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United States Department of Commerce
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Parcel 47C LLC, B-286324; B-286324.2, December 26, 2000.
DIGEST: In a solicitation for the design, build, and lease of space, the contracting agency reasonably found that requiring post-award evidence that the awardee has site control represents an actual need of the government.[Note: I curious why the allegations regarding GSA's alleged OCI remain protected in this decision.]
AMI Construction, B-286351, December 27, 2000.
DIGEST: Contracting agency's reliance on information in the Small Business Administration's (SBA) PRO-Net database to determine that the protester, which certified itself in its bid as an eligible HUBZone small business concern, was not small and thus was not eligible for a HUBZone evaluation preference was improper because such questions must be referred to the SBA under applicable regulations where the agency does not believe it can or should accept the bidder's self-certification.
DevTech Systems, Inc., B-284860.2, December 20, 2000.
DIGEST: Agency failed to conduct meaningful discussions with the protester where, in taking corrective action in response to a prior protest, it reevaluated the protester's proposal as having a number of weaknesses and deficiencies that had not been previously identified and were critical to the contracting officer's determination not to select the proposal for award, and the weaknesses and deficiencies were not raised with the protester by the agency during discussions.
Imaging Systems Technology, B-283817.3, December 19, 2000.
DIGEST: Cancellation of solicitation based on a determination that in-house performance would cost the government less than contractor performance was improper where comparison of in-house and contractor performance was neither realistic nor fair.
Rockwell Electronic Commerce Corporation, B-286201; B-286201.2; B-286201.3, December 14, 2000.
DIGEST: 1. Protest of price evaluation under a solicitation for a contract for telecommunications services is sustained where the solicitation stated that telecommunication costs incurred by the agency outside the price of the contract would be included in the evaluated price, the awardee's proposal was based on a solution that included costs outside the contract but the awardee did not identify these costs in its proposal, the agency did not evaluate these costs, and the protester was prejudiced by this misevaluation.
2. Protest that awardee's proposal for telecommunications services fails to meet various specification requirements is denied where the awardee's proposal indicates that it will comply with or does not take exception to the requirements and the protest is primarily based on the awardee's failure to provide an amount of detail showing its compliance which was not required by the solicitation.
Wackenhut International, Inc., B-286193, December 11, 2000.
DIGEST: Protest of evaluation of proposals and source selection is sustained where agency failed to evaluate proposals in accordance with solicitation provision calling for a comprehensive review of offerors' compensation plans.
Norvar Health Services--Protest and Reconsideration, B-286253.2; B-286253.3; B-286253.4, December 8, 2000.
DIGEST: 1. Protester's contention that the agency is acting improperly in conducting a reopened competition by permitting submission of revised prices despite the release of the protester's award price in the earlier competition during postaward debriefings of unsuccessful offerors is denied where the disclosure was made pursuant to the debriefing requirements in the Federal Acquisition Regulation (FAR); disclosure of an awardee's price and rating (or ranking) under these circumstances does not create an improper competitive advantage.
2. Protest alleging that the agency violated the guidelines set forth at FAR § 15.507, regarding competitions reopened in response to a protest, is denied where the agency concedes that it failed to advise the protester of the information regarding its proposal provided to unsuccessful offerors during their postaward debriefings, but the protester is unable to demonstrate how it was prejudiced by not receiving this information given the significant revisions to the solicitation between the initial and reopened competitions.
3. Request for reconsideration of issues dismissed during development of a protest on the basis that the protester is not an interested party to raise them is denied where the reconsideration request raises arguments that the protester could have made, but did not, in its initial protest, and where those arguments are now untimely.
Wackenhut Services, Inc, B-286037; B-286037.2, November 14, 2000.
DIGEST: 1. Where cost information was called for by solicitation to "validate that the proposed costs are consistent with the technical presentation," but fixed-price contract was to be awarded, agency was not required to conduct detailed cost analysis of awardee's proposal; agency conducted price analysis--consisting of comparison of awardee's price with others received and government estimate--and reasonably concluded that, since the prices were comparable, there was no basis for finding that awardee lacked understanding of the requirement.
2. Protest challenging evaluation of awardee's past performance is denied where awardee and protester both received high ratings from references, and protester's slightly better ratings were reasonably reflected in its somewhat higher consensus past performance rating.
3. Protest challenging decision to make award to offeror submitting higher-priced, higher-rated proposal is sustained where record includes inadequate documentation supporting selection decision.
Day & Zimmermann Pantex Corporation, B-286016; B-286016.2; B-286016.3; B-286016.4, November 9, 2000.
DIGEST:Protest against agency past performance evaluation rating protester, the incumbent contractor at nuclear weapons plant, as only satisfactory overall when awardee was rated as outstanding overall is denied, where record supports agency determination that protester has had continuing, significant problems in ensuring that plant is fully able to perform critical mission, necessary to ensure the safety and reliability of the United States nuclear weapons stockpile, of assembling and disassembling nuclear weapons in support of nuclear stockpile life extension and evaluation programs, while the awardee's team has a very good performance record under a number of relevant contracts.
Performance Construction, Inc., B-286192, October 30, 2000.
DIGEST: In a procurement conducted by electronic commerce, where the solicitation materials were available only on the Internet, protest that the late delivery of the protester's proposal was caused by the unavailability of the agency's website on the date set for receipt of proposals and by the agency's refusal to delay the proposal closing date is denied, where the protester's failure to make reasonable efforts to promptly obtain the solicitation materials was the paramount cause of the late delivery and the reason that the protester allegedly had insufficient time to prepare its proposal.
Floro & Associates, B-285451.3; B-285451.4, October 25, 2000.
DIGEST: Task order for management support services improperly exceeded the scope of multiple award, indefinite-delivery/indefinite-quantity, section 8(a) contract for noncomplex integration services where the work required by the task order is materially different from the scope of work set forth or reasonably contemplated under the contract.
United International Investigative Services, Inc., B-286327, October 25, 2000.
DIGEST: Protest based on information obtained during post-award debriefing is not timely filed where protester who was excluded from competitive range requested that the debriefing be delayed until after award.
Checchi and Company Consulting, Inc., B-285777, October 10, 2000.
DIGEST: 1. General Accounting Office cannot find that the agency reasonably evaluated the protester's oral presentation where the agency and protester disagree as to the content of the oral presentation, the contemporaneous record of the oral discussions and presentations--which consists only of the protester's presentation materials and the evaluators' scoresheets--does not support the evaluators' conclusions regarding the protester's approach, and the agency did not act in accordance with the terms of the solicitation where it disregarded the protester's previously submitted written proposal in evaluating the oral presentation.
2. Agency failed to conduct meaningful discussions where it did not reasonably apprise the protester during discussions of significant weaknesses that caused the protester's proposal to be eliminated from the competition.
Carr's Wild Horse Center, B-285833, October 3, 2000.
DIGEST: 1. Under solicitation contemplating award of multiple indefinite-delivery/indefinite-quantity contracts for handling horses/burros at adoption events, protest that minimum guaranteed quantity of 100 horses/burros for life of contract is insufficient consideration to bind parties is denied where nature of acquisition dictates possibility that government may order only this quantity, and where other factors surrounding acquisition show an intent to form binding contracts.
2. Solicitation will not result in impermissible personal services contract where under contract government will not exercise continuous supervision and control over contractor personnel performing the contract.
T-L-C Systems, B-285687.2, September 29, 2000.
DIGEST: After receiving quotes in response to a request for quotes for a fire alarm system, agency improperly placed an order under a Federal Supply Schedule contract including items integral to the system but not listed in the contract; agency's proposed corrective action of simply deleting the items from the order and otherwise procuring them, presumably on a noncompetitive basis from the awardee, does not render the protest academic, because the remaining FSS order does not meet the agency's need for a complete system, and the agency received and evaluated a significantly lower-priced, acceptable quote from a non-FSS vendor (the protester) to supply such a system.
Minolta Corporation--Costs, B-285010.2, September 26, 2000.
DIGEST: General Accounting Office recommends that protester be reimbursed the costs of filing and pursuing its protest where the agency unduly delayed taking corrective action in response to the protest, which was clearly meritorious.
Apex Marine Ship Management Company, LLC; American V-Ships, B-278276.25; B-278276.28, September 25, 2000.
DIGEST: 1. Agency's comprehensive technical evaluation report, which summarizes individual evaluators' comments and assessments and explains the evaluated strengths of each proposal on a factor-by-factor basis, provides an adequate basis for GAO to review the agency's evaluation and determine that it was not arbitrary.
2. Where proposals are considered acceptable and within the competitive range, the agency is not obligated to discuss every aspect of a proposal that receives less than the maximum score; here, agency satisfied its obligation to provide meaningful discussions.
3. Price/technical tradeoffs in best value determination, based on combined technical/risk scores, evaluators' recommendations, limits to numbers of awards, and economy of scale pricing are reasonably supported by the record as a whole, which includes comments of evaluators and reasoning of selection board, as verified by consideration of a price-per-technical-point calculation.
SDS International, B-285821, September 21, 2000.
DIGEST: 1. New and independent grounds of protest included in a protester's comments on the agency report must independently meet the timeliness requirements of the General Accounting Office's Bid Protest Regulations; extensions of time for filing comments do not waive the timeliness requirements.
2. Contracting agencies are not obligated to afford all-encompassing discussions that "spoon-feed" an offeror each item that must be addressed to improve a proposal; agencies are only required to lead offerors into the areas of their proposals considered deficient and requiring amplification.
John D. Lucas Printing Company, B-285730, September 20, 2000.
DIGEST:Bidder's failure to acknowledge a material amendment to an invitation for bids, which resolved an ambiguity between the product description and the bid schedule, and which imposed an additional requirement on the contractor, renders the bid nonresponsive since absent such an acknowledgment the government's acceptance of the bid would not legally obligate the bidder to meet the government's needs as identified in the amendment.
STG, Inc., B-285910, September 20, 2000.
DIGEST:Proposal submitted prior to the issue date of a request for proposals (RFP) is an offer in response to the RFP that the contracting agency must consider where the agency provided the offeror with prior written notice that it would do so.
Cooper Construction, Inc., B-285880, September 18, 2000.
DIGEST:Protest that contracting agency improperly denied request for bid correction is sustained where the worksheets submitted by the low bidder to support the claimed mistake in bid establish the existence of the mistake and the intended bid by clear and convincing evidence, and where the affidavit submitted along with the claim is entirely consistent with the worksheets.
J. A. Jones/IBC Joint Venture; Black Construction Company, B-285627; B-285627.2, September 18, 2000.
DIGEST: Protests that agency unreasonably determined that protesters' proposals for design/construction contract were unacceptable but susceptible to being made acceptable and impermissibly awarded contract on the basis of initial proposals are denied, where record shows that protesters' proposals did not meet several of the solicitation's design requirements and contained informational deficiencies, and award to the offeror of the only technically acceptable proposal without discussions was consistent with the solicitation.
Lynwood Machine & Engineering, Inc., B-285696, September 18, 2000.
DIGEST: 1. In evaluating past performance, agency properly considered performance record of company other than the one submitting a quotation where company submitting quotation intended to rely heavily on the other company's personnel in performing the job.
2. Agency is not required to contact all of a vendor's references, but must act reasonably in determining which ones to contact and which not to contact.
3. Agency was not required to conduct discussions with protester to allow it an opportunity to clarify its past performance information where procurement was conducted using simplified acquisition procedures.
4. Agency properly considered information concerning vendor's past performance obtained from a source not identified by the vendor in its quotation.
5. Where agency is not required to hold discussions or otherwise communicate with vendors regarding past performance information, and the contracting officer has no reason to question the validity of the information furnished by the vendor's
American Management Systems, Inc., B-285645, September 8, 2000.
DIGEST: Organizational conflict of interest does not exist in procurement for financial management software where, while agency's integration contractor that provides advice and assistance to the agency concerning available software has an agreement with the selected software vendor to seek out opportunities to join together in a prime contractor/subcontractor relationship, that agreement does not apply to the protested procurement and the integration contractor has no other relationship with the selected vendor that creates a significant conflict of interest.
Power Connector, Inc., B-285395, August 24, 2000.
DIGEST:Protest that agency improperly awarded a small business set-aside contract to a source offering a foreign product is sustained because such set-asides are limited to sources supplying domestically-produced products.
N&N Travel & Tours, Inc.; BCM Travel & Tours; Manassas Travel, Inc.;, B-285164.2; B-285164.3, August 31, 2000.
DIGEST: 1. The statutory limitation on General Accounting Office bid protest jurisdiction over challenges to the award of a task order under an indefinite-delivery/indefinite-quantity (ID/IQ) contract does not apply where the protester's challenge, although triggered by the issuance of a task order, in essence, raises the question of whether the solicitation for the underlying ID/IQ contract properly could be used to procure services which, the protester argues, must be set aside for small businesses.
2. Despite the requirement that protests alleging improprieties in a solicitation must be filed before the time set for receipt of proposals in response to the solicitation, 4 C.F.R. § 21.2(a)(1) (2000), a protester's challenge to a solicitation is timely, even though filed after the closing time, where numerous representatives of the federal government--including representatives of the General Services Administration, the Department of Defense, and the Department of the Air Force--led potential small business offerors to conclude that the contract resulting from the solicitation would not be used to procure certain travel services which, the protester argues, must be set aside for small businesses.
3. Protester's contention that the use of a government-wide unrestricted ID/IQ contract to procure travel management services at Travis Air Force Base, California, violates the requirement in Federal Acquisition Regulation (FAR) § 19.502-2 to set aside procurements for small businesses where there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns is sustained where the record shows that there is a significant pool of small business offerors who have responded to a recent solicitation for precisely these services, and where there is no evidence in the record of any reason why the agency could not set aside the procurement.
York Building Services, Inc.; Olympus Building Services, Inc.--Costs, B-282887.10; B-282887.11, August 29, 2000.
DIGEST: General Accounting Office (GAO) recommends that protesters be reimbursed the reasonable costs of filing and pursuing their protests challenging the Navy's evaluation and selection process where the contracting agency unduly delayed taking corrective action in response to the protests, which were clearly meritorious; Navy took corrective action only after GAO conducted "outcome prediction" alternative dispute resolution based on various improprieties readily apparent in the evaluation documents.
[Note: Decision also states that agency's verbal notice to parties that it would take corrective action did not toll GAO protest time limits.]
Draeger Safety, Inc., B-285366; B-285366.2, August 23, 2000.
DIGEST: 1. Where an agency requests competition among Federal Supply Schedule vendors and decides to shift to the vendors the burden of selecting items on which to quote, the vendors must be given sufficient detail to allow them to compete intelligently and fairly.
2. Agency reasonably declined to establish blanket purchase agreement for self-contained breathing apparatuses with a Federal Supply Schedule vendor whose offered products either did not meet the agency's stowage size requirements or were otherwise unacceptable.
Reece Contracting, Inc., B-285666, August 21, 2000.
DIGEST: Award based on bid that may have included unbalanced pricing is unobjectionable where agency's comparison of bids along with analysis of awardee's contract line item prices provided an appropriate basis for determination that the prices were reasonable and did not present an unacceptable level of risk to the government. [Note: Case discusses FAR Part 15 rewrite's new standards for unbalanced offers.]
Olympus Building Services, Inc., B-285351; B-285351.2, August 17, 2000
DIGEST: Agency's proposal evaluation and resulting competitive range determination were unreasonable where offerors' experience, staffing and authority standards, and management approach/resources were evaluated by the mechanical and otherwise unsupported application of undisclosed source selection plan standards, which resulted in an irrational evaluation outcome.
TRS Research, B-285514, August 7, 2000.
DIGEST: Agency reasonably determined that protester's refurbished foreign-made cargo containers were not domestic products eligible for an evaluation preference pursuant to the Buy American Act where the steps the protester takes to refurbish the imported containers in the United States do not constitute "manufacturing" within the meaning of the Act.
SMS Systems Maintenance Services, Inc., B-284550.2, August 4, 2000.
DIGEST:Protester's quote of services, some of which were not contained in its Federal Supply Schedule (FSS) contract, could not be selected for award in an acquisition conducted under the FSS program, where the total price of the services not included in its FSS contract, considering both the base and option periods, exceeded the micro-purchase threshold.
Aliron International, Inc., B-285048.2, August 3, 2000.
DIGEST: Protest challenging proposal's exclusion from competitive range is denied where range was properly limited to the most highly rated proposals, and protester has not challenged the evaluation or rating of proposals.
Note: GAO reasonably finds that, not withstanding somewhat contrary language in the soliciation, that if an oral presentation is to be evaluated a competitive range may not be established prior to the oral presentation.
Virginia Electric and Power Company; Baltimore Gas & Electric, B-285209; B-285209.2, August 2, 2000.
DIGEST: 1. Protest that solicitation for privatization of utilities at military installations is defective for failure to acknowledge a requirement for state and local approval before selected contractor can commence performing natural gas and electric distribution services at the installations is denied, where 10 U.S.C. § 2688(b) requires that if more than one utility or entity expresses an interest in a conveyance, the conveyance shall be carried out using competitive procedures; section 2688 does not authorize restricting competition by requiring state and local approval (which would effectively eliminate all but one source for each utility), and while agencies may impose restrictions necessary to meet their needs, they may not, unless authorized by statute, impose restrictions not based on their needs.
2. Protest against requirement, in solicitation for privatization of 13 utility systems (including electric, natural gas, water, and wastewater) at five military installations, that offerors propose on all utility systems at an installation (with no more than one, consolidated contract to be awarded for each installation) is denied, where agency not only anticipated realizing significant savings from consolidation, but also determined that there was a significant risk that permitting offerors to propose on the basis of 13 individual utility systems would result in not receiving an acceptable offer for some or all of the water and wastewater systems; where an agency reasonably does not anticipate that it will receive competition for all of its requirements if it solicits separately for them, it properly may combine them in a single procurement.
Meridian Management Corporation, B-285127, July 19, 2000.
DIGEST: 1. Agency may not exclude a technically acceptable proposal from the competitive range without taking into account that proposal's price.
2. Solicitation for operations and maintenance services at two federal buildings and two parking facilities did not put offerors on notice that they would be required to perform specialized operations and maintenance services in laboratories housed in those buildings, given that solicitation did not in any way refer to the specialized services and offerors were not given the opportunity to visually inspect the laboratories themselves to determine whether equipment requiring specialized service was present.
Biospherics, Inc., B-285065, July 13, 2000.
DIGEST: Protest that contracting agency conducted inadequate and prejudicially unequal discussions as between the two offerors in the competitive range is denied where the record shows that, with respect to the item at issue in the protest, the two proposals did not contain comparable deficiencies requiring comparable discussions, and the agency provided offerors an equal opportunity to revise their proposals while properly tailoring their discussions to each offer.
Beneco Enterprises, Inc., B-283512.3, July 10, 2000
DIGEST: Agency's determination that the awardee's past performance, based on the experience of one of the awardee's proposed key personnel, was equal to the extensive, successful past performance of the protester, was unreasonable and inconsistent with the solicitation's evaluation scheme.
D.B.I. Waste Systems, Inc., B-285049, July 10, 2000.
DIGEST: Agency improperly rejected as nonresponsive a low bid that acknowledged all amendments to an invitation for bids (IFB) for refuse removal services and used amended bid schedule but provided a combined flat-rate entry for hauling and disposal charges, rather than separate line item prices as called for by the amended bid schedule, where the bid commits the contractor to perform in accordance with the precise IFB requirements at an evaluated total price that is low under all plausible circumstances.
Johnson Controls World Services, Inc., B-285144, July 6, 2000.
DIGEST: Protest challenging terms of solicitation for base operations and maintenance services is denied where the protest grounds are factually unsupported or the protester has failed to establish that the challenged provisions prejudice the firm.
[Note-Prejudice is paramount! GAO states that "...even where the record establishes a procurement deficiency, we will sustain a protest on this basis only where it resulted in competitive prejudice."]
Rice Services, Ltd., B-284997, June 29, 2000.
DIGEST: Protest that, in performing a cost comparison pursuant to Office of Management and Budget Circular No. A-76, agency failed to reasonably compare the level and quality of performance to be obtained under the government's Most Efficient Organization/Management Study (MEO) with the level and quality of performance to be obtained under the "best value" private-sector offer is sustained where the agency's comparison recharacterizes previously evaluated strengths in the private-sector proposal as "unnecessary expenses" and "redundancies," uses "assumptions" that staffing levels in the MEO are "adequate" to meet the requirements of the performance work statement, and fails to compare the actual level of effort that will be obtained under each approach.
Oregon Iron Works, Inc., B-284088.2, June 15, 2000.
DIGEST:1. Where agency advised protester of specific evaluated past performance weaknesses, and solicitation amendment stated that subsequent discussions would be limited to issues other than past performance, post-award protest that agency improperly failed to provide protester an opportunity to address agency's past performance concerns during those discussions is not timely filed.
2. Protester's complaints that its proposal should have been evaluated more favorably with regard to various non-price evaluation factors are without merit where they merely reflect protester's disagreements with the agency's evaluation.
3. Agency's consideration of past performance information regarding contract performance completed more than 3 years prior to source selection does not provide a basis to sustain the protest where the contracts were submitted by the protester as part of its proposal, in response to a solicitation requirement that offerors provide up-to-date past performance references and information.
Harris Excavating, B-284820, June 12, 2000.
DIGEST: Protester's bid is responsive, despite a discrepancy in the name of the bidder as identified on the bid and the name of the principal identified in the required bid bond, where reasonably available extrinsic evidence in existence at the time of bid opening establishes that the bidder and principal are the same entity, such that there is no doubt that the surety will be liable under the bond to the government on the bidder's behalf.
Sales Resources Consultants, Inc., B-284943; B-284943.2, June 9, 2000.
DIGEST: 1.In deciding whether to place an order for brand name software under a Federal Supply Schedule (FSS) contract, agency is not required to first consider the unsolicited offer of an alternate software product from a vendor that does not have an FSS contract.
2. A protester that does not have a Federal Supply Schedule (FSS) contract is not an interested party to challenge an agency's determination as to its minimum needs and its decision to conduct a limited competition among FSS vendors for a particular brand name software.
American Federation of Government Employees, AFL-CIO; American, B-282904.2, June 7, 2000.
DIGEST:Federal employees and the unions representing them, who assert that they will be adversely affected by an agency's decision made pursuant to Office of Management and Budget Circular No. A-76 to contract for work rather than perform it in-house, are not actual or prospective bidders or offerors, and thus are not interested parties eligible to maintain a protest at the General Accounting Office.
J&J Maintenance, Inc., B-284708.2; B-284708.3, June 5, 2000.
DIGEST:Protest of source selection decision is sustained where the record does not establish the reasonableness of the evaluation or the cost/technical tradeoff underlying the source selection.
[Note: GAO concludes "... that the Army failed to maintain an adequate record of the oral presentations, as required by FAR § 15.102(e), or adequate documentation of the relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation, as required by FAR § 15.305(a). In addition, there is no meaningful evaluation record that supports, explains and reconciles the individual evaluator scores and comments."]
Crescent Helicopters, B-284706; B-284707; B-284734; B-284735, May 30, 2000.
DIGEST: 1. Agency properly determined, based on market research, that helicopter services could be acquired under Federal Acquisition Regulation part 12 commercial item procedures because the services solicited are the type of services offered and sold competitively by the aviation industry in substantial quantities to commercial entities; none of the requirements pertaining to pilot and mechanic qualifications and invoicing, which were included in the solicitations, transformed the type of services sought here to something other than a commercial item.
2. Protest that agency improperly included in commercial item solicitation for helicopter services pilot and mechanic qualification requirements that were inconsistent with commercial practice is denied where the record showed that commercial contracts had similar requirements, and for those requirements that were not in commercial contracts, the agency properly issued waiver in accordance with Federal Acquisition Regulation § 12.302(c).
Computer Products, Inc., B-284702, May 24, 2000.
DIGEST: In a competitive procurement under the Federal Supply Schedule program in which the solicitation announced that award would be made on a best value basis and that technical factors were more important than price, the agency improperly selected the awardee to receive the order based upon the awardee's technically acceptable, lowest-priced quote.
Department of the Navy--Modification of Remedy, B-284080.3, May 24, 2000.
DIGEST: Agency request that General Accounting Office modify a prior sustained decision by deleting recommendation that the protester be reimbursed the cost of pursuing its protest, including reasonable attorneys' fees, because the agency acted in good faith reliance upon information given it by another agency is denied, as recommendation for reimbursement of protest costs bears no relationship to whether agency acted in good faith, and is not intended to penalize the agency, but instead exists to relieve protesters of the financial burden of vindicating the public interests which Congress was seeking to promote when it passed the Competition in Contracting Act of 1984.
Lloyd H. Kessler, Inc., B-284693, May 24, 2000.
DIGEST: Agency is required to disclose in the solicitation a subfactor to evaluate a particular type of experience under the experience factor where the subfactor constitutes 40 percent of the technical evaluation.
Marketing & Management Information, Inc., B-283399.4, May 18, 2000
DIGEST: Protest that requirement should have been set aside for exclusive small business participation is denied where the contracting officer conducted market research, in response to prior General Accounting Office recommendation for additional investigation of small business capability and interest, which supports reasonableness of his conclusion that the agency could not expect to receive proposals from at least two responsible small business concerns capable of performing the solicitation requirements at a fair market price.
RGB Display Corporation, B-284699, May 17, 2000.
DIGEST: General Accounting Office will not consider protest of an award of a subcontract as "by" the government where the item being procured is a component of the end item to be delivered under a supply contract and is being incorporated into the end item pursuant to a legitimate change order that is necessary to ensure that a compliant end item will be delivered.
WinStar Federal Services, B-284617; B-284617.2; B-284617.3, May 17, 2000.
DIGEST:1. Proposal for telecommunication services at prices below those in existing tariffs was not improper where solicitation provided that awardee was required to file necessary revisions to existing tariffs within a specified period of time after award, and awardee's final proposal committed to submit all required tariff filings.
2. In fixed-price contract to provide telecommunication services in the National Capital Region where solicitation stated that agency would perform price analysis to ensure that prices were fair, reasonable and realistic, agency's price analysis was reasonable where it considered the overall balance of proposed prices, the recent downward price trends in the telecommunications industry, and the prices recently obtained under similar contracts.
3. Discussions were adequate where agency led protester into the areas of its price proposal that warranted amplification or clarification; agency was not obligated to afford protester all-encompassing discussions regarding each item of its proposal that could be improved.
4. Where agency reasonably determined, based on a comprehensive review of protester's and awardee's evaluated strengths and weaknesses, that, notwithstanding protester's slightly higher rating, the proposals were essentially equal, agency properly considered evaluated price as the basis for making its best value determination.
Delta International, Inc., B-284364.2, May 11, 2000.
DIGEST: 1. When an agency, in making a purchase under the Federal Supply Schedule (FSS), decides not to consider some items because the agency concludes that those items do not meet its needs, the vendor whose items are excluded from consideration may protest the exclusion, and GAO will determine whether the agency had a reasonable basis for determining that the excluded items did not meet its needs.
2. In purchase of portable X-ray systems under the FSS, protest challenging agency's conclusion that only a fully digital system would meet the agency's needs is sustained where record fails to show that agency had a reasonable basis for its conclusion that protester's system, which protester asserts uses a hybrid analog/digital signal, would not meet the agency's needs.
Dual Inc.--Costs, B-280719.3, April 28, 2000.
DIGEST: General Accounting Office will not consider a claim for the costs of filing and pursuing a protest where the claim was filed with the contracting agency more than 60 days after protester's counsel received a protected copy of the protest decision under a protective order.
Maritime Berthing, Inc., B-284123.3, April 27, 2000.
DIGEST: On a solicitation for ship layberth services to be awarded to the offeror submitting the low-priced, technically acceptable proposal, the agency's determination that the awardee's proposal met a requirement limiting allowable ship motions to 7 feet was unreasonable, even though the proposal on its face provided evidence that it did meet that requirement, where prior to completing the evaluation the agency's evaluators were apprised of significant countervailing evidence that should have given them reason to doubt whether the proposal complied with that requirement, that is, a report from the agency's on-site representative that the awardee's facility did not meet this requirement on an on-going contract, and where the record now demonstrates that the proposal contained insufficient information to determine compliance.
Louisiana Clearwater, Inc.--Reconsideration and Costs, B-283081.4; B-283081.5, April 14, 2000.
DIGEST: Reimbursement of protest costs relating to protest of original evaluation and to protest of subsequent reevaluation, undertaken after prior protest of original evaluation led to corrective action, is recommended where agency's implementation of initial corrective action failed to address a meritorious issue clearly raised in the original protest, such that protester was put to the expense of protesting a second time on the same ground.
Boines Construction & Equipment Co., Inc. --Costs, B-279575.4, April 5, 2000.
DIGEST: 1. General Accounting Office (GAO) does not recommend reimbursement of bid preparation costs incurred by protester's subcontractor where protester fails to establish that it has paid or has committed to pay the subcontractor's costs.
2. Where protester fails to demonstrate that hourly rates claimed for its employees are based upon actual rates of compensation plus overhead and fringe benefits, its claim for reimbursement of the time spent by its employees in preparing its bid is denied.
3. GAO recommends reimbursement of protester's legal expenses associated with pursuit of its protest where it demonstrates that it is ultimately responsible for payment of the attorneys' fees.
Trajen, Inc., B-284310; B-284310.2, March 28, 2000.
Digest: Protest of agency appeal authority's cost comparison decision made pursuant to Office of Management and Budget Circular No. A-76 is sustained where the appeal authority lacked a reasonable basis for reversing the initial cost comparison conclusion that contractor performance was more economical than in-house performance.
AJT & Associates, Inc., B-284305; B-284305.2, March 27, 2000.
DIGEST: 1. Agency's consideration of the resources and experience of large business subcontractor, in a solicitation restricting competition to socially and economically disadvantaged small business concerns in accordance with section 8(a) of the Small Business Act, as amended, 15 U.S.C. § 637(a) (1994), was reasonable and consistent with the terms of the solicitation.
2. Solicitation provisions requiring contractor to furnish, among other personnel, a project manager qualified to sit for professional engineer examination do not constitute definitive responsibility criteria--since they neither set out specific, objective standards for determining an offeror's capability to perform or require offerors to demonstrate compliance prior to award--but are performance obligations, compliance with which is a matter of contract administration.
3. Agency did not mislead high-priced offeror during discussions by advising it only of Defense Contract Audit Agency (DCAA) opinion that the offeror's overhead rate was understated; the agency advised offeror of its concerns based on DCAA opinion, and there was no obligation to advise the protester that its cost/price was higher than that of other offerors, where the agency determined that the cost/price was reasonable for the approach taken.
Future-Tec Management Systems, Inc.; Computer & Hi-Tech, B-283793.5; B-283793.6, March 20, 2000.
DIGEST: 1. Agency's evaluation of technical proposals and the subsequent award decision cannot be found reasonable where the evaluation record includes only minimal information and conclusory statements and the agency fails to provide documentation or other explanations that reasonably support the overall assessments of the two protesters' and the awardee's proposals.
2. Agency's adjustment of proposed costs is not reasonable where it is essentially based on agency's misunderstanding of the proposal.
CRAssociates, Inc., B-282075.2; B-282075.3, March 15, 2000.
DIGEST: Source selection decision is not reasonable where it is based on a misevaluation of the protester's and awardee's proposals in numerous areas, and the agency failed to conduct meaningful discussions with the protester.
ATA Defense Industries, Inc.--Costs, B-282511.6, March 14, 2000.
DIGEST: Request for recommendation that protest costs be reimbursed is denied where agency decides to take corrective action in response to protest, but the issue on which the corrective action was based was a "close question," and cannot be viewed as clearly meritorious.
The Futures Group International, B-281274.5; B-281274.6; B-281274.7, March 10, 2000.
DIGEST:1. In response to a decision sustaining a protest and finding that the agency had failed to conduct a reasonable cost realism analysis of the awardee's proposed costs, the agency's corrective action--determining that the awardee's probable costs were the lowest and confirming award to that firm--was unreasonable, where the agency was advised by the Defense Contract Audit Agency that the awardee's proposed uncapped indirect rates were understated by an amount that would have affected the outcome of the competition and there was an apparent change in the magnitude of the contract work from that envisioned by the awardee's proposal.
2. Agency unreasonably discounted Defense Contract Audit Agency audit finding, based on the awardee's actual contract performance, that the awardee's proposed uncapped indirect rates were considerably understated for the first 2 years of the 5-year contract and found that the awardee's proposed rates should be judged only on the basis of the awardee's knowledge when it submitted its proposal; a cost realism analysis, even on reevaluation, should consider all information reasonably available as of the time of the evaluation.
Ocuto Blacktop & Paving Company, Inc., B-284165, March 1, 2000
DIGEST 1. The statutory limitation on General Accounting Office bid protest jurisdiction over challenges to the award of a task order under an indefinite-delivery/indefinite-quantity (ID/IQ) contract does not apply where the protester's challenge, in essence, raises the question of whether the solicitation for the underlying ID/IQ contract properly included environmental remediation work at closing military installations in light of a statutory requirement to provide a preference for such work to businesses located in the vicinity of those installations.
2. Despite the requirement that protests alleging improprieties in a solicitation must be filed before the time set for receipt of proposals in response to the solicitation, 4 C.F.R. § 21.2(a)(1) (1999), a protester's challenge to a solicitation is timely where the solicitation did not give sufficient notice to potential offerors that environmental remediation projects for military installations which were closed or realigned as part of the base realignment and closure process were included within the reach of the solicitation, and where the protester filed its challenge within 10 days of learning of the agency's interpretation of its solicitation.
3. Protester's contention that the use of preplaced regional ID/IQ contracts for environmental remediation at closed or realigned military installations violates a statutory requirement to provide a preference, to the greatest extent practicable, for such work to businesses located in the vicinity of such installations is sustained where the record does not show that the agency gave reasonable consideration to the practicability of the statutory preference before awarding such contracts.
Columbia Research Corporation, B-284157, February 28, 2000.
DIGEST: Protest that agency improperly eliminated protester's proposal from competitive range is sustained where record shows that protester's proposal was broadly comparable to the competitive range proposals from a technical standpoint, and agency improperly failed to consider protester's cost advantage in making its competitive range determination.
NV Services, B-284119.2, February 25, 2000.
DIGEST:1. Agency's cost realism analysis erred in calculating the probable cost of the awardee's proposal because the proposal did not account for the provision of safety equipment, employee training, and phase-out costs, all of which were required by the solicitation for a cost-plus-award-fee services contract; however, the protester was not prejudiced by this misevaluation because the awardee's evaluated probable costs were still substantially less than, and its proposal was technically superior to, the protester's proposal.
2. Protest that the agency should have downgraded the awardee's technical proposal for failing to identify specific personnel available for contract performance is denied, where the solicitation, as amended, did not require such a staffing plan.
3. Challenge to the agency's evaluation of the protester's and awardee's past performance is denied, where the agency based its judgment upon information in the offerors' proposals and received from references identified by the offerors, and the protester does not demonstrate that the agency's judgment was unreasonable.
4. Agency is not required to conduct discussions with the offerors where the solicitation advised that the agency intended to make award on the basis of initial proposals without conducting discussions and the record was adequate to allow the agency to make its best value determination.
5. Where an agency's requirements change after the issuance of a solicitation, the agency must issue an amendment to notify offerors of the changed requirements; although the agency may not properly award a contract with the pre-award intent to materially modify the scope of work, we will not sustain a protest on this basis absent prejudice to the protester.
Aberdeen Technical Services, B-283727.2, February 22, 2000.
DIGEST: 1. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 is sustained, where in-house estimate failed to include the full costs for a program manager and other key personnel positions required by the solicitation.
2. Protest that agency improperly disallowed a price reduction offered by the protester in its final proposal revision is sustained where the solicitation contemplated the award of a fixed-price contract, and any risks associated with performance thus will be borne by the contractor, not the government.
3. Allegation that in performing a cost comparison pursuant to Office of Management and Budget Circular No. A-76, agency improperly failed to follow the requirements for comparing a "best value" private-sector offer with the government's Most Efficient Organization/Management Study (MEO) is sustained, where the record shows that agency failed to determine whether the MEO offered the same level of performance or performance quality as the "best value" private-sector offer.
A. G. Cullen Construction, Inc., B-284049.2, February 22, 2000
DIGEST 1. Where request for proposals provided for award to offeror whose combination of past performance and price represented best value to government, with past performance of significantly more importance than price, agency reasonably selected for award higher-priced offeror with better past performance rating.
2. Where award is to be made without discussions, contracting officer must give an offeror an opportunity to clarify adverse past performance information to which the offeror has not previously had an opportunity to respond only where there clearly is a reason to question the validity of the past performance information; in the absence of a clear basis to question the past performance information, contracting officer has discretion, short of acting in bad faith, not to ask for clarifications.
G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000.
DIGEST: Where request for quotations did not contain a provision advising that quotations must be submitted by a certain date to be considered, the contracting agency should have considered the protester's low quotation received prior to award since no substantial activity had transpired toward award and other offerors would not have been prejudiced.
[Note: Case also recognizes that an amendment to a CBD synopsis does not serve to amend a solicitation.]
AIU North America, Inc., B-283743.2, February 16, 2000.
DIGEST: 1. Technical evaluation was not consistent with stated evaluation factors where final assessment of technical equality unreasonably excluded from consideration a potentially significant aspect of protester's proposal that fell within the scope of the stated evaluation factors.
2. Agency failed to comply with solicitation requirement that offerors' available corporate resources would be considered as an evaluation factor where corporate entity submitting the successful proposal was acquired by another corporation after final proposals were submitted and before the source selection determination was made, and the source selection authority knew of the acquisition but did not request or obtain any documentation pertaining to the corporate resources of the acquiring corporation.
SWR, Inc., B-284075; B-284075.2, February 16, 2000.
DIGEST: Protest is sustained where the contracting agency awarded contract on the basis of a proposal that did not conform to several material solicitation requirements.
Department of Commerce--Request for Modification of, B-283137.7, February 14, 2000
DIGEST : Solicitation's evaluation scheme may not be materially changed after receipt of proposals without providing offerors an opportunity to submit revised proposals based on the revised scheme.
DRS Precision Echo, Inc., B-284080; B-284080.2, February 14, 2000. Digest: Protest that agency purchase order was, in effect, an improper sole-source award is sustained where the record shows that the Federal Supply Schedule contract against which the agency attempted to place its order had expired, and no replacement contract was in place at the time of the order.
Meridian Management Corporation; Johnson Controls, B-281287.10; B-281287.11, February 8, 2000.
DIGEST: 1. Agency evaluation is unreasonable where the stated evaluation scheme contemplates an evaluation of labor qualifications and mix for each contract requirement, the agency did not so evaluate staffing for significant contract requirements, and the record shows that the awardee did not propose adequate staffing for those requirements.
2. Agency improperly relaxed the solicitation's minimum qualification requirement that key personnel have experience in the operation and maintenance of a comparable government functional activity of the same or similar scope where many of the awardee's key personnel lack governmental experience.
LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000.
DIGEST: 1. Application for admission of protester's counsel to a General Accounting Office (GAO) protective order is granted where, based on a review of the record, GAO concludes that protester's counsel is not involved in competitive decision-making, and their admission does not otherwise pose an unacceptable risk of inadvertent disclosure of protected material.
2. Protest that the contracting agency improperly selected awardee despite an alleged organizational conflict of interest is denied where the record does not support this allegation.
John C. Grimberg Company, B-284013, February 2, 2000
DIGEST: The determination of the low bid submitted in response to an invitation for bids for a construction base item with various additive items must be based on the items encompassing the actual work to be awarded and may not consider additive items that are not awarded.
AudioCARE Systems, B-283985, January 31, 2000. DIGEST Protest that agency did not provide protester a fair opportunity to compete under simplified acquisition for automated patient appointment reminder system is denied where, although the agency considered an inappropriate price comparison, the record shows that the agency evaluated all information received from the vendors and, with full understanding of the actual pricing, reasonably determined that the selected system represented the best value to the government.
Note: GAO rejected agency's argument that a protest was precluded by 10 U.S.C. § 2304c(d) (1994), which provides that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract which the order is issued." The GAO stated "However, here the agency was not simply selecting an indefinite-delivery, indefinite-quantity (ID/IQ) contractor or BPA holder for issuance of a delivery order; instead, it conducted a competition between a vendor that was on the DPSC DBPA and one that was not. Where a competition is held between an ID/IQ contractor (or BPA holder) and another vendor, we do not believe the statutory bar on protests applies.
ViON Corporation, B-283804.2, January 24, 2000.
DIGEST 1. Protest that agency improperly issued federal supply schedule delivery order to other than the lowest overall cost alternative vendor is denied where record shows that, in fact, award was made to the low-cost vendor; protester's assertions regarding evaluation of quoted prices are simply incorrect.
2. Agency's obtaining information from one vendor concerning purchase from Federal Supply Schedule without seeking similar information from other vendors was unobjectionable; such information-gathering efforts need not be equal among vendors.
Saco Defense Corporation, B-283885, January 20, 2000. DIGEST: Evaluation was inconsistent with solicitation's evaluation scheme where, although solicitation provided that proposals would be evaluated for quality, including effectiveness of the total quality system and how well quality processes are controlled, agency evaluated awardee's proposal as equal to protester's (which included adequate information) under quality factor, notwithstanding that awardee's proposal provided little more information than the quality standard used.
National Projects, Inc., B-283887, January 19, 2000. DIGEST: 1. Determination to cancel invitation for bids after bid opening is unobjectionable where all bids exceeded the funding allocated for the project, irrespective of any dispute concerning the validity of the government estimate or the reasonableness of the price of the low responsive bid.
2. Protest that agency conducted flawed discussions by not informing the protester that its prices were too high is denied where the agency was not required to do so and the record shows that the agency's conduct of discussions was consistent with the regulatory requirement for discussions.
NOTE: FAR 15 Rewrite. "Those revised rules, at § 15.306(e)(3), provide that 'the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion.'
This language clearly gives the contracting officer the discretion to inform the offeror that its price is too high, but does not require that the contracting officer do so."
Kathpal Technologies, Inc.; Computer & Hi-Tech Management, Inc., B-283137.3; B-283137.4; B-283137.5; B-283137.6, December 30, 1999
DIGEST 1. Under a solicitation for the award of multiple indefinite-delivery, indefinite-quantity, government-wide acquisition contracts for information technology services and products, the procuring agency improperly excluded the protesters' technically acceptable offers from consideration for award based upon the ratings of a single technical subfactor without considering price or evaluating the complete proposals under all of the solicitation factors.
2. In not allowing technically acceptable offerors to make oral presentations as part of their technical proposals, agency acted inconsistently with the solicitation provision that all offerors would be afforded the opportunity to make oral presentations.
Industrial Builders, Inc., B-283749, December 29, 1999.
Digest Under invitation for bids (IFB) for construction of water control structure, agency reasonably rejected bid as unbalanced where bidder failed to allocate the cost of a cofferdam (a dewatering measure) among related work items requiring dewatering measures, as provided in the IFB, and instead included the cost of a cofferdam in its lump-sum line item price for a relatively minor work requirement for clearing, grubbing, and snagging of debris on the site, rendering the bidder's price for that line item many multiples higher than the government's estimate for the item and the other bids received; rejection of the bid was proper based upon agency's reasonable determination that the unbalancing posed an unacceptable risk that the government would make a substantial payment to the bidder upon completion of the required clearing, grubbing, and snagging work, without any assurance that the bidder would have constructed the cofferdam which was included in its price for that line item.[Note: GAO upholds an agency level protest decision which had found bid unbalanced.]
SBC Federal Systems, B-283693; B-283693.2, December 27, 1999.
DIGEST Although contracting agency may have improperly performed a price/technical tradeoff between proposals in violation of the solicitation's evaluation scheme, the protester was not prejudiced by the improper tradeoff decision where the record shows that agency reasonably concluded that protester's proposal was technically unacceptable.
Parmatic Filter Corporation, B-283645; B-283645.2, December 20, 1999.
DIGEST Contracting officer reasonably determined that modification of ongoing contract was necessary to meet urgent requirements for a limited number of filters to protect against nuclear, biological and chemical threats, where the other potential source-- which would have to pass first article testing requirements and establish a production line under severe time constraints--had recently experienced multiple testing failures in attempting to produce similar filters.
BioGenesis Pacific, Inc., B-283738, December 14, 1999.
DIGEST In evaluating the protester's experience and past performance, an agency was not required to impute to the protester the totality of its proposed mentor's experience and past performance, where the mentor was not proposed to play a major role in the performance of the contract.
Simborg Development, Inc., B-283538, December 7, 1999
DIGEST Protest that source selection decision was unreasonable on the basis that there was inadequate information in the record to support the agency's rationale for the decision is denied where, notwithstanding the lack of contemporaneous documentation supporting the source selection itself, contracting officer furnished a post-protest narrative explanation of the rationale for her decision, which was consistent with contemporaneous evaluation documentation and otherwise credible.
Beneco Enterprises, Inc., B-283512, December 3, 1999
DIGEST: Agency unreasonably evaluated proposals under past performance evaluation factor where the solicitation contemplated a qualitative assessment of the quality of performance of contracts relative to the size and complexity of the job order contract (JOC) for construction services being procured, and the agency gave the highest possible rating to an offeror with no JOC prime contractor experience and whose experience was in performing relatively small dollar construction contracts, and a lower rating to an offeror with extensive, successful performance of JOCs similar to JOC under consideration.
Marketing & Management Information, Inc., B-283399.2; B-283399.3, November 30, 1999.
DIGEST Protest challenging agency decision not to set aside procurement for small business concerns is sustained where decision was based on insufficient efforts to ascertain small business capability to perform the contract
Kemper Construction Company, Inc., B-283286.2, November 29, 1999
Digest Where bidder submitted a bid bond accompanied by a faxed copy of a power of attorney, and the bid documents did not establishthat the surety would be bound by such a power of attorney, the bond was unacceptable and the bid nonresponsive.
[Ed: But see finding by GAO that a "facsimile copy" is not a fax.]
OneSource Energy Services, Inc., B-283445, November 19, 1999.
DIGEST: 1. Evaluation of protester's past performance is unreasonable where it is based upon inaccurate information and improperly considered the protester's legitimate exercise of rights under its contract to be evidence of negative past performance.
2. Agency unreasonably evaluated the protester's staffing as unacceptable based upon mechanical reliance on an undisclosed government minimum staffing estimate where the protester proposed [DELETED] fewer than the agency's estimate and supplemented this staffing level with [DELETED] positions, and where there is no evidence that the agency considered the protester's technical approach.
Letter to OGE Regarding Conflicts of Interest in A-76 Cost Comparisons, File: B-281224.8, Date: November 19, 1999. The GAO responds to the Office of Government Ethics (OGE) Memorandum No. DO-99-035, dated September 9. That memorandum addressed GAO's bid protest decision in DZS/Baker LLC; Morrison Knudsen Corp., B-281224 et al., Jan. 12, 1999, 99-1 CPD ¶ 19, wherein the GAO held "where 14 of 16 agency evaluators held positions under the study and thus subject to being contracted out, a conflict of interest that could not be mitigated was created, and protests challenging the evaluators' conclusion that all private-sector offers were unacceptable are therefore sustained."
Corel Corporation, B-283862, November 18, 1999.
DIGEST Statutory restriction set forth at 41 U.S.C. § 253j(d) (1994) precludes the review by General Accounting Office of a bid protest challenging the propriety of a delivery order issued under an indefinite-delivery, indefinite-quantity contract, regardless of the propriety of the issuing agency's underlying determination or conduct. [According to a December 17, 1999 Wall Street Journal article, Corel has filed suit in the Federal District Court for DC challenging this action.]
ITT Federal Services International Corporation, B-283307; B-283307.2, November 3, 1999
Digest Protest challenging the validity of a source selection decision where the selection official chose the awardee's technically equal, higher cost proposal based on his conclusion that the protester's lower proposed costs were not reliable (in the SSA's view, they either would increase over time or would reflect reduction in quality of services provided), is sustained where
(1) the selection decision is not adequately documented under the revised Part 15 Federal Acquisition Regulation requirements that documentation of tradeoff decisions include the benefits associated with additional costs;
(2) the decision is improperly based on proposed, rather than evaluated, costs, because the agency did not perform a cost realism analysis of final costs; and
(3) the concerns raised by the selection official about the protester's costs were shown during a hearing to be unsupported by the facts in the record.
Government of Harford County, Maryland, B-283259; B-283259.3, October 28, 1999.
DIGEST 1. General Accounting Office has jurisdiction to consider protest where, notwithstanding the concomitant sale of government property, one of procurement's main objectives was acquisition of potable water and wastewater treatment services to Army for a 10-year period.
2. Protest that agency improperly required a particular technical approach and that neither solicitation nor discussions alerted protester to the evaluation impact of not proposing that approach is denied where protester was aware that solicitation, which stated that this particular technical approach would be the subject of the second most heavily weighted evaluation factor, was silent as to evaluation impact of not adopting the approach, yet protester did not file a timely solicitation challenge; even assuming agency error in this part of evaluation, it did not prejudice protester's chances of receiving award.
3. Protest that awardee's proposal contained material misrepresentations that were relied upon by agency in evaluating proposals is denied where examination of the awardee's proposal reveals no misrepresentations.
S. J. Thomas Co., Inc., B-283192, October 20, 1999
DIGEST Where solicitation anticipates cost/price evaluation only as to offerors' proposed mark-up rates, with no other cost or price information, and comparison of mark-up rates does not necessarily indicate proposals' relative cost to the government, solicitation scheme improperly fails to consider cost to the government.
Premier Engineering & Manufacturing, Inc., B-283028; B-283028.2, September 27, 1999
DIGEST 1. Agency reasonably determined that awardee's offered product was a commercial item, where the awardee proposed a modified version of its standard commercial product and the modifications were of a type customarily offered in the commercial marketplace and were also minor.
2. In a negotiated procurement in which technical capability was evaluated on a pass/fail basis and the solicitation did not request detailed technical proposals, the agency reasonably determined that the awardee's offered product satisfied the solicitation requirements based upon the awardee's promises of compliance and examination of the awardee's bid sample.
Nova Group, Inc., B-282947, September 15, 1999
Digest 1. Agency reasonably evaluated protester's construction management plan as satisfactory, rather than outstanding, on the basis that the plan does not contain sufficient details to satisfy the agency that the plan had a high probability of success, but only contained promises to perform acceptably.
2. Protest is sustained where agency improperly downgraded protester's past performance based merely on protester's history of contract claims, with no allegation that protester abused the claims process.
Cotton & Company, LLP, B-282808, August 30, 1999.
DIGEST Contracting agency did not conduct meaningful discussions with the protester where the agency failed to clearly identify deficiencies in the protester's proposal in either the written or the oral discussions and failed to respond when, in the oral discussions, it became clear that the protester had misunderstood the agency's concerns. (Emphasis added)
Makro Janitorial Services, Inc., B-282690, August 18, 1999.
DIGEST Protest that a task order for housekeeping services improperly exceeds the scope of the original contract for preventive maintenance and inventory, repairs and facility survey activities, that was subsequently modified to include the services covered by the task order, is sustained where the original contract as competed did not reasonably provide for the procurement of the housekeeping services added by the modification, and the modification was therefore outside the scope of the original contract. The use of the task order to obtain these services was improper and the services should be obtained through full and open competition.
Diversified Technology & Services of Virginia, Inc., B-282497, July 19, 1999
DIGEST Protest that sole-source extension of contract is an improper result of poor planning on the agency's part is denied where the record shows that the agency engaged in extensive planning (once it determined that a change in contract type would better serve the government's interests), properly justified its use of sole-source authority, and reasonably limited the sole-source extension to a 3-month period, with additional 1-month options.
Universal Building Maintenance, Inc., B-282456, July 15, 1999.
DIGEST 1. Even under simplified acquisition procedures, award decision is not reasonable where the record does not provide any documentation or explanation which supports the price/technical tradeoff, and the award determination appears to be based entirely on a comparison of total technical point scores without consideration of protester's lower technically scored, but low priced proposal.
2. Agency improperly attributed past performance of parent company or its other subsidiaries to awardee where record does not establish that parent company or subsidiaries will be involved in the performance of the protested contract.
Pyxis Corporation, B-282469; B-282469.2, July 15, 1999
DIGEST 1. Where an untimely issue raised by the protester provides an opportunity to clarify the caselaw concerning the ordering of non-Federal Supply Schedule (FSS) items in connection with an FSS buy, a matter which the General Accounting Office (GAO) views as of widespread interest to the procurement system, GAO will consider this issue pursuant to the significant issue exception to its timeliness rules.
2. An agency may no longer rely on the "incidentals" test to justify the purchase of non-FSS items in connection with an FSS buy; where an agency buys non-FSS items, it must follow applicable acquisition regulations.
3. Agency reasonably issued delivery orders to FSS vendor whose hospital medication and supply dispensing system offered features that satisfied the agency's needs, rather than to the protester, another FSS vendor, whose comparably priced system did not satisfy these needs.
Johnson Controls, Inc., B-282326, June 28, 1999B-282326, June 28, 1999
DIGEST 1. Protest challenging technical evaluation of protester's proposal for energy savings services and the adequacy of the agency's discussions with the protester is denied, where the evaluation was reasonable and the discussions were adequate to lead the protester into those areas of its proposal that were considered deficient.
2. Protest challenging the agency's award decisions is denied where selections were based upon a technical evaluation and price analysis that were both reasonable and consistent with the request for proposals' stated evaluation scheme.
AmClyde Engineered Products Company, Inc., B-282271; B-282271.2, June 21, 1999
DIGEST 1. Agency reasonably evaluated the protester's proposal as acceptable, rather than outstanding, under the capability/relevant past performance subfactor, where the protester's proposal demonstrated extensive relevant experience but the agency received negative past performance information.
2. Protester is not an interested party to protest the evaluation of the awardee's proposal where the protester's proposal was properly rated and there is an offeror whose proposal is higher rated and lower priced than the protester's, because the protester would not be in line for award even if its protest were sustained.
3. Agency did not misuse the pre-award survey process in ascertaining that the awardee's proposal may not comply with a material term of the contract and subsequently conducting discussions to resolve this problem with all competitive range offerors, including the protester.
4. Agency's clarification of the awardee's technically acceptable subcontracting plan after source selection and prior to contract award did not constitute discussions, since the ultimate approval of a subcontracting plan involves a question of responsibility.
5. Agency's best value decision properly did not consider certain factors not contemplated by the solicitation's stated evaluation scheme.
Johnson Controls World Services, Inc.; Meridian Management, B-281287.5; B-281287.6; B-281287.7, June 21, 1999.
DIGEST:Agency's evaluation of technical proposals was unreasonable under the best value evaluation plan stated in the solicitation where it failed to evaluate differences in technical merit of proposals beyond minimum requirements.
Advanced Data Concepts, Inc., B-280967.8; B-280967.9, June 14, 1999.
DIGEST 1. Protest of agency's evaluation of credentials of key management and technical personnel is denied where evaluation was consistent with solicitation's stated evaluation scheme and statement of work, discussion questions addressed this issue, and evaluation is supported by the record.
2. Contention that agency unreasonably evaluated proposals and improperly concluded that the awardee's higher-rated, higher-cost proposal offered the best value to the government is denied, where the record shows that evaluation was reasonable and consistent with the stated evaluation scheme; the request for proposals stated that technical/management and past performance evaluation areas were more important than price; and source selection official reasonably determined that the greater technical merit of the awardee's proposal was worth the additional cost.
North State Resources, Inc., B-282140, June 7, 1999.
DIGEST 1. Protest against price evaluation which was limited to evaluation of an undisclosed hypothetical task order based on line item prices furnished by offerors, without agency obtaining technical input from the offerors, is untimely where price evaluation methodology was clear on face of solicitation, and protester did not file its protest prior to closing time for receipt of initial proposals.
2. Failure of individual evaluators to comment upon proposals under each evaluation factor in evaluation worksheets does not render evaluation flawed--there is no general requirement for such all-inclusive comments--particularly where consensus evaluation sheet contained references to proposal advantages and disadvantages, as well as consensus scores.
3. Where solicitation contemplated award of service contract to a firm qualifying under section 8(a) of the Small Business Act, and included the provision at Federal Acquisition Regulation § 52.219-14 concerning limitation on subcontracting, agency properly limited its consideration to the offeror's experience as prime contractor.
Wellco Enterprises, Inc., B-282150, June 4, 1999.
DIGEST 1. Agency reasonably rejected the protester's proposal as technically unacceptable where the protester took exception in its proposal to material specification requirements in the solicitation.
2. There is no basis to object to agency decision not to communicate with offeror regarding whether it intended to comply with material specification requirements contained in solicitation's purchase description, since any such communication would have constituted discussions, not clarifications, and the solicitation clearly notified offerors of the agency's intention to make award without discussions.
ACS Government Solutions Group, Inc., B-282098; B-282098.2; B-282098.3, June 2, 1999. Competitive offers for a task order under FSS contracts.
DIGEST 1. Protest that agency improperly failed to evaluate offers consistent with instructions to offerors in solicitation for comprehensive loan servicing services is sustained where offerors were prohibited from proposing a solution that assumed that the agency would permit an electronic interface between the agency's and the successful offeror's data systems, and the record shows that the awardee's technical approach and price relied significantly on the existence of such an interface for performing the requirement.
2. Allegation that agency improperly evaluated the awardee's proposal under the prior experience evaluation factor is sustained where the solicitation contemplated the evaluation of corporate and key personnel experience separately, and the record contains no basis upon which the agency could reasonably have determined that the awardee's demonstrated corporate performance was, in accordance with the terms of the solicitation, the "same" as or "similar" to the solicitation requirements.
3. Allegation that discussions with protester were not meaningful is sustained where the record shows that the evaluators were concerned over the protester's pricing methodology and the source selection official shared that concern, but the protester was not afforded an opportunity during discussions to explain its pricing strategy.
Intellectual Properties, Inc., 280803.2, May 10, 1999. DIGEST: Agency's determination not to award the protester phase II funding for a project proposed under the Department of Defense Small Business Innovation Research program on the basis that the proposal is not innovative and lacks technical merit was not reasonably justified where the contemporaneous documentation references only the negative comments of the evaluators, and neither the contemporaneous documentation nor the arguments, explanations, and testimony in the record adequately explain the basis for the determination in light of the numerous positive comments made by the evaluators about the proposal's innovativeness and technical merit.
National Aerospace Group, Inc., B- 281958; B-281959, May 10, 1999. DIGEST: Placement of an order at a significant price premium for the sole reason that the vendor quoting a lower price has no prior performance history in supplying the item being procured was unreasonable, where determination was not made in accordance with the stated evaluation scheme.
KBM Group, Inc., B-281919; B-281919.2, May 3, 1999. DIGEST 1. Agency did not mislead protester during discussions even though award was ultimately made based on price and agency did not inform protester that its price was higher than awardee's price, where agency did not believe that protester's price was too high.
2. Agency did not conduct unequal discussions with awardee and protester where agency conducted technical discussions with awardee, whose technical proposal was initially evaluated as containing a number of weaknesses, while conducting no technical discussions with protester, whose initial proposal was evaluated as containing no weaknesses.
3. Protest that protester is entitled to a higher adjectival rating than awardee based upon protester's specific incumbent experience and staff is denied where agency in fact reasonably assessed the relative merits of protester's and awardee's proposals, including protester's specific experience and staff.
4. Protest that source selection authority did not adequately consider the merits of protester's technical proposal is denied where source selection authority considered the relative merits of protester's and awardee's proposals and reasonably determined that the proposals were essentially equal technically and that award should therefore be made to awardee based upon its substantially lower price.
Federal Security Systems, Inc., B-281745.2, April 29, 1999.
DIGEST Agency reasonably determined to take corrective action by amending solicitation and requesting revised proposals after disclosing protester/awardee's prices where award had been made on the basis of a materially defective solicitation.
Marquette Medical Systems, Inc., B-277827.5; B-277827.7, April 29, 1999.
DIGEST 1. Where solicitation for a fixed-price contract stated that offerors could propose either to provide new items or to upgrade the existing ones and that proposed prices would be calculated by adding the total proposed price for the basic requirement to the prices proposed for all option periods, agency improperly deviated from solicitation's evaluation criteria when it adjusted proposed prices to take into account the agency's expectations of savings associated with the offer of new items and additional costs associated with upgraded ones.
2. Agency's "normalization" of offerors' prices was not reasonable where it double counted the cost difference associated with the use of new rather than upgraded existing items by both deducting the price of new items from the total price of the offeror proposing them and adding the price of replacement items to the price of the offeror proposing to upgrade existing ones.
3. ...
L-3 Communications Corporation, Ocean Systems Division, B-281784.3; B-281784.4, April 26, 1999.
DIGEST 1. Protest of agency's upward adjustment to protester's cost proposal in evaluation for cost realism is sustained where agency improperly relied on an unaudited summary of indirect rate data obtained from the Defense Contract Audit Agency (DCAA) which was rescinded by the protester as unauthorized and invalid shortly after submission to DCAA. Although DCAA failed to notify the contracting agency, prior to award, of the rescission of those rates, agency's use of the rescinded rates nevertheless was improper because the agency made no attempt at verifying their reliability, despite the fact that the rates were unsupported, summary in nature, and not reviewed by DCAA. Further, even after the contracting agency had actual knowledge of the rescission of those rates, it improperly continued to rely on those rates in conducting post-award re-analysis of the protester's indirect rates.
2. Agency's disallowance of protester's proposed uncompensated overtime (UCOT) is unobjectionable where contemporaneous evaluation record adequately documents agency's legitimate concerns regarding the protester's proposal's lack of detail about the firm's successful use of UCOT on prior contracts, and the UCOT proposal's potential adverse effects on employee morale and retention, and contract performance.
Metro Machine Corporation, B-281872; B-281872.2; B-281872.3; B-281872.4, April 22, 1999.
DIGEST Where source selection authority considered protester's proposed approach to perform production shop work at a remote location to be unacceptable, and believed that the solicitation requirements established that only a proposal to perform production shop work on-site would be acceptable, agency misled protester during discussions by effectively communicating that modifications or enhancements to the protester's proposal to perform production shop work at the remote location would be sufficient to make proposal of that location acceptable.
BMAR & Associates, Inc., B-281664, March 18, 1999.
DIGEST 1. Office of Management and Budget Circular No. A-76 and the Circular No. A-76 Revised Supplemental Handbook (March 1996) do not require that the government submit a "technical performance plan" (TPP) for evaluation under the first step of a two-step sealed bidding acquisition to determine the low bid for comparison with the government's in-house bid. The Supplemental Handbook requires a TPP for evaluation purposes only where the private sector proposal is selected for cost comparison on the basis of a negotiated or best value procurement.
2. Protest that fixed-price solicitation for civil engineering services subjects bidders to unreasonable risk due to requirement for lump sum price with no limitation on amount of work that can be ordered under various tasks is sustained where pricing scheme imposes unreasonable risk on the contractors, and thus unduly restricts competition.
Opti-Lite Optical, B-281693, March 22, 1999.
DIGEST Source selection decision is not reasonable where the record does not provide any documentation or explanation which supports the price/technical tradeoff, and the award determination was based entirely on a comparison of total technical and price point scores under a solicitation which does not provide for such a point-based tradeoff.
Smelkinson Sysco Food Services, B-281631, March 15, 1999
DIGEST Protest of terms of solicitation for commercial food distribution services is sustained where agency failed to conduct adequate market research to support its determination that the challenged terms (requiring, among other things, that profit associated with interorganizational transfers of food items be disclosed) are consistent with customary commercial practice, or, alternatively, failed to obtain waiver necessary to tailor standard commercial item provision in a manner inconsistent with customary commercial practice.
Symvionics, Inc., B-281199.2, March 4, 1999.
DIGEST 1. Protest of agency determination based on cost comparison under which agency failed to seal its management plan/most efficient organization (MP/MEO), contrary to Office of Management and Budget Circular No. A-76 guidelines, is denied where the agency had the approved MP/MEO secured until the cost comparison was conducted and the failure to seal it did not materially affect the cost comparison.
2. Under A-76 cost comparison, agency properly corrected proposed agency use of impermissible volunteer effort by adding sufficient personnel and labor hours to replace the volunteer effort.
3. Protest that A-76 cost comparison was defective because agency failed to specifically allocate replacement hours or to describe in detail how replacement personnel would handle tasks previously proposed for volunteers is denied where the number of personnel and labor hours, in context, are more than sufficient to cover volunteer effort and to meet all performance work statement responsibilities.
The Futures Group International, B-281274.2, March 3, 1999.
DIGEST:1. Cost realism analysis that accepted as realistic the awardee's proposed indirect rates that were significantly below its most recent indirect rate cost submission is not reasonably supported.
2. Agency reasonably determined that the awardee's proposed research director met the solicitation's minimum qualifications for this key personnel.
3. Past performance evaluation is reasonable, notwithstanding a lack of contemporaneous documentation, where the technical evaluators reasonably explained during the course of the protest why the awardee's past performance was rated as outstanding.
American Material Handling, Inc., B-281556, February 24, 1999.
DIGEST Agency's loss of a quote received through the Federal Acquisition Computer Network due to a computer malfunction does not provide a basis to sustain the protest where the loss was an isolated error, and was not part of a deliberate effort to exclude the protester from the competition or the result of the agency's failure to have adequate procedures in place for the receipt and safeguarding of quotes.
United Marine International LLC, B-281512, February 22, 1999
DIGEST Protest that agency failed to conduct discussions with protester consistent with the requirements of part 15 of the Federal Acquisition Regulation (FAR) is denied where the procurement is a commercial item acquisition being conducted under simplified acquisition procedures, which is not subject to the FAR part 15 requirements.
Encore Management, Inc., B-278903.2, February 12, 1999
DIGEST Agency has reasonable basis to cancel solicitation for clerical and administrative support services where agency's actual requirement is for personal services which the agency intends to satisfy with civil service personnel. [Includes discussion of discriminators for personal services contracts]
Todd Pacific Shipyards Corporation, B-281383, February 1, 1999.
DIGEST Solicitation for ship repair is improper where the record evidences that the stated foreseeable costs to be added to each bidder's bid price to determine the low bidder are grossly understated.
The Urban Group, Inc.; McSwain and Associates, Inc., B-281352; B-281353, January 28, 1999.
DIGEST 1. Issuance of a section 8(a) set-aside solicitation, which includes work previously performed by small businesses as well as new work, without assessing the adverse impact of the set-aside on small business concerns, is unobjectionable where no adverse impact assessment is required under applicable Small Business Administration (SBA) regulations because the SBA, in interpreting its regulations, reasonably determined that the overall solicitation is radically different from the previously performed work and thus represents new work.
2. A solicitation provision stating that a section 8(a) set-aside will become a small business set-aside if fewer than two acceptable offers from 8(a) firms are received is not contrary to statute or regulation, or unfair to small businesses.
3. Absent clear judicial precedent, General Accounting Office will not consider protest alleging that agency did not have constitutionally sufficient basis for creating a section 8(a) set-aside.
4. Agency's decision to consolidate marketing requirements (previously performed largely in-house) with existing property management contract requirements into larger contracts for both management and marketing services in multiple states is not objectionable under the Small Business Act, 15 U.S.C.A. §§ 631(j)(3), 644(e)(2) (West Supp. 1998), where the resulting benefits are "measurably substantial" and support a determination that the bundling is necessary and justified, and the protester has not identified a reasonable alternative that would provide similar benefits.
DZS/Baker LLC; Morrison Knudsen Corporation, B-281224; B-281224.2; B-281224.3;
B-281224.4; B-281224.5; B-281224.6, January 12, 1999.
DIGEST In a cost comparison study pursuant to Office of Management and Budget Circular No. A-76, where 14 of 16 agency evaluators held positions under the study and thus subject to being contracted out, a conflict of interest that could not be mitigated was created, and protests challenging the evaluators' conclusion that all private-sector offers were unacceptable are therefore sustained.
RTF/TCI/EAI Joint Venture, B-280422.3, December 29, 1998
DIGEST
1. Agency evaluation of protester's proposal and oral presentation is
reasonable where it was performed in accordance with stated evaluation
criteria and reflects valid criticisms of protester's proposed
approach.
2. Agency's source selection in which price was considered only in
the competitive range determination, while improper, did
not prejudice the protester where the awardee's proposal was evaluated
as significantly superior to the protester's and the awardee's price
was significantly lower than that proposed by the protester.
Wilderness Mountain Catering, B-280767.2, December 28, 1998. DIGEST Settlement agreement resolving prior contract dispute did not preclude agency, in its evaluation of protester's past performance, from considering protester's performance under the contract that was the subject of the dispute where the settlement agreement did not require agency to disregard contractor's performance; a condition to a settlement agreement that is not clearly set out in the language of the agreement will not be inferred.
Du & Associates, Inc., B-280283.3, December 22, 1998.
FAR Part 15 Rewrite Case
"The rule thus remains that, while an agency is required to
conduct meaningful discussions leading an offeror into the areas of
its proposal requiring amplification or revision, the agency is not
required to "spoon-feed" an offeror as to each and every item that
could be revised so as to improve its proposal."
DIGEST 1. Protest of technical evaluation is denied where it is merely based
on protester's disagreement with the evaluators' conclusions.
2. Protest that discussions were not meaningful is denied where
record establishes that protester was led into the areas in which the
agency was concerned that the proposal needed amplification and
improvement.
Omni Corporation, B-281082, December 22, 1998
DIGEST 1. Protest that agency conducted misleading discussions and
improperly evaluated proposals during a competition to select the
private-sector proposal upon which to base a cost comparison pursuant
to Office of Management and Budget Circular No. A-76 is dismissed as
premature where the protester files its challenge prior to the
post-award debriefing offered by the agency at the conclusion of the
administrative appeal process resolving the successful private-sector
offeror's challenge to the agency's in-house cost estimate.
2. Agencies are required to provide offerors who participate in the
private-sector competition portion of the A-76 cost comparison
process--but are not selected for comparison with the in-house
offer--a debriefing on the results of the competition.
American Artisan Productions, Inc., B-281409, December 21, 1998. DIGEST Protest that solicitation's 15-day response period was inadequate is denied where: (1) the solicitation contemplated submission of offers for commercial items and related services and the contracting officer determined that 15 days was a reasonable time to prepare and submit proposals based upon her experience with a previous procurement for this requirement; (2) the requirement was synopsized in the Commerce Business Daily 42 days before proposals were due; (3) no potential offerors other than the protester complained that the response period was too short; and (4) five offers were received in a timely manner.
NWT, Inc.; PharmChem Laboratories, Inc., B-280988; B-280988.2, December 17, 1998.
DIGEST 1. Allegation that agency used non-cost factors to select a
commercial proposal upon which to base a cost comparison pursuant to
Office of Management and Budget Circular No. A-76 is untimely where
request for proposals specifically stated that technical
considerations are more important than cost, and protest was filed
after the closing date for receipt of proposals.
2. Allegation that agency could not lawfully initiate cost comparison
pursuant to Office of Management and Budget Circular No. A-76 because
agency allegedly failed to satisfy threshold conditions is untimely
where protester either knew or should have known of the basis for its
protest before the closing date for receipt of proposals, and protest
was not filed prior to that time.
3. Allegation that agency improperly evaluated proposals is denied
where the record shows that the agency evaluated the proposals in
accordance with the evaluation factors announced in the solicitation
and record reasonably supports overall technical ratings.
4. Protest of agency determination based on cost comparison conducted
pursuant to Office of Management and Budget Circular No. A-76 that
required services could be performed more economically in-house is
denied where protester has not shown that agency conducting the cost
comparison failed to comply with the applicable procedures in
selecting in-house performance over contracting.
MCR Federal, Inc., B-280969, December 14, 1998. FAR Part 15 Rewrite Case
DIGEST
Protest of proposal evaluation and source selection under solicitation
where technical factors are more important than price is sustained
where the contracting officer's determination that the awardee's
lower-priced proposal was technically superior to that of the
protester is inconsistent with the solicitation's evaluation scheme,
and where the record provides insufficient contemporaneous
documentation to either support agency's post-protest assertion that
the proposals are technically comparable--so that price would become
an appropriate discriminator for award--or show that the source
selection authority ever considered whether the protester's higher
rating in one area (key personnel) was worth the cost premium
associated with its proposal.
Russo & Sons, Inc., B-280948, December 11, 1998 DIGEST 1. Government mishandling exception to considering a late proposal applies to acquisitions of commercial items despite absence of reference to the exception in standard Federal Acquisition Regulation (FAR) clause used in commercial item acquisitions, since applying the exception is not inconsistent with the intent of the FAR provision, and not applying the exception would not benefit the government or the competitive procurement system.
Teltara Inc., B-280922. December 4, 1998
Digest: Source selection decision is not reasonable where the record does not
provide any documentation or explanation which supports the decision,
and the source selection memo essentially contains only percentage
comparisons between the technical point score and price of the
awardee's proposal and the technical point scores and prices of the
other proposals, which do not support the purported best value
determination.
Satellite Services, Inc., B-280945; B-280945.2; B-280945.3, December 4, 1998. DIGEST 1. Award under solicitation for construction services would not
result in a binding requirements contract, where the solicitation does
not obligate the agency to order any work at all from any individual
contractor, and where, despite government promise to allow awardees to
enter into limited competition for future task orders, the contracting
officer can deny contractors the right to compete if it is "in the
best interest of the government"; a party may not reserve to itself a
method of unlimited exculpation without rendering the promises
illusory and the contract void.
2. Award under solicitation for construction services would not
result in a binding indefinite-quantity contract where it contains no
obligatory minimum quantity, rendering the government's obligations
illusory and, therefore, unenforceable.
Intellectual Properties, Inc., B-280803, November 19, 1998
DIGEST 1. Protest of agency's determination not to award the protester phase
II funding for a project the protester proposed under the Department
of Defense Small Business Innovation Research program is sustained
where the agency's determination was primarily based upon the
protester's lack of private sector funding for its phase II proposal,
which was inconsistent with the evaluation criteria set forth in the
solicitation.
2. Agency's post-award reevaluation of the protester's proposal and
determination that the proposal could have been rejected for a
completely different reason than originally asserted by the agency
does not establish that the protester was not prejudiced by the
agency's initial evaluation, which was inconsistent with the
solicitation's evaluation criteria, because the reevaluation was
prepared in the heat of an adversarial process and may not represent
the fair and considered judgment of the agency.
Teledyne-Commodore, LLC--Reconsideration, B-278408.4, November 23, 1998.
DIGEST
On reconsideration, General Accounting Office reverses prior dismissal
of protest concerning task orders issued under multiple award
contracts and will exercise jurisdiction under the Competition in
Contracting Act of 1984 over the protest where, notwithstanding the
issuance of task orders, the nature of the procurement demonstrates
that the agency is essentially conducting only one competitive source
selection, which is not subject to the restriction on protests of
orders placed under a task order contract contained in 10 U.S.C. §
2304c(d).
Safety Storage, Inc., B-280851, October 29, 1998
DIGEST Protest challenging agency decision not to set aside procurement for
small business concerns is sustained where decision was based on
insufficient efforts to ascertain small business capability to perform
the contract.
Biospherics Incorporated, B-278508.4; B-278508.5; B-278508.6, October 6, 1998
DIGEST Protests are sustained where there is no documentation of the agency's
evaluation of final revised proposals, that is, there is no
information in the record regarding proposal strengths and weaknesses
after discussions, and as a result, the reasonableness of the agency's
evaluation upon which the award decision was made cannot be
determined.
Nick Chorak Mowing, B-280011.2, October 1, 1998. Although not included in the Digest, the GAO also discusses the provisions of the FAR Part 15 Rewrite which allows the CO to inform an offeror that its price is too high.DIGEST Contracting agency's decision to modify statement of work after receipt of initial quotations to reflect its actual needs is unobjectionable where offerors were given an equal opportunity to revise their quotes based on the reduced requirement.
Pemco Aeroplex, Inc., B-280397, September 25, 1998
DIGEST
Protest challenging Air Force decision to use a consolidated
solicitation to procure a significant portion of the workload
currently performed by the Sacramento Air Logistics Center--thus
bundling together programmed depot maintenance for the KC-135
aircraft, inspections and painting of the A-10 aircraft, and overhaul
and repair requirements for hydraulic components, electrical
accessories, and flight instruments--is sustained where the Air Force
is unable to show that combining these requirements is reasonably
required to satisfy the agency's needs.
Teledyne-Commodore, LLC, B-278408.3, September 15, 1998
DIGEST 1. Protest alleging that contracting agency improperly issued task
orders under indefinite-quantity, indefinite-delivery, multiple award
contracts is dismissed pursuant to 10 U.S.C. § 2304c(d) (1994), which
provides that "[a] protest is not authorized in connection with the
issuance or proposed issuance of a task or delivery order except for a
protest on the ground that the order increases the scope, period, or
maximum value of the contract under which the order is issued," where
the enumerated exceptions do not apply.
2. Restriction on protests of orders placed under a task order
contract contained in 10 U.S.C. § 2304c(d) applies where the contract
contemplates the issuance of a limited number of task orders for only
three contract line items reflecting three distinct phases of the work
contemplated under the contract, and the protested task orders do not
implement a downselection, but merely represent the final phase of the
work contemplated under the contract.
HG Properties A, L.P.--Costs, B-277572.8, September 9, 1998.
DIGEST Claim for costs of filing and pursuing a protest at the General
Accounting Office is denied where the protester failed to file with
the contracting agency an adequately detailed claim within 60 working
days after the protester received a copy of the decision awarding
protest costs.
SDS Petroleum Products, Inc., B-280430, September 1, 1998.
FAR Part 15 Rewrite Case
GAO concluded " that the Part 15 rewrite does not require
that agencies retain in the competitive range a proposal that is
determined to have no reasonable prospect of award simply to avoid a
competitive range of one." DIGEST Exclusion of protester's proposal from competitive range was not
improper where agency reasonably concluded that the proposal failed to
demonstrate the ability to purchase and transport natural gas at
certain rates and terms, as required by the solicitation.
Electronic Design, Inc., B-279662.2; B-279662.3; B-279662.4, August 31, 1998
DIGEST
1. Agency's source selection decision in which price is considered
only as an eligibility factor (i.e., price does or does
not fall within agency's budget) is improper because it fails to
consider price as a significant evaluation factor, as required by 10
U.S.C. § 2305(a)(2)(A) and § 2305(a)(3)(A) (1994) and as contemplated
by the best value evaluation plan stated in the solicitation.
2. Agency conducted competition on an unequal basis where the
awardee's initial proposal was substantially in excess of the page
limitation stated in the solicitation, and the agency evaluated that
proposal for award without specifically advising and providing the
other offerors an opportunity to submit proposals without a page
limitation.
Nations, Inc., B-280048, August 24, 1998
DIGEST
Agency improperly eliminated a proposal from the competitive range, where the deficiencies ascribed to the proposal were either the result of misevaluation, or readily correctable, or similar to features in the proposals included in the competitive range.
Matter of: Universal Technical Resource Services, Inc, B-280659, August 24, 1998. GAO dismisses a protest as "speculative and premature" which alleged that an agency level protest decision which ordered corrective action was flawed. Comment:GAO decision to dismiss is obviously correct [not just because that is what we argued (; > ) ] I can't think of a better way to kill the agency level protest process than to have the GAO consider a protest before the agency level corrective action is taken. If that were to be the practice I would recommend that the agency efforts be stopped and let all go to GAO or courts. JAW
Main Building Maintenance, Inc, B-279191.3, August 5, 1998
Language from decision: Contracting officials in negotiated procurement have broad discretion
to take corrective action where the agency determines that such action
is necessary to ensure fair and impartial competition. We do not
believe that an agency must conclude that the protest is certain to be
sustained before it may take corrective action; where the agency has
reasonable concern that there were errors in the procurement, even if
the protest could be denied, we view it as within the agency's
discretion to take corrective action. See Network
Software Assocs., Inc.--Entitlement to Costs, B-250030.4, Jan.
15, 1993, 93-1 CPD ¶ 46 at 3 (mere fact that agency decides to take
corrective action does not establish that a statute or regulation has
clearly been violated). Moreover, we will not object to the specific
proposed corrective action, so long as it is appropriate to remedy the
concern that caused the agency to take corrective action.
See Sherikon, Inc., B-250152.4, Feb. 22,
1993, 93-1 CPD ¶ 188 at 3.
Matter of:Pemco Aeroplex, Inc., Aero Corporation, B-275587.9; B-275587.10; B-275587.11; B-275587.12 , June 29, 1998
DIGEST
1. The Competition in Contracting Act of 1984 (CICA) provides that
the General Accounting Office (GAO) has protest jurisdiction to review
objections to cancellations of solicitations and that GAO shall decide
protests "concerning an alleged violation of a procurement statute or
regulation." Since 10 U.S.C. sec. 2462 (1994) mandates that the
Department of Defense (DOD) procure goods or services under specified
circumstances, rather than supply them from an in-house source, it is
a procurement statute. Under the circumstances, where a DOD agency
issues a solicitation, receives and evaluates bids or proposals, and
awards a contract, and then cancels the solicitation to take the work
in-house, CICA grants GAO the authority to consider a protest that the
agency did not comply with 10 U.S.C. sec. 2462.
2. In a negotiated procurement, the contracting officer is required
to have a reasonable basis to cancel a solicitation. There could be
no reasonable basis for cancelling a solicitation in order to bring
work in-house if doing so violates 10 U.S.C. sec. 2462, which is a
congressional mandate to allow private companies to provide goods and
services to DOD unless the government can provide those goods and
services at a lower cost. Thus, although DOD agencies historically
have had broad discretion to manage resources and make decisions as to
whether to contract out or perform work in-house, when 10 U.S.C. sec.
2462 applies, those decisions are required to be based on a
determination of which source can provide a supply or service at the
lower cost.
3. Although 10 U.S.C. sec. 2462 generally requires that decisions of DOD
agencies as to whether to perform work in-house or to contract out are
to be based upon a determination of which source can perform the work
at the lower cost, section 2462 is subject to the proviso: "Except as
otherwise provided by law." Where a DOD agency reasonably relies on
the need to meet the requirements of 10 U.S.C.A. sec. 2466(a) (West Supp.
1998)--which limits the funds which DOD agencies can use to contract
out for depot-level maintenance and repair work--as a basis for
cancelling a solicitation, this statutory direction means that the
requirements of section 2462 do not apply.
Trifax Corporation, B-279561, June 29, 1998. DIGEST: Protest against elimination of a proposal from competitive range is sustained where the record evidences that the score assigned the protester's past/present performance was unreasonably low, considering the information included in the proposal, the evaluation documentation, and the scores assigned the competitive range proposals, and the score of the proposal, if properly evaluated, would have been among the range of scores assigned the competitive range proposals.
Black & Veatch Special Projects Corp., B-279492.2, June 26, 1998. DIGEST 1. Protest that agency misled offeror during evaluations and improperly downgraded offeror's proposal for submitting "exceptions and clarifications" with its best and final offer is untimely where the offeror learned of its grounds of protest at debriefing conducted more than 10 days before the protester first raised these issues at the General Accounting Office.
2. Protest that agency failed to provide offeror with an opportunity to rebut negative past performance information is denied where offeror was not prejudiced as indicated by apparent accuracy of information obtained from knowledgeable individual and limited impact of past performance on evaluation score and award determination.
Consolidated Engineering Services, Inc, B-279565.2; B-279565.3, June 26, 1998.
DIGEST 1. Protest is sustained where (1) protester argues that agency's
relative assessment of proposals improperly failed to reflect specific
beneficial features that allegedly made its proposal superior to
awardee's, (2) it appears from record that the features in fact may
have offered some significant benefit, and (3) the agency only
generally asserts that the evaluation took the features offered by all
offerors into consideration, without explaining or providing evidence
showing why the protester's proposed features did not result in a
superior score for protester's proposal under the relevant evaluation
factor.
2. Agency improperly downgraded protester's proposal relative to
awardee's based on awardee's more detailed description of proposed
elevator maintenance subcontractor's experience; since protester and
awardee proposed same subcontractor, they should have received same
score for subcontractor's experience.
United Communications Systems, Inc., B-279383, June 2, 1998 DIGEST General Accounting Office will not exercise its discretion to waive timeliness requirements with respect to untimely protest of ordering provisions under General Services Administration multiple-award schedule contract for information technology where protester has received orders and accepted benefits under the ordering provisions.
Techno-Sciences, Inc., B-277260.3, May 13, 1998 DIGEST Two task orders are within the scope of an existing contract for the operation, maintenance, and technical support of the United States Mission Control Center (USMCC) online and offline system, where that contract specifically contemplated that operations, maintenance, and technical support would include whatever was necessary to support the USMCC mission, except maintenance of the proprietary software, and the task orders at issue cover software development to work around problems in the protester's proprietary software currently operating the online functions; analysis of the functional requirements of the online system; design of new software for the USMCC, including the online functions; and installing and testing the new software.
Ervin and Associates, Inc., B-279161, April 20, 1998
DIGEST
1. General Accounting Office will not consider allegation that
Department of Housing and Urban Development's use of the section 8(a)
program to meet its needs for various types of services is
unconstitutional in light of Adarand Constructors, Inc. v.
Pena and City of Richmond v. J. A. Croson Co.
because neither decision constitutes clear judicial precedent on the
constitutionality or legality of the contracting agency's use of this
program.
2. General Accounting Office will not consider challenge to
contracting agency's use of section 8(a) set-aside solicitations as
part of its procurement strategy where there is no showing that
regulations may have been violated or of possible bad faith on the
part of government officials..
Techno-Sciences, Inc., B-277260.2, March 25, 1998. DIGEST Market survey undertaken in response to recommendation for corrective action contained in prior decision, which sustained a protest because the agency failed to properly determine whether a section 8(a) contract was awarded at a fair market price, is not a reasonable method of making this determination because the 8(a) contractor is not performing all of the requirements that the respondents to the survey were requested to price. [Reconsideration filed]
Ervin and Associates, Inc., B-278850, March 23, 1998 DIGEST: Protest that task order improperly exceeds the scope of the contract originally awarded is sustained; while the types of accounting support services required under the contract and the task order are quite similar, the scope of services under the contract is reasonably limited to serving the purpose for which the contract was awarded, which was distinctly different from the purpose for which the task order was issued.
Coleman Research Corporation. B-278793, March 16, 1998.
DIGEST 1. In conducting a cost realism analysis under a negotiated
procurement for a follow-on cost reimbursement contract, procuring
agency reasonably applied the protester's overhead rate from the
predecessor contract, instead of the protester's significantly lower
proposed rate, where protester's proposal failed to adequately support
or justify the newly proposed rate.
2. Under solicitation which provided that cost was significantly less
important than technical considerations, award to offeror with
superior technical proposal and slightly higher most probable cost is
unobjectionable where source selection authority reasonably determines
that the lower cost associated with protester's proposal does not
outweigh the technical superiority of awardee's proposal.
Matter of:Cal-City Construction, Inc. B-278796, March 16, 1998. DIGEST Agency improperly permitted low bidder to correct an alleged mistake in its bid consisting of the noninclusion of topsoil import cost, where the evidence of the omission consists of a subcontractor's quotation which notes an "additive" amount encompassing excluded topsoil import, but does not establish that the bidder intended to include the cost of this item in its bid, under a solicitation which specifically provided that topsoil import would not be necessary if the work was performed in compliance with specifications.
J&E Associates, Inc. B-278771, March 12, 1998 DIGEST Organizational conflicts of interest exist for educational institutions submitting offers under a solicitation for educational support services where, as a contractor, the institution could advise government personnel to enroll in courses offered by that institution or verify billing statements submitted by the institution. Under such circumstances, the solicitation is required to contain a provision addressing the conflicts in accordance with Federal Acquisition Regulation Subpart 9.5.
Aalco Forwarding, Inc., et al., B-277241.16,
March 11, 1998. DIGEST: 1. Contracting agency reasonably did not set aside for exclusive
small business participation a solicitation for a pilot program for
the shipment and storage of the personal property of military service
members and civilian employees between all the shipping offices in 3
origin states and 18 destination regions in the continental United
States and Europe, where the contracting officer had no reasonable
expectation that two or more interested small business concerns have
the capability to handle all the shipments and perform all the related
requirements designated under the pilot program.
2. Contracting agency's partial small business set-aside decision
under a solicitation for a pilot program for the shipment and storage
of the personal property of military service members and civilian
employees is not reasonable, where it does not ensure an economic
production run or reasonable lot of shipments for small business
concerns, as required by Federal Acquisition Regulation § 19.502-3(b),
because it does not meaningfully consider the impact of the relatively
small number of shipments available under the set-aside or the
significant obligations, such as a committed daily capacity, imposed
on small business contractors by the solicitation.
Sprint Communications Company, B-278407.2, February 13, 1998. DIGEST: Modification of contract for bandwidth management and switching services for Department of Defense telecommunications network to permit the contractor to become the primary supplier of transmission services for agency customers using asynchronous transfer mode (ATM) service (a high-speed, packet-like switching and multiplexing technique which simultaneously transfers voice, data, and video at far higher speeds than other existing technology) is beyond the scope of the original contract; the transmission component of ATM must be purchased in accordance with the statutory requirements for competition.
Hughes STX Corporation, B-278466, February 2, 1998 DIGEST: Protest is sustained where the cost realism evaluation was unreasonable and discussions conducted with the protester concerning its proposed direct labor rates were not meaningful.
Matter of:Thermolten Tech., Inc.
B-278408, January 26, 1998. DIGEST
1. Protest against conduct of debriefing, contending that agency
should have had experts capable of understanding technical aspects of
proposal conduct the debriefing in order to allow protester to
elaborate on its inadequately written proposal, is denied; the
adequacy of a debriefing is a procedural matter concerning agency
actions after award which are unrelated to the validity of the award,
and, in any event, the purpose of a debriefing is not to give offerors
the opportunity to cure deficiencies in their proposals, but to
furnish the basis for the selection decision and contract award.
2. Protest that agency improperly rejected protester's proposal for
failure to meet solicitation's technical requirements is denied where
the record shows that proposal contained major deficiencies--a failure
to present a coherent explanation of the offered process for disposing
of chemical munitions and a general lack of care in assessing and
managing the potentially lethal byproducts of the process--reasonably
warranting its rejection.
3. Post-award protest that agency improperly limited competition to
offerors of "mature technologies" is dismissed as untimely where
solicitation made clear that agency was seeking only such technologies
and protest thus should have been filed before the time set for
receipt of initial proposals.
COMARK Federal Systems, B-278343; B-278343.2, January 20, 1998 DIGEST: Under request for quotations which asked vendors to identify a configuration of computer systems and related hardware and services on Federal Supply Schedule, where agency intended to conduct a technical evaluation and cost/technical trade-off, agency improperly failed to advise vendors of the basis for selection. Pdf version.
SCIENTECH, Inc. SCIENTECH, Inc., B-277805.2, January 20, 1998 DIGEST: Agency's exclusion of the protester's proposal from the competitive range was unreasonable where: (1) the protester's proposal was considered technically acceptable overall and on each evaluation factor, and it had no perceived deficiencies; (2) the past performance/customer satisfaction evaluation did not consider the fact that the protester and its proposed subcontractor were incumbent contractors, performing the same or very similar work for the same contracting activity and the protester had received excellent performance ratings; and (3) the agency did not consider price or cost in determining the competitive range.PDF Version
Montage, Inc. B-277923.2, December 29, 1997. DIGEST: An agency may properly exclude a defaulted contractor from a reprocurement for the remaining work in the defaulted contract; to the extent that PRB Uniforms, Inc., 56 Comp. Gen. 976, 978 (1977), 77-2 CPD para. 213, and cases following that decision, state that a contracting officer may not automatically exclude a defaulted contractor from the competition for a reprocurement, those cases will not be followed. Pdf version.
Aalco Forwarding, Inc., et al. Aalco Forwarding, Inc., et al., B-277241.12; B-277241.13, December 29, 1997. The issue decided regarded bundling of requirements for household goods movements. Under the Army's current program, offerors can propose rates from a single installation to a single state. The Army documented significant dissatisfaction with the program and the tremendous administrative burdens imposed (as the offerors were really under non-FAR acquisition programs and were not obligated to accept a shipment when offered to them--they could turn it down and then the agency would have to contact more carriers until it found one willing to take the shipment). Under the protested procurement, offerors had to propose to service all installations in one of three southern states--to regions (which usually consisted of 3-4 states). GAO upheld the Army's rationale for such bundling. Significantly, the SBA supported the protesters. [See earlier decision below]
BE, Inc.; PAI Corporation B-277978; B-277978.2,
December 16, 1997. DIGEST: 1. Protest that agency unreasonably determined that awardee's
proposed labor rates were realistic is denied where agency
determination was supported by (1) a comparison of the awardee's rates
to those of the other offerors and to wage survey information
furnished by offerors, and (2) the fact that all of the awardee's
proposed key employees were currently employed and proposal included
evidence of ability to retain staff.
2. Protest that questions posed by agency at oral presentations
constituted discussions such that the agency was required to advise
offerors of weaknesses in their offers and request best and final
offers is without merit where the information solicited was not
substantial, but merely clarified information already presented in
proposal; information was not necessary to find proposal acceptable;
and no proposal revision opportunity was provided. Pdf version
MEI, Inc. B-277235.2, November 12, 1997. DIGEST: Protest that awardee does not meet solicitation's definitive responsibility criterion requiring proof of 5 years of experience for the type of work to be performed is sustained where record shows the contracting officer did not have adequate, objective evidence the bidder satisfied the criterion; contracting officer improperly considered qualifications of bidder's subcontractor in determining bidder's responsibility; and, in any event, contracting officer did not have adequate, objective evidence that the subcontractor satisfied the criterion on behalf of bidder.
The Arora Group, Inc., B-277674, November 10, 1997. DIGEST: Agency unreasonably concluded protester's fixed-price offer lacked price realism because of the protester's failure to propose salary escalation and therefore its perceived inability to retain employees, where protester proposed to use part of general and administrative (G&A) budget for employee bonuses; agency's conclusion that G&A budget was inadequate to retain employees was premised on agency's miscalculation of amount of that budget. [The GAO also noted: " We afford the agency's post-protest justification diminished weight because it was prepared in the heat of an adversarial process and may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process."]
Marvin J. Perry & Associates B-277684; B-277685, November 4, 1997. DIGEST: Modifications of orders under General Services Administration Federal Supply Schedule for red oak sleeping room furniture to allow a change in the type of wood to ash, which is less expensive than red oak, materially changed the nature of the orders from those originally issued and thereby prejudiced the protester, a competing vendor. Pdf version
Comdisco, Inc. B-277340, October 1, 1997.
1. Task orders under which an agency acquires the unrestricted discretionary right to require the contractor to provide specifically defined hardware and software constitute the "acquisition" of that hardware and software.
2. Contract under which the agency acquires the right to exclusive use and control of specifically defined equipment for a period of time in return for monetary consideration effectively constitutes the "lease" of that equipment.
3. In task orders where terms of underlying contract limits acquisition of hardware/software to 25 percent of the task orders' value, protest is sustained where agency is purchasing the right to acquire substantial quantities of hardware/software and provides no credible evidence that the limitation is satisfied, instead arguing that the nature of the acquisition makes it impossible for the protester to affirmatively demonstrate that contract limitation has been exceeded.
Mechanical Contractors, S.A. B-277916, October 27, 1997 Source selection decision cannot be determined reasonable where it is based on a misevaluation of the proposals of the protester and awardee.
Aalco Forwarding, Inc. B-277241.8, B-277241.9, October 21, 1997. The Army just won probably one of the first GAO protests involving the issue of the extent to which an agency can deviate from customary commercial terms and conditions--and still have a valid procurement under FAR Part 12, Commercial Items Acquisitions. pdf version
ST Aerospace Engines Pte. Ltd. B-275725.3, October 17, 1997. DIGEST 1. Where, in response to General Accounting Office decision sustaining protest, discussions are reopened after offerors' prices have been revealed, agency may properly limit the scope of revisions offerors may make to their proposals and not allow offerors to revise their prices. 2. Agency reasonably reopened limited technical discussions with, and requested new limited best and final offers (BAFO) from, all offerors in the competitive range in response to General Accounting Office decision sustaining protest and recommending a reopening of limited technical discussions with, and the solicitation of a new limited BAFO from, one of the offerors. PDF Version
Boeing Sikorsky Aircraft Support. B-277263.2; B-277263.3, September 29, 1997. Pdf version.
Med-National, Inc B-277430, September 8, 1997. DIGEST-"Late hand-carried proposal was properly rejected as late where a preponderance of the evidence does not establish that the protester's courier delivered the offer to the designated location prior to the time set for closing." Even though protestor's filings and affidavits were full of contradictions and inconsistencies, the GAO required the parties to travel to San Francisco for a hearing in this protest of the government's rejection of a late bid. pdf version
McHugh/Calumet, a Joint Venture B-276472, June 23, 1997. DIGEST 1. Protest challenging evaluation of awardee's proposal as technically superior to protester's proposal under factor for past performance of similar projects, based on greater relevance of awardee's projects, is denied where record shows awardee's experience was reasonably determined to include projects more directly comparable to the proposed project. 2. Protest that agency violated Federal Acquisition Regulation sec. 15.610(c)(6) by not advising protester of adverse past performance reference is sustained as the regulation clearly requires such discussions where, as here, the protester has not otherwise had an opportunity to reply to the information and the record shows a reasonable possibility of prejudice. PDF Version
Pentec Environmental, Inc. B-276874.2, June 2, 1997. Where a protest is based upon information obtained during a debriefing held more than 1 month after the agency first offered to debrief the protester and the 1-month delay in conducting the debriefing was attributable solely to the protester's repeated requests that the debriefing be delayed so that the protester could obtain and evaluate information under the Freedom of Information Act and so that the protester's employee could attend an unrelated business conference and take a vacation, the protester did not diligently pursue its basis for protest because it could have received the same information forming the basis for protest if it had accepted theagency's offer to conduct the debriefing 1 month earlier. PDF version.
Security Consultants Group,Inc. B-276405, B-276405.2, June 2, 1997. In offering a requirement to the Small Business Administration (SBA) for acceptance into its 8(a) program, the contracting agency prejudicially failed to comply with the regulatory requirement to provide SBA with complete and accurate information regarding the proposed offering by not identifying the protester as an 8(a) concern which had expressed an interest in being considered for the acquisition. PDF version.
ST Aerospace Engines Pte. Ltd., B-275725 , March 19, 1997. Agency erred in downgrading protester on the basis of negative past performance information pertaining to its affiliate where record does not establish relevance of affiliate's past performance to likelihood of successful performance by protester; because the affiliate's negative past performance was the determinative factor in the decision not to award to protester, agency was required to raise the issue with the protester during discussions. PDF Version.
American Combustion Industrues, Inc., B-275057.2 In a decision dated March 5, 1997, the GAO sustained a protest where the agency did not provide the protester the opportunity to respond to negative past performance provided by a reference supplied by the protester. PDF version.
Resource Applications, Inc., B-274943.3, March 5, 1997. Allegation that protester's and awardee's consensus evaluation scores did not reflect the individual evaluators' scores is denied where the record indicates that the consensus reasonably reflects the collective view of the evaluators and the characteristics of the proposals, and there is no credible evidence that the consensus evaluation was unreasonable. PDF version.
NuWestern USA Constructors, Inc., B-275514. In a decision dated February 27, 1997, the GAO denied a protest objecting to the release of a solicitation on a CD-ROM. The GAO found no requirement in CICA or the Small Business Act that agencies issue a paper copy of the solicitation. PDF version.
Intelligent Decisions,
Inc. B-274626; B-274626.2 December 23, 1996. DIGEST: 1.
Under request for quotations which sought prices for computer systems
and related software listed on Federal Supply Schedule, agency
properly selected the vendor that offered the best system
configuration that meets the agency's needs at the lowest overall
cost.
2. Where record shows that challenged agency discussions with vendor
ultimately selected to provide the agency's computer needs were in
the context of a Federal Supply Schedule buy, protest contending that
such communications were improper is denied since the agency may
properly obtain additional information in order to determine that it
was selecting the vendor that meets the agency's needs at the lowest
overall cost. Pdf version.
(Reconsideration denied.)
Matrix International Logistics, Inc. B-272388.2, December 9, 1996. Partial DIGEST: "The agency's evaluation of the awardee's best and final offer and its source selection decision cannot be determined reasonable where they are unsupported by either the contemporaneous evaluation and source selection documentation or the arguments, explanations, and testimony in the record." pdf version
Metro Monitoring Services, Inc., B-274236. By decision dated November 27, 1996, the GAO sustained a protest of a MASC procurement. The GAO found that the low bid should be rejected as nonresponsive where its certificate of procurement integrity identified one person as the certifier, but a different person signed the certifier's name to the certificate. The GAO recommended that the protester be paid its costs of filing the protest, plus reasonable attorney fees.
Engineered Systems, Inc., B-273027. November 16, 1996. The Comptroller General denied a protest against a NIST procurement, finding that NIST had resonably evaluated the protester's proposal in accordance with the evalaution criteria.