposals to provide instructors for specifically listed
languages and dialects and anticipated the award of a fixed-price
indefinite-delivery requirements contract for a base year with four 1-year
options. The RFP advised that award would be made to the lowest-priced
technically-acceptable offeror with an acceptable subcontracting plan (if
applicable), and past performance presenting no higher risk than "moderate
risk." The RFP further advised offerors that proposals would be evaluated
under the following equally-weighted factors: accreditation, technical
approach, past performance and relevant experience, and small business
subcontracting plan. RFP sect. M.2. The RFP specifically warned offerors
that no award would be made to an offeror that did not have an acceptable
subcontracting plan (if applicable). Id.
As relevant here, the RFP evaluation criteria stated that the quality and
completeness of the subcontracting plan would be evaluated and that
proposals would be rated either "acceptable" or "non-acceptable." RFP
sect. M.5. As part of this assessment, the RFP advised that the agency
would review the offerors' designation of small business subcontractors to
support specific task areas, the percentage of total contract dollars
allocated to small businesses, and the probability that the proposed plan
would meet its goals. Id. The RFP also stated that the government would
use price analysis techniques to determine reasonableness of prices. Id.
Finally, the solicitation informed offerors that the government intended
to evaluate proposals and award a contract without discussions and that,
therefore, each offeror's initial offer should contain its best terms from
both a technical and price standpoint.
The agency received six proposals. The evaluation results with regard to
the proposals of CTC and RHMS were as follows:
+------------------------------------------------------------------------+
|Offeror|Accreditation|Technical|Past | Small Business | Price |
| | |Approach |Performance | Plan | |
|-------+-------------+---------+-------------+------------------+-------|
|CTC | Go | Go | Low Risk | Non | $33.7 |
| | | | | |million|
| | | | | acceptable | |
|-------+-------------+---------+-------------+------------------+-------|
|RMHS | Go | Go |Moderate Risk| Acceptable | $30.3 |
| | | | | |million|
+------------------------------------------------------------------------+
Agency Report (AR) at 6.
With respect to the RFP's subcontracting plan requirements, CTC's proposal
stated that it anticipated limited opportunities for subcontracting but
would make every effort to involve Historically Black Colleges and
Universities (HBCU) and Minority Institutions (MI) in any subcontracting
opportunity. CTC Proposal, vol. IV at 1. CTC further stated that:
The requirements of this contract cannot be adequately provided by
subcontractors who lack CTC's experience and resources in providing
services of this scope and nature. CTC does not plan to subcontract any
of the services required by this contract; however, we realize that from
time to time we may have to request assistance from subcontractors to
meet specific Government requests.
Id. CTC did identify the percentage of dollars to be subcontracted and
advised that at least five percent of the total planned subcontracting
dollars would be reserved for HBCUs and MIs. CTC did not, however, provide
any detailed information concerning its proposed subcontracting efforts,
as the RFP required.
The agency determined that CTC's subcontracting plan was not acceptable
because of the following omissions:
* No goals for Small Businesses (SB) and Small Disadvantaged
Businesses (SDB)
* No separate goals for the basic contract
* No flow-down provisions
* No indirect costs included or excluded
* No effort to ensure SB[s] & SDB[s] have an equitable opportunity to
participate
AR, Tab 7, Prenegotiation Memo at 6.
As the RFP indicated, the agency conducted a price reasonableness analysis
of both proposals and concluded that the prices could be considered
reasonable given the existence of price competition. Additionally, the
agency specifically determined that RHMS' proposed price was realistic in
comparison with the independent government estimate. Award to RHMS was
made based on the fact that RMHS received an acceptable rating for all
evaluation factors, a moderate risk assessment for past
performance/relevant experience, an acceptable rating for its small
business subcontracting plan, and submitted the lowest priced proposal.
Id. at 8. After receiving a debriefing, CTC filed this protest on August
2, 2007.
CTC essentially argues that it submitted an acceptable subcontracting
plan, and contends, in the alternative, that even its plan was
unacceptable, the agency was required to advise CTC of the problems with
the plan and provide the company an opportunity to revise it.
Here, as explained above, the RFP required offerors to submit a detailed
subcontracting plan, and listed "subcontracting plan" as one of four
equally-rated technical evaluation factors. The RFP specifically stated
that subcontracting plans would be evaluated to determine the extent to
which offerors identify and commit to subcontracting with small
businesses, the realism of the plan, the prior performance of the offeror
in complying with subcontracting requirements, and the extent of
participation of subcontractors in terms of the value of the total
acquisition and the ability to meet mandated goals. At the conclusion of
this review, CTC's subcontracting plan was determined to be unacceptable
because CTC failed to provide the requested information. CTC in its
protest submissions does not argue that its plan was responsive to the RFP
requirements, but rather, CTC argues that its subcontracting plan was
identical to the plan it submitted in response to a previous solicitation
and that the agency was required by the Federal Acquisition Regulation
(FAR) 19.702 to allow CTC to clarify its subcontracting plan.[1]
We do not agree. The record here shows that CTC submitted an inadequate
subcontracting plan in that it was not responsive to the specific
requirements of the RFP. Since the solicitation advised offerors that the
agency intended to make award without discussions, the protester could not
presume that it would have a chance to correct deficiencies and weaknesses
through discussions. The burden was on CTC to submit an initial proposal,
complete with a subcontracting plan that adequately demonstrated its
merits, and the protester ran the risk of rejection by failing to do so.
DRT Assocs., Inc., B-237070, Jan. 11, 1990, 90-1 CPD para. 47 at 2. There
is no basis in this record for concluding that the decision to award
without discussions was improper, or that the rejection of CTC's
subcontracting plan was unreasonable.
Moreover, our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility that it was prejudiced by the
agency's actions, that is, unless the protester demonstrates that, but for
the agency's actions, it would have had a substantial chance of receiving
the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at
3. Here, even if CTC's subcontracting plan was rated acceptable, its
evaluated price was higher than RHMS' price and the RFP specifically
provided for award to be made to the technically-acceptable, low-priced
offeror. Thus, CTC was not competitively prejudiced by any alleged errors
in the evaluation of its subcontracting plan.
CTC also argues that RHMS' price is unreasonably low. With respect to a
fixed-price award, a protester's claim that an offeror submitted an
unreasonably low price--even a claim that the price is below the cost of
performance--is not a valid basis for protest. An offeror, in its business
judgment, properly may decide to submit a price that is extremely low.
Diemaster Tool, Inc., B-238877, Apr. 5, 1990, 90-1 CPD para. 375 at 2. An
agency decision that a firm can perform a contract at the offered price
involves an affirmative determination of responsibility, which we will not
review except in circumstances not alleged here. In addition, the agency
here specifically concluded that RHMS' price was reasonable and realistic
when compared with the government estimate.
Lastly, CTC questions the acceptability of the subcontracting plan of RHMS
on the basis that two of RHMS' proposed subcontractors are non-accredited
organizations. CTC also questions the agency's decision to award to RHMS
notwithstanding that RHMS received a moderate risk rating under the past
performance evaluation factor.
In reviewing protests of alleged improper evaluations and source
selections, our Office examines the record to determine whether the
agency's judgment was reasonable and in accord with the stated evaluation
criteria and applicable procurement laws. Abt Assocs., Inc., B-237060.2,
Feb. 26, 1990, 90-1 CPD para. 223 at 4. A protester's mere disagreement
with the evaluation provides no basis to question the reasonableness of
the evaluators' judgments. Citywide Managing Servs. of Port Washington,
Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 10-11.
The record shows that the agency determined that RHMS' plan was acceptable
in that it provided the information required by the RFP, proposed
acceptable goals, and identified small businesses RHMS believed would meet
the agency's requirements. The RFP requirement was for the offerors to
demonstrate that they were accredited by either a regional or national
accrediting association recognized by the American Council of Education.
RFP para. M.4. In response to a clarification request on this issue, the
agency specifically advised offerors that only the prime contractor had to
be accredited under the solicitation. RFP, amend. 4, question No. 24. The
record shows that RHMS provided the appropriate accreditation. RHMS'
Proposal, attach. A.
With respect to the reasonableness of the award to RHMS notwithstanding
its moderate risk rating for past performance, the RFP specifically
provided for award to the offeror determined to be technically acceptable
with an acceptable subcontracting plan, and with past performance
presenting no higher risk than "moderate risk." Based on our review of the
record, there is no reason to question the acceptability of the awardee's
subcontracting plan, or the agency decision to award to RHMS, as the
lowest-priced, technically-acceptable, offeror. While CTC disagrees with
the evaluation and award decision, its mere disagreement does not show
that the selection decision was unreasonable or otherwise inconsistent
with the RFP award language.[2]
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] Under FAR sect. 19.702(a) the requirement for an acceptable small and
small disadvantaged business subcontracting plan is applicable to the
"apparently successful offeror," and on that basis, we have held that
exchanges regarding the acceptability of a required small business
subcontracting plan--even the submission of a revised plan--relate to an
offeror's responsibility and therefore are not discussions. See General
Dynamics Ordnance & Tactical Sys., Inc., B-295987, B-295987.2, May 20,
2005, 2005 CPD para. 114 at 9-10.
[2] To the extent CTC argues that the subcontracting plan should not have
been a technical evaluation factor and that the wrong wage determination
was included in the RFP, its protest is untimely. Under our Bid Protest
Regulations, a protest based upon alleged improprieties in a solicitation,
which are apparent prior to the time set for receipt of initial proposals,
must be filed prior to the time set for receipt of initial proposals. 4
C.F.R. sect. 21.2(a)(1)(2007). Lastly, the protester maintains that it is
a MI in accordance with the present United States Department of Education
guidelines and should be exempt from the RFP's requirement to provide a
subcontracting plan. This issue was raised for the first time in the
protester's comments to the agency report, and is therefore untimely.
Under our regulations, to be timely, a protest must be filed within 10
days after the basis of protest is known or should have been known. 4
C.F.R. sect. 21.2(a)(2).