Contract Law Division

Recent Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
• Court of Federal Claims
• Circuit Courts
• Other Courts
• General Accounting Office-2001 to Present
• General Accounting Office-Prior to 2001
• Boards of Contract Appeals
• GPO Board of Contract Appeals
• FAA Office of Dispute Resolution for Acquisition Cases

General Accounting Office

LBM, Inc., B-290682, September 18, 2002.
DIGEST: 1. The statutory limitation on General Accounting Office's bid protest jurisdiction over challenges to the award or proposed award of a task order under an indefinite-delivery/indefinite-quantity contract does not apply to a protest challenging the transfer to that contract vehicle of an acquisition for services that had been previously set aside exclusively for small businesses without regard to the Federal Acquisition Regulation § 19.502‑2(b) requirements pertaining to small business set‑asides; this is a challenge to the terms of the underlying solicitation.
2. Protest that the transfer of the acquisition of motor pool transportation services at a particular installation to a multiple-award, indefinite-delivery/indefinite-quantity (ID/IQ) task order contract violates the requirement in Federal Acquisition Regulation § 19.502-2(b) to set aside acquisitions 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 the agency did not consider the application of this regulation in transferring the acquisition of these services to the ID/IQ contract, even though this work had been set aside for small businesses, and there were at least two small businesses who have performed these services.

REEP, Inc., B-290665, September 17, 2002.
DIGEST: Protest against agency's issuance of delivery orders under Federal Supply Schedule (FSS) is sustained, where agency issued orders to firm that was only vendor on one schedule within the FSS, identical services were available at lower price from protester and other vendors on another schedule within the FSS , and agency had knowledge that the services were available under the second schedule; since agency must review information reasonably available before awarding FSS delivery orders, it could not make award without reviewing vendors' prices on second schedule.

TRS Research, B-290644, September 13, 2002.
DIGEST: 1. Protest of consolidated procurement is sustained where solicitation consolidated procurement requirements previously provided under separate smaller contracts, and was likely to be unsuitable for award to a small business, and thus constituted a bundled procurement, and record shows that agency failed to comply with requirements to demonstrate that bundling was justified.
2. Agency improperly failed to coordinate its anticipated consolidated procurement with the Small Business Administration, as required by statute and regulation, since small business contractors currently perform work included in the consolidated procurement and magnitude of the consolidated procurement renders small business participation unlikely.

Colorado Construction Corporation, B-290960, September 6, 2002.
DIGEST: Agency's rejection of a bid submitted in response to a solicitation set-aside for Indian economic enterprises is unobjectionable where the agency reasonably questioned whether the Native American owner of the enterprise would be involved in the daily business management of the enterprise and whether the majority of the earnings from the contract would accrue to the Native American owner.

Shinwha Electronics, B-290603; B-290603.2; B-290931; B-290932, B-290932.2, B-291064, September 3, 2002.
DIGEST: 1. Protest that offeror was improperly suspended from receiving government contracts is denied where there is no evidence that the agency acted arbitrarily to avoid making an award to an offeror otherwise entitled to award and where the minimum standards of due process have been met.
2. General Accounting Office, under its bid protest function, will no longer review protests that an agency improperly suspended or debarred a contractor, as the contracting agency is the appropriate forum for suspension and debarment disputes.

Information Ventures, Inc., B-290785, August 26, 2002.
DIGEST: Protest that contracting agency improperly failed to investigate whether competition existed to perform requirements prior to awarding a sole-source contract to perform such requirements is denied where the procurement was under simplified acquisition procedures and where the record showed that the contracting officer reasonably determined that, under the circumstances of the contract action, only one source was reasonably available.

Omega World Travel, Inc.; SatoTravel, Inc., B-288861.5; B-288861.6; B-288861.7, August 21, 2002
DIGEST: 1. Agency consideration of discount offered by firm for award of contracts for all regions listed under solicitation, and award to that firm of contracts for all regions, is unobjectionable and consistent with solicitation evaluation and award provisions, which contemplated multiple awards but permitted awards for any combination of regions.
2. Agency properly declined to consider contingent discount offered by protester under solicitation that called for fixed prices.
3. Agency properly declined to consider “alternative” monthly management fee pricing structure that did not provide any prices on the basis of transaction fees, as required by the solicitation.
4. Agency reasonably did not downgrade proposal under past performance evaluation factor because of 5-year old contract fee dispute under predecessor contract that did not affect contract performance and that had been resolved by a settlement favorable to the offeror.

Bath Iron Works Corporation, B-290470; B-290470.2, August 19, 2002.
DIGEST: 1. Protest that agency failed to conduct competition (for naval surface combatant design and risk reduction work) on a common basis when it denied protester use of a decommissioned destroyer for at-sea testing while at the same time accepting for purposes of the evaluation awardee's proposed use, is denied where there would have been no material technical benefit to protester from proposing the destroyer and its failure to propose it did not materially affect the evaluation; protester therefore was not competitively prejudiced by any unequal treatment.
2. Protest that likely cost of awardee's proposed effort would exceed solicitation cap on research, development, test and evaluation costs is denied where (1) agency in fact has additional money available, and (2) protester has not shown that it would have increased its proposed effort so as to materially improve its competitive position had it known that additional funding in the amount of any likely overrun were available; there thus is no basis for finding competitive prejudice as a result of the alleged waiver.

Inter-Con Security Systems, Inc., B-290493; B-290493.2, August 14, 2002.
DIGEST: 1. Where solicitation for local guard services provided for 10 percent price evaluation preference for offerors qualifying as “U.S. persons,” fact that awardee firm was being acquired by foreign firm, and thus would not be owned and controlled by U.S. citizens, did not preclude awardee from receiving the preference, since nothing in the solicitation or underlying statute required offerors to establish ownership and control by U.S. citizens to qualify for the preference.
2. Where solicitation provided that offerors would qualify for evaluation preference as “U.S. person” if required certification showed U.S. citizens were employed in at least 80 percent of “principal management positions in the U.S.,” awardee's reporting of a non-U.S. citizen in one of three positions amounted to a showing of less than the required 80 percent; awardee's proposal therefore was not entitled to application of the preference, and protest is sustained on this basis.

Gemmo Impianti SpA, B-290427, August 9, 2002.
DIGEST: Agency's source selection decision is unreasonable where the evaluation supporting the cost/technical tradeoff selection decision contains material defects under two of the three technical factors, and the tradeoff analysis is based on an erroneous assumption about the relative price difference.

Pacific Support Group, LLC, B-290467, August 8, 2002.
DIGEST: 1. Protest against determination to retain in-house certain real property maintenance functions as a result of a cost comparison conducted pursuant to Office of Management and Budget Circular A-76, alleging that agency improperly failed to include costs for all of the personnel required to meet the requirements of the performance work statement (PWS), or to appropriately reduce the evaluated cost of contractor performance, is denied; the record provides no basis to question the reasonableness of the agency's finding that, as adjusted, the cost of in-house performance included all staffing necessary to meet the PWS requirements, and that after appropriate reduction to the evaluated cost of contractor performance had been taken as well, the cost of in-house performance remained low by a substantial margin.
2. Adjustment to the most efficient organization (MEO) staffing cost estimate as necessary to satisfy the performance work statement requirements, based on findings by the agency administrative appeals board after consultation with MEO study team, is an appropriate element of agency-level A-76 appeal process, the adoption of which does not provide a basis to object to the propriety of the cost comparison determination.

Vantex Service Corporation, B-290415, August 8, 2002.
DIGEST: Protest against agency's bundling of portable latrine rental services with waste removal services, each of which is classified under a different North American Industrial Classification System code and is generally performed by a different set of contractors, is sustained, where the agency has not shown that bundling the services is necessary to meet its needs.

CMS Information Services, Inc., B-290541, August 7, 2002.
DIGEST: Where a competitive request for quotations issued under the Federal Supply Schedule limits competition to small business vendors, procuring agency properly may require firms to certify as to their small business size status as of the time they submit their quotations.

Flight Safety International, B-290595, August 2, 2002.
DIGEST: Protest that solicitation for pilot training is defective because it lacks a separate contract line item number (CLIN) for the cost of flight simulator modifications is denied where the agency provided sufficient information in the solicitation to allow offerors to reasonably use their business judgment to amortize and recover the costs of such modifications in its CLINs covering the pilot training.

Military Agency Services Pty., Ltd., B-290414; B-290441; B-290468; B-290496, August 1, 2002.
DIGEST: 1. General Accounting Office (GAO) will not consider protests that awards under solicitations for services breach the protester's requirements contract because this is a contract administration matter and therefore outside GAO's bid protest jurisdiction.
2. Protest of solicitation requirement as unduly restrictive is denied, where the requirement relates to safety and reliability, and the protester has not shown the requirement is unreasonable or unachievable.
3. Agency's request for near-immediate responses to requests for quotations for picket boat services conducted under simplified acquisition procedures is unobjectionable, where the requirements were needed shortly after when responses were due, the contracting office was only requisitioned to obtain the requirements shortly before requesting quotes, only prices were solicited, and all requested sources timely submitted quotes.
4. Defense agency was not required to comply with the public notice requirements contained in Federal Acquisition Regulation part 5 where the acquisitions were for services performed outside the United States and only local sources were solicited.
5. Where no evaluation factors are specified in a request for quotations, which only requests prices, price is the sole evaluation factor.
6. Even assuming agency improperly failed to solicit the protester under a request for quotations (RFQ) issued under simplified acquisition procedures for picket boat services, the protester was not prejudiced where under the particular circumstances there was no suggestion that it would have been successful under the RFQ.

HG Properties A, LP, B-290416; B-290416.2, July 25, 2002.
DIGEST: Lease modification changing location of site for construction of offered building space remains within the scope of the underlying lease, so that resolicitation of agency's space requirements is not necessary, where substituted site meets solicitation's geographical requirements and modification does not change lease price, performance period, basic responsibilities of parties to the lease, or the nature and purpose of the lease, so that overall effort under modified lease remains essentially the same as was contemplated under the original solicitation for offers.

Galen Medical Associates, Inc.--Costs, B-288661.6, July 22, 2002.
DIGEST: 1. Where claim for bid protest costs includes amounts for time spent by company personnel, outside counsel and consultant that far exceed the amount of time that a prudent person would spend pursuing the protest and, moreover, documentation presented in support of claim is inadequate in numerous respects, the entire amount claimed for this time is disallowed.
2. Protester may be reimbursed out-of-pocket expenses to the extent that they are adequately supported by documentation reflecting the actual costs incurred.

Federal Prison Industries, Inc., B-290546, July 15, 2002.
DIGEST: General Accounting Office will not review protest of agency's determination that Federal Prison Industry's (UNICOR) product was not comparable to private sector products, since UNICOR's enabling statute provides for binding resolution of such disputes by an arbitration board. [GAO rejects the argument that Unicor is not an interested pasdrty. See FN 3]

Sodexho Management, Inc., B-289605.2, July 5, 2002.
DIGEST: Protest that contracting agency improperly used nonappropriated funds instrumentality (NAFI) employees to constitute the overwhelming majority--more than 80 percent--of the labor force in its "most efficient organization" (MEO) as part of an Office of Management and Budget Circular A-76 cost study is sustained; while the A-76 guidance does not explicitly prohibit the use of NAFI employees in an MEO and may, in fact, be read to permit at least limited use of NAFI employees, where, as here, the level playing field promised by the A-76 guidance is tilted toward the in-house plan in a way that could not be reasonably anticipated by a commercial offeror based upon the A-76 guidance and the solicitation, the agency deprived the commercial offeror of the ability to make an intelligent business judgment concerning whether, and how, to compete.

Starfleet Marine Transportation, Inc., B-290181, July 5, 2002.
DIGEST: 1. Protest concerning the award of a concession contract is for consideration under General Accounting Office's bid protest function where the concession contract includes the delivery of property or services to the government.
2. Decision by the National Park Service to cancel a concession contract prospectus in order to review agency requirements is unobjectionable where the action was reasonable and consistent with applicable regulations. [Good discussion on issue of when GAO considers a concession contract to be a procurement of goods or services and within its bid protest jurisdiction-jaw.

Brickwood Contractors, Inc., B-290444, July 3, 2002.
DIGEST: 1. Contracting officer acted properly where the record reflects that he diligently reviewed the protester's responsibility, found the protester nonresponsible, and then promptly referred the matter to the Small Business Administration (SBA) under certificate of competency (COC) procedures, and because of the length of time required to complete these reviews, the bidders were requested to extend their bids; there was no regulation or other legal requirement that provides that a contracting officer's referral of a small business bidder to the SBA for a COC must take place at such a time in the process so as to permit the SBA to make its COC determination prior to the expiration of the bidder's initial bid acceptance period.
2. Bidder that allegedly submitted its bid extension by facsimile transmission assumed the risk of nonreceipt by the agency, and the bidder's evidence of its facsimile transmission does not establish receipt where, as here, the agency denies receipt and there is no other evidence of receipt.

J. L. Malone & Associates, B-290282, July 2, 2002.
DIGEST: Protest against agency's acceptance of late hand-carried bid is denied where the bid was received at the government installation and was effectively under the government's control prior to the scheduled bid opening, notwithstanding the role played by a contractor in receiving and controlling the bid.

Avalon Integrated Services Corporation, B-290185, July 1, 2002.
DIGEST: 1. Protest that task order exceeds scope of vendor's Federal Supply Schedule (FSS) contract is denied where vendor holds FSS contract for pertinent schedule item number and vendor's FSS contract includes each of the labor categories designated in the task order.
2. In competitive procurement under the FSS program, agencies are not required to conduct discussions, even in the absence of a solicitation clause warning vendors that award might be made without discussions.
3. In competitive procurement under the FSS program, where solicitation provided for evaluation of written proposals followed by oral presentations by “offerors found to be in the competitive range,” contracting agency was not required to hold discussions with vendors prior to selecting vendor with which to place order; at least in the context of an FSS purchase, retention of proposal in a competitive range does not create a right to discussions.

United Payors & United Providers Health Services, Inc., B-282075.4, June 26, 2002.
DIGEST: Protest that agency improperly rated proposals under a tiebreaker evaluation factor--business management competence--on a pass/fail, rather than a comparative, basis is denied; solicitation did not provide that the factor would be evaluated in a particular way, and there was nothing inherently unreasonable in the agency's assessing only whether offerors' business management competence was at an acceptable level.

Champion Business Services, Inc., B-290556, June 25, 2002.
DIGEST: Protest that agency acted improperly in determining that protester was qualified to make an oral presentation even though it had no chance for award, and request for reimbursement of oral presentation costs, does not come within GAO's bid protest jurisdiction and is dismissed. [GAO will no longer follow earlier decisions where it did consider protests based on assertion that a protestor's proposal should not have been included in the competitive range.]

Integrity Management Enterprises, Inc., B-290193; B-290193.2, June 25, 2002.
DIGEST: 1. Agency conducting a commercial activities study under Office of Management and Budget Circular A-76 did not act improperly in amending the performance work statement (PWS) during its review of the in-house management plan where the agency determined at that time that the PWS did not accurately reflect its minimum needs and the changes to the PWS were provided to the private-sector offerors through amendment of the request for proposals.
2. Agency reasonably determined, during a commercial activities study under Office of Management and Budget Circular A-76, that the in-house management plan reasonably established the ability of the government to perform the requirements of the performance work statement (PWS), and identified and included all costs necessary to perform the PWS requirements.
3. Agency, which during its evaluation of private-sector proposals submitted as part of a commercial activities study under Office of Management and Budget Circular A‑76 found that the selected “best value” proposal merely met the requirements of the request for proposal's performance work statement (PWS) and did not identify any strengths in the proposal, was not required to make any adjustments to the
in-house management plan, which also was found to meet the minimum PWS requirements.

Mitchell Roofing & Contracting, B-290462, June 25, 2002.
DIGEST: Where record shows that agency misread electronic version of awardee's bid as incomplete at the time of bid opening, and that, in fact, complete bid was received prior to bid opening time, there is no basis for questioning agency's award decision.

Global Crossing Telecommunications, Inc., B-288413.6; B-288413.10, June 17, 2002.
DIGEST: Agency reasonably determined that the protester was nonresponsible, even though the agency had determined the firm to be responsible before it filed for bankruptcy, where the updated pre-award survey, on which the contracting officer relied in making her nonresponsibility determination, included a detailed financial analysis reasonably concluding that the firm's poor financial condition made the firm a high financial risk and that the bankruptcy action created unacceptable contract performance risks. [Wonder how much the intervenor was pushing for this result?]

Northrop Grumman Information Technology, Inc., B-290080; B-290080.2; B-290080.3, June 10, 2002.
DIGEST: 1. Protest that awardee engaged in “bait and switch” with respect to key personnel is denied where agency chose not to incorporate awardee's key personnel provision into contract for administrative convenience, not because the awardee's proposal evidenced intent not to have the key personnel available to perform.
2. Protest that agency should not have assigned protester and awardee the same risk rating for systems management/program management factor is denied, where record shows that agency recognized the risks in each proposal, and concluded that both translated into moderate risk; protester's mere disagreement with this conclusion does not demonstrate that evaluation was unreasonable.
3. Agency engaged in meaningful discussions with protester where, during discussions, it pointed out significant weaknesses.

Safety and Health Consulting Services, Inc., B-290412, June 10, 2002.
DIGEST: Post-award protest that agency should now consider protester's quotation because the agency lost and thus failed to consider it prior to award is denied; it is not permissible to make award to a firm whose quotation was lost by the government prior to the closing date because to do so would be inconsistent with preserving the integrity of the competitive system. Protester's claim for quotation preparation and protest costs is also denied since mere negligence or lack of due diligence by the agency, standing alone, does not rise to the level of arbitrary or capricious action which provides a basis for the recovery of quotation preparation and protest costs.

Snell Enterprises, Inc., B-290113; B-290113.2, June 10, 2002.
DIGEST: 1. Protest alleging that a firm should be excluded from competition under a solicitation for information technology services because it assisted in the preparation of the solicitation is denied, where the allegation is based on inference and suspicion rather than substantial facts or hard evidence, and the agency unequivocally and credibly asserts that the firm did not assist in the preparation of the solicitation.
2. Protest that a firm should be excluded from competition under a solicitation for information technology services because the firm, through its performance of a delivery order for the agency, was given access to information that the protester now claims as proprietary, is denied, where the information was furnished voluntarily and without restrictions on its use.
3. With regard to a solicitation that consolidates services previously performed by two contractors under separate delivery orders into one contract, protest by one of the contractors that the other contractor (a competitor) gained an unfair competitive advantage by obtaining from the agency the names and home telephone numbers of the contractor's employees is denied where the contractor's competitor was already familiar with the contractor's employees and there is thus no indication that the agency's actions resulted in any unfair competitive advantage.
4. Prior performance of similar requirements by a firm does not give rise to a prohibited conflict of interest or provide an unfair competitive advantage where any advantage the firm may have is merely that of an incumbent contractor.

Department of the Navy--Reconsideration, B-286194.7, May 29, 2002.
DIGEST: 1. Prior GAO decision sustaining a protest that challenged an agency's decision to retain in-house performance of certain activities under a Circular A-76 study properly characterized the team tasked with preparing the agency's in-house management plan as ăessentially a competitor.
2. The nature and status of an agency team tasked with preparing the in-house management plan in a Circular A-76 study do not justify exempting that team from the conflict of interest limitations generally applied to private-sector competitors.
3. In complying with the conflict of interest requirements of Federal Acquisition Regulation (FAR) subpart 3.1, government officials involved in A-76 procurements should consider the instruction and guidance provided by FAR subpart 9.5.
4. Where a protest establishes facts that constitute a conflict of interest or an apparent conflict of interest, GAO will presume prejudice unless the record affirmatively demonstrates its absence.
5. Recommended corrective action addressing conflict of interest portion of prior decision is modified to provide for only prospective application.

Marshall-Putnam Soil and Water Conservation District, B-289949, May 29, 2002.
DIGEST: Under solicitation for offers for leased office space, proposal that failed to conform to material solicitation requirements for architectural elevation and landscape plans could not form the basis for award.

Johnson Controls World Services, Inc., B-289942; B-289942.2, May 24, 2002.
DIGEST: Protest challenging the agency's "best value" source selection decision is sustained where the record shows that there is insufficient information and analysis in the record, which includes both a contemporaneous source selection statement and a post-protest addendum to that statement, to determine that the award selection was reasonable.

Aulson & Sky Company, B-290159, May 21, 2002.
DIGEST: Contracting officer reasonably determined that the protester was nonresponsible and, therefore, ineligible for award where the pre-award survey revealed that the protester's recent record of past performance of construction-type requirements included repeated delays in contract performance.

DynCorp International LLC, B-289863;B-289863.2, May 13, 2002.
DIGEST: 1. Protest is sustained where source selection authority discounted weaknesses in awardee's proposal identified by technical and cost evaluators,and record does not establish that her disagreement had a rational basis.
 
2. Protest that agency improperly assigned high performance risk rating to protester's proposal based on potential cost growth, while not assigning a similar rating to awardee's proposal, is sustained where agency had concern about cost growth as to both proposals.

Lyons Security Services, Inc., B-289974, May 13, 2002Where agency denies issuing amendment extending due date for proposals, and record contains no evidence supporting protester's claim that it received such an amendment by electronic mail, there is no basis for questioning rejection of protester's proposal--submitted by alleged extended due date--as late.

PADCO, Inc.--Costs, B-289096.3, May 3, 2002.
DIGEST: 1. Protest challenging reasonableness of the agency's cost realism analysis of the awardee's proposed indirect costs was clearly meritorious where the agency accepted, without any analysis, the awardee's unexplained final proposed rates, which were substantially less than those initially proposed, its historical rates, and its proposed ceiling rates.
2. General Accounting Office (GAO) recommends that protester be reimbursed the costs of filing and pursuing its initial protest where the agency unduly delayed taking corrective action in response to the initial protest, which was clearly meritorious, until almost 2 months after the initial protest was filed and after submitting a report on the protest; GAO does not recommend the reimbursement of the costs of filing and pursuing supplemental protest grounds, which were clearly severable from the initial protest bases, because the agency did not unduly delay, but took corrective action in response to these protest grounds within 2 weeks of these grounds being raised, before the agency report on the supplemental protest grounds was due.

A&D Fire Protection Inc., B-288852.2, May 2, 2002.
DIGEST: An agency's selection of the higher-priced awardee based upon a cost/technical tradeoff was unsupported by the record, where the agency's tradeoff analysis was primarily based upon the agency's erroneous judgment that the awardee had offered an accelerated performance schedule (when in fact the awardee had promised only to perform the required contract schedule), which outweighed the protester's price advantage.

Alatech Healthcare, LLC--Protest; Custom Services International, Inc.--,B-289134.3; B-289134.4, April 29, 2002.
DIGEST: 1. Protest against agency's post-award corrective action that includes opportunity to revise cost proposals is denied where record shows that agency made change to requirements that will affect field of firms that may be able to meet agency's requirements.
2. Protest that agency was required under Federal Acquisition Regulation ¤ 15.507 to provide original awardee with information relating to unsuccessful offeror proposal prior to obtaining revised proposals is denied; regulation requires only that agency provide a successful offeror information relating to its own proposal in situations where the agency reopens an acquisition as a consequence of a protest.
3. Request for protest costs is denied where record shows that agency did not unduly delay implementation of corrective action proposed prior to submission of agency report.

TyeCom, Inc., B-287321.3; B-287321.4, April 29, 2002.
DIGEST: Protest against proposal reevaluation is denied where the reevaluation was performed by the agency in response to, and consistent with, corrective action suggested during alternate dispute resolution conducted in conjunction with a predecessor protest of the same procurement to the General Accounting Office, and the protester has not provided any persuasive evidence that the reevaluation was improper or unreasonable.

Instrument Control Service, Inc.; Science & Management Resources,, B-289660; B-289660.2, April 15, 2002.
DIGEST: 1.  Agency is not required to include in a solicitation a wage conformance from the prior service contract for employee classes not included in the applicable Service Contract Act wage determination.  
2.  Protests that solicitation requirement that items be calibrated within 5 workdays is unnecessary and unattainable are denied where the agency has reasonably explained its need for the requirement and why it is not unattainable, and the protesters have not shown the requirement is unnecessary or unattainable.

Chicataw Construction, Inc., B-289592; B-289592.2, March 20, 2002.
DIGEST: 1. Protester's challenge to the evaluation of its past performance is denied where the record shows that the agency made reasonable efforts to contact the required minimum of three past performance references, and ultimately used a neutral rating for the reference it was unable to reach.
2. Agency's post-protest recalculation of the protester's past performance score, and corresponding redetermination that the awardee's proposal still represents the best value to the government, will be considered where the reevaluation is limited in scope, primarily involves a straightforward recalculation with little room for subjective judgment, and there is nothing in the record to support a conclusion that the resulting increase in the protester's score would materially alter the agency's selection decision.

Lockheed Martin Systems Integration--Owego--Costs, B-287190.5, March 20, 2002.
DIGEST: Costs associated with responding to requirement for common avionics architecture system did not constitute proposal preparation costs where agency did not solicit proposals but, rather, was investigating requester's viability as potential source; costs incurred thus are not proposal preparation costs, and General Accounting Office has no authority to recommend their reimbursement.

Sonetronics, Inc., B-289459.2, March 18, 2002.
DIGEST: Contracting agency's past performance evaluation of awardee, based solely on a supply contract that the awardee had yet to perform, lacks a reasonable basis and is inconsistent with the solicitation, which required vendors to identify three "completed" contracts for the past performance evaluation.

Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002.
DIGEST: In a procurement under simplified acquisition procedures where the agency elected to establish a competitive range and conduct discussions, the agency improperly excluded the protester's low-priced quote from the competitive range and conducted discussions with only the awardee, where the protester's and awardee's quotes failed to satisfy the same solicitation requirements and the record did not support the agency's determination that the protester would not have had a realistic chance of receiving award if it had been afforded discussions.

Rockwell Electronic Commerce Corporation--Modification of, B-286201.8, March 5, 2002.
DIGEST: General Accounting Office (GAO) modifies recommendation to include reimbursement of protester's costs of preparing its proposal where agency declines to implement GAO's recommendation to reopen discussions with the protester, thus depriving protester of a meaningful opportunity to compete.

Quality Trust, Inc., B-289445, February 14, 2002.
DIGEST: Where, following a contracting officer's determination that the protester is not responsible, the Small Business Administration declines to issue a certificate of competency, the contracting officer is not required to again review the protester's responsibility where the protester does not present new information on this subject.

MCS of Tampa, Inc., B-288271.5, February 8, 2002.
DIGEST:1. Agency reasonably assigned the protester's past performance a neutral rating where the reference listed by the protester for the only contract considered relevant to the solicited work declined to respond to the past performance questionnaire, despite repeated requests by the agency.
2. Agency's determination to not consider the past performance of the protester's proposed subcontractor was reasonable where the subcontractor's performance under the solicited work was not major or critical to the overall effort and thus not reasonably indicative of the protester's performance under the contract.

Uniband, Inc., B-289305, February 8, 2002.
DIGEST: 1. Agency's post-protest reevaluation of one aspect of price realism of awardee's quote will be considered and weighed appropriately by the General Accounting Office in rendering its decision, where the agency conceded its error, the reevaluation was limited in scope (given that much of the agency's initial price realism evaluation was unobjectionable), and the reevaluation primarily required only the application of rather simple arithmetic calculations.
2. Agency's determination that awardee's quote was reasonable and realistic with regard to price is unobjectionable where the agency's price evaluation was relatively detailed and applied a variety of price analysis techniques and considered, among other things, the awardee's proposed approach to accomplish the work required and familiarity with the work as the result of the awardee having served as the incumbent subcontractor; fact that the agency's initial price realism analysis was flawed in one respect does not render the agency's determination unreasonable where this problem was reasonably addressed in a reevaluation performed during the course of the protest and the other aspects of the price analysis supported the agency's determination.
3. Agency conducted meaningful discussions where it brought its principal concerns about the protester's quote to the protester's attention; the agency was not required to inform the protester that its proposed price was high relative to the awardee's where the agency did not consider the protester's proposed price excessive or unreasonable.
[Extensive discussion of Boeing Sikorsky Aircraft Support, and post hoc justifications by the government.]

E. F. Felt Company, Inc., 2B-289295, February 6, 2002.
DIGEST: General Accounting Office will not review challenges to the Small Business Administration's (SBA) decision not to issue a certificate of competency unless there is a showing that the certificate of competency denial resulted from possible bad faith on the part of a government official, or from a failure to consider vital information because of how information was presented to, or withheld from, the SBA by the procuring agency.

Diamond Aircraft Industries, Inc., B-289309, February 4, 2002.
DIGEST:1. Protest that agency misled protester into offering an unacceptable item is denied where protester relied on agency official's informal advice in response to protester's request for clarification of solicitation; offerors rely on such informal advice at their own risk.
2. Protest that agency misevaluated protester's proposal is denied where proposal offered to comply with solicitation requirements, but did not provide any information to support its statements of compliance. [GAO equates e-mail with oral advice.]

Innovative Logistics Techniques, Inc.--Costs, B-289031.3, February 4, 2002.
DIGEST: General Accounting Office declines to recommend that protester be reimbursed its protest costs where the agency promptly took corrective action in response to a supplemental protest and comments on the agency report that, for the first time, identified alleged flaws in the evaluation of quotations which the corrective action was designed to remedy.[GAO reinforces position that the reimbursement of protests costs "... is not intended to ensure the fairness of agency-level processes occurring prior to the filing of a protest..."]

Crofton Diving Corporation, B-289271, January 30, 2002.
DIGEST: Agency evaluation of proposals and resulting determination to make a combined award are unobjectionable where they are reasonable and consistent with the solicitation evaluation and award criteria; protest that agency was required to conduct procurement in a manner that would afford preference to a split award to different offerors for each of two zones being solicited is denied where solicitation does not provide for such preference and states that either a combined or a split award could be made, based on which is most advantageous to the government.[Query: Does such a complicated valuation make sense? Did the incumbent "game" the process?]

Engineering & Professional Services, Inc., B-289331, January 28, 2002.
DIGEST: Contract modification resulting from an engineering change proposal (ECP) to provide technologically advanced ruggedized handheld computers is not beyond the scope of the basic contract where the original request for proposals (RFP) called for a wide array of hardware and software; the RFP contemplated that the successful contractor would use the ECP process to incorporate technological advances to the required products; and the modification does not change the fundamental nature and purpose of the underlying contract.

Del-Jen, Inc., B-287273.2, January 23, 2002.
DIGEST: Protest challenging cost comparison conducted pursuant to Office of Management and Budget Circular A-76 is sustained where the determination of the appropriate contract administration costs was unreasonable, and did not result in a fair comparison; record indicates that agency did not properly account for, and thereby understated, the contract administration effort, and associated costs, that should be included as costs of in-house performance, and that, in addition, agency may have overstated the contract administration effort, and associated costs, that should be included as costs of performance by the private-sector offeror.

John Carlo, Inc., B-289202, January 23, 2002.
DIGEST: 1. Protester's proposal for the rebuilding of a runway was reasonably evaluated by the agency as unacceptable where the protester's proposed organizational structure for accomplishing the project was unclear and where a protester's representative conceded during the presentation/discussion session that he had not read a critical section of the solicitation's specifications.
2. Agency's record of the protester's presentation/discussion session, which consists of only the evaluator's notes, is unobjectionable, where there is no prejudicial difference regarding the protester's and agency's descriptions of what was stated during the session.

SelRico Services, Inc., B-286664.4; B-286664.5; B-287481.2; B-287481.3, June 22, 2001.
DIGEST: Even where price is the least important evaluation factor for award under a best-value procurement, agency may award to an offeror with a lower-priced, lower-rated proposal if it determines that the price premium involved in awarding to an offeror with a higher-rated proposal is too great to justify.

Elementar Americas, Inc., B-289115, January 11, 2002.
DIGEST: Procuring agency unreasonably evaluated the protester's quote of an "equal" product under a "brand name or equal" solicitation conducted under simplified acquisition procedures where the procuring agency did not reasonably consider the protester's descriptive literature describing the characteristics of its product.

Imagine One Technology & Management, Ltd., B-289334, January 10, 2002.
DIGEST: Protest that discussion questions improperly established new requirements, and that the questions reveal other improprieties in the evaluation, is denied where record shows that discussion questions in fact reflected solicitation requirements, and that evaluation was reasonable. [GAO also notes i response to a technical leveling allegation: "The short answer is that technical leveling is no longer specifically prohibited by the FAR."]

Downtown Legal Copies, B-289432, January 7, 2002.
DIGEST: Contention that agency wrongly rejected protester's low bid for copying services after determining that it was not responsible is denied where the record as a whole shows that the agency's nonresponsibility determination was not unreasonable.

NVT Technologies, Inc., B-289087, January 3, 2002.
DIGEST: 1. Protest challenging agency decision to retain base operations and maintenance support services in-house as a result of a cost comparison pursuant to Office of Management and Budget Circular A-76, which alleges that the in-house cost estimate failed to use predetermined or "plug-in" material costs that private-sector offers were required to offer is denied, where the agency states that the proposed in-house material costs were derived from the same historical data from which the plug-in prices were calculated and it is undisputed that the in-house material costs were higher than the plug-in costs used by the protester.
2. Agency's determination, under a cost comparison pursuant to Office of Management and Budget Circular A-76, that the "most efficient organization" for in-house performance identified and stated costs for all positions necessary to perform the performance work statement requirements was reasonable.
3. Protest challenging a cost comparison pursuant to Office of Management and Budget Circular A-76, which alleges that the amount of contract administration costs added to the protester's proposed price was unreasonable because the grade structure of contract administrators was too high, is denied, where the protester did not show that the agency's explanation for the grade structure was unreasonable.

Wyle Laboratories, Inc., B-288892; B-288892.2, December 19, 2001.
DIGEST:1. Contracting agency reasonably determined that contractor's performance of both a contract for operation of the agency's highest echelon calibration laboratory and a contract for operation of lower echelon calibration laboratories did not pose an organizational conflict of interest where government personnel who are responsible for monitoring and measuring contractor performance under both contracts rely primarily on information other than feedback from other contractors in performing these functions.
2. Protest alleging that agency unreasonably failed to recognize several positive aspects of protester's proposal as strengths is denied where protester fails to demonstrate that agency's assessment of the significance of these aspects of its proposal was unreasonable.
3. Protest alleging that agency should have adjusted awardee's cost proposal upward to account for its offering of a lower fringe benefit rate than the rate paid by the incumbent contractor is denied where agency reasonably determined that the awardee's proposed fringe benefit rate, which was [deleted] the rate required in the Department of Labor wage determination included in the solicitation, was realistic.

Priority One Services, Inc., B-288836, December 17, 2001.
DIGEST: 1. Agency failed to perform a proper cost realism evaluation in awarding a cost reimbursement contract where the agency made no probable cost adjustments even where it identified costs that it believed were unrealistic and did not consider the proposed costs in light of the offeror's proposed technical proposals.
2. Agency's communications after submission of final proposal revisions with one offeror constituted discussions where the agency required the offeror to replace unacceptable personnel, and solicited other proposal revisions from that offeror, which entailed an increase in its proposed costs; thus, the agency was required to conduct discussions with all offerors whose proposals had been determined to be in the competitive range.

Apex Support Services, Inc., B-288936; B-288936.2, December 12, 2001.
DIGEST: Protest against performance bond and bid guarantee requirements is sustained where agency fails to demonstrate that it reasonably determined that bonding requirements were necessary to protect the government's interest.

A&D Fire Protection Inc., B-288852, December 12, 2001.
DIGEST:Protest challenging the agency's "best value" selection, which was to consider both technical factors and price, is sustained where the agency failed to consider the technically acceptable protester's lower proposed price.

Deutsche Bank, B-289111, December 12, 2001.
DIGEST: Protest alleging that, in connection with procurement for loan support services, the awardee had an organizational conflict of interest that was not properly mitigated, is denied where the record shows that the contracting agency reasonably determined that the awardee's proposal adequately mitigated any conflict of interest through the use of a subcontractor to perform loan servicing on those properties where the awardee had previously been involved in handling administrative matters for the agency related to the same properties.

The Jones/Hill Joint Venture, B-286194.4; B-286194.5; B-286194.6, December 5, 2001.
DIGEST: 1. A conflict of interest existed in an Office of Management and Budget Circular A-76 commercial activities study where a Navy employee and a private-sector consultant wrote and edited the performance work statement and then prepared the management plan for in-house performance.
2. The Navy Independent Review Official's certification (pursuant to Office of Management and Budget Circular A-76) that the government is able to perform the requirements set forth in the performance work statement with the resources provided in the in-house management plan, and that all costs in the in-house cost estimate were fully justified, cannot be found reasonable where it is unsupported by either the contemporaneous documentation or the arguments, explanations, or testimony in the record.
3. Agency's in-house management plan submitted under an Office of Management and Budget Circular A-76 commercial activities study was misevaluated, where the in-house management plan was based on the use of personnel that were not part of the "most efficient organization" to accomplish certain requirements in the performance work statement, and the record does not show that the costs of these personnel were included in the in-house cost estimate.
4. Agency's determination, pursuant to Office of Management and Budget Circular A-76, that the management plan for in-house performance offered a comparable level of performance and performance quality to the selected private-sector proposal, was unreasonable, insofar as it did not account for several strengths identified during the "best value" competition in the selected private-sector proposal.

Lackland 21st Century Services Consolidated, B-285938.7; B-285938.8, December 4, 2001.
DIGEST: 1. Protester's contention that it was procedurally improper for an agency to use its in-house auditors to perform a limited review of the soundness of any decision it might make before proceeding to a decision in a cost comparison conducted pursuant to Office of Management and Budget (OMB) Circular A-76 is denied where the agency sought the review after two prior reversals and a critical Inspector General report raised questions about whether any decision made could withstand scrutiny.
2. Protest alleging that the agency improperly canceled solicitation and reinitiated the A-76 cost comparison process is denied where a limited review of previous appeal and protest issues performed by in-house auditors led the agency reasonably to conclude that several problems with the solicitation may have resulted in a flawed private-sector competition.

Ocean Technical Services, Inc., B-288659, November 27, 2001
DIGEST: Where agency is not required to hold discussions or otherwise communicate with vendors regarding past performance information, and where agency has no reason to question the validity of past performance information received, agency can reasonably rely on information furnished without seeking to verify it or permitting the protester an opportunity to rebut it.

Johnson Controls World Services, Inc., B-288636; B-288636.2, November 23, 2001.
DIGEST: 1. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 and alleging that the supporting management study failed to directly compare all of the positions identified in the agency's "most efficient organization" with the labor force at the start of the study is denied, since there is no legal requirement for such a detailed, "position-by-position" comparison.
2. Protest challenging agency decision to retain in-house logistics and public works functions as a result of a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 and alleging that agency improperly failed to include costs for all of the personnel required to meet the requirements of the performance work statement (PWS), is denied, where the record provides no basis to question the reasonableness of the agency's finding that the government's "most efficient organization" had identified and costed all positions necessary to meet PWS requirements.

Myers Investigative and Security Services, Inc., B-288468, November 8, 2001.
DIGEST:1. Protest contention that evaluation was unreasonable is sustained where the record shows that the agency treated offerors unequally in its assessment of the past performance information used to justify the selection decision.
2. Protest allegation that an agency's affirmative determination of awardee's responsibility must have been made in bad faith is denied where the record shows that, even though the agency received information raising questions about how the awardee could have properly certified to state authorities that it had taken the required steps for receiving the state permits needed to perform the instant contract, the information received was not sufficient to require a conclusion that the firm lacked integrity.

Computer Technology Associates, Inc., B-288622, November 7, 2001.
DIGEST:Where protester's employees, including two management personnel, improperly obtained and reviewed other vendors' proposal material during course of procurement, agency reasonably determined to disqualify protester from further participation in the competition.

Professional Landscape Management Services, Inc.--Costs, B-287728.2, November 2, 2001.
DIGEST: General Accounting Office recommends that the protester be reimbursed the costs of filing and pursuing its protest where the agency unduly delayed taking corrective action in the face of a clearly meritorious protest; protest is clearly meritorious when a reasonable agency inquiry into the protester's allegations would have revealed that the agency had not taken reasonable steps to determine whether the procurement needed to be set aside for HUBZone small businesses.

Royal Hawaiian Movers, Inc., B-288653, October 31, 2001.
DIGEST: Notwithstanding a provision in a request for proposals that price revisions could only be made during a reverse auction, the agency reasonably determined to request revised price proposals after the end of the auction, in response to an agency-level protest, where the solicitation was ambiguous concerning when the auction would end and the agency reasonably believed that offerors may have been misled.

Goode Construction, Inc., B-288655; B-288655.2; B-288655.3, October 19, 2001.
DIGEST: 1. Protest that agency improperly converted technical evaluation process into responsibility determination is denied where record shows that award was based on a comparative evaluation of the relevant past performance of awardee and protester.
2. Protest that agency improperly failed to adjust protester's proposal evaluation score upward following discussions is denied where record shows that protester did not adequately respond to agency's request for additional information during discussions, and that increased score therefore was not warranted.

COBRO Corporation, B-287578.2, October 15, 2001.
DIGEST: Protest of cost comparison pursuant to Office of Management and Budget Circular No. A-76 is sustained where the solicitation inviting private-sector proposals erroneously required offerors to provide facilities for new inventory rather than making available existing government facilities, without the agency's having a reasonable basis for the restrictive requirement--specifically, without having conducted the study needed to justify the restriction.

Finlen Complex, Inc., B-288280, October 10, 2001.
DIGEST:1. Notwithstanding statement in solicitation that simplified acquisition procedures were being used and authority at Federal Acquisition Regulation (FAR) § 12.602(a) not to disclose the relative weight of evaluation factors when using simplified procedures, an agency's failure to disclose the relative weight of evaluation factors was unreasonable because basic fairness dictated disclosure of the relative weights where the agency required offerors to prepare detailed written proposals addressing unique government requirements.
2. Protester's contention that an agency's decision to assign a weight of 5 percent to a solicitation's past performance evaluation factor violates FAR § 12.206 (providing that past performance should be an important element of every evaluation) is denied as the FAR provision is discretionary, not mandatory.
3. Even in a commercial acquisition using simplified procedures, where an agency requests detailed written proposals, a selection decision is improper where it lacks a rationale which sets forth a basis for the tradeoffs made, including an explanation of any perceived benefits associated with additional costs.

Consortium Argenbright Security-Katrantzos Security, B-288126; B-288126.2, September 26, 2001.
DIGEST:Request for proposals providing for the submission of offers priced in local currency cannot reasonably be interpreted as prohibiting the submission of offers priced in euros where the euro has been adopted as a country's national currency.

Signals & Systems, Incorporated, B-288107, September 21, 2001.
DIGEST: 1. Protest of an agency's justification for a noncompetitive procurement on the basis of unusual and compelling urgency is sustained, where the agency sought to buy enough engine electrical start systems to replace an earlier, vehicle control unit system that could no longer be used due to safety considerations and the agency did not know, and made no reasonable effort to discover, how many vehicle control units would have to be replaced.
2. An agency failed to conduct reasonable advanced procurement planning, where, despite knowing of safety concerns with a vehicle control system that would have to be replaced, the agency took nearly 2 years to draft performance specifications that it intended to use to conduct a competitive procurement.

The Arora Group, Inc., B-288127, September 14, 2001.
DIGEST:1. In a negotiated procurement in which award was made to the offer representing the best value to the government, a protester is an interested party under the General Accounting Office Bid Protest Regulations to protest the award and evaluation of proposals, even where the protester's offer is ranked fifth of seven offers, since, if its protest were sustained, it could be in line for award.
2. Terms incorporated into solicitation for designing outpatient clinics are latently ambiguous and resulted in unequal competition where the record shows that offerors prepared their proposals based on different, yet reasonable, assumptions.

Sabreliner Corporation, B-288030; B-288030.2, September 13, 2001.
DIGEST:Agency's proposed award of a sole-source contract for engineering and overhaul services for helicopter engines, on the basis that only one firm is capable of meeting the agency's needs, is not reasonably based where the justification and approval prepared in support of the proposed sole-source award, other agency documentation, and the agency's submissions prepared in response to this protest as well as the testimony of the agency representatives at the hearing held at our Office in connection with this protest, are inconsistent and inaccurate.

S3 LTD, B-287019.2; B-287019.3; B-287021.2; B-287021.3, September 14, 2001.
DIGEST: 1. Protest contention that an agency conducted misleading discussions by orally changing the terms of the solicitation is denied because, even if the agency made the claimed change, offerors cannot reasonably rely on an oral modification to a solicitation which is inconsistent with its written terms, absent a written amendment, or confirmation of the modification, as required by Federal Acquisition Regulation § 15.206(f).
2. Protester's assertion that an awardee's outstanding past performance rating is unreasonable as it was partially based on the responses of an agency reference who provided a photocopy of identical performance ratings and narrative responses as an answer to a request for his assessment of the awardee's performance under each of four separate contracts is denied where the record shows that, while the reference's approach was less than ideal, his answers were consistent with the answers of other references, and consistent with his responses in a telephonic interview conducted by the contract specialist, and where there is no showing that the photocopied responses were inaccurate for any of the four contracts.

IT Corporation, B-288507, September 7, 2001.
DIGEST: Protest objecting to possible agency actions in response to the decision of an administrative appeal authority under Office of Management and Budget Circular A-76 is dismissed as premature, where the appeal authority upheld the protester's appeal and remanded the matter to the agency to take corrective action and the agency has not yet determined what action it will take.

Rockwell Electronic Commerce Corporation, B-286201.6, August 30, 2001.
DIGEST: Protest of agency's corrective action in response to a General Accounting Office decision sustaining earlier protest is sustained where the agency reopened discussions and requested proposal revisions from only one offeror in the competitive range, and where the agency's corrective action did not resolve the improprieties that were the basis for the prior decision.

LaBarge Products, Inc., B-287841; B-287841.2, August 20, 2001.
DIGEST: Agency reasonably excluded from the competitive range as unacceptable proposal with significant informational deficiencies. [Note: See FN 1, GAO acknowledged that agency may limit hyperlinks in a proposal submitted by means of electronic media to local documents only.]

Maryland State Department of Education, B-288501; B-288502, August 14, 2001.
DIGEST: Protests filed by a state licensing agency for the blind alleging solicitation improprieties in two requests for proposals issued pursuant to the Randolph-Sheppard Act are dismissed because the Act gives authority for review of disputes between federal agencies and state licensing agencies regarding these procurements to the Secretary of Education, not the General Accounting Office.

Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products, B-286797.3, August 13, 2001.
DIGEST: Agency reasonably determined to reprocure defaulted requirement from other than protester, a joint venture that was the evaluated next low bidder on the original procurement, where preaward survey information indicated that protester and component companies had performed late on numerous recent contracts, while awardee had recently performed similar work successfully.

Integrated Technology Works, Inc.-Teltara, Inc., B-286769.5, August 10, 2001.
DIGEST: Where protester submitted proposal that failed to comply with requirement that type be no smaller than 12 pitch, agency's reformatting of the proposal into required type size--as a result of which, proposal exceeded the 30-page limit--was unobjectionable, where agency's reformatting approach was reasonable.

Lynwood Machine & Engineering, Inc., B-287652, August 2, 2001.
DIGEST:It was reasonable for agency to consider poor performance record of protester's proposed special projects manager in evaluating protester's past performance, where protester itself lacked a performance record with respect to the required services, and the information available to the agency indicated that the special projects manager would play an important role in performing the contemplated contract.

Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001.
DIGEST: Protest is sustained where agency chooses not to defend against the protest and effectively concedes that the challenged evaluation and selection decision were not properly done by acknowledging that no adequate documentation of the agency's actions exists.

East Bay Elevator Company, Inc.--Costs, B-286315.2, July 26, 2001.
DIGEST: Request for reimbursement of protest costs based on agency delay in implementing promised corrective action is denied where the issues raised by the protester were not clearly meritorious, and the agency determined to take corrective action because of its concern with a matter that was not raised in the protest.

Bank of America, B-287608; B-287608.2, July 26, 2001.
DIGEST: Where agency knew or should have known that the protester interpreted the solicitation as limiting technical proposals to 100 pages, discussions with the protester were not meaningful when the agency did not advise protester that the solicitation permitted 200 page proposals, declined to advise the protester of the agency's repeatedly expressed concerns that the protester's proposal lacked detail, and advised the protester there were no technical weaknesses in its proposal.

Gulf Group, Inc., B-287697; B-287697.2, July 24, 2001.
DIGEST: 1. Protest that agency improperly applied undisclosed evaluation factor regarding specific experience of offerors is denied; agency properly may consider specific experience where, as here, solicitation provides for evaluation of experience.
2. Agency reasonably considered past performance reference in evaluating protester's proposal, even though protester claims the reference mistakenly rated its performance too low, where nothing on the face of the reference rating gave agency reason to look behind it.

McRae Industries, Inc., B-287609.2, July 20, 2001.
DIGEST: 1. Protester is an interested party to challenge contracting agency's alleged waiver of solicitation testing requirements notwithstanding that it did not submit a proposal where, if protest were sustained, the protester would have an opportunity to compete under a revised solicitation.
2. Allegation that in connection with a procurement for boots agency improperly waived solicitation's strict sample test requirements is denied where the agency reasonably determined that all offerors' samples would have passed the omitted tests, the end items will be subjected to the solicitation's strict field performance requirements, and the protester was not prejudiced by the agency's actions.

DynCorp Technical Services LLC, B-284833.3; B-284833.4, July 17, 2001.
DIGEST: 1. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 is sustained, where the agency did not consider the cost of government-furnished material as a common cost item, as it should have, but accepted the in-house cost estimate, which deducted the value of government-furnished material to be supplied to the winner of the competition, and did not adjust the protester's proposal for a cost-reimbursement contract, which did not deduct the value of the government-furnished material.
2. In a negotiated procurement conducted pursuant to Office of Management and Budget Circular No. A-76, in which the private-sector offer was to be selected on the basis of a cost/technical tradeoff, and where the solicitation encouraged offerors to exceed the solicitation's minimum performance schedule, the agency improperly failed to ensure that the in-house cost estimate and the protester's offer were based upon the same scope of work and performance standards, where the protester proposed an accelerated performance schedule, which exceeded the minimum requirements and contributed to the protester's selection as the offeror to compete against the agency's most efficient organization (MEO), and the MEO proposed to satisfy the minimum performance schedule requirements.

Pacific Island Movers, B-287643.2, July 19, 2001. Reverse Auction Protest
DIGEST: In a negotiated procurement which provided for a reverse auction, an agency reasonably determined to request revised price proposals after the end of the auction, in response to a protest which raised reasonable concerns that there were errors in the conduct of the reverse auction.

Lackland 21st Century Services Consolidated--Protest and Costs, B-285938.6, July 13, 2001.
DIGEST: 1. Protest seeking reinstatement of an earlier protest, and a decision on the merits of that protest because, in the protester's view, the agency has unduly delayed taking the corrective action promised in response to the earlier protest, is dismissed since the protester would have us consider a proposed course of action that has been abandoned, and any dispute about that action has been rendered academic.
2. Protester's request for a recommendation that it be reimbursed the cost of filing an earlier protest challenging a cost comparison under Office of Management and Budget Circular No. A-76 on the basis that the agency has not yet awarded it the contract (the promised corrective action that led to the dismissal of the earlier protest) is denied where the record shows that the agency reasonably elected to delay award until completion of a review by the agency's Office of Inspector General, which was, apparently, completed approximately 5 months after our Office dismissed the earlier protest as academic.

Summit Research Corporation, B-287523; B-287523.3, July 12, 2001.
DIGEST: 1. Protest challenging an agency's conclusion that an evaluation of small business participation should reflect only the offeror's reliance on small business subcontractors--and not also whether the offeror is itself a small business--is sustained where the record shows that the evaluation clause at issue, on its face, advised that the agency would assess small business participation, not small business subcontracting, and where the solicitation and the agency's own evaluation forms, request information about, and reflect consideration of, the aggregate use of small business in performance of the total contract.
2. Protest alleging that agency evaluators unreasonably ignored information received from the Defense Contract Audit Agency (DCAA) advising that one of an offeror's proposed key personnel was no longer employed by the company is sustained where the record shows that the DCAA advised the agency of the employee's departure more than a month before contract award, and the agency took no steps to change its evaluation or consider the impact of the employee's departure, despite acting on several other recommendations provided in the same communication.

Medical Information Services, B-287824, July 10, 2001.
DIGEST: 1. Challenge to the evaluation of protester's proposal is denied where the record shows that the technical evaluation board (TEB) evaluated the proposal in accordance with the criteria announced in the solicitation and the record supports the TEB's conclusions.
2. A proposal found deficient following a comparative evaluation of proposals (rather than on a pass/fail basis) under traditional responsibility factors such as experience, past performance, and personnel qualifications is not a matter of responsibility subject to the Small Business Administration's certificate of competency procedures.

SatoTravel, B-287655, July 5, 2001.
DIGEST: Awardee took no exception to the terms of the solicitation by proposing to provide commercial travel office services at no cost to the government in any of the performance periods as evidenced by its insertion on the solicitation's price schedule of "$zero" for the base period and a discount fee/rebate (an amount less than "$zero") for each of the option periods.

W R Systems, Ltd., B-287477; B-287477.3, June 29, 2001.
DIGEST: 1. Contention that contracting officer's (CO) decision to reject initial evaluations and convene a new technical evaluation panel was designed to ensure that the protester was improperly eliminated from consideration is denied, where there is no evidence in the record that the CO's decisions were not made in good faith or that they were designed with the intent of changing technical rankings or avoiding an award to the protester.
2. Allegation that protester was prejudiced because in preparing its proposal it assumed that offerors were prohibited from proposing certain individuals as core personnel on the basis of their work history is denied where the solicitation did not impose any restrictions, limits, or prohibitions on the individuals that could be proposed to fill the required core positions due to their prior work.
3. Protest challenging agency's evaluation of awardee's past performance is denied where the record shows that the evaluation was reasonable and consistent with the evaluation criteria set forth in the solicitation.

Cox & Associates CPAs--Costs, B-286753.3, June 19, 2001.
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 protests, which were clearly meritorious; corrective action was not taken until more than 3 months after the initial protest was filed and only after the GAO attorney handling the protest conducted "outcome prediction" alternative dispute resolution.

Strategic Resources, Inc., B-287398; B-287398.2, June 18, 2001
DIGEST: 1. Contracting agency reasonably determined that protester's performance under predecessor contract was entitled to greatest weight in its past performance evaluation and that performance of protester's proposed subcontractor on related contracts was entitled to little weight where subcontractor was to perform only approximately 20 percent of the solicited effort.
2. Contracting agency reasonably attributed past performance of subcontractor's subsidiary to the subcontractor where subsidiary and subcontractor share key management personnel.
3. Contracting agency reasonably viewed awardee's proposal as stronger than protester's under management approach factor where awardee furnished more detailed information regarding risk mitigation and staff recruitment procedures in its proposal.

Beacon Auto Parts, B-287483, June 13, 2001.
DIGEST: 1. Agency's evaluation of the protester's proposal, submitted in response to a solicitation for maintenance, repair, and overhaul of vehicles, is unobjectionable where the protester provides no basis to find unreasonable the agency's determinations regarding the qualifications of the protester's proposed on-site manager, tools and equipment, and past performance.
2. Protest challenging the agency's best value source selection is sustained where the record shows that the agency failed to consider whether the awardee's higher-rated proposal was worth its higher price.

Cox & Associates CPAs, PC, B-287272.2; B-287272.3, June 7, 2001,
DIGEST: 1. Protest challenging an agency's corrective action in response to a General Accounting Office protest is denied where the corrective action--the cancellation of a defective request for quotations that sought competition among Federal Supply Schedule vendors for highly complex and costly services and the conduct of a new, full and open negotiated competition for the services--is not shown to be unreasonable.
2. General Accounting Office will not recommend that protester be reimbursed protest costs where the agency promptly took corrective action in response to a protest prior to the date for filing the agency report.

Oceaneering International, Inc., B-287325, June 5, 2001.
DIGEST: 1. General Accounting Office's granting of an extension of the due date for the protester's comments on the agency report does not waive the timeliness requirements for filing a supplemental protest, and thus new and independent protest issues, first raised in comments submitted more than 10 days after receipt of the agency report on which the issues were based, are dismissed as untimely.
2. Agency reasonably evaluated the comparative degree of relevance of the past contract experience of offerors under the experience factor, and not under the past performance factor, consistent with the solicitation's evaluation scheme.
3. Agency's determination that the corporate experience of the awardee was equivalent to that of the incumbent is reasonable where the awardee performed contract work very similar to the work required under the solicitation and where the awardee's proposed key management personnel possessed significant experience.
4. Agency was not required by the solicitation to contact sources of information relating to an offeror's past performance, but has the discretion to consider only the references listed in the proposal.
5. Agency may have a reasonable basis to consider one proposal superior to another under an evaluation factor, even though both proposals are awarded the same rating for the factor.
6. Agency's evaluation of an oral presentation in response to a solicitation for an international undersea search, salvage and rescue operations contract did not use an unstated evaluation factor in considering whether offerors discussed alternative ports of mobilization where this element is intrinsic to one of the matters that was to be addressed in the oral presentation--mobilization.
7. Agency's failure to obtain or consider supporting cost data for subcontractor costs in the cost evaluation is unobjectionable, where the solicitation stipulated for evaluation purposes an amount for the cost reimbursable subcontract costs, the solicitation only required the submission of such data "as appropriate," and neither the protester nor the awardee submitted this supporting cost data.

Lockheed Martin Systems Integration--Owego, B-287190.2; B-287190.3, May 25, 2001.
DIGEST: Protest that agency improperly awarded requirement on a sole-source basis because it determined that only one firm could meet its requirements is sustained where record shows that another potential vendor was given an incorrect understanding of the agency's requirements; agencies are required to provide potential sources an opportunity to demonstrate their ability to meet the agency's requirements based on an accurate portrayal of the agency's needs.

Rice Services, Ltd.--Costs, B-284997.2, May 18, 2001.
DIGEST: Request for recommendation that agency reimburse protester for the costs it incurred in pursuing an administrative appeal of the agency's initial cost comparison decision under Office of Management and Budget Circular No. A-76 is denied because GAO's authority to recommend reimbursement of protest costs does not extend to costs incurred by a protester in litigating in another forum.

Belleville Shoe Manufacturing Company; Altama Delta Corporation;, B-287237; B-287237.2; B-287237.3, May 17, 2001.
DIGEST: 1. Protest is sustained where, although agency reasonably determined that small total business set-asides were not appropriate for more than one portion of boot manufacturing requirement, it improperly failed to consider whether non-set-aside portions should be partially set-aside.
2. Where procuring agency treats each of three contracts to be awarded under single solicitation as separate requirements, it is appropriate to perform a small business set-aside determination for each requirement, rather than a partial set-aside determination for the solicitation as a whole.
3. Solicitation providing for best value evaluation, with technical factors more important than price, is subject to the regulations requiring agency to determine whether requirement should be partially set-aside for small business.
4. In considering whether a small business concern is a responsible prospective offeror for purposes of a small business set-aside determination, agency properly considered that the concern had never mass-produced the item, and that another generally capable small business had experienced problems on a prior similar contract.
5. Agency reasonably declined to set aside a second portion of boot manufacturing requirement for small business, where each awardee can receive only one contract, and there are only two prospective responsible small business concerns likely to compete, so that, after award of the first set-aside portion to one of the small businesses, there would not be two small business offers left to be considered for a second set-aside award.

RS Information Systems, Inc., B-287185.2; B-287185.3, May 16, 2001.
DIGEST: . Where flaws in original cost evaluation require agency to reopen competition, prior disclosure of awardee's contract price and request for revised cost proposals do not create an improper auction.
2. Allegation that agency misled protester by advising it that its original evaluated cost was lowest among all offerors, is denied where agency's detailed cost discussions provided protester with all information necessary to prepare competitive offer; protester's decision not to submit lower cost proposal reflects its own business judgment and was not the result of misleading advice from the agency.

BAE Systems, B-287189; B-287189.2, May 14, 2001.
DIGEST: 1. Protester challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 was not required to file or participate in an appeal to the agency's administrative appeals board (AAB) as a prerequisite to filing a protest at the General Accounting Office, where the protester's private-sector offer had been determined to be more economical than performance in-house before this determination was reversed by the AAB and where the revisions made by OMB Transmittal Memorandum No. 22 to the Circular's Revised Supplemental Handbook that arguably require protester to file an appeal were not applicable to this cost comparison.
2. Protest challenging a cost comparison conducted pursuant to Office of Management and Budget Circular No. A-76 is sustained, where the agency did not reasonably determine that the in-house plan satisfied the performance work statement's requirements.
3. Protest of the agency's administrative appeals board's decisions, which reversed the original cost comparison determination in favor of the protester, is sustained where the board's determination as to how much staffing was required to be added to the in-house "most efficient organization" to perform the performance work statement requirements lacked a reasonable basis.
4. In a negotiated procurement conducted pursuant to Office of Management and Budget Circular No. A-76, in which the private-sector offer was to be selected on the basis of a cost/technical trade-off, the agency improperly failed to consider the protester's offer to meet a performance standard that appeared to exceed the performance work statement requirements.

Social Security Administration; MCI WorldCom,-Reconsideration B-286201.4; B-286201.5, April 19, 2001.

Systems Management, Inc.; Qualimetrics, Inc., B-287032.3; B-287032.4, April 16, 2001.
DIGEST: Protest is sustained where the procuring agency improperly relaxed for the awardee a mandatory solicitation requirement that the weather observation system be certified by the Federal Aviation Administration, yet did not notify the offerors of its changed requirements, and the record evidences that the protesters were prejudiced because they could have proposed different systems if they had been apprised of the agency's actual requirements.

Labat-Anderson, Inc., B-287081; B-287081.2; B-287081.3, April 16, 2001.
DIGEST: Protest that contracting agency improperly eliminated proposal from consideration for award because it failed to comply with solicitation requirement to clearly explain the rationale for including hard-coded entries in electronic version of its priced estimating model is denied where the record shows the agency reasonably found the protester's explanation for these entries insufficient, and where the solicitation specifically provided that this failure could result in the elimination of a proposal from consideration.[Note: A FSS competitive buy using "FAR Part 15 procedures".]

Wilcox Industries Corporation, B-287392, April 12, 2001.
DIGEST: Allegation that the agency improperly failed to publicize solicitation or award in the Commerce Business Daily (CBD) is denied where the record clearly shows that the acquisition was synopsized in the CBD Online (CBDNet) and in the printed version of the CBD on two separate occassions, including a notice announcing a change to the solicitation number; the notices advised that the solicitation and related documents could be downloaded from the agency's Internet home page; and the notices provided a link to that site, along with the contracting officer's e-mail address and telephone number, and the protester failed to fulfill its obligation to avail itself of every reasonable opportunity to obtain the solicitation.

FC Construction Company, Inc., B-287059, April 10, 2001.
DIGEST: 1. Protester's challenge to the agency's assessment of past and present performance is denied where the record shows that the agency evaluation was reasonable, and that offerors were treated equally, despite insignificant differences in the agency's approach to gathering the information due to requests from the protester's references.
2. Protester's assertion that the agency wrongly transcribed the telephonic responses of commercial references identified by the protester's subcontractor is denied where the commercial references apparently declined to make themselves available for a hearing that would permit assessment of the relative credibility of witnesses whose version of the same event is in conflict.

United Defense LP, B-286925.3; B-286925.4; B-286925.5, April 9, 2001.
DIGEST: Protest against award of single contract for both infantry carrier vehicle (ICV) and mobile gun system (MGS) variants of new family of armored vehicles is denied where (1) awardee's proposal for ICV, accounting for approximately 89 percent of new vehicles in contemplated brigade, was reasonably evaluated as offering significant performance and supportability advantages which outweighed protester's schedule and price/cost advantages, and (2) although awardee's schedule for deploying MGS was very disadvantageous and evaluation did not fully reflect certain disadvantages with respect to ammunition storage in awardee's MGS, its proposal nevertheless offered other performance and supportability advantages, and selection of awardee's MGS would result in commonality between ICV and MGS, such that award for both variants was not unreasonable.

Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001.
DIGEST: Proposal that failed to conform to a material solicitation requirement was technically unacceptable and could not form the basis for award.

Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001.
DIGEST: 1. Agency improperly awarded a contract on the basis of the lowest priced proposal where the proposal failed to comply with a material solicitation requirement.
2. Where solicitation provided for contract award on the basis of a cost-technical tradeoff emphasizing technical merit over cost/price, it was improper for the agency to evaluate technical proposals on a pass/fail basis and then make its source selection decision on the basis of what it perceived to be the lowest priced, technically acceptable proposal without advising offerors of this change in the source selection criteria.

Day Zimmermann Hawthorne Corporation, B-287121, March 30, 2001.
DIGEST: 1. Protest that contracting agency improperly failed to include the clause at Federal Acquisition Regulation § 52.250-1, "Indemnification Under Public Law 85-804," in solicitation that includes requirements for ordnance handling and support services is denied where the record shows that the Navy's decision was reasonable.
2. Protest that solicitation that includes requirements for ordnance handling and support services imposes inordinate and unjustified risks that unduly restrict competition is denied where the solicitation provided offerors with extensive detail in order to inform them about any risks that might exist in the performance of the contract and imposed numerous safety requirements that limit those risks, and where competition does not appear to have been unduly restricted; the mere presence of risk in a solicitation does not make it improper.

Government Business Services Group, B-287052; B-287052.2; B-287052.3, March 27, 2001.
DIGEST: 1. General Accounting Office (GAO) will not review contention that contracting agency is required under the Freedom of Information Act (FOIA) to provide protester copies of certain operation manuals and processing instructions the agency developed and placed in reading rooms for offerors to review in connection with solicitation to acquire background investigations services, because GAO has no authority under FOIA regarding the release of documents in the possession of an agency. Protester must pursue the remedy it seeks under the disclosure remedies of FOIA.

2. Allegation that solicitation's restriction on photocopying documents the agency developed and placed in reading rooms for offerors to review is unduly restrictive of competition is denied, where offerors were permitted to view the documents at issue for at least 2 weeks prior to closing, and when viewed together with the information the agency provided with the solicitation, the agency provided sufficient information for offerors to compete intelligently and on an equal basis.

3. Protest that offeror under solicitation for background investigation services has an organizational conflict of interest that renders that firm ineligible for award is dismissed as premature where contracting agency has made no final determination regarding the status or eligibility of the offeror.

The Jones/Hill Joint Venture--Costs, B-286194.3, March 27, 2001.
DIGEST: 1. Protest challenging the propriety of the Department of the Navy's determination, pursuant to Office of Management and Budget Circular No. A-76, that the most efficient organization/management study (MEO/MS) for in-house performance offered the same level of performance and performance quality as the selected private-sector proposal was clearly meritorious, where certain strengths in the selected private-sector proposal that were identified during the best value competition were not considered by the agency in determining that the MEO/MS offered the same level of performance and performance quality, the agency accepted without adequate analysis unsupported claims made by the MEO/MS team regarding the MEO/MS's ability to achieve the same level of performance and performance quality as the best value private-sector proposal, and the MEO/MS provided for the performance of a certain task by individuals who were not part of the MEO/MS and whose labor costs were not accounted for in the MEO/MS.

2. General Accounting Office recommends that the protester be reimbursed for the costs of filing and pursuing its protest challenging the Department of the Navy's determination, pursuant to Office of Management and Budget Circular No. A-76, that it would be more economical to perform base operations and support services in-house, rather than contract for these services with the protester, where the protest was clearly meritorious and the contracting agency did not take corrective action in response to the protest until after the submission of an agency report, the protester's comments, a supplemental agency report, supplemental comments, and an alternative dispute resolution conference during which the GAO attorney assigned to the protest informed the agency that it had significant litigation risk with regard to a number of issues raised by the protest.

GTSI Corporation, B-286979, March 22, 2001.
DIGEST: 1. Protest by an awardee of an agency's stated intent to take corrective action in accordance with an agency-level protest decision holding that the awardee's contract violated the terms of the solicitation and should be set aside, is not premature, even though the agency has not yet announced whether it will simply terminate the awardee's contract (leaving another offeror as the only awardee) or reopen the competition among the awardee and the remaining unselected offerors, because the awardee faces harm under either of the corrective action options available.

2. The submission of a below-cost or low profit offer is not illegal and provides no basis for challenging an award of a fixed-rate contract to a responsible contractor.

3. Agency-level protest decision sustaining an offeror's challenge to an award may not form the basis for agency corrective action where the agency protest decision erroneously concludes that (1) the awardee's offer of $0.00 for certain contract line items (CLIN) violated the terms of the solicitation, and (2) accepting the awardee's $0.00 prices, while advising another offeror during discussions that it could not enter the acronym "NSP" (not separately priced) for certain other CLINs, gave the awardee an impermissible competitive advantage.

Kruger Construction, Inc., B-286960, March 15, 2001.
DIGEST:In a sealed bid procurement which provided for adding the prices for option items to the price bid for the basic item to determine the total evaluated bid price, except where it was not in the best interests of the government, the procuring agency could not properly add together the price of two alternate option items in its price calculation, where the agency knew that it could not exercise both options.

Inter-Con Security Systems, Inc.; CASS, a Joint Venture--Costs, B-284534.7; B-284534.8, March 14, 2001.
DIGEST: 1.General Accounting Office (GAO) recommends that protesters be reimbursed the reasonable costs of filing and pursuing their protests challenging the evaluation and selection process where the contracting agency unduly delayed taking corrective action in response to the protests, which were clearly meritorious; corrective action was taken only after a GAO attorney conducted "outcome prediction" alternative dispute resolution.
2. The Federal Acquisition Streamlining Act of 1994 provides the head of an executive agency with the authority to pay protest costs and proposal preparation costs where, in connection with a protest, the head of the agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation.

Digital Systems Group, Inc., B-286931; B-286931.2, March 7, 2001.
DIGEST: 1. Protester's allegation that the evaluation of its technical proposal as posing a "high" risk contradicts the rating of its cost proposal as "low" risk is denied, where the record shows that technical and cost proposals were rated separately by different evaluation teams which considered different factors, and the different ratings merely reflect the independent judgments of the evaluators and are reasonably supported by the record.

2. Agency was not required to conduct discussions regarding two weaknesses identified in the protester's proposal regarding its past performance since the two weaknesses (which pertained to only 2 out of 20 performance questionnaire items) were not considered significant, and protester's performance record was rated acceptable overall. Agencies are not required to point out every element of acceptable proposals that receive less than the maximum evaluation rating.

3. Protester's allegation that the agency improperly conducted discussions is denied, where the record shows that during several rounds of discussions, the agency reasonably led the protester into areas of its proposal requiring revision, and the protester's failure to make those revisions because it feared jeopardizing its favorable cost rating reflected its own business judgment, rather than any improper agency action.

4. Discussions with offeror whose otherwise acceptable proposal took exception to certain solicitation requirements were unobjectionable where agency reasonably determined that proposal could be made acceptable through discussions and that exceptions were primarily the result of defects in solicitation; ultimate decision to amend the solicitation to cure defects was unobjectionable since agency advised all offerors of the changed requirements and all offerors responded to the amended solicitation in final proposals.

5. Allegation that contracting officer's (CO) multiple roles impermissibly compromised his independence is denied, where there is no evidence in the record that the CO had any influence over the evaluation of technical or cost proposals, or that the CO's carrying out of his responsibilities in any way compromised the source selection.

Cortland Memorial Hospital, B-286890, March 5, 2001.
DIGEST: Protest of agency's source selection is sustained where contemporaneous documentation does not establish that the selection was consistent with the solicitation's evaluation criteria.

Johnson Controls World Services, Inc., B-286714.2, February 13, 2001.
DIGEST: 1. Protest that awardee had unfair competitive advantage due to organizational conflict of interest is sustained where awardee's proposed subcontractor possessed information through its work as a government contractor, the information was not available to other offerors, the agency took no steps to identify or mitigate the conflict in advance, and there were no meaningful procedures in place to prevent interaction between the employees possessing the information and the employees preparing the proposal.
2. Protest that awardee has impaired objectivity type of organizational conflict of interest is sustained where record shows that, under the terms of another contract, proposed subcontractor will be making recommendations that could benefit the awardee, and the proposed subcontractor could be called upon to evaluate the performance of the awardee team.

Schrepfer Industries, Inc., B-286825, February 12, 2001.
DIGEST: Agency properly determined bid bond accompanied by photocopied power of attorney unacceptable because photocopied power of attorney does not establish unequivocally at the time of bid opening that the bond would be enforceable against the surety in the event that the bidder fails to meet its obligations.

Newfield Construction, Inc., B-286912, February 6, 2001.
DIGEST: Agency improperly accepted bid that was nonresponsive where bidder failed to submit a price for one line item and submitted two different prices for a second line item; the bid, as submitted, precluded a determination of the exact nature of the error and the intended price for the omitted bid item.

G & J Small Construction, Inc., B-286716, February 5, 2001.
DIGEST: A bid containing signatures of the president that differed in appearance was improperly rejected where the agency failed to consider the post-bid-opening explanation of the bidder regarding who had signed the bid and why the signatures were different, which should have removed any concern about the signatures.

Jackson Enterprises, B-286688, February 5, 2001
DIGEST: Agency improperly rejected bid for failure to acknowledge amendment where amendment does not contain material information and does not alter bidders' legal obligations.

International Resources Group, B-286663, January 31, 2001. [This appears to be the first case where the GAO has considered the timeliness issue where an email enters the recipient's computer system after business hours and is not read until the first business day after an intervening weekend/holiday]
DIGEST: 1. For purposes of Federal Acquisition Regulation § 15.505(a)(1), which provides that an offeror may request a preaward debriefing by submitting a written request for debriefing to the contracting officer within 3 days after receipt of the notice of exclusion from the competition, where e-mail notification of an offeror's exclusion from the competitive range enters the offeror's computer system after close of business or on a weekend or holiday and is not opened before the following business day, receipt of the notice is considered to have occurred on that business day.
2. Agency improperly reopened discussions with only one of several offerors in the competitive range after receipt of final revised proposals.

Lawson's Enterprises, Inc., B-286708, January 31, 2001.
DIGEST: A solicitation for the rehabilitation of a residence can only reasonably be read as requiring the submission of bid guarantees with all bids, including those under $100,000, and the protester's bid of under $100,000, which did not include a bid guarantee, was properly rejected as nonresponsive.[Case also reaffirms proposition that-"Where an IFB requires all bids to include a bid guarantee, any bid (even one under the Miller Act threshold) failing to provide the required guarantee by bid opening must be rejected as nonresponsive."]

Farmland National Beef, B-286607; B-286607.2, January 24, 2001.
DIGEST: Where awardee's proposal to provide beef products to Department of Defense commissaries stated that the awardee was taking "exception" to the solicitation's mandatory delivery schedule, and the awardee's subsequent submissions further explained that it was proposing a "flexible" schedule under which the awardee would determine on a week-by-week basis when deliveries would be made to the various commissaries, award was improper in that the awardee's proposal failed to conform to a material solicitation requirement.

SWR Inc., B-286161.2, January 24, 2001.
DIGEST: Rejection of protester's proposal as unacceptable because it allegedly did not show specific required experience was unreasonable, where the proposal specifically represented that it had the required experience, the basis for the rejection was the omission of information concerning this experience in documents that were provided by the protester to the agency at a site visit for another purpose and which did not reasonably establish that the protester did not have the experience required, and the alleged deficiency was not identified to the protester during discussions.

Satellite Services, Inc., B-286508; B-286508.2, January 18, 2001.
DIGEST: Protest that agency's source selection decision was unreasonable is sustained where the evaluation did not comport with the solicitation's evaluation criteria and the source selection decision failed to reasonably assess the significance of the technical differences (in particular, the substantial difference in the proposed level of effort) between the lower-rated proposal of the awardee and the higher-rated proposal of the protester.

Aquila Fitness Consulting Systems, Ltd., B-286488, January 17, 2001.
DIGEST: 1. A bid that is based upon the incorrect premise that only three full-time and two part-time positions were required under a solicitation for services where the invitation for bids clearly requires five full-time positions may not be corrected.
2. Protest is sustained, even though the agency properly rejected the protester's low bid due to a mistake in bid, where it then made award to a higher-priced bidder whose bid contained the same mistake, notwithstanding that the higher-priced bidder submitted worksheets to the agency, prior to award in response to the agency's request for bid verification, that clearly evidenced the mistake, and then after award raised the contract price to account for this mistake.

OSI Collection Services, Inc., B-286597; B-286597.2, January 17, 2001.
DIGEST: Protests against award of federal supply schedule task order contracts for private collection agency services are sustained where the record shows that the contracting agency's evaluation of offerors' past performance, which largely relied upon a mechanical comparison of past performance scores for incumbent contractors, was unsupported and unreasonable.

Menendez-Donnell & Associates, B-286599, January 16, 2001.
DIGEST: Agency reasonably found protester's proposal technically unacceptable under experience and past performance evaluation criterion, where record shows that protester failed to submit required detailed information showing that its proposed key subcontractors had previously performed contracts similar to the solicited effort; offerors have an affirmative duty to prepare an adequately written proposal.

Hernandez Engineering, Inc.; ASR International Corporation, B-286336; B-286336.2; B-286336.3; B-286336.4, January 2, 2001.
DIGEST: 1. Protest that contracting agency improperly evaluated awardee's past performance as "very good" is denied, even though the agency considered references of the awardee's parent corporation in the past performance evaluation, where the solicitation did not require any specific minimum of reference questionnaire responses and the agency received a reference questionnaire response regarding a comparable contract performed by the awardee rating its performance as "very good" to "excellent."
2. Consistent with the solicitation's evaluation factors, agency reasonably found significant strengths in awardee's proposal that justified a technical rating that was significantly higher than that of protesters.
3. In calculating probable costs of protesters' proposals, agency reasonably upwardly adjusted their costs where protesters proposed less staffing than forecasted in the solicitation for some of the required services without adequate explanations of the methodology used to develop the proposed lesser levels of staffing and/or accounting for the enhanced levels of services contemplated by the solicitation.