TITLE: B-310460, Connectec Company, Inc., November 27, 2007
BNUMBER: B-310460
DATE: November 27, 2007
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B-310460, Connectec Company, Inc., November 27, 2007
Decision
Matter of: Connectec Company, Inc.
File: B-310460
Date: November 27, 2007
Kimberly Stefani, Connectec Company, Inc., for the protester.
Todd Bailey, Esq., Bureau of Prisons, for the agency.
Paula J. Haurilesko, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that the agency improperly rejected protester's proposal for its
failure to provide delivery information is denied where the delivery
information was clearly required by the solicitation, and where the
solicitation indicated that the offered delivery terms would be
significant in the evaluation.
DECISION
Connectec Company, Inc. protests the award of a contract to Teutech LLC by
the Federal Bureau of Prisons (UNICOR) under request for proposals (RFP)
No. EP2353-07 for motor vehicle hardware. Connectec contends that UNICOR
improperly excluded its proposal from consideration because it lacked
delivery information.
We deny the protest.
UNICOR issued, on July 19, 2007, an RFP for a 5-year, fixed-price
requirements contract to supply UNICOR with motor vehicle hardware. RFP at
2, 5. The RFP was amended six times, with a final closing date of August
10. Contracting Officer's (CO) Statement at 1; RFP amendment 6, at 1. The
RFP advised that the Government intended to award the contract without
engaging in discussions. RFP at 6.
As relevant here, the RFP included several references to the importance
of, and need for, delivery information, including:
Required delivery will be established at time of award. Please submit
your best manufacturing/delivery time for evaluation and delivery
schedule will be established at time of award. RFP at 2.
[S]ignificant evaluation factors are (a) past performance, (b) delivery
and (c) price and price related factors. Past performance and delivery
are weighted equally and are significantly more important than price.
Id. at 6.
Award(s) will be based on best value to the Government with past
performance and delivery significantly more important than price. Id. at
9.
In addition, the RFP at section B provided space for the offeror to fill
in unit price, total amount in U.S. dollars, and delivery date. Id. at 3.
Connectec submitted its proposal on August 9, but did not include a
proposed delivery schedule. CO Statement at 2. UNICOR awarded the contract
to Teutech on August 20, and posted a notice of the award on August 29.
Id. Subsequently, Connectec contacted UNICOR requesting an explanation of
the decision to award the contract to Teutech at a higher price. Connectec
Letter, Sept. 5, at 1. UNICOR explained that Connectec's proposal was
rejected because it failed to include a proposed delivery schedule. CO
Statement at 2. Connectec filed an agency-level protest, which UNICOR
denied. CO Letter, Sept. 17. Subsequently, Connectec filed this protest.
Connectec does not disagree that it failed to provide delivery
information. Instead, it contends that UNICOR should not have excluded its
proposal from consideration for award because the agency has, in the past,
awarded contracts based on proposals that did not contain delivery
information.
Generally, a delivery schedule or time of performance requirement is
regarded as a material requirement of a solicitation. See, e.g., Muddy
Creek Oil and Gas, Inc., B-296836, Aug. 9, 2005, 2005 CPD para. 143 at 2.
A proposal that fails to conform to material solicitation requirements is
technically unacceptable and cannot form the basis for award. Bannum,
Inc., B-291847, Mar. 17, 2003, 2003 CPD para. 74 at 3. Here, the RFP
provided for a delivery date, stated that delivery was one of three
evaluation factors, and noted twice that delivery and past performance
were significantly more important than price. RFP at 6, 9. Therefore,
information about an offeror's ability and intent to make timely
deliveries was a material part of each proposal, and UNICOR reasonably
determined that the lack of delivery information rendered Connectec's
proposal technically unacceptable and ineligible for contract award.
The protester argues that it has been awarded contracts in the past
without a proposed delivery schedule. Protest at 1. To support this
assertion, the protester provided a prior solicitation under which it
claims to have received award without providing delivery terms.
Protester's Comments, Nov. 5, 2007, exh. 1. Our review of this
solicitation shows that it does not use the same evaluation scheme as
here; delivery was not a separate evaluation factor. Id. Furthermore, even
if this assertion is true, the protester cannot rely on past practices to
excuse its failure to satisfy the requirements of the RFP here, as each
procurement stands alone. GM Indus., Inc., B-231998, Oct. 25, 1988, 88-2
CPD para. 388 at 5.
In our view, the RFP clearly indicated that offerors must identify a
delivery date in order to be considered for award. Therefore, UNICOR
reasonably excluded Connectec from consideration when the company failed
to include the required delivery information in its proposal.[1]
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] To the extent that Connectec argues that the failure of other offerors
to provide delivery information is proof that the RFP was defective, and
argues that UNICOR failed to highlight the need for delivery information,
we have reviewed the record and find that neither of these arguments
provides a basis for sustaining this protest. As noted above, the RFP
sought delivery information, identified delivery as an evaluation factor,
and indicated that it was one of the most important evaluation factors.