TITLE: B-311035, Evans Security Solutions, Inc., March 19, 2008
BNUMBER: B-311035
DATE: March 19, 2008
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B-311035, Evans Security Solutions, Inc., March 19, 2008

   Decision

   Matter of: Evans Security Solutions, Inc.

   File: B-311035

   Date: March 19, 2008

   Reginald Evans for the protester.

   J. Alex Ward, Esq., and Damien Specht, Esq., Jenner & Block, LLP, for
   General Dynamics Information Technology, Inc., an intervenor.

   Roy E. Potter, Esq., and Julie K. Cannatti, Esq., Government Printing
   Office, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protester is not an interested party for purposes of challenging the
   agency's ability to perform the requirements of the solicitation where the
   record shows that, even if the protest were sustained on this ground, an
   intervening offeror would be next in line for award.

   2. Protest that agency improperly failed to give "priority" to the
   protester as a small business, surplus labor area concern is denied where
   the agency regulations at issue contain no such requirement.

   3. Protest that the awardee's and the protester's proposals should have
   received comparable technical scores because they offered the same
   equipment is denied where the solicitation lists several factors to be
   considered in the technical evaluation, of which equipment offered is but
   one.

   4. Allegations that the agency failed to make the solicitation
   requirements sufficiently favorable to small businesses are untimely where
   made after the solicitation closing date.

   DECISION

   Evans Security Solutions, Inc. protests the award of a contract to General
   Dynamics Information Technology, Inc. (GD) by the Government Printing
   Office (GPO) under request for proposals (RFP) No. GPOSC2007 for the
   delivery of a fully operational and integrated system for the government
   to use to issue smart card identification credentials.

   We deny the protest.

   Award was to be "made on a Best Value basis to the Offeror whose offer is
   determined to be technically acceptable and to the Offeror who proposes
   the most advantageous offer to the government, price and price related
   factors considered." RFP sect. M.2.1. The technical evaluation considered
   four factors in descending order of importance: timeliness of delivery;
   experience; technical approach; and past performance. The RFP advised that
   price would be evaluated to determine whether proposed prices were
   realistic, fair, and reasonable. Though not a heavily weighted factor,
   price could become a determining factor if two or more offers were
   determined to be technically equal.

   The agency received and evaluated three proposals, including the awardee's
   and the protester's. The protester's proposal was rated marginal for
   timeliness of delivery, unsatisfactory for experience, and marginal for
   technical approach, with one strength, five weaknesses, and two
   deficiencies. The protester supplied no information for past performance
   and was assigned "unknown risk." The protester's proposal received an
   overall technical evaluation rating of unsatisfactory. The awardee's
   proposal and the third proposal were higher rated and offered lower prices
   than the protester's proposal. The agency's price reasonableness
   evaluation found the protester's overall price to be "outside the
   competitive range," Agency Report, Tab O, Summary of Revised Cost
   Proposals for Smart Card at 1, and the price realism analysis found the
   protester's price to be unrealistic, with respect to contract line item
   numbers (CLIN) 20 and 21 for the base year and CLINs 39 and 40 for the
   option years. The agency made award to GD; the protester received its
   debriefing on January 16, 2008.

   Evans alleges that it will be impossible for the awardee "to meet GPO
   specification of having the system fully operational within 60 days" at
   the offered price.[1] Protest at 1. Because there is an intervening
   offeror whose quotation was evaluated as technically acceptable, Evans is
   not an interested party for the purpose of raising this allegation. See
   Bid Protest Regulations, 4 C.F.R. sect. 21.0(a) (2007). Where, as here,
   there is an intervening offeror who would be in line for the award if the
   protester's challenge to the award were sustained, the intervening offeror
   has a greater interest in the procurement than the protester, and we
   generally consider the protester's interest to be too remote to qualify it
   as an interested party.[2] See Four Seas and Seven Winds Travel, Inc.,
   B-244916, Nov.15, 1991, 91-2 CPD para. 463 at 4.

     The protester alleges that the agency was required to give the
     protester, as a small business and surplus labor area concern,
     "priority," and failed to do so. Protest at 1. Under GPO regulations, no
     special consideration is given to small business and surplus labor area
     concerns unless the agency receives equal low bids, which was not the
     case here, and thus this ground of protest is without merit. See
     Materials Management Acquisition Regulations (MMAR) sect. 19.202-3.

   Evans argues that because its proposal and the awardee's proposal offered
   the same equipment, the proposals should have received comparable
   technical scores, when in fact the protester's proposal was rated inferior
   to the awardee's. As noted above, the RFP's technical evaluation included
   four factors, not simply the equipment offered. The protester's allegation
   that, because it and the awardee offered the same equipment they should
   have received comparable technical evaluation scores, is based on an
   erroneous interpretation of the solicitation requirements and is without
   merit. F2M, Inc./SCI, B-257920, Nov. 22, 1994, 94-2 CPD para. 198 at 3.

   The protester alleges that the GPO violated various statutes and
   regulations, including the Anti-Deficiency Act, certain sections of the
   MMAR, and provisions of the Small Business Act, as well as Executive Order
   No. 13170. We have reviewed each of these allegations, and inasmuch as
   they assert that the agency in some way failed to make the solicitation
   language sufficiently favorable to certain types of businesses, these
   allegations, in order to be timely, should have been filed prior to the
   solicitation closing time. See 4 C.F.R. sect. 21.2(a)(1). Moreover, each
   of these allegations is without merit, even if timely; for example, the
   GPO is a legislative branch agency not subject to the provisions of the
   Small Business Act.[3] Fry Commc'ns, Inc., B-207605, Feb. 1, 1983, 83-1
   CPD para. 109.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The protester misstates the solicitation requirement, which is to
   complete site acceptance training within 90 days of contract award. RFP
   sect. C.8.1.2.

   [2] In any event, a protester's claim that another firm submitted an
   unreasonably low price--or even that the price is below the cost of
   performance--is not a valid basis for protest. Brewer-Taylor Assocs.,
   B-277845, Oct. 30, 1997, 97-2 CPD para. 124 at 4.

   [3] The protester's allegation that the contracting officer failed to give
   the firm the appropriate post-award notice of the award is of a procedural
   nature, unrelated to the validity of the award, and not an allegation our
   Office reviews. Al Hamra Kuwait Co., B-288970, Dec. 26, 2001, 2001 CPD
   para. 208 at 3 n.2.