TITLE: B-309947, Central Texas College, October 12, 2007
BNUMBER: B-309947
DATE: October 12, 2007
*************************************************
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).