New First, as noted above, the RFP detailed specific requirements for the documentation in proposal volume VI, which included the cover letter and SF 33. With respect to the offeror's cover letter, the RFP required that the letter "[a]ddresses compliance to all RFP requirements and instructions to include any exceptions to the Terms and Conditions of the solicitation [and be] signed by an officer of the Offeror that is authorized to bind the Offeror's company." RFP at 376, § L-10(a)(1)(ii)-(iii). In DSI's cover letter, the firm's chief executive officer (CEO)--who signed the letter in ink--wrote, "This submission addresses compliance to all RFP requirements and instructions that include any exceptions to the Terms and Conditions of the solicitation." AR, exh. 9, DSI Cover Letter, at 1.

We find unobjectionable the agency's assessment that DSI's cover letter failed to comply with the solicitation. In this respect, as noted, the RFP required that an offeror address in its cover letter compliance with the RFP, as well as whether the firm was taking exception to any solicitation terms. Moreover, the RFP expressly cautioned against restating solicitation requirements. See RFP at 360, § L-8.3 ("The proposal should not simply rephrase or restate the Government requirements, but shall provide convincing rationale to address how the Offeror intends to meet these requirements"); see also id. at 366, § L-10 ("Statements such as 'the Offeror understands and complies' with the requirements or paraphrasing the requirements in the RFP is considered inadequate").

Despite these warnings and the clear instructions, DSI "simply restated the requirement," which left the contracting officer unclear as to whether DSI complied with all of the RFP terms and conditions and whether the firm was taking exception to any terms. COS/MOL at 22; AR, exh. 5, SPAWAR Letter to DSI, at 2. In this respect, DSI's cover letter did not affirmatively represent that the firm intended to comply with the solicitation requirements or unambiguously indicate that the firm did not take exception to any solicitation terms, as anticipated by the RFP. On this record, we find reasonable the agency's conclusion that DSI's cover letter failed to comply with the RFP.

Next, with respect to the SF 33, the RFP required that that an offeror's proposal "contain a completed and signed SF 33 and a signed copy of amendment [sic], if any. An official authorized to bind the company shall sign the SF Form 33 with blocks 12 through 18 completed." RFP at 376, § L-10(e)(1). The agency assessed DSI's SF 33 as noncompliant with these instructions because the firm's SF 33, which also was being used by DSI to acknowledge the solicitation amendments, did not include an "original signature." AR, exh. 5, SPAWAR Letter to DSI, at 1.

Here, the record shows that while block 16 of DSI's SF 33 identified the firm's CEO as the person authorized to sign the offer, the SF 33 only included the typewritten name of the CEO in a cursive font in block 17, the signature block. AR, exh. 10, DSI Proposal Vol. VI, SF 33. Notably, the form did not include the CEO's actual handwritten signature in ink or an authenticated digital signature. See id. Nevertheless, DSI maintains that this typewritten name complied with the solicitation requirements and legally bound the company if the agency had accepted the offer. Protest at 7-8. We disagree.

The FAR defines "signature" or "signed" as "the discrete, verifiable symbol of an individual that, when affixed to a writing with the knowledge and consent of the individual, indicates a present intention to authenticate the writing. This includes electronic symbols." FAR § 2.101. Under the circumstances here, the typewritten name of the CEO in the signature block, albeit in a cursive script font, is not a signature, as contemplated by the FAR. While the use of computer font arguably resulted in an "electronic symbol," the typewritten name itself did not constitute a discrete, verifiable symbol that was sufficiently distinguishable to be authenticated. That is, anyone can type a person's name; without a signature that could be authenticated, the named individual could just as easily disavow the legal instrument on which the typed name is affixed.

Further, DSI's proposal lacked any documentation that expressly authorized typewritten names to bind the company. More specifically, there is no indication in the contemporaneous record that DSI adopted the typewritten form of the CEO's name as his official signature. See SWR, Inc., B-278415, Dec. 17, 1997, 97-2 CPD ¶ 166 at 2; cf. Hawaiian Dredging Constr. Co. v. U.S., 69 Fed. Cl. 305 (2004) (holding that mechanically applied signature was binding where it was accompanied by adequate assurances that the company intended to be bound by the signature). Indeed, SPAWAR's concern regarding the typewritten name is particularly understandable given that the CEO's handwritten signature was used on other parts of the proposal. See, e.g., AR, exh. 9, DSI Cover Letter, at 1; exh. 14, DSI Proposal Vol. VI, attach. 23, Organizational Conflict of Interest Declaration & Disclosure, at 1. On this record, we find persuasive the contracting officer's concern that the government's acceptance of the proposal might not have resulted in a binding contract. See COS/MOL at 12-13.

Given that the CEO's typewritten name does not qualify as a signature, we see nothing unreasonable with the agency's assessment that the protester's SF 33 failed to comply with the RFP. In this respect, an offer which is not signed, and lacks some other material indication of the offeror's intention to be bound, generally must be rejected since the government's acceptance of the offer would not result in a binding contract without confirming the offeror's intention to be bound. SWR, Inc., supra; see generally G. Penza & Sons, Inc., B-249321, Sept. 2, 1992, 92-2 CPD ¶ 147 (finding rejection of protester's bid unobjectionable where required bid form included handwritten printed name of protester's representative rather than actual signature). In addition, where, as here, the solicitation contemplated award on the basis of initial proposals, after the established date for submitting proposals, it would have been unfair to other offerors to ask a company that had submitted an unsigned proposal whether it intended to be bound by its offer.[13] SWR, Inc., supra. We recognize that the result here is frustrating for DSI, particularly in light of the effort that ostensibly went into preparing the firm's 500-page proposal. However, taking into consideration the numerous aspects of the proposal that were not in compliance with the RFP's clearly stated requirements, we cannot find the agency's decision to reject the proposal unreasonable. In this respect, as noted above, an offeror bears the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably where it fails to do so. E.g., Tribalco, LLC, B-414120, B-414120.2, Feb. 21, 2017, 2017 CPD ¶ 73 at 5.  (Distributed Solutions, Inc. B-416394: Aug 13, 2018)

The protester alleges that PBP Management’s technical proposal failed to meet the material requirements of the solicitation and should have been found technically unacceptable. Supp. Protest & Comments, July 17, 2017, at 2. CR/ZWS argues that PBP Management’s Mission-Essential Contractor Services Plan does not address the criteria established in DFARS provision 252.237-7024. Id. at 9.

In reviewing protests challenging an agency’s evaluation of proposals, we do not reevaluate proposals, but rather we examine the record to determine whether the agency’s judgment was reasonable and in accordance with the stated evaluation criteria and applicable procurement laws and regulations. Wyle Laboratories, Inc., B‑413964, B‑412964.3, May 27, 2016, 2016 CPD ¶ 144 at 7. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. Id. at 7-8.

DFARS provision 252.237-7024 states, in relevant part, that the offeror’s plan “shall” address, at a minimum, the following:

(i) Challenges associated with maintaining essential contractor services during an extended event, such as a pandemic that occurs in repeated waves;

(ii)The time lapse associated with the initiation of the acquisition of essential personnel and resources and their actual availability on site;

(iii)The components, processes, and requirements for the identification, training and preparedness of personnel who are capable of relocating to alternate facilities or performing work from home;

(iv)Any established alert and notification procedures for mobilizing identified ‘essential contractor service’ personnel; and

(v)The approach for communicating expectations to contractor employees regarding their roles and responsibilities during a crisis.

DFARS provision 252.237-7024(b)(2).

CR/ZWS argues that PBP Management submitted a plan that is fewer than two pages in length, contains only three substantive sections, fails to address key portions of the DFARS provision, and fails to address how it will actually continue to perform mission-essential services. Supp. Protest & Comments at 10; Supp. Comments, July 28, 2017, at 3. Specifically, CR/ZWS alleges that the plan fails to address challenges, time lapses, or training issues associated with mobilizing personnel during periods of crisis, as outlined in DFARS provision 252.237-7024(b)(2)(i)-(iii). Id. at 11. As discussed below, we agree that the awardee’s plan does not address time lapses and training issues.  (CR/ZWS LLC B-414766, B-414766.2: Sep 13, 2017)

Bluehorse contends that, in rejecting its quotation, the agency relied upon unstated criteria. Protest at 3. In this respect, Bluehorse argues that the revised purchase order provided to Bluehorse "inexplicably" limited deliveries to 4,000 gallons of fuel. Id. at 1; Comments at 1. Bluehorse argues that the RFQ did not mandate such a limitation. Protest at 3. Bluehorse also contends that the agency has improperly: (a) failed to amend the solicitation; (b) rejected its quotation as nonresponsive; and (c) rejected an alternate quotation. Id. at 1. Although we do not discuss all of Bluehorse's challenges, we have fully considered them and conclude that none furnishes a basis upon which to sustain the protest.

A quotation that fails to conform to a solicitation's material terms and conditions is unacceptable and may not form the basis for an award. Technology and Telecomms. Consultants, Inc., B-413301, B-413301.2, Sept. 28, 2016, 2016 CPD ¶ 276 at 12. Material terms are those terms that affect the price, quantity, quality, or delivery of the goods or services being provided. Bluehorse, B-412494, B-412494.2, Feb. 26, 2016, 2016 CPD ¶ 64 at 2-3. Here, we conclude that, although Bluehorse's quotation, as submitted, conformed to the solicitation's material terms and conditions, the protester subsequently conditioned its quotation upon the ability to deliver a minimum of 7,500 gallons of fuel at a time. For this reason, we find the agency's decision to rescind the order to Bluehorse to be unobjectionable.

As explained above, the solicitation's delivery and quantity terms provided:

All fuel delivery must be coordinated with the construction manager who will schedule delivery dates and quantities. Please note: that all fuel will not be delivered at one time but in stages as the project progresses.

RFQ at 2. Additionally, the agency informed offerors through amendment 0003 that the agency "typically" orders 4,000 gallons of fuel per delivery. RFQ, Amend. 0003, at 1.

The parties dispute the meaning of this language. Where a dispute exists as to a solicitation's actual requirements, we begin by examining the plain language of the solicitation. Intelsat Gen. Corp., B-412097, B-412097.2, Dec. 23, 2015, 2016 CPD ¶ 30 at 8. If the solicitation language is unambiguous, our inquiry ceases. Desbuild Inc., B-413613.2, Jan. 13, 2017, 2017 CPD ¶ 23 at 5. We resolve questions of solicitation interpretation by reading the solicitation as a whole and in a manner that gives effect to all provisions; to be reasonable, and therefore valid, an interpretation must be consistent with such a reading. Id.

Here, the plain language of the solicitation states that the agency (specifically the construction manager) possesses the discretion to dictate the delivery dates and quantities. The only limitation imposed upon the agency's discretion is the prohibition against ordering the full quantity of fuel, i.e., 30,000 gallons, at one time. The solicitation does not contain--nor does the protester identify--a limitation on the minimum quantity of fuel that the agency could order. For this reason, the solicitation afforded the agency the discretion to issue an order providing for the delivery of 4,000 gallons of fuel at a time, as the agency did here.

Contrary to the contracting officer's repeated assertions, however, we do not construe the solicitation as requiring the agency to issue an order for the delivery of 4,000 gallons of fuel at a time. COS at 6 ("Ordering limit is 4,000 gallons per delivery as the government has requested in the solicitation amendment 003."); id. ("The Solicitation (amendment 003) stated[] the Government's request for delivery was [] 4,000 gallons per delivery[].); AR, Tab 9b, Email Correspondence, at 6 ("The terms and conditions of the . . . solicitation states 4,000 gallons per tank and delivery."); AR, Tab 9d, Email Correspondence, at 1 (The purchase order "places order at 4,000 gallons per order, per the solicitation.").

In this respect, we agree with the protester that the word "typically" does not mean that the agency is required to order 4,000 gallons of fuel per delivery or even that it intends to order such quantities. See Protest at 3; Comments at 2 (The word typically "allude[s] to what has been done in past procurements" but "does not mean any and all circumstances" and "does not denote a mandatory obligation."). Absent an express intent to impart a novel meaning, terms in a solicitation are to be given their ordinary and accustomed meaning, which is generally the dictionary definition. The online edition of the Oxford English Dictionary defines the word "typically" as meaning "in most cases" or "usually." Oxford English Dictionary, https://en.oxforddictionaries.com/definition/typically (last visited August 14, 2017). Accordingly, the relevant language in amendment 0003 should be construed narrowly as informing vendors that the agency orders 4,000 gallons of fuel per delivery in most--but not all--cases.

In sum, we interpret the solicitation here as affording the agency the discretion to issue an order for the delivery of any amount of fuel less than the full 30,000 gallons, subject to the agency's fuel storage capacity. This discretion obviously also affords the agency the right, but not the obligation, to issue an order for 4,000 gallons of fuel at a time. For this reason, contrary to the protester's contentions, Protest at 1, we do not find the terms of the revised purchase order to be "inexplicabl[e]." Rather, we find the agency's revised purchase order, which provides for deliveries in 4,000 gallon quantities, to be unobjectionable and consistent with the terms of the solicitation.

Given our interpretation of the solicitation, as set forth above, we agree with the protester that its quotation, as initially submitted, conformed to the terms of the solicitation. Comments at 3. In this regard, the protester's quotation stated that the protester would provide multiple deliveries of clear diesel fuel to two 5,000 gallon tanks near the construction project located in Polacca, Arizona. AR, Tab 6, Bluehorse Quotation, at 1. The protester's quotation further represented that the protester "can fill one tank and half fill the other [tank] each Drop--7500 gallons." Id. Contrary to the agency's contentions, see COS at 6; MOL at 4, we do not view this latter representation as stating that the protester would make deliveries in 7,500 gallon quantities only. Rather, we view this representation as a statement of the vendor's capabilities.

Although we find that Bluehorse's quotation, as submitted, conformed to the solicitation's material terms and conditions, the record supports the agency's conclusion the protester subsequently conditioned its quotation upon the ability to deliver a minimum of 7,500 gallons of fuel at a time. In this respect, during the communications between the agency and Bluehorse on June 13, the protester stated, in response to the contracting officer's assertion that the agency was permitted to order 4,000 gallons of fuel per delivery, "[p]lease be aware that our offer was made on the ability to make a 7500 [gallon] drop (which also should be able to be done with two 5,000 gallon tanks)." AR, Tab 9c, Email Correspondence, at 5. The protester also stated that it would protest the agency's actions if the agency refused to "amend" its requirements. AR, Tab 9d, Email Correspondence, at 4. Moreover, the protester did not sign the revised purchase order, as requested by the contracting officer. See AR, Tab 9c, Email Correspondence, at 8.

Accordingly, we find that the agency reasonably concluded that the protester conditioned its quotation on the ability to deliver a minimum of 7,500 gallons of fuel at a time. We also find that by conditioning its quotation in this manner, the protester's quotation failed to conform to a material term of the solicitation, i.e., the ability of the agency to order at any one time any amount of fuel less than the full 30,000 gallons. For this reason, the quotation submitted by Bluehorse may not form the basis for an award, see Bluehorse, supra, at 2, and we find that the agency acted reasonably in rescinding the purchase order.  (Bluehorse Corporation B-414809: Aug 18, 2017)

Bannum protests the rejection of its proposal, contending that the agency’s delay in making award under the RFP caused the protester to lose its rights under the contingent agreement it had for its proposed property. Bannum also challenges the agency’s refusal to provide the protester with additional time to find a new property after the submission of final proposal revisions. In support of its position, Bannum notes that the agency has previously issued interim contracts during the pendency of the current procurement and that issuing another interim award would allow Bannum the time it would need to find a new property.

In reviewing protests challenging the evaluation of proposals, we do not conduct a new evaluation or substitute our judgment for that of the agency, but examine the record to determine whether the agency’s judgment was reasonable and in accord with the solicitation criteria. See Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 2003 CPD ¶ 214 at 4. Further, we have indicated that it is the contracting agency’s right to determine when the offer and negotiation stage of a procurement is finished; an offeror has no legal right to insist that negotiations be reopened after final proposal revisions have been submitted. See Dismas Charities, Inc., B-291868, Apr. 23, 2003, 2003 CPD ¶ 98 at 2.

Here, the record shows that Bannum continued to offer the property identified in its initial proposal, through discussions and final proposal revisions, for approximately a year after the property apparently had been sold to another entity. We see nothing to support the protester’s contention that the agency acted unreasonably in rejecting the proposal for failing to document a current right to use the facility. In this regard, we reject Bannum’s contention that the agency acted unreasonably by not allowing the protester additional time to find a new location given the delay in the award. First, there was nothing in the solicitation establishing that the agency would make an award by a certain date, and the protester has failed to cite any law or regulation otherwise requiring the agency to have made award by an earlier date. Second, by the express terms of the solicitation, an offeror could only request a site change within 60 days after initial proposals were submitted. This 60-day window had long passed when Bannum’s property became unavailable. Accordingly, the agency’s delay in meeting procurement milestones in this case had no effect on the validity of the procurement or Bannum’s ability to substitute a new facility. See Dismas Charities, Inc., supra at 3; Trim-Flite, Inc., B‑229926.4, July 28, 1988, 88-2 CPD ¶ 124 at 2. Rather, Bannum’s inability to provide a facility was a direct consequence of the particular deal Bannum struck with the property owner, which ultimately rendered the property unavailable to Bannum, and it is Bannum that bore the risks of that agreement.

In reaching this conclusion, we expressly reject Bannum’s contention that the agency should continue to enter into interim contracts in order to afford Bannum an opportunity to find a new property. As noted above, offering a site change at this point in time is not an option under the terms of the solicitation. Moreover, an agency need not delay a procurement simply to accommodate Bannum’s choice of approach to meeting the agency’s requirements. See Erickson Aero Tanker, B-411306.2, B-411306.5, July 29, 2015, 2015 CPD ¶ 226 at 11. Again, as previously indicated, the protester’s business decision to enter into the contingent agreement with the property owner was the reason why it could not satisfy the solicitation’s facility requirement. (Bannum, Inc. B-414336: May 15, 2017)

Soliel protests that it did everything that it was required to do in redacting its identity (and that of its subcontractor) from its proposal, including not naming itself or its subcontractor, and removing any identifying information (for example, company logos, addresses or employee names) that comprised the offering team. Soliel therefore argues that the agency unreasonably rejected its proposal.

We find no merit to the protest. In reviewing protests challenging an agency’s evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency’s evaluation was reasonable and consistent with the solicitation’s evaluation criteria, as well as applicable statutes and regulations. ManTech Advanced Systems International, Inc., B-413717, Dec. 16, 2016, 2016 CPD ¶ 370 at 3. In addition, an offeror is responsible for submitting an adequately written proposal and bear the risk that the agency will find its proposal unacceptable where it fails to demonstrate compliance with all of a solicitation’s requirements. Id. at 5, 7.

Here, as noted, the RFP required offerors to redact any information from their proposals that would reveal the identity of the offeror. The record shows that Soliel included various descriptions of the work that its subcontractor currently was performing for the agency. For example, the Soliel proposal states: “We are very familiar with the DOL/OPA SOPs [Department of Labor/Office of Public Affairs Standard Operating Procedures] since we have been supporting DOL [Agency 4] and [Agency 5] for many years.” Soliel Technical Proposal at 1. Elsewhere, the Soliel proposal stated:

Team QSR-71-16 [Team Soliel] maintains existing content and makes updates to the LaborNet and DOL.gov websites. We move files for DOL.govand regional agency websites to the production servers on daily basis. We make changes to the "Elevator Poster" based on current events weekly. We post updates to the New Core Financial Management System (NCFMS) and Division of Central Accounting Operations (DCAO) sites dally. We develop and post bi-weekly and monthly newsletters for OCIO [Office of the Chief Information Officer], Office of Disability Employment Policy (ODEP) and Veterans' Employment and Training Service (VETS). We also distribute newsletters through GovDelivery. We post National news clips, Current Central Accounting Reporting System (CARS) Preliminary Daily Suspense/F-Account CARS Detail Transactions for DCAO, CARS Detail Transaction Report, NCFMS Topic, NCFMS Training DCAO FY 10 Cancelled Extract report, DCAS Scorecards and other content. We create web banners for LaborNet and develop new microsites on Drupal. All services provided and products delivered comply with Section 508 requirements.

Id. at 4.

In short, the Soliel proposal included detailed information relating to the ongoing performance of its subcontractor, TriTech, under the predecessor contract. This information enabled the agency to conclude that TriTech was part of the offering team. While the protester may have redacted the names of the teaming partners that were submitting the proposal, it is obvious from even a casual examination of the Soliel proposal that the protester conveyed to the agency the fact that the current incumbent contractor was part of the offering team. Under the circumstances, and in light of the fact that the RFP prohibited offerors from including any information in their proposals that revealed the identity of the offeror, we conclude that the agency reasonably rejected the Soliel proposal.  (Soliel, LLC B-414060: Jan 26, 2017)

Identity of the Awardee

Kollsman alleges that the Optics 1 proposal was ambiguous regarding what entity was submitting the proposal. In this connection, the proposal names the offeror as “Safran Optics 1” on the standard form (SF) 33, however, the contractor and government entity (CAGE) code included on that same document is a CAGE code for an entity known as Optics 1, Inc. The protester maintains that, because there is an ambiguity concerning the identity of the offeror, the agency improperly accepted the proposal for award.

We find no merit to this aspect of Kollsman’s protest. Uncertainty as to the identity of the offeror renders a proposal technically unacceptable, since ambiguity as to an offeror’s identity could result in there being no party bound to perform the contract. W.B. Construction and Sons, Inc., B-405874, B-405874.2, Dec. 11, 2011, 2011 CPD ¶ 282 at 4. Although the name of the bidding or proposing entity need not be exactly the same in all of the bidding or proposal documents, the proposal must show that any differently-identified entities are, in fact, the same concern. Dick Enter’s., Inc., B-259686.2, June 21, 1995, 95-1 CPD ¶ 286 at 2.

Here, the record shows that information in the awardee’s proposal is adequate to confirm the identity of the offeror. Kollsman is correct that the offeror identified on the awardee’s SF 33 is “Safran Optics 1.” AR, exh. 26, Optics 1 Proposal, SF-33. The record also shows that the CAGE code included on the firm’s SF 33 is 1YWM6, and that this CAGE code is for a concern known as “Optics 1, Inc.” Id.; AR, exh. 13, System for Award Management Search Result. However, information included elsewhere in the proposal clearly establishes that the prime contractor submitting the offer is “Optics 1, Inc.”; that Optics 1, Inc. is a subsidiary of a larger corporate entity known as the Sagem/Safran Group headquartered in France with American subsidiaries; and that “Optics 1, Inc.” is obligated to perform the contract.

Optics 1’s technical proposal describes the Sagem/Safran group as follows: “Sagem/Safran Group, a leading optronic company in the world, made a commitment years ago to expand to the US market by creating a presence with its Safran Optics 1 and Safran Vectronix companies.” Optics 1 Technical Proposal at 1. Optics 1’s technical proposal goes on to describe the role played by each of the Sagem/Safran business elements, as well as the role of its subcontractors in performance of the contract:

Our team combines resources and experience from multiple units of our Opto-Electronics Division across the globe. Safran Optics 1 is the prime contractor providing total program management and specific US-based, fully cleared, engineering capability. Co-located, Safran Vectronix brings world class production capabilities to deliver to the demands of this important program, including all aspects of reliability and quality control. Safran Vectronix AG brings a legacy of proven solutions including world-class optics dating far back from our Leica heritage. [deleted].

Id. In addition to these explanatory materials, the Optics 1 technical proposal also includes a chart that identifies the roles and responsibilities of the Safran group’s business elements. Optics 1 Technical Proposal at 3, 66. That chart identifies the prime contractor as both “Optics 1” and “Safran Optics 1.” It is therefore clear that the firm is using the names “Optics 1” and “Safran Optics 1” interchangeably to refer to a single entity, namely, Optics 1, Inc.

Finally, the proposal includes a letter of financial commitment from the parent entity, Sagem, that identifies “Optics 1, Inc.” as its subsidiary. That letter provides as follows:

I, the undersigned [name deleted], Chief Executive Officer of SAGEM DEFENSE SECURITE (“Sagem”), a corporation organized under the laws of France, with headquarter[s] at 18/20, quai du Point du Jour, 92100 Boulogne-Billancourt – FRANCE, confirms that Sagem agree[s] to provide its subsidiary OPTICS 1, Inc. (“Optics 1”), a corporation organized under the laws of the State of Delaware, having its principal place of business at 2 Cooper Lane in the City of Bedford in the State of New Hampshire – USA, with adequate financial resources, equipment and material necessary in order to assure the full, complete and satisfactory execution of the LTLM II contract by Optics 1.

Optics 1 Proposal, Letter of Financial Commitment (emphasis in original).

The Optics 1 proposal therefore shows that the prime contractor is a concern known as “Optics 1, Inc.” that has the CAGE code identified in the proposal. It is also clear that the firm’s proposal uses the names “Safran Optics 1” and “Optics 1” interchangeably to refer to the prime contractor, Optics 1, Inc. Further, the Optics 1 proposal shows that the prime contractor is a subsidiary of a larger corporate group, Sagem/Safran, and several of that group’s business elements will be participating in contract performance. Finally, the Optics 1 proposal shows that the prime contractor, Optics 1, Inc., has a full array of financial and other resources of its parent corporation, Sagem Defense Securite, at its disposal for purposes of contract performance.

In addition to these considerations, we point out that the protester has not introduced any evidence to show that there even is a separate legal entity known as “Safran Optics 1.” Ordinarily in cases where there is a question concerning the identity of the bidder or offeror, there is more than one similarly-named legal entity, and the question in these cases concerns which of the several existing entities is responsible for contract performance. See W.B. Construction, supra. Here, there is nothing to show that there even is another legal entity that would raise a question concerning which firm is responsible for contract performance. In light of the discussion above, we deny this aspect of Kollsman’s protest.  (Kollsman, Inc. B-413485, B-413485.2, B-413485.3: Nov 8, 2016)

ABSG asserts that the unsigned contract document and CPARS report should have been considered sufficient to meet the solicitation requirements regarding substantiation of ABSG’s experience. Alternatively, ABSG asserts that the agency was obligated to validate ABSG’s claimed experience by either contacting the contracting officer identified in the unsigned document or conducting a “search for the contract in an official Government IT [information technology] system or website.” Protest at 3-4.

The agency responds that ABSG’s unsigned document “is nothing more than a draft document with no legally binding effect on either party,” and that the solicitation expressly precluded relying on the CPARS report. AR, Memorandum of Law, at 7. The agency further responds that the terms of the solicitation did not provide for the agency to seek additional information, beyond that contained within the offerors’ respective proposals, in determining whether the proposals met the solicitation requirements. Id. at 9-10.

In reviewing protests challenging an agency’s evaluation, our Office does not reevaluate proposals; rather, we review the record to determine whether the evaluation was reasonable, consistent with the terms of the solicitation, and compliant with procurement statutes and regulations. See, e.g., Alutiiq Tech. Servs. LLC, B‑411464, B-411464.2, Aug. 4, 2015, 2015 CPD ¶ 268 at 4; Silverback7, Inc., B‑408053.2, B-408053.3, Aug. 26, 2013, 2013 CPD ¶ 216 at 3. Offerors are responsible for submitting proposals that comply with the solicitation requirements and provide information that allows meaningful review by the procuring agency. See Hallmark Capital Grp., LLC, B‑408661.3 et al., Mar. 31, 2014, 2014 CPD ¶ 115 at 9.

Here, as noted above, the solicitation specifically provided that an offeror’s claimed experience must be substantiated by “evidence within a verifiable contractual document”; added that an offeror “shall only receive credit . . . if the Government can validate the information; listed “signed, certified and/or legally recognized documents” as examples of such “verifiable contractual documents”; and expressly precluded reliance on CPARS reports to substantiate the scope, period of performance, and dollar value of claimed experience. Id. at 131-32. Further , the solicitation provided that revision or resubmission of documents would not be permitted, stated that the agency intended to “strictly enforce all of the proposal submission requirements,” and warned that failure to meet the experience requirements “may result in the proposal being rejected.” Id. at 128, 131‑32, 152.

On this record, we find no basis to question the reasonableness of the agency’s determination that ABSG’s unsigned documentation and CPARS report were insufficient to meet the solicitation’s experience requirement for substantiating ABSG’s prior experience. Further, since the solicitation expressly provided that an offeror’s claimed experience must be substantiated by evidence “within a verifiable contractual document,” we reject ABSG’s assertion that the agency should have sought additional information, beyond that submitted by the offeror, in order to validate an offeror’s claimed experience and determine whether its proposal met the solicitation’s requirements. (ABSG Consulting, Inc. B-413155.14: Oct 12, 2016)

Kratos’s initial protest challenged various aspects of the agency’s evaluation and source selection process. Following receipt and review of the agency report, which disclosed the assumptions in URS’s proposal regarding government-provided work space and equipment, Kratos filed a supplemental protest asserting that URS’s proposal took exception to the solicitation’s requirements. We agree.

A proposal that takes exception to a solicitation’s material terms and conditions should be considered unacceptable and may not form the basis for an award. CHE Consulting, Inc., B‑406639, June 28, 2012, 2012 CPD ¶ 190 at 2-3; Solers, Inc., B‑404032.3, B-404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 3-7; CAMS Inc., B‑292546, Oct. 14, 2003, 2003 CPD ¶ 191 at 2. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services being provided. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD ¶ 115 at 3.

Here, in response to a direct question regarding whether on-site working space would be provided by the government, the agency unambiguously stated: “No on‑site space will be provided.” AR, Agency Responses to Offeror Questions, at 6. Further, nothing in the solicitation identified any equipment that would be provided by the government. Nonetheless, the agency accepted URS’s proposal based on its “assum[ption] that the Government/Client will provide working space, computers and telephones for the proposed staff at no cost to URS.” See AR, Tab 12, URS Cost Proposal, at 6. On this record, the award to URS was improper.

Following submission of Kratos’s supplemental protest, the agency asserted that URS’s proposal was reasonably construed to mean that the labor it proposed at “Government/Client” rates would be performed at “alternate work locations.” Supp. AR, July 15, 2016, at 3. We reject this post-protest assertion based on the plain language of URS’s cost proposal. The agency fails to provide a reasonable basis for its assertion that URS’s statement that “[URS] assumes the Government/Client will provide working space, computers and telephones…at no cost to URS” could be interpreted to mean that URS was referring to teleworking arrangements at “alternate work locations.” Indeed, nothing in the contemporaneous evaluation record supports, or even makes reference to, such interpretation.

Further, under the column heading “site,” URS’s cost summary reflects one of three designations for each of its proposed personnel: “CONT,” “GOVT,” and “ALT.”[12] A substantial number of URS’s proposed personnel are identified as working at the “ALT” site. See URS Cost Summary, FTE Table, at 16, 24, 31, 36, 37, 48, 49, 50, 51, 52, 53, 54, 56, 85. The agency’s assertion that URS used the “GOVT” and “ALT” designations interchangeably is facially unreasonable.

Finally, the combination of the personnel listed as working at the “GOVT” site and the “ALT” site constitutes over 20 percent of URS’s total proposed labor. Accordingly, even if we accepted the agency’s assertion that URS used the designations of “GOVT” and “ALT” interchangeably-- which we do not--URS’s proposal would have violated the solicitation requirements that limited permissible telework to 10% of the total proposed labor. See RFP at 41 (“the Contractor may perform up to 10% of the hours at an alternative worksite”). On this record, award to URS was improper.

The agency and intervenor also assert that Kratos was not competitively prejudiced, performing various cost analyses to argue that, if URS’s proposal were rewritten to reflect the solicitation’s actual requirements, its evaluated cost would still be lower than Kratos’s proposed cost. We decline to deny the protest on this basis. Where, as here, the solicitation expressly requires that the contractor have a top secret facility clearance, requires all personnel to have secret security clearances, and places a 10% limit on permissible telework arrangements, URS’s impermissible assumptions regarding the location at which, and the equipment with which, its personnel will perform the contract requirements has the potential to impact URS’s proposal under the non-cost evaluation factors. On the record here, we reject the assertions that URS’s clear exceptions to the solicitation requirements were non‑prejudicial.[13]

RECOMMENDATION

Since it appears that the terms of the solicitation may not reflect the agency’s actual requirements, we recommend that the agency review the terms of the solicitation and revise them as necessary. If the solicitation is revised, the agency should solicit new proposals that reflect the agency’s actual needs. In the event the agency determines that the solicitation does not need to be revised, it should either: (1) terminate the task order awarded to URS, and make award to the offeror whose proposal complies with the terms of the solicitation and offers the best value to the government; or (2) open discussions with all offerors, obtain revised proposals, and make award consistent with the terms of the solicitation. We also recommend that the protester be reimbursed the reasonable costs of filing and pursuing its protest, including reasonable attorney’s fees. 4 C.F.R. § 21.8(d)(1). The protester’s certified claim for costs, detailing the time spent and costs incurred, must be submitted to the agency within 60 days of receiving this decision. 4 C.F.R. § 21.8(f)(1).

The protest is sustained.  (Kratos Defense & Rocket Support Services, Inc. B-413143,B-413143.2: Aug 23, 2016)

Microwave contends that its proposal met the solicitation requirements pertaining to [International Traffic in Arms Regulations] ITAR compliance. In this regard, the protester argues that its proposal “clearly states [that it is] ITAR compliant and is evidenced by the fact that [it is] already registered with the DDTC [Directorate of Defense Trade Controls], which by default requires a designated security officer and maintenance of records showing compliance per ITAR Section 122.” Protest at 3; see also Comments at 3.

The Army responds that Microwave’s position that statements in its proposal satisfied the ITAR compliance requirements was “completely inaccurate” and that Microwave “incorrectly assumes the Agency was looking merely for ITAR registration with DDTC.” AR at 9. According to the agency, the RFP “makes it clear that the Agency was looking for more detail than this.” Id.[6]

In reviewing protests challenging the rejection of a proposal for consideration for award, it is not our role to reevaluate proposals; rather our Office examines the record to determine whether the agency’s judgment was reasonable and in accordance with the solicitation criteria and applicable procurement statutes and regulations. Wolverine Servs. LLC, B-409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 3; Orion Tech., Inc., B-405077, Aug. 12, 2011, 2011 CPD ¶ 159 at 4. Further, it is the offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. CACI Techs., Inc., B-296946, Oct. 27, 2005, 2005 CPD ¶ 198 at 5. A protester’s disagreement with the agency’s judgment does not establish that the evaluation was unreasonable. WAI-Stoller Servs., LLC; Portage, Inc., B-408248.13 et al., May 29, 2015, 2015 CPD ¶ 201 at 7. In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Wolverine Servs. LLC, supra; LOGMET LLC, B-405700, Dec. 14, 2011, 2011 CPD ¶ 278 at 3.

We find the Army’s evaluation reasonable here. Offerors are responsible for submitting a well-written proposal with adequately-detailed information that allows for a meaningful review by the procuring agency. iGov, et al., B-408128.24 et al., Oct. 31, 2014, 2014 CPD ¶ 329 at 31. Further, we have held that offerors are responsible for including sufficient information to establish compliance with solicitation requirements and blanket statements of compliance are insufficient to meet that obligation. National Shower Express, Inc.; Rickaby Fire Support, B‑293970, B-293970.2, July 15, 2004, 2004 CPD ¶ 140 at 4-5. See, e.g., Aero Simulation, Inc., B-411373, B-411373.2, July 2, 2015, 2015 CPD ¶ 233 (agency’s evaluation found reasonable where explanations proffered in the protester’s comments on the agency report were not included in in its proposal).

Here, our review indicates that Microwave’s brief statements in its proposal with regard to how it would implement ITAR requirements were both conclusory and limited. See Microwave Proposal, at Appendix A; Appendix D at D-17. Accordingly, we agree with the Army that Microwave’s proposal was inadequate with regard to ITAR requirements, that it did not provide the level of information regarding ITAR compliance required by the RFP, and that the Army’s “No-Go” rating for Sub-Factor A, Manufacturing, was reasonable. This protest ground therefore is denied.  (Microwave Monolithics, Inc. B-413088: Aug 11, 2016)

Level 3 also challenges the agency’s evaluation of Verizon’s quotation. Specifically, the protester alleges the awardee took exception to several mandatory requirements of the RFQ, each of which should have resulted in disqualification. The agency argues that because Verizon’s quotation merely restated provisions of the vendor’s basic ordering agreement with DISA, and was consistent with customary commercial practice, the agency concluded that Verizon had not taken exception to the solicitation. Although we do not specifically address all of Level 3’s arguments regarding the agency’s determination of Verizon’s acceptability, we have fully considered them and find they provide no basis on which to sustain the protest.

For example, Level 3 argues that Verizon’s quotation is unacceptable because it failed to comply with the fixed-price requirement. The RFQ required that vendors submit fixed-priced quotations, which accounted for all applicable charges, for the life of the delivery order.[16] RFQ at 7. Verizon’s quotation stated:

Verizon’s quoted rates are firm fixed and include all current applicable charges. In the event a new tax or similar charge arises or becomes applicable during the term and has a material impact on circuit cost, such an event would be beyond Verizon’s control and Verizon will work with the Government to revise contract rates to address the change.

AR, Tab 9, Verizon Quotation, Oct. 28, 2015, at 26.

We find DISA’s determination that Verizon’s quotation complied with the fixed-price requirement, notwithstanding the aforementioned “exception,” to be reasonable. First, the solicitation itself contemplates that future tariff charges could result in permissible changes to the awardee’s price. This is consistent with the terms of the basic ordering agreements that DISA had previously entered into with Verizon (and other vendors), which included Defense Federal Acquisition Regulation Supplement (DFARS) clauses 252.239-7005 (Rates, Charges, and Services), and 252.239-7006 (Tariff Information). AR, Apr. 29, 2016, attach. 2, DISA Basic Agreement with Verizon, at 3. These clauses essentially anticipate new taxes or tariffs imposed by outside governmental bodies, and contemplate how such charges may be passed on to the government in a commercial manner. Thus, the language in Verizon’s quotation essentially restates terms of the vendor’s basic ordering agreement that would be incorporated by reference into any awarded delivery order. See RFQ at 6.

Moreover, Verizon’s quotation did not state that the awardee would refuse to perform in the event a new or similar charge impacted its cost, nor did Verizon state that it would be entitled to a price adjustment. Verizon’s quotation stated only that it would seek through negotiation a price adjustment from the agency. As such, the agency reasonably found that Verizon’s quotation was compliant with the RFQ’s fixed-price requirement. We therefore see no merit in Level 3’s argument that Verizon took exception to the solicitation’s fixed-price requirement, or that the language in Verizon’s quotation mandated a determination of unacceptability.

As another example, Level 3 argues that Verizon’s quotation is unacceptable because it failed to comply with the service date requirement. The RFQ required vendors to commit to a service date of May 2, 2016. RFQ Amend. 002, at 3. Verizon’s quotation expressly stated that it would comply with the RFQ’s service date requirement, AR, Tab 9, Verizon Quotation, Oct. 28, 2015, at 21; however, the awardee also included a “force majeure” provision stating that the vendor was not liable for failure to perform for causes beyond its reasonable control, including events such as “cable cuts.” Id. at 17. Level 3 argues that this amounted to an improper condition on Verizon’s willingness to comply with the service date requirement.

We again find that Verizon’s quotation essentially does no more than restate the terms of its basic ordering agreement with the agency. The ordering agreement included FAR clause 52.212-4 (Contract Terms and Conditions – Commercial Items) which expressly stated in relevant part that the contractor was not liable for nonperformance caused by an occurrence beyond the reasonable control of the contractor and without its fault or negligence (e.g., acts of God or the public enemy, acts of the Government in either a sovereign or contractual capacity, fires, floods, epidemics, strikes, unusually severe weather). AR, Apr. 29, 2016, attach. 2, DISA Basic Agreement with Verizon, at 20. The protester fails to show how Verizon’s “force majeure” provision, including the apparently offensive “cable cuts” language, exceeds in any meaningful way the excusable delays already permitted and enumerated in the awardee’s basic ordering agreement or otherwise reflects a material exception to the terms of the solicitation. In sum, we find no merit in Level 3’s assertions that any of the language in Verizon’s quotation warranted a determination of unacceptability.

The protest is denied.  (Level 3 Communications LLC B-412854, B-412854.3, B-412854.4: Jun 21, 2016)  (pdf)

ASRC maintains that the agency misevaluated the Aleut proposal. We note at the outset that, in reviewing an agency’s evaluation of proposals, we examine the supporting record to determine whether the decision was reasonable and in accordance with the RFP’s evaluation criteria, along with applicable procurement statutes and regulations. Cherry Rd. Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD ¶ 197 at 6. The agency must have adequate documentation to support its judgment. Systems Research & Applications Corp.; Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007, 2008 CPD ¶ 28 at 11-12. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for our Office to conclude that the agency had a reasonable basis for its evaluation conclusions. Id.

ASRC argues that, in evaluating FPRs, the agency improperly removed a deficiency that had been assigned to the Aleut proposal during the agency’s evaluation of initial proposals under the mission support subfactor. The record shows that the agency originally assigned the Aleut proposal this deficiency for failing to demonstrate an adequate approach to performing the requirements of section 1.10 of the performance work statement (PWS) relating to operation and maintenance of the naval ordnance test unit (NOTU) port/wharf and cranes services.

The record shows that the agency made four specific findings in connection with this deficiency: (1) Aleut’s proposal cited experience to demonstrate its capability to maintain the Trident Wharf demineralized water system located at the NOTU facility that did not actually demonstrate its capability to maintain that facility (PWS section 1.10.4); (2) its proposal made reference to providing port services for an airfield and hangar located at the NOTU facility, when in fact, there is no airfield or hangar at that facility (PWS section 1.10 2); (3) Aleut proposed personnel with skill sets that did not appear to meet the requirements necessary to perform minor ship repairs, as required (PWS section 1.10.3); and (4) Aleut’s proposed work control supervisor, NOTU port/wharf supervisor and engineer did not have the appropriate certification and training to perform crane management and operations, operation support, maintenance support, records keeping duties, certifying official duties, training, and corrosion control (PWS section 1.10.8). AR, exh. 15, Aleut’s Initial Technical Evaluation Report, at 21-24. The record shows that, based on this deficiency, the agency assigned the Aleut proposal a red/unacceptable/high risk rating for the mission support subfactor, which rendered the proposal ineligible for award.

ASRC contends that, in its FPR, Aleut only addressed one of the four identified concerns leading to the assignment of the deficiency; namely, it eliminated the reference to an airfield and hangar at the NOTU facility. ASRC maintains that the Aleut proposal continued to include all of the other concerns identified by the agency and therefore should have received the same red/unacceptable/high risk rating originally assigned. ASRC argues that the Aleut proposal was not eligible for award.

The agency responds that Aleut provided additional narrative details in its FPR that resolved all four of the agency’s initial concerns. The agency directs our attention to specific portions of a supplemental narrative included in the Aleut proposal that it argues support its position.

We discuss the agency’s specific responses below. However, we conclude that the protester is correct with respect to the three unresolved concerns originally identified by the agency in its initial evaluation report. We note at the outset that the agency’s contemporaneous FPR evaluation record is both conclusory and contradictory. Specifically, the agency’s evaluation of Aleut’s FPR includes the following conclusory statement:

NOTU: The offeror demonstrated the ability to provide PWS Section 1.10 requirements including operations and maintenance of wharf facilities and infrastructure, naval port crane requirements, shore services and minor repairs to docked water vessels. A detailed approach for each NOTU requirement was provided to include applicable staffing and associated skills, approach elements for successful accomplishment of requirements, and an outline of relevant experience.

AR, exh. 25, Aleut Final Technical Evaluation Report, at 20; see also AR, exh. 26, Proposal Analysis Report, at 56. Two pages later, however, there is a box of text entitled “Rationale for Meets Requirement.” AR, exh. 25, Aleut Final Technical Evaluation Report, at 22. The actual text in that box is a verbatim repetition of the four enumerated areas of concern identified in the agency’s initial evaluation report for Aleut. We do not understand--and the agency has not explained--why these apparently inconsistent findings are included in the agency’s contemporaneous evaluation of Aleut’s FPR.[4] We also note that the contemporaneous record does not include any other statement of the agency’s underlying rationale in support of the conclusory statement quoted above. Turning to the agency’s position as represented during the protest, we discuss each of the three concerns originally identified, along with the agency’s response.

First, with respect to the concern relating to a lack of experience demonstrating Aleut’s ability to operate the Trident Wharf demineralized water system (PWS section 1.10.4), the agency directs our attention to a narrative statement included in the Aleut FPR that provides as follows: “[deleted].” AR, exh. 24, Aleut FPR, at 85. The agency claims that it relied on this statement to conclude that Aleut did in fact have experience demonstrating its capabilities to operate the demineralized water system.

We see no reasonable basis for the agency to have relied on this statement to resolve the identified concern. This statement makes no reference to Aleut’s experience operating a demineralized water system, or doing anything else for that matter; rather, it is a statement relating to Aleut’s proposed use of [deleted]. This statement also does not describe how Aleut actually will maintain the Trident Wharf demineralized water system. Additionally, an examination of the Aleut proposal shows that it includes the exact same statement of the firm’s experience in support of its capabilities to maintain the Trident Wharf demineralized water system in both its initial proposal and its FPR. Compare AR, exh. 13, Aleut Initial Proposal, at 72 with AR, exh. 24, Aleut FPR, at 84. Finally, and most importantly, the statement quoted by the agency actually is a paraphrasing by Aleut of an entirely different section of the PWS (PWS section 1.10.2 relating to the provision of port services rather than section 1.10.4 relating to maintenance of the Trident Wharf demineralized water system). Accordingly, we see no reasonable basis for the agency to have concluded that this concern was resolved.

Second, as to the concern relating to Aleut’s proposal of personnel with skill sets that did not appear to meet the requirements necessary to perform minor ship repairs (PWS section 1.10.3), the agency states that it relied on the following statement in the Aleut FPR: “[deleted].” AR, exh. 24, Aleut FPR, at 85. The record shows that Aleut made no changes to its proposed staffing to meet this element of the requirement. Compare AR, exh. 13, Aleut Initial Proposal, at 72, with AR, exh. 24, Aleut FPR, at 86. In addition, in both its initial proposal and its FPR, Aleut included identical statements as follows: “[deleted].” Id. Thus, the record shows that Aleut proposed to [deleted] in both its initial proposal and FPR. Finally, to the extent the agency might have relied on the language cited to support its conclusion, the quoted passage does not describe the skill sets of the personnel that Aleut intends to use [deleted]. In light of these considerations, we see no reasonable basis for the agency to have concluded that this concern was resolved based on the language identified by the agency.

Finally, with respect to the concern that Aleut’s work control supervisor, NOTU port/wharf supervisor and engineer did not have the appropriate certification and training to perform their duties (PWS section 1.10.8), the agency states that it relied on a statement in Aleut’s FPR concerning Aleut’s proposed operations and maintenance (O&M) division manager. According to the agency, Aleut’s FPR narrative provided for an O&M division manager with adequate certification and training, as well as a plan to provide ordnance certification training for crane operators. AR at 33.

The narrative in the Aleut FPR includes the following statements:

[deleted]

AR, exh. 24, Aleut FPR, at 84. We do not see how these statements have anything to do with the certification and training qualifications of the team members identified by the agency, namely, the firm’s proposed work control supervisor, its port/wharf supervisor, and its engineer.

Leaving aside the fact that the three identified employees are not mentioned in the narrative identified by the agency, PWS 1.10.8 includes several subsections that detail the requirements for crane management that include specific requirements for crane maintenance, inspection, repair, load testing and certification of the cranes themselves in accordance with a Naval Facilities Engineering Command Management of Weight Handling Equipment directive. In connection with these requirements, the offeror was required to designate a certifying official, and there is nothing in the narrative identified by the agency to suggest that Mr. A (or any other Aleut employees) meets these requirements.

In addition, the offeror was required to provide training and certification programs for all crane operators, crane inspectors, crane mechanics, crane electricians, load test directors and certifying officials. Simply stated, nothing in the narrative references relied on by the agency in responding to the protest demonstrates that Aleut’s proposed work control supervisor, port/wharf supervisor, or engineer possesses the necessary training or certifications themselves, and nothing in the narrative describes how Aleut will provide the training (other than ordnance handling training) required by the PWS to its applicable personnel.

Finally, the provisions of the Aleut proposal relating to these requirements are identical in both the initial proposal and the FPR. Compare AR, exh. 13, Aleut Initial Proposal, at 29, 73 with AR, exh. 24, Aleut FPR, at 39, 87. We therefore find that there was no reasonable basis for the agency to have concluded that this concern was resolved in the Aleut FPR.

In light of the foregoing discussion, we conclude that there was no basis in the record for the agency to have eliminated the deficiency originally identified in the Aleut proposal. It follows that there is no basis in the record for the agency to have changed its original assignment of a red/unacceptable/high risk rating to the Aleut proposal. We therefore sustain ASRC’s protest.  (ASRC Communications, Ltd. B-412093, B-412093.2: Dec 23, 2015)  (pdf)

The protester first argues that the agency’s evaluation of price proposals was inconsistent with the RFP requirement that offerors’ proposed G&A rates be verified and substantiated using certified financial statements or DCAA reports, as described above. The protester asserts that instead, the agency accepted from eight of the 12 awardees “post-bid commitments” of G&A rates that were either unsubstantiated or unexplained by financial data (and in some instances, directly contradicted by the financial data). Comments and Supp. Protest at 2. In response, the agency argues that the solicitation did not require it to evaluate price proposals using only the submitted financial statements but rather, allowed the agency to seek clarification of proposals and otherwise “verify” the offerors’ G&A rates. Agency Response to Supp. Protest at 3-4. We disagree.

As stated above, the solicitation unequivocally required that price proposals include either certified financial statements or a DCAA report substantiating an offeror’s G&A rate. See RFP, Tab 3 at 6, 8, 10; AR, exh. 8, Tab 2, Amendment 02 at 4 (Answer to Question 15); Tab 3, Amendment 03 at 3 (Answer to Question 7).The solicitation also clearly stated that the proposed G&A rates would be evaluated using a cost analysis “based upon verification of the offerors’ cost submissions for their G&A rates and confirming that the submissions are in accordance with the contract cost principles and procedures described in FAR Part 31.” RFP, Tab 3 at 33 (emphasis added).

The agency’s contention that it could seek clarification of proposals to “evaluate and verify the offerors’ G&A rates,” is not consistent with the plain language of the solicitation. Agency Response to Supp. Protest at 3-4. In support of its contention, the agency states that all 12 awardees submitted financial statements that supported their G&A rate or had their proposed G&A rate verified by being contacted by the agency. Id. Based on our review of the record, we cannot conclude that the agency acted in accordance with the solicitation.

Here, the record shows that the agency contacted eight offerors whose proposals were considered “most favorable” to the government, informed those offerors that it was bringing to their attention a problem with their proposals in accordance with FAR § 15.306, identified the inconsistencies between the proposed G&A rate and proposal information, and requested that the offeror “verify” or confirm the proposed G&A rate. AR, exh. 6, SSDD at 87; GSA Rate Verification Emails (multiple dates in June 2015); Contact Conversation Logs. In all eight instances, the offerors’ essentially confirmed their originally-proposed G&A rates. Id. The agency did not request any further substantiation. Id. See also AR, exh. 6, SSDD at 79-84; Agency Responses to GAO Emails (Dec. 2, 2015, Dec. 7, 2015).

During the development of this protest, our Office requested that the agency provide documentation pertaining to the agency’s verification of the G&A rates, including any cost analysis documentation for the verified rates. GAO Emails to Agency (Nov. 30, 2015, Dec. 2, 2015, Dec. 7, 2015). In response, the agency stated that the G&A rate verification information is contained in the source selection decision document, as well as the emails and records of phone calls verifying the G&A rate. Agency Responses to GAO Emails (Dec. 2, 2015, Dec. 7, 2015).However, there is nothing in the source selection decision document that shows that the agency requested any support for these “verified” rates or performed a cost analysis “based upon verification of the offerors’ cost submissions for their G&A rates. ”Rather, the source selection decision document reflects that for 8 of the 12 awardees, the agency accepted G&A rates that were not supported by the underlying financial data.

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor substitute our judgment for that of the agency, as the evaluation of proposals is a matter within the agency’s discretion. Computer World Servs. Corp., B-410513, B-410513.2, Dec. 31, 2014, 2015 CPD ¶ 21 at 6.However, we will review the record to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria and with applicable procurement statutes and regulations. Id.

Here, we find that the agency’s acceptance of the unsupported G&A rates for eight of the awardees was unreasonable and inconsistent with the solicitation requirements. The RFP required that the proposed G&A rates would be evaluated using a cost analysis “based upon verification of the offerors’ cost submissions for their G&A rates and confirming that the submissions are in accordance with the contract cost principles and procedures described in FAR Part 31.”RFP, Tab 3 at 33.The protester, whose proposal complied with the solicitation requirements and whose G&A rate was supported by its certified financial statements, was prejudiced by the agency’s actions as follows: one offeror did not comply with the requirement to submit certified financial statements or a DCAA report; two offerors’ rates could not be verified by the information submitted; and five offerors proposed significantly lower rates than those identified in the certified financial statements they submitted with their proposals. AR, exh. 6, SSDD at 79-84.As a result, these offerors were viewed as offering a lower “price” to the government since the agency was using G&A rates as a proxy for price or cost. There is nothing in the solicitation that informs offerors that the agency would accept a G&A rate that was not supported by certified financial statements or DCAA reports and verified through a cost analysis of the required cost submissions. Accordingly, we sustain this basis for protest.  (West Coast General Corporation B-411916.2: Dec 14, 2015)  (pdf)

MASC challenges the agency’s determination that its proposal was unacceptable under the technical evaluation factor. The protester argues that its technical volume included information about its experience that met the amended RFQ’s requirements, and that the agency should have sought the experience information from MASC’s past performance volume. The protester further argues that the agency should have communicated with the firm regarding the firm’s failure to provide experience. We have considered all of MASC’s arguments, although we address only its primary ones, and find that none provides a basis for questioning the agency’s evaluation or award decision.

In reviewing a protest challenging an agency’s technical evaluation, our Office will not reevaluate the quotations; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. HpkWebDac, B-291538.2, Jan. 22, 2003, 2003 CPD ¶ 28 at 2.

Based on our review of the record we find that the agency reasonably concluded that MASC’s quotation was technically unacceptable for failing to provide the required information. First, MASC’s technical volume did not contain any contracts as required by the amended RFQ. In this regard, the technical volume did not provide a contract which demonstrated MASC’s experience in managing a workforce of 35 personnel or greater in multiple facility installation/complex support where operations took place in the U.S. Central Commands AOR valued at $500K or greater, annually. Moreover, to the extent the firm’s technical volume contained any reference to the firm’s experience, it was merely a general narrative explaining the company’s history that did not provide the information required to enable the agency to conduct its evaluation. Protest, encl. 13, MASC Quotation, at 2-3. Thus, the agency appropriately determined that MASC’s technical volume failed to include any contracts that satisfied the solicitation’s requirements.

Furthermore, we find no merit to the protester’s contention that the agency should have used the information from MASC’s past performance volume to satisfy the requirements of the technical volume. The RFQ informed vendors that a firm’s quotation “shall not require extensive searching throughout the document(s) to locate and evaluate a particular item,” and that each volume should be written, to the greatest extent possible, “on a stand-alone basis.” RFQ amend. 4, at 68. Firms were also specifically informed in the questions and answers period that the contracts submitted in the past performance volume were not to be the same contracts submitted in technical volume. AR, Tab 9, Custodial and Grounds Maintenance Amendment 2 Q & A, at 3. Furthermore, the agency was not required to evaluate MASC’s past performance volume because the RFQ’s evaluation procedure provided that firms that failed to submit a technically acceptable technical volume would not have their past performance volume evaluated. Our Office has long held that firms bear the burden of submitting adequately written quotations, and contracting agencies evaluating one section of a quotation are not obligated to go in search of needed information which the offeror has omitted or failed to adequately present. See Sam Facility Mgmt., Inc., B‑292237, July 22, 2003, 2003 CPD ¶ 147 at 5. Given this, we find nothing improper with the agency’s evaluation.

Finally, we find no merit to the protester’s assertion that the agency was required to communicate with MASC its finding that MASC’s technical volume did not provide the necessary experience. MASC’s failure to provide this information constituted a material omission, which could only be corrected through discussions. Here, the agency chose to make an award without holding discussions with the vendors. Thus, the Air Force had no obligation to open discussions with MASC. See RFQ amend. 4, at 74 (agency reserves the right to make award without holding discussions); see Eagle Aviation Servs. and Tech., Inc., B‑403341, Oct. 14, 2010, 2010 CPD ¶ 242 at 4 (finding no reasonable basis for the contracting officer to regard the protester’s failure to furnish the required information as other than a material omission not subject to correction except through discussions, which the agency had no obligation to conduct).  (Al Mutawa & Sahni Company, W.L.L. B-411534: Aug 14, 2015)  (pdf)

PTSI’s proposal was rated unacceptable/high risk under the technical factor, with unacceptable ratings for the technical plan and sample projects subfactors, and an acceptable rating for the remaining subfactor. AR, exh. 6b, PTSI’s CER - Technical, at 6.

Under the most important subfactor, technical plan, PTSI’s evaluation finding was:

The Offeror’s Technical Plan is considered UNACCEPTABLE. The Offeror is assessed one Deficiency because their Basis of Estimate fails to address portions of the Government’s Performance Work Statement (PWS). There are two significant weaknesses for 1) Basis of estimate regarding technical approach and 2) Basis of estimate for custodial services. There are three Major Weaknesses for: 1) Thoroughness of the Technical Approach, 2) Attention to detail in preparing the Technical Plan and 3) FTEs in the basis of estimate. There are three Minor Weaknesses for 1) Technical approach to subcontracted operations, 2) Subcontractor basis of estimate and 3) Proposal of an organizational structure. There are three Minor Strengths for: 1) Technical approach to the work order process, 2) Technical approach to operations and 3) Innovation in approach to operations.

Id. at 7. Most significantly, PTSI’s proposal received a deficiency for failing to address various portions of the PWS in its basis of estimate (BOE). Id. PTSI argues that its BOE provided all information required by the RFP, and that the assigned deficiency is unreasonable. Protest at 49. Our review of the record gives us no basis to question the evaluation.

PTSI relies on language in section L of the RFP to argue that the aspects of the PWS not included in its BOE did not have to be included because the firm did not separately price them in its cost proposal but, instead, included those costs as other direct costs. Section L reads, in pertinent part:

The Basis of Estimate (BOE) shall provide enough detail and rationale to give NGA evaluators confidence that the Offeror understands the government requirement and can perform within the proposed level of effort. The BOE . . . shall mirror the BOE included in Volume 7, Cost/Price except for cost/price . . . . BOE information (without cost/price information) will be shared across the Government Technical Evaluation Team and the Cost/Price Evaluation Team; therefore, both volumes shall contain the same BOE information.

RFP § L.4.1. Section L also required the BOE to contain at least the following essential elements: Work Breakdown Structure (WBS), including rationale for level of labor hours and skill mix; hours for period of performance; hours for labor categories; technical assumptions; and work performed by both the prime contractor and subcontractors. Id. PTSI asserts that it properly priced its proposal, and thus structured its BOE, using the solicitation’s pricing template, Attachment J-15. Protest at 47-48.

The agency counters that section L required PTSI to include the missing information in its BOE because the WBS included all elements of the PWS. Agency Statement at 12-13. The agency states that the RFP included both a worksheet that linked WBS sections to specific elements of the PWS, and a chart that shows all sub-elements of the WBS. RFP § J, attchs. 19 and 20.

While PTSI argues that it was only required to address the WBS sections identified in the RFP in its BOE, and not all individual PWS sections, our review of the RFP leads us to conclude otherwise. PTSI states that it used Attachment J-15 to price its proposal. Protest at 47-48. The record reflects that PTSI included the WBS sections enumerated in Attachment J-15 in its BOE. However, as the agency points out, RFP Attachment J-19 lists various PWS requirements that are included in the WBS sections set forth in Attachment J-15. The record reflects that PTSI did not include 15 of these PWS requirements in its BOE, and the agency assigned its proposal a deficiency on this basis.

Moreover, section M of the RFP states that, under the technical factor, the agency was looking for a “sound and acceptable Basis of Estimate for the Technical Plan that includes logical assumptions and placement of resources with the appropriate labor category and skill mix to meet the requirements of the PWS.” RFP § M.6.4. Under the technical plan subfactor in particular, section M stated that each offeror’s proposal “will be evaluated on its approach to performing all technical performance requirements identified in the PWS. The plan will be evaluated on the Offeror’s approach to performing all services outlined in the PWS.” RFP § M.6.4.1 (emphasis added).

Requirements provided in the instruction section (section L) of an RFP are not the same as evaluation criteria provided in the evaluation section (section M); rather than establishing minimum evaluation standards, the instructions of section L generally provide guidance to assist offerors in preparing and organizing proposals. See All Phase Envtl., Inc., B-292919.2 et al., Feb. 4, 2004, 2004 CPD ¶ 62 at 4; JRS Assocs., Inc., B-275209.3, July 22, 1997, 97-2 CPD ¶ 27 at 3-4. While PTSI argues that section L required the firm to mirror its BOE to its price proposal, the language in the solicitation’s evaluation criteria put PTSI on notice that the agency would evaluate the proposal with respect to all of the requirements of the RFP. As a result, we have no basis to question the agency’s assignment of a deficiency for failing to include all of the information necessary to conduct its evaluation. See Battelle Memorial Inst., B-299533, May 14, 2007, 2007 CPD ¶ 94 at 3; Great Lakes Towing Co. dba Great Lakes Shipyard, B-408210, June 26, 2013, 2013 CPD ¶ 151 at 7-8 (where a proposal omits, inadequately addresses, or fails to clearly convey requirements, the offeror runs the risk of an adverse agency evaluation).  (PTSI Managed Services Inc. B-411412: Jul 20, 2015)  (pdf)

The record shows that, in submitting its proposal, CACI (the current incumbent) failed to include the required key personnel resumes. The agency evaluated and rejected the CACI proposal, finding that, because of CACI’s failure to include the key personnel resumes, its proposal was noncompliant, and therefore ineligible for award. Agency Report (AR) exh. 3, Proposal Review for CACI. Specifically, the agency advised CACI as follows:

CACI’s failure to follow the instructions to submit the key personnel resumes prevents the Government from fully evaluating its proposal. The omission is particularly problematic where Key Personnel is the second most important subfactor within the most important factor (Technical Capability and Experience) for evaluation purposes (See Solicitation, Section M, § 2.1(b)[)].

Id. at 2.

CACI concedes that it failed to include the required key personnel resumes with its proposal and asserts that this was an administrative error on its part. In its original letter of protest, CACI asserted that, despite the absence of the required resumes, its proposal nonetheless included much of the information that would have been found in those resumes; the protester therefore maintained that, even without the resumes, the agency should have found its proposal acceptable. In addition, the protester asserted that the agency unreasonably failed to engage in discussions with the firm in order to afford it an opportunity to correct its proposal.

In its report responding to the protest, the agency described the RFP’s material informational requirements that were not included in the CACI proposal, that, under the RFP’s terms, should have been included in resumes prepared in accordance with the solicitation’s instructions. AR at 15-18. For example, the agency points out that CACI’s proposal does not provide information relating to the details of the educational background of its proposed key personnel (including the dates on which their proposed candidates received their degrees, the degrees held, and the schools from which the degrees were awarded); their related professional job experience and training; and the special experiences, qualifications and certifications held by their proposed candidates. Id.

In commenting on the agency’s report, CACI acknowledged that allowing the firm to submit the resumes after the fact would constitute discussions rather than clarifications with the firm because, without the resumes, the firm’s proposal omitted material information required by the RFP. CACI specifically represented as follows:

It is not in dispute that: (i) the Key Personnel are identified in CACI's proposal; (ii) their qualifications are discussed in the proposal; (iii) their resumes are referenced in the proposal; and (iv) the omission of those resumes was pure administrative error. It is also not disputed that the omitted resumes address a substantive requirement of the solicitation — so the omission cannot be corrected by mere "clarifications." Submission of the resumes would properly occur only as a result of discussions and proposal revisions.

Protester’s Comments, May 7, 2015, at 6.

Accordingly, we find that CACI has conceded that its proposal lacked the substantive information necessary to find it acceptable, as determined by the agency.   (CACI Technologies, Inc. B-411282: Jun 18, 2015)  (pdf)

Consummate argues that the agency’s evaluation of its quote was unreasonable and inconsistent with the terms of the solicitation. Specifically, Consummate contends that the resumes it provided for the key positions of project manager and business subject matter specialist demonstrated experience in the areas that the evaluators found to be lacking. The protester further argues that a schedule of task performance and deliverables for tasks 1-6 was not required by the RFQ. In response, the agency maintains that it reasonably concluded that the resumes did not adequately demonstrate that Consummate’s proposed key personnel met the requirements of the solicitation. (deleted sentence)

Where, as here, an agency issues a solicitation to FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4. In reviewing a protest challenging an agency’s technical evaluation, our Office will not reevaluate quotations; rather, we will examine the record to determine whether the agency’s evaluation was reasonable and consistent with the terms of the solicitation and applicable procurement statutes and regulations. OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ¶ 33 at 4. A protester’s disagreement with the agency’s judgments does not establish that the evaluation was unreasonable. Amyx, Inc., B-410623, B-410623.2, Jan. 16, 2015, 2015 CPD ¶ 45 at 6. As explained below, we find that HUD’s evaluation here was reasonable and that the record supports the agency’s conclusion that Consummate’s quote was unacceptable.

Consummate argues that HUD ignored information in its quote regarding the qualifications of its proposed key personnel. Two sections of Consummate’s quote addressed the qualifications of proposed key personnel: the key personnel summary section (which represented that each minimum qualification was met), and the key personnel resumes (which repeated the above representations of compliance and included a work-history synopsis for each proposed employee). AR, Tab 8, Consummate’s Quote, Volume 1, Technical and Management Information at 10-12; Appendix A at A1-A10. For example, in response to the requirement that the proposed project manager demonstrate (1) experience in using earned value management principles to manage projects, and (2) experience in project management in a research environment similar to HUD’s Office of Policy Development and Research, both the table in the summary section and the resume for the protester’s proposed project manager included the following language:

“x Demonstrated experience in using Earned Value Management”; and

“x Demonstrated project management experience in a research environment.”

Id. at 11; Appendix A, A-1.

While Consummate argues that the above statements, standing alone, are sufficient to demonstrate that its proposed project manager has the required experience, we disagree. The RFQ provided that the agency would evaluate the proposed project manager’s resume to determine whether it demonstrated compliance with the required minimum qualifications for the position. The agency concluded that a mere restatement of the requirements pertaining to EVM and similar research experience, with check marks next to them, was not adequate to demonstrate that the proposed individual had the required experience in these areas. We are not persuaded that such a conclusion was unreasonable. See Henry Schein, Inc., B-405319, Oct. 18, 2011, 2011 CPD ¶ 264 at 9 (where solicitation required a description of offeror’s approach to meeting solicitation requirements, mere restatement of the requirements was insufficient).

(sections deleted)

The protester’s arguments are based on an assumption that the agency should be required to cobble together and draw broad inferences from the information provided in the resumes in order to conclude that the requirements of the RFQ were met. We disagree. It is a vendor’s responsibility to submit an adequately written quote that establishes its technical capability and the merits of its proposed approach, and allows for a meaningful review by the procuring agency in accordance with the evaluation terms of the solicitation. See Open System Science of Virginia, Inc., B-410572, B-410572.2, Jan. 14, 2015, 2015 CPD ¶ 37 at 8-9. Here, while the resumes restated the qualifications required by the RFQ, the accompanying work histories did not clearly demonstrate that the proposed key personnel had the qualifications required by the RFQ. As such, we find no basis upon which to conclude that the agency was unreasonable in finding that Consummate failed to demonstrate that its key personnel met the requirements of the RFQ.

The protest is denied.  (Consummate Computer Consultants Systems, LLC B-410566.2: Jun 8, 2015)  (pdf)

Amendment 4 to the RFP set out various questions and answers regarding the solicitation. Question 22 sought guidance concerning the information that was to be redacted in proposals. RFP amend. 4 at 5, Question 22. The agency responded that redactions should include all information identifying the offeror, any subcontractors, or their respective personnel by name. Information identifying the offeror, or any subcontractor, as an incumbent on the first SIFM contract vehicle also needed to be redacted. Id.

(sections deleted)

SBSI’s proposal was excluded from the competition based on the firm’s failure to redact the identifying information, as required by the RFP. AR, Tab 6.2, Notification of Exclusion. SBSI received a written debriefing on December 1, 2014, and this protest followed.

The protester argues that its proposal was improperly removed from consideration. Specifically, SBSI asserts that its failure to redact the identifying information did not involve its proposal’s acceptability. Rather, the protester argues that its failure to comply with this requirement may have made its proposal “nonresponsive,” but that it was only a minor informality that the CO should have waived. Protest at 1, 6-8. The protester contends that the agency’s conclusion that SBSI’s proposal was unacceptable was based on an undisclosed evaluation criterion. Id. at 9.

In response to the protest, the agency states that it required identifying information to be redacted in order to ensure an unbiased evaluation, so that no offeror would gain an unfair competitive advantage. CO’s Statement at 6. The agency contends, on this basis, that SBSI’s failure to comply with the RFP’s redaction requirement was not a waivable minor formality, but a material failure to comply with the clear requirements of the RFP. AR, Memorandum of Law, at 5. We agree.

In reviewing protests challenging the evaluation of proposals, we examine the record to determine whether the agency’s judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90‑1 CPD ¶ 223 at 4. An offeror has the burden of submitting an adequately written proposal, and it runs the risk that its proposal will be evaluated unfavorably when it fails to do so. Recon Optical, Inc., B-310436, B-310436.2, Dec. 27, 2007, 2008 CPD ¶ 10 at 6. Furthermore, in a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Wolverine Services LLC, B‑409906.3, B-409906.5, Oct. 14, 2014, 2014 CPD ¶ 325 at 3-4.

While the protester makes much of the fact that the RFP did not spell out the consequences that would result from a failure to redact identifying information, we disagree with the protester’s premise that such notice was required. We also disagree with SBSI’s characterization of its failure to redact information as an issue of “responsiveness,” that constituted a “minor informality” and just an “error in form that could have been easily corrected.” Protest at 1; Protester’s Comments at 1. Here, the RFP contained an explicit, mandatory requirement that the offeror submit seven hand-delivered copies of its proposal that redacted any information identifying the offeror, any subcontractors, and their respective personnel by name, as well as any information identifying the status of the offeror or any subcontractor as an incumbent on the SIFM I contract vehicle. RFP amend. 2, at 3; RFP amend. 4, Question 22, at 5. Where an offeror fails to submit information required by the RFP, we cannot find that the agency acted unlawfully when it refused to further consider that offeror for award. See, e.g., LS3, Inc., B-401948.11, July 21, 2010, 2010 CPD ¶ 168 at 2; MG Mako, Inc., B‑404758, Apr. 28, 2011, 2011 CPD ¶ 88 at 2. Accordingly, we find reasonable the agency’s determination that SBSI’s proposal was unacceptable for this reason. See Wolverine Services LLC, supra.

We deny the protest.  (SBSI, Inc. B-410923: Mar 20, 2015)  (pdf)

Davis-Bacon Wage Rates

Federal Builders asserts that Presidio Bay took exception to the solicitation requirement that Davis-Bacon wage rates apply “to all work (including shell and TIs) performed prior to the Government’s acceptance of the space as substantially complete,” if the lessor proposes “to satisfy the requirements of this lease through . . . the complete rehabilitation or reconstruction of an existing Building, and the Government will be the sole or predominant tenant.” RLP § 3.01. In this regard, Presidio Bay proposed a building that currently included approximately 7,000 SF of space to meet a requirement for a building with at least 12,500 ABOA SF; according to its final FPR, Presidio Bay intended to comply with the solicitation space requirements by increasing the size of the building to 13,563 rentable SF. AR, July 18, 2014, at 6; AR, Tab 33, Presidio Bay Third FPR, at 1.

After submission of initial proposals and before the deadline for final proposals, the broker assisting the agency sent the following email to the Presidio Bay: “Although we did not include the specific Davis-Bacon wage schedule with the RLP file, construction of shell improvements are to be done by trades paid per the Davis-Bacon rates per lease paragraph 3.01. Please confirm that this pricing is incorporated into your proposal.” AR, Tab 35 at 251, Email Exchange, March 27, 2014. Presidio Bay responded that it “will be completing the expansion work prior to initiation of TI construction under separate contract. The TI construction will be Davis-Bacon.” Id. Prior to submission of final proposals, the agency sent Presidio Bay the “appropriate Davis-Bacon wage rates for this project,” and directed it to review them, “ensure these costs are incorporated in your proposal per Lease paragraph 3.01,” and return one initialed copy with the final proposal revision. AR, Tab 32 at 1, Letter from Agency to Presidio Bay, April 16, 2014. In its subsequent final FPR, submitted on April 21, Presidio Bay included the applicable Davis-Bacon wage rate determination, but did not again address which work would be subject to those rates. AR, Tab 33, Presidio Bay Third FPR.

Federal Builders asserts that in its response to the agency’s inquiry concerning compliance with the Davis-Bacon requirement, Presidio Bay, by committing to pay Davis-Bacon wage rates only for the TI work, took exception to the requirement in RLP ¶ 3.01 that an offeror proposing the reconstruction of an existing building shall pay Davis-Bacon wage rates for “all work (including shell and TIs)” proposed “to satisfy the requirements of this lease.” RLP ¶ 3.01.

In defense of its decision to award the lease to Presidio Bay, GSA notes that the awardee’s final FPR, signed nearly one month after the above-described email exchange, took no exception to the terms of the solicitation. Thus, according to the agency, GSA saw “no reason to suspect” that Presidio Bay would not comply with the solicitation requirement to pay Davis-Bacon wage rates for covered work. Agency Additional Statement, Aug. 4, 2014 at 19.

We agree with the protester. Presidio Bay’s response distinguished the building expansion work, to be done “under separate contract,” from the tenant improvement work, and committed to pay Davis-Bacon wage rates only for the latter. In our view, the response does not indicate that Davis-Bacon wage rates will be paid for the building expansion. The building expansion work, however, was necessary to increase a 7,000 SF building to one capable of meeting the solicitation requirement for at least 12,500 ABOA SF, and thus represented “reconstruction” “work (including shell and TIs) performed prior to the Government’s acceptance of the space,” and proposed “to satisfy the requirements of this lease.” RLP ¶ 3.01. As such, the RLP required that the reconstruction work be performed paying Davis-Bacon wage rates.

The agency’s assertion that there was “no reason to suspect” the awardee’s lack of commitment to paying the required Davis-Bacon wage rates is unsupported by the record. Even where a proposal does not expressly take exception to a material term of a solicitation, we may determine that aspects of a proposal should have led to further inquiry by the agency. See L&G Tech. Servs., Inc., B‑408080.2, Nov. 6, 2013, 2014 CPD ¶ 47 at 4 n.5. Here, as noted, Presidio Bay’s response to the agency’s inquiry regarding compliance with the solicitation’s Davis-Bacon requirement did not commit to the full extent of that requirement. Instead, the response suggests that Presidio Bay views the expansion work as outside the scope of the work covered by the requirement to pay Davis-Bacon wage rates. The response, together with the failure of Presidio Bay’s subsequent FPR to expressly address the requirement, should have led to further inquiry by the agency. Absent such inquiry, and an affirmative response from Presidio Bay, we believe that the agency could not reasonably find Presidio Bay’s proposal to be compliant with the applicable Davis-Bacon requirement. This is especially so where, as here, between the time of its initial and final proposal submissions, the awardee’s price did not change, further suggesting that Presidio Bay, after first taking exception to the full extent of the Davis-Bacon requirement, did not subsequently incorporate into its proposal the cost of Davis-Bacon compliance for the expansion work. Compare AR, Tab 30, Presidio Bay Initial Proposal at 1, with AR, Tab 33, Presidio Bay Final Proposal at 1 (showing no change in the offered lease rate between the initial and final proposals). We therefore find that GSA had an insufficient basis to conclude that Presidio Bay’s proposal complied with the Davis-Bacon requirement set forth in the RLP at section 3.01, and we sustain the protest on this basis.  (Federal Builders, LLC-The James R. Belk Trust, B-409952, B-409952.2: Sep 26, 2014)  (pdf)

Paradigm argues that Booz Allen’s FPR was technically unacceptable, complaining that MDA in its reevaluation of proposals knew that Booz Allen’s proposed contract program manager, Ms. G, was no longer employed by the firm and would not be available to perform under the task order. Protest at 22. Paradigm contends that, because offerors were required to propose a contract program manager as a key person, Booz Allen’s lack of a contract program manager failed to satisfy a material solicitation requirement. Paradigm also argues, in the alternative, that MDA allowed Paradigm after the submission of FPRs to substitute a new contract program manager, in effect reopening discussions with only Booz Allen.

In reviewing protests challenging an agency’s evaluation of proposals, even in a task order competition as here, we do not reevaluate proposals, but rather we examine the record to determine whether the agency’s judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. Technology Concepts & Design, Inc., B-403949.2, B-403949.3, Mar. 25, 2011, 2011 CPD ¶ 78 at 8. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. See The Boeing Company, B-311344 et al., June 18, 2008, 2008 CPD ¶ 114 at 54; Special Operations Group, Inc., B-287013, B-287013.2, Mar. 30, 2001, 2001 CPD ¶ 73 at 4.

Here, the record shows that MDA was notified prior to the agency’s decision to reevaluate proposals that Booz Allen’s proposed contract program manager had left the firm’s employment and would not be available to perform the task order. The proposal of a contract program manager is a material solicitation requirement, as offerors were required to identify a specific individual for this key position by submitting a resume. See RTOP amend. 1, at 4, 6. When Ms. G left Booz Allen’s employment, Booz Allen’s FPR no longer satisfied this material requirement. Although MDA considered this failure to be a weakness, it was in fact a deficiency. A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement. See, e.g., FAR § 15.001; see also Special Operations Group, Inc., supra at 5 (protest sustained where awardee failed to provide a required key person, rendering its proposal technically unacceptable).

We recognize that Booz Allen ultimately notified MDA that Ms. G would not be available to perform as the firm’s contract program manager under the task order. See Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10 (it is an offeror’s obligation to inform a procuring agency of changes in proposed staffing and resources, even after submission of proposals); see also Dual, Inc., B-280719, Nov. 12, 1998, 98-2 CPD ¶ 133 at 3-6. Although Booz Allen should not have allowed almost three months to pass before notifying the agency that one of its two key people was no longer available, our concern here is with MDA’s failure to recognize that Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements. That is, having been informed prior to its reevaluation of proposals and making a new selection decision that Booz Allen’s FPR no longer satisfied requirements concerning a key person, MDA could not simply accept Booz Allen’s revised proposal and consider the matter a weakness. Under these circumstances, MDA should have either rejected Booz Allen’s proposal as technically unacceptable for failing to meet a material requirement or reopened discussions to permit the firm to correct this deficiency.  (Paradigm Technologies, Inc., B-409221.2, B-409221.3: Aug 1, 2014)  (pdf)

Motorola argues that the agency unreasonably accepted the Harris proposal because it included the Motorola APX 7000 radio in order to meet the RFP’s requirement that the offeror propose a radio approved by the [Michigan Public Safety Communications System] MPSCS. Motorola contends that it would not have sold the radios to Harris for this requirement because it is in direct competition with Harris for the instant contract. Motorola further asserts that Harris could not have obtained the radios without its consent because the radios are mission critical (meaning they are only for use by people who have a critical need to communicate at all times on specific officially licensed frequencies), and Motorola does not sell mission critical products on the open market. Motorola’s account manager explains as follows:

In the Federal Market space, Motorola sells its radios through an Independent Reseller Channel. Motorola does not provide these Independent Resellers with a set price book for Motorola brand radios. Instead, Motorola requires the Independent Resellers to collect specific information about the resale opportunity (e.g., customer name, program name, etc.) and request pricing from Motorola on a case-by-case basis. Under no circumstances can an Independent Reseller quote a Motorola P25 radio (such as the APX 7000) to a potential customer without prior authorization from Motorola. Motorola reserves the right to issue a quote or to deny issuance of a quote.

In the non-Federal market, Authorized Resellers sell lower-tier Motorola brand radios at prices set forth in a price book. The Authorized Resellers can sell the Motorola radios in the price book to anyone they choose. However, Motorola's P25 Mission Critical products are not included in the Standard Authorized Reseller portfolio.

Accordingly, although the Motorola APX 7000 radio is a commercial radio, Harris cannot acquire that radio for the Detroit Arsenal Land Mobile Radio System from an authorized Independent Reseller absent express authorization from Motorola.

Motorola Supplemental Protest, exh. 1, at 1.

The agency responds that it reasonably accepted Harris’s proposal that included the Motorola APX 7000 radios. The agency contends that there would have been no way for it to know that Harris could not obtain the radios.

The record does not support the Army’s position. The RFP required offerors to include an original equipment manufacturer (OEM) attestation with their proposals in the event that they were furnishing a LMR system manufactured by them, but also required firms to provide specific, written agreements where the equipment being furnished was not manufactured by the concern submitting the proposal. Specifically, the RFP provided: “All Offerors shall provide written proof that they either are a Land Mobile Radio System OEM or have a business partnership/agreement, specifically for the Detroit Arsenal, MI LMR effort, with an LMR OEM.” RFP at 35.

Here, the record shows that Harris provided only a written attestation that it was, in general, an OEM of LMR systems. AR, exh. 9i, Harris Revised Proposal, at 1. However, to the extent that Harris was furnishing equipment that it did not manufacture, the RFP required it to provide written proof that the firm had a business relationship--specifically to furnish equipment for the Detroit Arsenal acquisition--with the OEM that manufactured the equipment.

The agency argues that Harris was not required to provide a separate written agreement with Motorola because Harris was furnishing predominantly Harris equipment, and its blanket OEM attestation was all the RFP required. However, the RFP provision at issue clearly is intended to provide the agency with assurances that the equipment being proposed can, in fact, actually be furnished by the offeror. It follows that, to the extent an offeror--even an OEM of LMR systems--was proposing equipment manufactured by another, different OEM, the RFP provision required that the offeror provide written evidence of a relationship with the other OEM.

The record shows that there is nothing in the Harris proposal to demonstrate that it has an agreement with Motorola to purchase the Motorola APX 7000 radios. However, the agency was required, under the express terms of the RFP, either to seek and obtain written proof that Harris, in fact, had a business relationship with Motorola that would allow it to purchase the APX 7000 radios, or to reject the Harris proposal for not meeting the requirement to provide MPSCS approved radios. This was especially true in view of the fact that Motorola is a direct competitor of Harris in the Detroit Arsenal acquisition offering the identical radio. Accordingly, we sustain Motorola’s protest on this basis.  (Motorola Solutions, Inc, B-409148, B-409148.2, Jan 28, 2014)  (pdf)

CAI’s protest is largely based on the faulty premise that DOL’s inclusion of the protester’s proposal in phase 2 of the competition precluded the agency from subsequently concluding that the proposal was technically unacceptable. The fact that an agency initially included a proposal in the competitive range does not preclude the agency from later excluding the proposal from further consideration, if the proposal is found no longer to have a reasonable chance of receiving award. See, e.g., MRK Incineration/IDM Corp., a Joint Venture; Halliburton NUS Envtl. Corp., B-244406.5, B-244406.6, Jan. 16, 1992, 92-1 CPD ¶ 77 at 5-6; Dowty Maritime Sys. Inc., Resdel Eng'g Div., B-237170, B-237173, Feb. 2, 1990, 90-1 CPD ¶ 147 at 6-7. Contrary to the protester’s view, the agency’s invitation for CAI to participate in phase 2 of the competition did not guarantee that the protester’s proposal was technically acceptable. MRK Incineration/IDM Corp., supra.

The record here supports the agency’s finding that CAI’s proposal failed to meet the solicitation’s technical specifications. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD ¶ 140 at 4-5; Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2002 CPD ¶ 13 at 2-3.

As noted above, the RFP instructed offerors to propose, and the SOO explicitly required, a cloud-based platform that was accessible using only a web browser without installing any client-based software. RFP at 26-27, 35; SOO at 7, 16-23. Offerors were also informed that, if their proposals were included in the competitive range and advanced to phase 2 of the competition, then the offeror would be required to submit a POC and conduct a demo to validate the offeror’s proposed platform. RFP at 24, 30-31, 45. The RFP explicitly stated that the agency would evaluate offerors’ performance during phase 2, including whether they met all SOO objectives and how efficiently the offeror’s POC performed. Id. at 42. Moreover, the RFP stated that pilot users would rate the ease of use and accessibility of the offeror’s proposed system and whether it demonstrated self-service web capability that would satisfy customer needs without agency assistance. Id. at 31, 42.

CAI does not dispute that its proposed cloud platform required the installation of SmartClient as additional software. See, e.g., Protest, Attach. A, at 2; Comments at 2-4; see also AR, Tab 11, CAI Dec. 7, 2012 Email to CO (CAI stating that in order for its cloud system to function, agency workstation requires installation of SmartClient and installer must have sufficient administrative privileges for installation); CAI Agency Workspace System Requirements, at 1 (agency workstations used for live demo must be allowed to install Oracle RightNow SmartClient). The protester also concedes that the agency’s pilot testers could not test the functionality of CAI’s proposed platform on their workstations. See Comments at 4, 7. Accordingly, we find sufficient basis in the record to support the agency’s decision to reject CAI’s proposal.

With regard to CAI’s complaint that the agency never should have invited the firm to participate in phase 2 of the competition, we agree with the agency that it was not clear at the conclusion of phase 1 that CAI’s proposal was unacceptable. As noted above, CAI’s proposal contained only a brief note on CAI’s 8-page table and a reference to SmartClient in a diagram. AR, Tab 4, CAI’s Technical Proposal, at 13, 29. CAI’s proposal contained no substantive discussion of SmartClient, and DOL was not required to discern, for example, how SmartClient would be integrated and compatible with the agency’s IT systems. Given the lack of clarity in CAI’s proposal, we cannot conclude that the agency should have realized, after its initial evaluation of CAI’s proposal during phase 1 of the competition, that CAI’s POC was unacceptable. See, e.g., The Louis Berger Group, Inc., B 407715 et al., Jan. 25, 2013, 2013 CPD ¶ 55 at 9 (agency not required to divine protester’s approach to specified technical requirement from proposal’s check-the-box table). Accordingly, we find unobjectionable the agency’s actions in inviting CAI to participate in phase 2.

In sum, although CAI complains that its proposal should not have been included in the competitive range, it has not shown that the agency violated any procurement laws or regulations or acted unreasonably in rejecting the protester’s proposal. The protester’s disagreement with the agency’s judgment does not establish that the agency acted unreasonably or provide a basis to sustain its protest. See, e.g., CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD ¶ 107 at 2.  (Concept Analysis and Integration, LLC, B-406638.3, Mar 29, 2013)  (pdf)

Batelco argues that DISA’s evaluation of 2Connect’s quotation was unreasonable because the awardee took exception to material solicitation requirements regarding the 1-hour response and 8-hour maximum restoration times. For the reasons discussed below, we agree.

2Connect’s initial quotation included a compliance matrix which indicated that 2Connect agreed to comply with the 1-hour response and 8-hour restoration requirements specified in the solicitation. Supp. AR, Exh. 1, 2Connect Quotation (May 1, 2012), at 3. As discussed above, however, DISA’s May 23 request for clarification required vendors to “explain in detail” their approach to meeting the 8-hour restoration requirement. On May 29, 2Connect’s clarification submission included the following statements:

2Connect have fiber maintenance personnel located in [REDACTED] with the necessary infrastructure/equipment located in each of these countries to provide a prompt response to any potential fiber breaks in the network. The mean-time-to-repair (MTTR) target to restore any fiber break within this terrestrial network is set at eight hours or better.

Supp. AR, Exh. 2, 2Connect Clarification (May 29, 2012) at 6.

Batelco argues that although the solicitation required vendors to expressly commit to a 1-hour response time, 2Connect’s supplemental response failed to do so, and instead merely stated that it would provide a “prompt response.” See id. The protester also argues that while the solicitation required vendors to commit to a “maximum time to repair” of 8 hours, the awardee’s quotation stated that its “target” was a "mean-time-to-repair" of eight hours or better. See id. With regard to the latter issue, the protester notes--and the agency does not dispute--that a “mean” or average time for restoration/repair is different than a “maximum” restoration/repair time. In this regard, a mean restoration/repair time could be several hours more or less than the stated mean.

The contemporaneous record of DISA’s evaluation consists of two documents: (1) a summary chart indicating--by a “yes” or “no” designation--whether a vendor proposed to comply with all technical requirements; and (2) a narrative technical evaluation report. AR, Tab 12, Bid Abstract, at 1; Supp. AR, Tab 3, Technical Evaluation. The technical evaluation report concerning the awardee’s quotation stated as follows: “Agrees to and addresses how they will meet 8 hour restoration.” Supp. AR, Tab 3, Technical Evaluation, at 1. The contemporaneous evaluation does not specifically address the 1-hour response time.

In its response to the protest, DISA states that it found that the compliance matrix provided in 2Connect’s initial quotation demonstrated that the awardee would comply with the material requirements of the solicitation. Supp. AR (Jan. 9, 2012) at 3. The agency further states that 2Connect’s May 29 clarification responses provided no basis to question whether the awardee would comply. Id. at 3-4. In this regard, DISA states that it interpreted the awardee’s May 29 clarification regarding a “prompt response” to satisfy the 1-hour response requirement. Id. 3. With regard to the 8-hour maximum restoration time requirement, the agency states that it interpreted the awardee’s explanation that it would provide a "mean-time-to-repair target of eight hours or better" for its terrestrial cable to indicate that the awardee would repair any problems with both the terrestrial and submarine cable in no more than 8 hours, as required by the solicitation. Id. In support of this conclusion, DISA provided a declaration of an agency specialist who stated as follows: “DISA’s Technical Evaluation Team for this procurement determined that 2Connect’s proposal provided a technically acceptable solution in response to Solicitation No. TSR RE12MAR125241, to include the eight hour restoration requirement.” Decl. of DISA Telecommunication’s Specialist (Dec. 6, 2012) ¶ 3.

The evaluation of proposals or quotations is a matter within the discretion of the contracting agency. See Carson Helicopter Servs., Inc., B-299720, B-299720.2, July 30, 2007, 2007 CPD ¶ 142 at 5. In reviewing an agency’s evaluation, we will not reevaluate proposals or quotations, but instead will examine the agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria. Id. However, in determining the technical acceptability of a proposal or quotation, an agency may not accept at face value a promise to meet a material requirement, where there is significant countervailing evidence that was, or should have been, reasonably known to the agency evaluators that should create doubt whether the offeror or vendor will or can comply with that requirement. SeaBeam Instruments, Inc., B-253129, Aug. 19, 1993, 93-2 CPD ¶ 106 at 6-7. A proposal or quotation that contains an ambiguity as to whether the offeror will comply with a material requirement of the solicitation renders the proposal unacceptable. Solers, Inc., B-404032.3, B-404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 7 n.6.

We conclude that the record does not show that DISA’s evaluation was reasonable. Specifically, neither the contemporaneous evaluation nor the agency’s response to the protest explains how it concluded that the awardee’s May 29 responses demonstrated that the awardee committed to comply with the stated requirements. DISA does not dispute that the 1-hour response and 8-hour restoration times are material requirements of the solicitation, or that vendors were required to both expressly accept and provide details regarding their approaches to these requirements. Because the record here shows that the awardee’s quotation contained information which, on its face, took exception to the stated solicitation requirements, and because the record does not explain how the agency reconciled these conflicts, we find that the agency improperly ignored evidence that should have raised a significant concern that the awardee would not meet the required responses times. As a result, we sustain the protest.  (Bahrain Telecommunications Company, B.S.C., B-407682.2, B-407682.3, Jan 28, 2013)  (pdf)

Compliance with Specification 8.04

As noted above, specification 8.04 requires that the generators used to power the combat operations center systems must operate at no more than 90 percent of their rated maximum load, while operating all proposed equipment at a steady state. RFP amend. 12, SSS, at 22. In its FPR, General Dynamics advised that the steady-state power consumption of its equipment would be between 20,252 and 20,453 watts (depending upon the hardware baseline). See AR, Tab 45, General Dynamics FPR, at A-28. Despite these intended operating levels, the company proposed using the existing power generator, which has a rated maximum load of only 20,000 watts.

General Dynamics nevertheless argues that its revised proposal satisfies specification 8.04 because it informed the agency, citing the 2006 Spiral I test report, that the existing power generators could be retested and rerated for a higher maximum load. See General Dynamics Comments at 27. In this regard, General Dynamics complains that the agency ignored the Spiral I test results, in which the observed maximum power output of the existing generator reached over 24,800 watts for a three-hour period. See AR, Tab 45, General Dynamics FPR, at A-27; General Dynamics Post-Hearing Comments at 16. General Dynamics also contends that the Marine Corps failed to consider the protester’s offer to provide a different alternator that would achieve greater generator performance. See General Dynamics Post-Hearing Comments at 17-18.

Based on our review of the record, we find that the Marine Corps reasonably concluded that General Dynamics’s proposal did not satisfy specification 8.04. General Dynamics proposed to use existing generators that currently have a rated maximum load of 20,000 watts. In this regard, offerors were informed of the generators’ rated maximum load in the RFP, and General Dynamics was again informed of this fact during discussions. See RFP, Exhib. 13, Good to Know Charts, at 2; AR, Tab 27, General Dynamics Discussion Issues, at 17 (BATES).[14] As a result, General Dynamics’s decision to propose equipment with a steady-state power consumption of between 20,252 and 20,453 watts meant that the generators would operate above 90 percent of the rated maximum load.

We also do not agree with General Dynamics’s contention that it was unreasonable of the Marine Corps not to accept the protester’s proposal to increase the rated maximum load of the existing generators. The TERP concluded that this approach did not satisfy specification 8.04. See AR, Tab 29, Final TERP Report, at 68. In this regard, the lead engineer on the TERP recognized that it might be possible to raise the rated maximum load of the existing generators, but testified that running a generator at higher outputs for an extended period can result in greater wear and tear of the generator, and require earlier replacement as well as increased fuel consumption. See Tr. at 173, 174. Although General Dynamics complains that the agency did not adequately consider the 2006 Spiral I test report in considering protester’s proposed retesting and rerating of the generator, General Dynamics has not pointed to any other evidence or testing, in its proposal or otherwise, that demonstrates that the existing generators can be rerated such that General Dynamics’s proposed equipment will satisfy specification 8.04--and, in our view, the 2006 Spiral I test report alone, is not sufficient to require the Marine Corps to reach the conclusion the protester urges. In sum, while General Dynamics disagrees with the agency’s technical judgment, that disagreement does not show that the agency acted unreasonably. See Trofholz Tech., Inc., supra.

General Dynamics also complains that the Marine Corps failed to evaluate its proposal to provide a different alternator that would allow its proposed equipment to satisfy specification 8.04. The agency responds that it considered the protester’s offer to change the alternator to be an alternate approach, which was not permitted by the RFP. Agency’s Post-Hearing Comments at 4. The Marine Corps also states that, even if it had considered this offer, General Dynamics’s FPR contained too little information concerning the type of alternator that would be proposed for the agency to be able to evaluate the merits of the approach. Id. On this issue, we have considered all of General Dynamics’s arguments to the contrary, and find no basis to conclude that the agency’s evaluation was unreasonable.  (General Dynamics C4 Systems, Inc., B-406965, B-406965.2, Oct 9, 2012)  (pdf)

GAI primarily argues that the Army unreasonably eliminated its proposal from award consideration, and should have allowed it to revive its expired proposal. For the reasons discussed below, we find no basis to sustain the protest.

GAI does not dispute that it expressly refused to extend offer to February 29, 2012, as required by the agency, and instead limited the acceptance period to February 1. The protester argues, however, that the agency should have permitted it to revive its proposal.

A solicitation’s minimum acceptance period is a material requirement. Banknote Corp. of Am., Inc., B-278514, Feb. 4, 1998, 98-1 CPD ¶ 41 at 3. An offeror’s compliance with a solicitation’s acceptance period is required so that all offerors share the same business risks of leaving their bids or proposals open for acceptance by the government for the same amount of time. See General Elevator Co., Inc., B-226976, April 7, 1987, 87-1 CPD ¶ 385 at 2.

Where a proposal has expired, we have recognized that an offeror may extend its acceptance period and revive its proposal if doing so would not compromise the integrity of the competitive bidding system. BioGenesis Pacific, Inc., B–283738, Dec. 14, 1999, 99-2 CPD ¶ 109 at 6. Circumstances that compromise the system's integrity include an offeror’s express or implied refusal of a request to extend its bid, and a subsequent request to revive the proposal subject to the offeror’s own interests. Ocean Servs., LLC, B-404690, Apr. 6, 2011, 2011 CPD ¶ 73 at 3. An offeror who is allowed to specify a shorter acceptance period would enjoy an unfair competitive advantage because it would be able to refuse the award after its bid acceptance period expired should it decide that it no longer wanted the award, for example, because of unanticipated cost increases, market fluctuations, shortages, or better profit opportunities elsewhere. See Banknote Corp. of Am., supra, at 3.

GAI argues that the Army should have requested that the protester revive its proposal, after the proposal expired on February 1. The protester contends there would have been no prejudice to the competitive system by allowing it to revive its proposal because the agency requested that GFS extend its proposal acceptance date several times after February 29. As discussed above, however, the protester advised the agency that it would not extend its price beyond February 1, as requested, and also advised that the protester “reserved the right” to modify its proposal after that date. AR, Tab 24a, GAI Response to Extension Request (Jan. 19, 2012). Because GAI expressly refused to extend its proposal, the Army properly excluded its proposal from award consideration. In contrast, the agency reasonably requested that the remaining offeror, whose proposal was still valid, extend its proposal acceptance period on the same terms. On this record, we conclude that GAI’s proposal expired, and the Army could not permit the protester to revive its proposal because, for the reasons stated above, such a revival and proposal extension would compromise the integrity of the competitive bidding system. See Esprit Int’l Corp., B-276294, Mar. 10, 1997, 97-1 CPD ¶ 106 at 2.

Additionally, GAI argues that the award notice and debriefing set forth different reasons for its elimination from the competition--reasons that the agency does not now defend. In effect, the protester argues that the agency is now estopped from arguing that its proposal had expired.

As discussed above, however, it is clear that GAI’s proposal had expired and could not be revived without compromising the competitive bidding system and it therefore was no longer eligible for award. See Esprit Int’l Corp., supra. Thus, even if, as the protester contends, the agency did not reach this conclusion until after its agency-level protest was filed, we see no basis to conclude on the record here that the protester’s proposal could be considered for award.  (Global Automotive, Inc., B-406828, Aug 3, 2012)  (pdf)

Specifically, the CHE quote included the following language:

Identifying the parts a customer requires to support their system platforms is the key to being successful. We accomplish parts identification through a thorough comprehensive on site systems platform audit prior to our contractual responsibility beginning.

CHE Quote at 13. Elsewhere, CHE’s quote included the notation: “Contract Start Date: To be Determined (TBD),” and identified the period of performance as follows: “Term: 12 months 1 Apr 2012 – 31 Mar 2013.” CHE Quote, Schedule of Services, at 1.

NOAA concluded that CHE’s quote was ambiguous because it appeared to have qualified its obligation under the terms of the RFQ to provide the computer maintenance services from April 1, 2012 to March 31, 2013. Agency Report, exh. 7, at 2. The agency awarded the task order to SMS Systems Maintenance Services, the incumbent and the firm submitting the second lowest price. After being advised of the agency’s rejection of its quote and award to SMS, CHE filed this protest.

CHE asserts that the agency improperly rejected its quote. According to the protester, it unambiguously offered to perform the contract during the period of performance and was simply offering its parts audit as an additional service at no cost to the government. CHE also maintains that its parts audit would have taken it no more than a day to perform and that there was enough time between when its quote was due under the terms of the RFQ (March 30) and when performance was to begin (April 1) for it to have performed its parts audit; according to the protester, anyone familiar with the industry--including the agency’s personnel--would have known this. We find no merit to the protest.

In reviewing protests of an agency's evaluation, our Office does not reevaluate vendors' quotations; rather, we review the record to ensure that the agency's evaluation was reasonable and consistent with the terms of the solicitation. Commercial Window Shield, B-400154, July 2, 2008, 2008 CPD ¶ 134 at 2. A proposal or quotation that contains an ambiguity as to whether the offeror will comply with a material requirement of the solicitation renders the proposal or quotation unacceptable. Solers, Inc., B-404032.3, B-404032.4, Apr. 6, 2011, 2011 CPD ¶ 83 at 7 n.6; Rel–Tek Sys. & Design, Inc., B–280463.3, Nov. 25, 1998, 99-1 CPD ¶ 2 at 3.

We find that NOAA reasonably concluded that CHE’s quote was ambiguous regarding whether CHE intended to meet the RFQ’s requirements with respect to the period of performance. The agency concluded that the express terms of CHE’s quote conditioned the firm’s contractual responsibility--in effect its legal obligation to perform--on its completion of the parts audit. The record also shows that there was no basis to understand, from the information included in CHE’s quote, how long the protester’s proposed parts audit would take and, correspondingly, whether it could be completed in the time between when its quote was submitted and the RFQ’s contemplated start date for performance. CHE introduced additional uncertainty regarding whether it intended to perform in accordance with the terms of the RFQ’s period of performance by stating that the start date for performance was ‘to be determined.’

In view of these considerations, and in light of the fact that it was incumbent upon CHE to submit an adequately written quote, we conclude that the agency properly rejected the quote from further consideration because it was ambiguous.  (CHE Consulting, Inc., B-406639, Jun 28, 2012)  (pdf)

Silicon Ro argues that the Navy’s award to Ricostar was improper because the firm did not attend the November 25 site visit. On this basis, Silicon Ro contends that the Navy should have “automatically disqualified” Ricostar’s quotation. Protest at 2.

In reviewing protests challenging an agency’s evaluation of quotations, we will not conduct a new evaluation or substitute our judgment for that of the agency; rather we will examine the record to determine whether the agency’s judgment was reasonable and consistent with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. Synovate, Inc., B-404689, Mar. 29, 2011, 2011 CPD ¶ 80 at 5.

The agency argues, and we agree, that while the [performance technical statement] PTS required vendors to visit the schools, it did not specifically require attendance at the Navy’s November 25 site visit. See AR at 3. In this regard, neither the RFQ nor the PTS included a requirement that vendors attend the site visit scheduled by the Navy to be eligible for award. Rather, the PTS merely required that vendors visit the construction sites prior to submitting their quotations in order for them to “measure and to quantify the work and to verify real field conditions.” PTS at 3.

Here, the Navy has presented documentation, including hotel receipts and stamped and signed temporary duty orders, showing that Ricostar visited the schools on November 24. See AR, Tab 9, Documentation of Ricostar Site Visit, at 1-3. Although Silicon Ro disputes the agency’s assertion that Ricostar visited the construction sites prior to submitting its quotation, and maintains that our Office should “not take into evidence” the documentation provided by the agency, Silicon Ro has provided no meaningful support for its assertion that the documentation submitted by the agency is unreliable. See Comments at 3.  (Silicon Ro Foundation, B-406304, Mar 9, 2012)  (pdf)

The protester generally contends that the agency unreasonably rated its proposal as unacceptable under the safety evaluation factor. OER maintains that "it was not given a clear direction on exactly what information [the agency] was looking for in regards to requirements for safety measures" and that its proposal was "not reviewed at the same level as other firms." Protester's Comments at 1. OER also challenges the agency's evaluation of FCC's proposal under the safety factor.

In reviewing protests objecting to an agency's technical evaluation, our role is limited to ensuring that the evaluation was reasonable and consistent with the terms of the solicitation. CMI Mgmt., Inc., B-402172, B-402172.2, Jan. 26, 2010, 2010 CPD para. 65 at 2. It is an offeror's responsibility to submit an adequately written proposal that establishes its capability and the merits of its proposed technical approach in accordance with the evaluation terms of the solicitation. See Verizon Fed., Inc., B-293527, Mar. 26, 2004, 2004 CPD para. 186 at 4. The protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. Akal Security, Inc., B-401469 et al., Sept. 10, 2009, 2009 CPD para. 183 at 3. Based on our review of the record, the agency's finding that OER's initial and revised proposals failed to adequately address the safety evaluation factor was reasonable and supports the agency's decision to exclude OER's proposal from further consideration.

Here, in order for a proposal to be evaluated as technically acceptable, the RFP required that an offeror provide detailed narratives that addressed each of the four identified elements of the safety evaluation factor. While OER may have taken a limited view as to what information was necessary to address the question of safety--the protester states that "safety is black and white" and "the rules and regulations have absolutely no gray area," id. at 1-2--we note that simply citing the applicable OSHA and/or ANSI rules or regulations in its proposal did not comport with the RFP's specific requirement for a detailed narrative describing the offeror's safety procedures for itself and its subcontractors, as well as the safety program and procedures employed by the offeror under similar projects it performed over the last 5 years. Because OER did not furnish all of the information required by the RFP, we have no basis to question the agency's determination that OER's proposal was technically unacceptable.

Moreover, during two rounds of discussions, the agency specifically questioned the protester with regard to its approach to managing and implementing safety procedures for itself and its subcontractors. Yet, it still failed to submit a response addressing the agency's concerns; indeed, OER provided essentially no information for the agency to evaluate regarding the firm's compliance with this evaluation factor. To the extent OER contends that the agency failed to inform OER of the level of detail sought by the agency during the two rounds of discussions, its contention is without merit. Agencies are not required to "spoon-feed" offerors during discussions, but rather need only lead offerors into the areas of their proposals that require amplification or revisions. Martin Elecs., Inc., AMTEC Corp., B-404197, et al., Jan. 19, 2011, 2011 CPD para. 25 at 6. The agency clearly advised OER during both rounds of discussions that OER needed to provide greater detail regarding its safety program.  (OER Services, LLC, B-405273, October 7, 2011)  (pdf)

We find that JRS's quotation was properly found unacceptable. In this regard, the RFQ's plain language required vendors to submit supporting documentation to show that the instructor candidate possessed the required qualifications and experience. RFQ at 25. Although the protester's quotation generally described the candidate's experience, the quotation did not include sufficient details (such as where the individual worked) for the agency to verify the experience. Furthermore, JRS failed to provide the information when repeatedly requested by the agency. Since the quotation did not contain any supporting documentation showing that the instructor candidate possessed the requisite experience, and JRS failed to provide the documentation when requested by the agency, we find reasonable the agency's determination that JRS' quotation was technically unobjectionable.  (JRS Management, B-405361; B-405361.2; B-405361.3, October 3, 2011)  (pdf)

Orion asserts that its proposal included sufficient information for the agency's evaluation, and, therefore, the agency's determination to eliminate the proposal from consideration for award was unreasonable. Protest at 8. The agency responds that because certain information regarding Orion team member costs was not included in Orion's proposal or submitted by the team members to the agency, as required by the solicitation, the agency could not evaluate the proposal for cost realism as contemplated by the solicitation's evaluation scheme and the Federal Acquisition Regulation (FAR). Contracting Officer Statement para. 15, at 4-5. According to the agency, examples of missing but required and necessary information include the direct labor rates, indirect cost rates, and ODCs of five Orion team members that were to perform work under the task order scenario PWS. Id. at 5. The agency also asserts that the missing information precluded a determination as to whether Orion team member ODCs were included in Orion's proposal. Id.

In its comments on the agency's report, Orion argues that the agency could have evaluated the realism of Orion team member costs using information contained in Orion's proposal. Comments at 6. As described above, the information regarding team member labor in the labor cost table of Orion's cost/price proposal was limited to the number of hours to be performed under a given labor category for a PWS paragraph, and the total cost, with fee, for the work. AR, Tab 7, Orion Proposal, Vol. IV, Labor Cost Table. Orion contends that the agency could have derived Orion team member labor rates by dividing the number of hours by the total cost, with fee, and then used the derived rates for its cost realism analysis. Comments at 7.

In reviewing protests challenging allegedly improper evaluations, or, as here, the rejection of a proposal based on the agency's evaluation, it is not our role to reevaluate proposals; rather, our Office examines the record to determine whether the agency's judgment was reasonable, and in accordance with the solicitation criteria and applicable procurement statutes and regulations. Ira Wiesenfeld & Assocs., B- 293632.3, June 21, 2004, 2004 CPD para. 132 at 2. A protester's mere disagreement with the agency's judgment does not establish that an evaluation, or rejection, was unreasonable. Id.

It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. CACI Techs., Inc., B-296945, Oct. 27, 2005, 2005 CPD para. 198 at 5. Any proposal that fails to conform to material terms of the solicitation may be considered unacceptable and not form the basis for an award. Gordon R.A. Fishman, B-257634.3, Nov. 9, 1995, 95-2 CPD para. 217 at 2. Even where individual deficiencies may be susceptible to correction though discussions, the aggregate of many such deficiencies may preclude an agency from making an intelligent evaluation, and the agency is not required to give the offeror an opportunity to rewrite its proposal. Jack Faucett Assocs., B-253329, Sept. 7, 1993, 93‑2 CPD para. 154 at 4, aff'd, Jack Faucett Assocs.-Recon., B-253329.2, Apr. 12, 1994, 94‑1 CPD para. 250. Further, communications with offerors before the establishment of the competitive range "shall not be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal." FAR sect. 15.306(b)(2).

As discussed above, the solicitation here provided that offerors' task order scenario cost/price proposals would be evaluated for cost realism and that proposed costs would be evaluated for reasonableness using cost analysis techniques. RFP sections M.1.1.2, M.4.0. The FAR describes cost analysis as follows:

Cost analysis is the review and evaluation of any separate cost elements and profit or fee in an offeror's or contractor's proposal, as needed to determine a fair and reasonable price or to determine cost realism, and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.

FAR sect. 15.404-1(c)(1). With respect to cost realism analysis, the FAR provides as follows:

Cost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror's proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror's technical proposal.

Id. sect. 15.404-1(d)(1). The FAR also provides that cost realism analyses "shall be performed on cost reimbursement contracts." Id. sect. 15.404-1(d)(2)

Although application of the methodology advocated by Orion would have permitted the agency to derive the fully loaded labor rates of the Orion team members for which cost information was missing, such methodology would not have permitted the agency to review the specific elements of the team members' costs to determine whether those elements were realistic or reasonable. For example, using Orion's methodology, the agency could not have derived the team members' direct labor rates or indirect costs, such as fringe benefit or G&A costs. Accordingly, application of Orion's methodology would not have permitted the agency to evaluate Orion's proposed costs as contemplated by the FAR. See FAR sect. 15.404-1(c)(2)(i)(A), (d)(1). Further, the informational deficiencies in Orion's proposal relate to specific and detailed cost evaluation criteria in the solicitation, RFP sections M.1.1.2, M.4.0, and the solicitation expressly cautioned offerors that failure to submit the information in question could result in the elimination of a proposal from consideration for award, id. sect. L.4.4.6.1.1(d). We therefore conclude that the agency reasonably excluded Orion's proposal from the competition. See Robotic Sys. Tech., B‑278195.2, Jan. 7, 1998, 98-1 CPD para. 20 at 9-10; Jack Faucett Assocs., supra; see also FAR sect. 15.306(b)(2).  (Orion Technology, Inc., B-405077, August 12, 2011)  (pdf)

AC4S protests that the agency's assessment of a deficiency under the mission support subfactor was improper because the "inadvertent omission" of the phrase "in subcontracting" from one metric did not change AC4S's intent to meet the SOO's objective to increase small business subcontracting. AC4S argues that its intent to meet the objective was apparent from Table 1 and from its proposal throughout, in which AC4S repeatedly discussed its intent to subcontract 30 percent of the work to other small business subcontractors. AC4S also argues that the agency should have corrected the missing phrase through clarifications. We disagree.

Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is unacceptable. See TYBRIN Corp., B-298364.6, B-298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5. Here, we conclude that the government-specified performance metrics were material requirements of the RFP, that the agency reasonably determined that AC4S improperly modified the performance metrics in a manner that did not conform to the terms of the RFP, and that the error was not subject to correction via clarifications.

Under a performance based contracting arrangement, such as we have here, performance metrics are more than mere proposal evaluation tools. Rather, the metrics become the measurable performance standards used to assess the contractor during performance, and to determine the application of performance incentives and disincentives. Indeed, the measures, metrics, ALQ, and incentives/disincentives establish the performance levels that are required to meet the objectives specified by the SOO, and are critical aspects of the resulting performance-based contract. In this case, the agency provided certain government-specified performance metrics reflecting the level of performance that the government required, and the agency repeatedly cautioned the offerors that these metrics were not to be revised in any way. Such clearly stated RFP terms are undoubtedly material to the needs of the government, and failure to conform to such terms renders a proposal unacceptable.

Next, based on our review of the RFP and AC4S's proposal, it is readily apparent that AC4S's modification of the performance metric at issue did, in fact, materially alter the metric's meaning. The agency explains that, based on its past experience, the awardees will likely outgrow their small business status over the course of the contract, leaving few firms to compete for future set-asides. COSF, at 10. The objective "[e]ffectively use small businesses to assure achievement of subcontracting targets allowing for mentorship of small businesses" was therefore included in the SOO to encourage awardees to "mentor and grow other small businesses, that would obtain relevant experience, and . . . enhance the competition for the next generation of small business set-asides of this kind." Id.

The applicable government-provided performance metric, "usage of SBs in subcontracting," was specified to provide a common, clearly understandable and measurable basis for monitoring awardee's success in meeting the above objective during performance. The metric, "usage of SBs," as modified by AC4S, however, fails to reflect the intent of the SOO objective to assure achievement of subcontracting targets and allow for mentorship of small businesses, or the intent of the provided metrics, because it captures AC4S's own efforts as a small business along with those of its small business subcontractors.

The extent to which AC4S's modified performance metric deviated from the SOO objective and government-specified metric is apparent when it is considered that AC4S also included its own efforts as a small business in its proposed percentage small business usage in ALQ 1.d, contrary to the RFP's instructions. In Volume IV of its proposal, AC4S stated that "AC4S is retaining 80% of the contract towards small businesses. The 80% includes 50% for AC4S." On the same page of the proposal, in Table 3 – Subcontracting Participation Goals, AC4S confirms that 30 percent of the contract will be subcontracted to small businesses. However, rather than enter the 30 percent figure from Table 3 into ALQ 1.d, as instructed, AC4S entered "80 percent."

The overall effect is that, by including its own efforts in the small business utilization percentage of ALQ 1.d, and by omitting the phrase "in subcontracting" from metric 1.d, AC4S made it possible to compensate for failure to meet its subcontracting objective by increasing its own share of contract performance. For example, if AC4S were to fall 10 percent short of its small business subcontracting target during performance, but increase its own portion of contract performance to 60 percent, AC4S would meet its modified performance metric of 80 percent small business usage and avoid performance-based disincentives, despite failing to meet the small business subcontracting target. Therefore, the omission of the phrase "in subcontracting" had a material effect on AC4S's commitment to conform to the specified small business usage metric required by the RFP.

AC4S also suggests that the omission of the phrase "in subcontracting," and the inclusion of its own efforts in the small business usage percentage should have been corrected through clarifications. We disagree. Clarifications are limited exchanges between the agency and offerors that may occur where, as here, contract award without discussions is contemplated. FAR sect. 15.306(a). An agency may, but is not required to, engage in clarifications that give offerors an opportunity to clarify certain aspects of proposals or to resolve minor or clerical errors. Id. However, clarifications may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or revise the proposal. Superior Gunite, B-402392.2, Mar. 29, 2010, 2010 CPD para. 83 at 4. Because the omission of the phrase "in subcontracting" in this case was both a material omission and a deficiency, the error was not subject to correction via the clarifications process.  (AC4S, Inc., B-404811.2, May 25, 2011)  (pdf)

EXCEPTION TO FIXED PRICE REQUIREMENT

Solers argues that BAH's price proposal improperly took exception to the RFQ requirement to propose a fixed price. We agree.

The requirement to propose fixed prices is a material term or condition of a solicitation requiring such pricing. Marine Pollution Control Corp., B-270172, Feb. 13, 1996, 96-1 CPD para. 73 at 2-3. Where a solicitation requests proposals on a fixed-price basis, a price offer that is conditional and not firm cannot be considered for award. Id.; SunEdison, LLC, B-298583, B-298583.2, Oct. 30, 2006, 2006 CPD para. 168 at 5 (protest sustained where the awardee conditioned its fixed price on the successful completion of a financial transaction between the awardee and a third party).

Here, the RFQ required offerors to submit proposals on a fixed-price basis. RFQ at 3. Offerors were also required to provide pricing information regarding the basis for their fixed price, including fully-loaded labor hourly rates for personnel, and information concerning the offeror's GSA schedule labor rates. Id. The contractor was to be paid fixed monthly payments based on a delivery schedule set forth in the solicitation. Id. Additionally, as relevant here, the PWS stated that the agency would provide space for contractor personnel at the government worksite as follows:

Place of Performance. The contractor shall perform the majority of work for this contract at its own facilities. The government may provide space for up to seven (7) personnel to perform work under other tasks at its office space currently located at 5600 Columbia Pike, Falls Church, VA. In early 2011, the government's office space will relocate to Fort Meade, Maryland.
RFQ, PWS sect. 9.1.


With regard to the place of performance requirement, BAH stated it "will comply with all items in PWS Section 9.0 and 9.1." AR, Tab J, BAH Revised Proposal, vol. 1, at 25.


In its cost proposal, BAH stated that its price was based on labor rates in its GSA schedule 70 contract. AR, Tab J, BAH Revised Proposal, vol. 2, at 8. The awardee further explained that its price "includes both Contractor and Government site rates." Id. BAH explained that the government site rates were provided at a lower rate as compared to the contractor-site rates, and that their use "presents a significant discount or savings, to the Government, in excess of $[deleted] over the life of the contract." Id. BAH explained that it was able to offer the discount for the following reasons:

Government site rates are offered when the Government provides suitable work facilities and related equipment (e.g.: telephone, copier, parking, furniture desktop computer, and other standard equipment and office supplies) for a period of no less than [deleted] work days at a Government site. [BAH] maintains the lower overhead rates on which the Government site labor prices are based as these [sic] or similar facilities are provided on a continuing basis throughout the task period and as long as sufficient tasking is provided to perform assignments on a full-time basis at these work sites.

Id. (emphasis added). BAH also stated, however, that in the event the conditions for the government-site work spaces set forth in its proposal did not occur, different rates could be applied:

Additionally, Booz Allen understands that a number of our engineering and development staff will spend the majority of their time working out of Government lab spaces and as such we are offering Government site rates on those staff members which represent[s] a significant discount of over $[deleted] to the Government. In the event that these conditions are not met, contractor site rates may need to be applied.

Id. (emphasis added).

In addition to the language above, Solers notes that BAH's price proposal reflects [deleted] labor hours for the base year and each option year of performance. AR, Tab J, BAH Proposal, vol. 2, attach. A, at 17-19. For the base period, the protester calculates that BAH proposed [deleted] hours at government site rates; based on BAH's calculation of [deleted] hours of labor per year per FTE, this translates to [deleted] FTEs at the government-site rates, out of the [deleted] FTEs proposed. Protester's Supp. Protest at 4-5, citing AR, Tab J, BAH Proposal, vol. 2, attach. A, at 22-35. For the 4 option years, Solers contends that BAH used government-site rates for [deleted] of the total [deleted] FTEs proposed. Id., citing AR, Tab J, BAH Proposal, vol. 2, attach. A, at 36-111. Solers contends that because these assumptions were built into BAH's price, and because the RFQ stated that the government would provide space at the government site for no more than seven personnel, BAH's price contained a exception to the fixed price that could result in BAH seeking a price high than it offered.

DISA and BAH contend that the language in the awardee's proposal was not an exception to the fixed-price requirement, and was instead merely a suggestion that BAH might request an adjustment to its fixed price in the future. The agency argues that BAH proposed a fixed price, and that regardless of what BAH stated concerning its calculation of its fixed price, the awardee was required to perform for that price. SAR at 13.

We disagree. We think that a fair reading of BAH's proposal shows that the awardee took exception to the requirement to propose a fixed price. In this regard, as stated above, BAH stated that it had based its price on government-site and contractor-site rates, and that use of the government-site rates permitted the offeror to offer "a significant discount or savings" to the agency. AR, Tab J, BAH Revised Proposal, vol. 2, at 8. With regard to the lower government-site rates, BAH stated that these rates "are offered when the Government provides suitable work facilities and related equipment . . . for a period of no less than ninety (90) continuous work days at a Government site." Id. (emphasis added). BAH's proposal also stated that it was able to offer these rates because the offeror experiences lower overhead rates when its personnel are provided space and were working full-time at the government site. Id. As noted above, BAH's price proposal was premised on its personnel performing significantly more work at the government site than was contemplated by the solicitation. Finally, BAH stated, in the event that the conditions set forth in its price proposal concerning the availability of space at the government site, the higher contractor-rates "may need to be applied." Id. The collective effect of these statements in BAH's proposal amount to BAH conditioning its offered price on a greater use of government facilities than contemplated or authorized by the solicitation, such that its offered price was conditional not firm.

On this record, we find that DISA improperly issued the task order to BAH, based on a proposal that took exception to the solicitation requirement to propose a fixed price. SunEdison, LLC, supra; Marine Pollution Control Corp., supra. Because DISA cannot accept BAH's proposal that did not offer a fixed price for award, and because Solers, which did offer a fixed price, was the only other offeror who submitted a proposal, we conclude that Solers was prejudiced by DISA's error, and sustain the protest on this basis.  (Solers, Inc., B-404032.3; B-404032.4, April 6, 2011)

ATS challenges HUD's determination that its proposal was technically unacceptable under the licensing/insurance factor. Protest at 2. With respect to the protester's ability to legally conduct real estate closings in California, ATS argues that there is no clear restriction under California law prohibiting a joint venture comprised of a licensed California firm and a non-licensed, Colorado firm, from conducting real estate closings in California. Comments at 4. Although ATS acknowledges that the joint venture agreement provided that American Title Services Company would have complete authority and control of the ATS joint venture, it argues that this did not affect Fresno's ability to conduct closings in California. See id. at 3. Accordingly, ATS contends that HUD's unacceptability determination is unreasonable, because HUD has not demonstrated that ATS will be unable to legally perform real estate closings in California.

In reviewing protests of alleged improper evaluations and source selections, our Office examines the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws. See ABT Assocs., Inc., B-237060.2, Feb., 26, 1990, 90-1 CPD para. 223 at 4. It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. International Med. Corps, B-403688, Dec. 6, 2010, 2010 CPD para. 292 at 7. A protester's mere disagreement with the agency's evaluation provides no basis to question the reasonableness of the evaluators' judgments. See Citywide Managing Servs. of Port Washington, Inc., B‑281287.12, B‑281287.13, Nov. 15, 2000, 2001 CPD para. 6 at 10-11.

The RFP here required offerors to affirmatively demonstrate their ability to legally perform real estate closings in California. In this regard, offerors were required to identify in their proposals applicable California law. See RFP sect. L.7(1). The TEP found that ATS had not made such an affirmative showing in its proposal with respect to the joint venture. Specifically, the evaluators were concerned that ATS had not provided any information in its proposal "'regarding how a Colorado joint venture member can legally manage its California joint venture partner with regard to performing closing services under a California license."' See AR, Tab 18, TEP Evaluation Report, at 8.

We find HUD's evaluation of ATS's proposal to be reasonable. Although ATS argues that HUD did not demonstrate that the joint venture would be unable to legally perform closings in California, it was the protester's responsibility under the RFP to affirmatively establish that the joint venture could comply with California law in performing the contract. ATS did not do so in its proposal. That is, despite the fact that Fresno may be licensed to perform closings in California, the joint venture agreement provided that the joint venture (which submitted the offer here) would be controlled and managed by American Title Services Company. ATS did not show in its proposal or in its protest submissions that this business arrangement would be permitted under state law to perform closings in California. In short, ATS merely disagrees with the agency's evaluation, which does not demonstrate that the evaluation was unreasonable.  (American Title Services, a Joint Venture, B-404455, February 4, 2011)  (pdf)

Brown protests the agency’s determination that its quotation was technically unacceptable. It argues that its quotation meets the requirements of the statement of work, and contends that any questions the agency had about the quotation could have been resolved through discussions.

Our Office reviews challenges to an agency’s technical evaluation to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. System Eng’g Int’l, Inc., B-402754, July 20, 2010, 2010 CPD para. 167 at 4. A vendor’s mere disagreement with the agency’s evaluation is not sufficient to demonstrate that the evaluation is unreasonable. Trinity Tech. Group, Inc., B-403210, Sept. 23, 2010, 2010 CPD para. 235 at 2. Furthermore, it is a vendor’s burden to submit an adequately written quotation and it runs the risk that its quotation will be evaluated unfavorably where it fails to do so. System Eng’g Int’l, Inc., supra.

On the record before us, we find no basis to object to the agency’s evaluation. As noted above, the RFQ required that the selected vendor provide “full turn key” webcasting that meets the requirements of eight specific tasks, including providing a link to the NIST/ITL/CSD web cite and providing a webcast page with the same look and feel as the current ISPAB page with the capability to allow viewers to send, post, and tag questions to posted agenda items. RFQ at 3. The record shows that Brown’s quotation did not meet these requirements because its login requirement violated the NIST privacy policy, its webcast page did not have the same look and feel as the ISPAB page, and the quotation did not demonstrate with certainty that Brown would meet the requirement to send, post, and tag questions without further action from the agency. AR, Tab 6, Technical Evaluation, at 1-2; AR Tab 3, Statement of Evaluator, paras. 9, 11‑12, 14, 17-18.

Brown disagrees with these conclusions. It contends that its login feature can be turned off, and that the quotation’s commitment to “create the portal page for design consistency and functional compatibility with the NIST home page” satisfies the requirement to provide the same look and feel as the ISPAB page. Comments at 2, 4. Brown also denies that there is any ambiguity in its quotation that should have led to a rating of technical unacceptability. Id. at 4. It contends that, if the agency had any questions, it should have raised them during discussions. Id. at 3, 5.

However, as noted above, the RFQ advised vendors that discussions would not be conducted. RFQ at 8. Because the agency had no obligation to engage Brown in discussions about its quotation, it was imperative that Brown provide a clear and adequately written quotation. Brown’s quotation did not make clear that the login feature was an option that could be turned off, or that it was firmly committing to meet the requirements without further direction from the agency. Although Brown continues to disagree with the agency’s evaluation conclusions, it has not shown them to be unreasonable.

Based on the reasonable determination that Brown’s quotation was technically unacceptable, we find unobjectionable the agency’s issuance of the purchase order to a vendor with a higher-priced, technically-acceptable quotation.  (George T. Brown Associates, Inc., B-404398, January 26, 2011) (pdf)

HDT Tactical Systems, Inc., of Solon, Ohio, protests the elimination of its proposal from further consideration during a downselection procedure conducted by the Department of the Army in connection with its acquisition of variously-sized improved environmental control units (IECUs), under request for proposals No. W909MY-08-R-0014. HDT maintains that its IECUs were misevaluated during a testing phase of the acquisition, that the agency treated it and its competitor, Mainstream Engineering, Inc., of Rockledge, Florida, disparately, and that the agency unreasonably failed to engage in discussions.

(sections deleted)

The record shows that Mainstream's IECUs passed all applicable tests. AR, exh. C, at 4. However, during the testing of HDT's units in March 2010, its 9,000 BTU IECU failed the high temperature operational limit test, and its 18,000 BTU IECU failed the sensible cooling capacity test. Specifically, the 9,000 BTU IECU was unable to operate uninterrupted for 1 hour at a temperature of 125° Fahrenheit (F), as required; it was only able to pass the test at a temperature of 123° F. AR, exh. B, at 60. With respect to HDT's 18,000 BTU IECU, the unit was required to have a sensible cooling capacity of 13,100 BTUs per hour, but was only able to achieve a sensible cooling capacity of 12,774 BTUs per hour. Id. at 63.

Based on the results of the testing, as well as the agency's evaluation of the firms' downselection proposals, the agency made award to Mainstream at a cost/price higher than HDT's ($63,085,456 versus $41,388,969), concluding that HDT was ineligible for award based on its failure to pass all of the required tests. AR, exh. F5. After being advised of the agency's downselection decision and receiving a debriefing, HDT filed this protest.

HDT argues that the agency's evaluation of its 9,000 BTU IECU was unreasonable. According to the protester, when its unit was subjected to the high temperature operational limit test, it was connected to the wrong power source for an interval of time prior to the test; this caused the unit's compressor to overheat, thereby preliminarily predisposing it to fail the high temperature operational limit test.

In reviewing an agency's evaluation of proposals, we will not reevaluate proposals; rather, we examine the record to determine whether the agency's evaluation conclusions were reasonable and consistent with the terms of the solicitation (or, as in this case, the underlying contracts), as well as applicable procurement laws and regulations. Engineered Elec. Co. d/b/a/ DRS Fermont, B-295126.5, B-295126.6, Dec. 7, 2007, 2008 CPD para. 4 at 3-4.

We have no basis to object to the evaluation here. Even if we agreed with HDT regarding the propriety of the high temperature operational limit test, as discussed, HDT's 18,000 BTU IECU independently failed the sensible cooling capacity test, and HDT does not take issue with the manner in which that test was conducted. Since, as discussed, the express contract terms required passage of all tests in order for a proposal to be considered for award, HDT's proposal was properly excluded from further consideration based on this failure, notwithstanding the outcome of the high temperature operational limit test.

HDT asserts that the agency engaged in disparate treatment in connection with the conducting of the testing described above. According to the protester, the record shows that Mainstream was permitted to postpone its testing for a period of approximately 5 weeks; HDT explains that it, too, would have benefited from postponement of its official testing. HDT maintains that, had its testing been postponed, it could have implemented a design change to its 18,000 BTU IECU that would have enabled it to pass the sensible cooling test. HDT maintains, in this regard, that it had already devised the engineering change necessary to improve the performance of its unit, but that it chose not to activate the feature during testing because it believed a malfunctioning part needed replacing, and HDT did not believe it could effect the repair before its scheduled testing time. HDT concludes that it was unreasonable for the agency to allow Mainstream to postpone its official testing without advising HDT that it could postpone its testing.


We have no basis to object to the agency's actions here. The record shows that the agency did not advise any offeror that it could postpone its testing. Rather, Mainstream approached the agency and, on its own initiative, requested an opportunity to reschedule its official testing to a later date within 350 days after contract award (offerors were free to establish any testing date in their test plans, so long as the date was within the 350 day period). In this regard, in an affidavit submitted by the contracting officer's representative (COR) for the Mainstream contract, the COR states:

In my capacity as COR on Mainstream's contract, I received a phone call from . . . [the cognizant Mainstream representative] on March 5, 2010. He informed me that Mainstream wanted to postpone all of its official tests because Mainstream's own unofficial tests conducted at Intertek [an independent testing concern used by both firms] had gone poorly and revealed the need for further design changes. After determining that the rescheduled testing would still occur within the required 350 days after contract award (DAC) per SOW [statement of work] Para. 4.6, I granted the request. All of Mainstream's official tests were postponed to later dates, not just the official testing to be performed at ITS [Intertek]. No change was made to Mainstream's test plan except to postpone the tests for a five-week period.
Supplemental Agency Report, exh. D.

HDT did not ask to reschedule its testing date. In this connection, HDT's representative submitted an affidavit in which he states:

HDT did not believe, at the time of downselection testing, that it was a realistic option for HDT to reschedule its downselection testing for a future date, because (1) we believed that Mainstream had already tested its IECUs before HDT in early March, and that delay would reflect poorly on HDT, and (2) we believe[d] the Army would either not permit [the] delay or would hold [the] delay against HDT in its evaluation.

HDT's Supplemental Comments, Nov. 10, 2010, attach. B, at 2. However, notwithstanding HDT's subjective beliefs, nothing in the contracts specified when, within the 350 day period, testing should occur, and nothing precluded offerors from rescheduling their testing--within the larger window allowed for testing--to a later date. In addition, nothing in the contracts suggested that an offeror's decision to reschedule its testing would have a negative evaluation impact, since, as noted, offerors were free to select their own testing dates within the 350 day post-award period. Moreover, the COR for the HDT contract submitted an affidavit in which he states:

Had HDT requested that I (as COR) grant a postponement of all its scheduled official downselection testing to allow them to make additional improvements to its test units, I would have granted the request as long as test completion was not delayed beyond the contractually required date of 350 days after contract award.

Supplemental Agency Report, exh. C, at 1.

In our view, both firms made a business judgment concerning whether or not to request an extension of time to perform their official testing. In granting Mainstream's request, the agency did not waive or relax any contract requirement, or provide Mainstream an opportunity it would not also have provided to HDT had it made the same request, which it was free to do. Correspondingly, the agency was not under any legal obligation to spontaneously offer to reschedule HDT's testing, simply because Mainstream had rescheduled.

Finally, HDT asserts that the agency abused its discretion in not initiating discussions in connection with its downselection decision. Specifically, the record shows that, after determining that the HDT proposal failed to meet all of the official testing requirements and therefore was unacceptable, the agency considered proposed solutions to the deficiencies identified during the testing that were outlined in HDT's downselection proposal, but concluded that they were too vague. According to HDT, at that point, the agency was legally obligated to engage in discussions in order to afford HDT an opportunity to provide additional information that would demonstrate the soundness of its proposed solutions.

This argument is without merit. The contracts specifically advised, consistent with the requirements of the Competition in Contracting Act, 10 U.S.C. sect. 2305(a)(2(A)(ii)(I) (2006), and Federal Acquisition Regulation sect. 15.209(a), that the agency intended to make its downselection decision without engaging in discussions. AR, exhs. D1, D2, at 130. Given the terms of the contracts, and in light of the fact that HDT has neither alleged nor demonstrated circumstances that would lead us to consider a possible abuse on the part of the agency in exercising its discretion not to open discussions, this argument provides no basis for questioning the award. Kiewit Louisiana Co., B-403736, Oct. 14, 2010, 2010 CPD para. 243 at 3-4.  (HDT Tactical Systems, Inc., B-403875,December 14, 2010)  (pdf)

The solicitation, a section 8(a) set-aside, contemplated the award of a time-and-materials/labor-hour contract for a base year, with four 1-year options. RFP at L-1, F-1. The successful offeror was to be determined based on a "best value" evaluation of initial proposals. RFP at M-1. Because some members of the technical evaluation panel (TEP) were former employees of the contractors and subcontractors competing for award, the agency structured the procurement to insure anonymity of offerors, in order to achieve an unbiased evaluation. Agency Report (AR) at 2. Specifically, offerors were required to submit one original and three redacted copies of their technical proposals. RFP at L-3. The solicitation, at section L.6, stated that the redacted copies "shall not contain the name of the offeror's company, logos, markings, or photos associated with the company or the names of personnel." RFP at L-3. This requirement was essentially repeated at section L.6.c. Id. at L-4. Additionally, section L.6.d(i) stated in bold type that

Redacted proposal copies must be completely redacted of all identifying information. Failure to submit properly redacted copies may result in the offeror being excluded from further consideration.

(sections deleted)

The TEP chair explains that, because SNAP stated that its team included the incumbent contractor, which, he was aware, had "graduated" from the section 8(a) program and therefore could not be the prime contractor, he deduced that the incumbent was one of SNAP's proposed subcontractors. AR, Tab 38, Declaration of TEP Chair, at 1. The TEP chair further states that, based on this knowledge, he also could deduce the identity of the proposed personnel. Id. Based on its conclusion that SNAP had violated the identifying information redaction requirement, the agency rejected SNAP's proposal as unacceptable. AR, Tab 36, Memorandum of Law, at 8; AR, Tab 37, CO Statement, at 2. In notifying SNAP of its determination, the agency noted that SNAP had included "identifying information" in its technical proposal in violation of section L.6.d(i), and had violated "the spirit, if not the letter" of RFP sections L.6 and L.6.c. Id.


SNAP asserts that it was improper for the agency to reject its proposal based on the identifying information redaction requirement, arguing that the agency's interpretation of the requirement as established by the RFP is incorrect. Protest at 5. Specifically, SNAP maintains that the term "identifying information" in section L.6.d(i) is specifically defined in sections L.6 and L.6.c as the name of the offeror's company, logos, marking or photos that are associated with the offeror's company, or the names of proposed key personnel. Protester Comments at 3. SNAP contends that, if DOL intended a more expansive definition, the RFP should have so indicated, by, for example, adding "and all other identifying information" to the end of those clauses. Id. Similarly, the protester argues that DOL's statement that "all references to key personnel's names must be redacted" required only that names be redacted, not all identifying information, including incumbency-related information. Protester Comments at 6-7.


Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B-297280, Dec. 15, 2005, 2005 CPD para. 223 at 2; Fox Dev. Corp., B-287118.2, Aug. 3, 2001, 2001 CPD para. 140 at 2.


We find that only the agency's interpretation of the RFP is reasonable. The solicitation contained the explicit, mandatory requirement at section L.6.d(i) that "[r]edacted proposal copies . . . be completely redacted of all identifying information." While sections L.6 and L.6.c identified specific types of information to be redacted, nothing in the RFP indicated that the identifying information listed in these sections was intended to be exclusive, so as to relax the unequivocal general prohibition against identifying information set forth in section L.6.d(i). Absent such an express exception to the unequivocal requirement that all identifying information be redacted, there was no reasonable basis for SNAP to ignore section L.6.d(i) and interpret the requirement more loosely. Further, we note that SNAP's interpretation would render the prohibition meaningless, since, as with SNAP's proposal, offerors would be permitted to include information that could enable the evaluators to associate a proposal--directly or by deduction--with a particular firm or its subcontractors; this is the result the identifying information prohibition was intended to avoid. Since the agency's interpretation of the requirement is the only reasonable reading, and that the agency properly rejected SNAP's proposal for failing to comply with the RFP requirement. (SNAP, Inc., B-402746, July 16, 2010)  (pdf)  See (LS3 Incorporated, B-401948.11, July 21, 2010)  (pdf)

Douglass/Kenny contends that the evaluation of its proposal was unreasonable. In reviewing an agency's technical evaluation, we consider whether it was reasonable and in accord with the evaluation criteria listed in the solicitation. An offeror has the obligation to affirmatively demonstrate that its proposal will meet the government's needs, and has a duty to establish that what it is proposing will meet the solicitation requirements where required to do so. See TRS Research, B-274845, Jan. 7, 1997, 97‑1 CPD para. 6 at 3; Discount Machinery & Equip., Inc., B-253094, Aug. 2, 1993, 93‑2 CPD para. 68 at 4. Where, as here, a solicitation requires offerors to furnish information necessary to establish compliance with the specifications, an agency may reasonably find a proposal that fails to include such information technically unacceptable. Discount Machinery & Equip., Inc., supra.

Douglass/Kenny does not dispute that its concept drawings did not meet the express RFP dimension requirements for the carports and otherwise did not provide the detail required by the agency in various areas, such as landscaping, mounting systems, and storm water drainage. Instead, the protester argues that the concept drawings were simply a sample depiction, which were not intended for use in construction or to take exception to the requirements. In this regard, Douglass/ Kenny asserts that because its drawing specifically referenced another project, it should have been obvious that the drawing was not intended for this project. Douglass/ Kenny also states that it could not have provided any more meaningful detail regarding landscaping and storm water drainage because the site was still undergoing modifications.

While it may be that Douglass/Kenny did not intend for its concept drawing to illustrate the dimensions of the carports it would build, the fact remains that the drawings did not meet the material requirements of the solicitation, which required the concept drawing to meet the carport design guidelines, including the specific dimensions. Since the drawing showed dimensions that did not meet the design guidelines, the agency here reasonably found that the proposal was unacceptable in this respect, and could not be selected for award without discussions. In addition, based on our review of Douglass/Kenny's proposal, the agency could reasonably conclude that it did not include required details about other aspects of the design, such as landscaping.

Douglass/Kenny nevertheless argues that the agency unreasonably disregarded the commitment in its offer to comply with the material requirements of the solicitation, as evidenced by its submission of standard form (SF) 1442. Douglass/Kenny argues that by simply signing the SF-1442 a party agrees to and is obligated to perform, all material requirements of the RFP. However, simply submitting an SF-1442 is insufficient to comply with an RFP requirement to provide the detailed technical information necessary for evaluation purposes. See Sabre Commc'ns Corp., B‑233439, Mar. 2, 1989, 89‑1 CPD para. 224 at 5. Where a proposal contains a blanket offer of compliance to meet specifications, such as by signing an SF-1442, and also contains conflicting provisions which call that offer of compliance into question, the offer is ambiguous and may properly be rejected as technically unacceptable. TRS Research, supra. Under such circumstances, there is no requirement that the agency conduct discussions so as to allow the offeror to correct the deficiencies in its proposal, where, as here, the solicitation expressly advised that it intended to make award without discussions. See DynCorp Int'l LLC, B-294232, B-294232.2, Sept. 13, 2004, 2004 CPD para. 187 at 8.  (Douglass Colony/Kenny Solar, JV, B-402649, June 17, 2010)  (pdf)

The RFP also stated that "The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract." Id. at 11.The RFP also stated that "The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract." Id. at 11.

(sections deleted)

Compliance with FCC Requirements

Freedom asserts that the award to Enhanced was improper because its products do not comply with FCC technical requirements, and thus do not comply with "all applicable Federal, State and local laws," as required under the solicitation. Protest at 7. Specifically, Freedom argues that Enhanced's 19-inch monitor does not comply with the FCC's emissions requirements and that its products violate the FCC's labeling requirements.

This argument is without merit. The RFP did not expressly require that offered products comply with FCC requirements as a precondition to award. Rather, the RFP clause requiring compliance with all federal, state, and local laws is included in the solicitation under "Section C - Contract Clauses" and, by its terms, applies to "the contractor." General solicitation provisions mandating that "the contractor" comply with federal, state, and local laws do not require that an offeror demonstrate compliance prior to award. Rather, compliance is a performance requirement that may be satisfied during contract performance and does not affect the award decision (except, possibly, as a general responsibility matter). Further, whether Enhanced ultimately complies with the provision is a matter of contract administration that we will not review. 4 C.F.R sect. 21.5(a) (2009); Solar Plexus, LLC, B-402061, Dec. 14, 2009, 2009 CPD para. 256 at 2-3.  (Freedom Scientific, Inc., B-401173.3, May 4, 2010)  (pdf)

Sletten challenges the agency's evaluation of its technical proposal, arguing that the identified concerns were not deficiencies and could, in any event, have been corrected through clarifications or discussions. Sletten also complains that GSA did not consider the firm's lower proposed priced in selecting Mortenson's proposal for award.

Where a protester challenges an agency's evaluation of a proposal's technical acceptability, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. Id.; Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2001 CPD para. 13 at 2-3.

Here, the record shows that Sletten's proposal did not comply with a number of solicitation requirements, which the SSEB found to be proposal deficiencies. For example, the SSEB found that Sletten had failed to provide required drawings, that Sletten's floor plans were not the plans utilized for the BOMA calculations, that Sletten's BOMA calculations did not represent the solicitation's requirements, and that Sletten's design did not satisfy the minimum space requirements (such as for the district judges' chambers). See AR, Tab 12, SSEB Evaluation Report, at 6-7.

Sletten does not contend that its proposal satisfies these requirements, but instead argues that these deficiencies do not render its proposal technically unacceptable. We disagree. First, GSA found that Sletten's failure to provide required information in its proposal, such as scalable drawings and BOMA calculations, prevented the SSEB from being able to evaluate properly Sletten's proposal. Sletten has not shown that the agency's judgment in this regard was unreasonable. Moreover, the solicitation's space and allocation requirements can only be viewed as material requirements, which Sletten failed to satisfy. In fact, Sletten's actions throughout the procurement demonstrate its recognition of the materiality of the solicitation requirements, given its repeated attempts to revise its proposed design after the closing date for receipt of proposals.

We also disagree with Sletten that, to the extent the agency wanted to avoid holding discussions, these deficiencies could easily be corrected through clarifications. "Clarifications" are limited exchanges between the government and offerors that may occur when award without discussions is contemplated. Such communications with offerors, however, may not be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. FAR sect. 15.306(b)(2). The evaluated deficiencies in Sletten's proposal could only be corrected through discussions, as this would require a material revision of its proposal.

With respect to conducting discussions with Sletten, we have found that a contracting agency is generally not required to conduct discussions where, as here, the RFP specifically instructs offerors of the agency's intent to award a contract on the basis of initial proposals. See FAR sect. 15.306(a)(3); Colomek Sys. Eng'g., B‑291931.2, July 9, 2003, 2003 CPD para. 123 at 7. In this regard, the CO's discretion in deciding not to hold discussions is quite broad. Our Office will review the exercise of such discretion only to ensure that it was reasonably based on the particular circumstances of the procurement. Colomek Sys. Eng'g., supra. The fact that the protester in its initial proposal failed to comply with the RFP requirements does not give rise to an obligation on the agency's part to hold discussions, where discussions are not otherwise necessary.  (Sletten Companies/Sletten Construction Company, B-402422, April 21, 2010)  (pdf)

BOSS Construction, Inc., of Bellingham, Washington, protests the award of a contract to Mowat Construction Company, Inc., of Woodinville, Washington, by the Department of the Interior, Bureau of Reclamation (BoR), under solicitation No. 09SP101729 for construction services on the Weber Siphon Project, as part of the Columbia Basin Project in Grant County, Washington. BOSS argues that its proposed schedule was misevaluated as unacceptable, and that Mowat also proposed an unacceptable schedule.

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BOSS argues that its proposal was improperly downgraded under the CPM schedule factor and attempts to justify its decision to propose a schedule that exceeded the completion deadline:

BOSS intentionally placed a one month lag in the start of hydroseeding and site restoration work after completion of the physical structures [by the deadline] . . . because, given the locale and seasonal weather conditions at the project site, seeding should not practically and effectively be commenced as of [the required completion date].

Protest at 5.

Accordingly, BOSS argues that it was unreasonable to downgrade its proposal based on what it argues was the only proper way to complete the work.

BoR argues that the specification clearly required completion within 18 months, and specified that schedules would be evaluated on this basis, among others. By failing to meet the 18-month completion, BoR argues that the rating of BOSS as unacceptable under the CPM factor was proper.

In reviewing a protest of an agency's evaluation of proposals, our review is confined to a determination of whether the agency acted reasonably and consistent with the terms of the solicitation and applicable statutes and regulations. Cooperativa Maratori Riuniti-Anese, B-294747, Oct. 15, 2004, 2004, CPD para. 210 at 2. A firm delivery schedule or completion date set forth in a solicitation is a material requirement, precluding acceptance of any proposal not offering to meet that date. In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for an award. Id. at 3.

BOSS emphasizes certain provisions of the solicitation that indicated that the schedule in the offeror's proposal would not be final, and did not need to be "contract quality," and therefore the fact that its schedule exceeded the time permitted should not have been treated as a significant failure. We disagree. There is no dispute on this record that BOSS's proposed schedule exceeded the limit specified in the solicitation, and as noted above, such requirements are material. Accordingly, we cannot conclude that the agency acted improperly in rating BOSS unacceptable under the CPM schedule factor.

To the extent that BOSS argues that Mowat's proposed schedule did not show that the construction of the new siphon would be completed to allow the start of the irrigation season in mid-March, as specified in the solicitation, Supp. Protest at 1, the record does not support its claim.

BoR responds that a review of the detailed tasks within Mowat's schedule show that the firm would be able to complete testing of joints in the siphon construction on March 14 or within a day or two after, at which time water flow for irrigation could begin. Thus BoR argues it reasonably concluded that Mowat's schedule meets the requirement of making the siphon usable by the start of the irrigation season in "mid‑March."

The solicitation does not define the term "mid-March," or provide any other basis on which offerors should have understood that term to imply an exact date. Accordingly, since BoR's construction of "mid-March" to include March 14 (or a few days after that) is a reasonable one, we have no basis to question it. Even though BOSS argues that BoR should have interpreted Mowat's schedule to provide for completion of joint testing as late as March 25, BoR has pointed out that a detailed analysis of the underlying tasks (or "fragmentary networks") within Mowat's schedule undermine BOSS's interpretation. In our view, BoR has shown that its interpretation of Mowat's proposed schedule is supported by the record and is a reasonable one.  (BOSS Construction, Inc., B-402143.2; B-402143.3, February 19, 2010)  (pdf)

With regard to the agency's finding that its quotation lacked necessary detail, CDI asserts that the agency "never specified what specific[ ] processes [it] was interested in" regarding integration; thus, since its quotation addressed integration of the existing flat iron, speed controls, and interfacing of equipment and controls, with no exception to the requirements, it should not have been rejected. Protest at 1-2.

CDI's assertions are without merit. The RFQ provided sufficient guidance for preparing quotations, including requirements for both a detailed installation plan covering the proposed equipment's ability to interface and integrate with existing equipment "within the space available," and a modification plan describing how vendors would make each proposed module fully operational with the existing flat iron, including how new or existing equipment would be modified for electrical wiring, circuitry, or reprogramming. RFQ at 5, 7.

While CDI's quotation included some general statements, it failed to provide the detailed information called for. For example, the quotation stated that CDI's equipment would "easily integrate" with the existing flat iron; that speed controls of "either the feeder or folder" offered "[would] require integration"; that CDI would install a stop circuit so that the feeder would stop when the flat iron stopped; that CDI's equipment could be "interfaced by interlocking and providing an interface between all components"; and that CDI would provide its "high intelligent controls" for "smooth operation." Quotation Narrative at 1-2. The quotation further stated that "some control circuits [would] be modified allowing the feeder, ironer and folder and stackers to communicate," and that CDI considered these to be "minor modifications." Id. at 2. However, the quotation did not explain why these modifications would be minor, and did not address the specific power requirements. Further, apart from stating that various items would be accomplished by "retro‑fitting the systems in order to make one complete system," CDI's quotation lacked any detailed installation and modification plans, and did not otherwise describe "how" it would integrate and modify the proposed and existing equipment to ensure successful inter-operation. Given the absence of the required detailed plans and explanations, the TET reasonably found that it could not evaluate whether CDI's equipment would meet the stated requirements. Ervin & Assocs., Inc., B‑280993, Dec. 17, 1998, 98-2 CPD para. 151 at 6 (blanket offers of compliance with stated requirements are not an adequate substitute for detailed information necessary to establish how vendor proposes to meet agency requirements).

With regard to whether its equipment would fit within the available space, CDI cites its quotation's statements that "[a]ll systems offered [would] easily fit in the space made available and [would] provide the necessary clearances as specified," and also asserts that its drawing "clearly indicated" that CDI's equipment would fit in the current space. Quotation Narrative at 1; Protest at 2. However, the agency considered these broad statements inadequate and found CDI's drawing and brochures to be conflicting and confusing. In this regard, the TET found that the quotation did not specify complete dimensions for CDI's proposed folder/stacker, and noted that CDI's product brochures stated that "[s]pecifications [were] subject to change without notice." Quotation, attachs. 5-7. By its own estimate, based on CDI's brochure information, the TET determined that the quoted equipment, once integrated, would exceed the available length by 18 inches. SSER, Tab 10 at 3. Further, the TET inferred that, because CDI's drawing showed its stacker at a "cocked" angle, CDI was attempting to force the equipment to meet the RFQ's 16‑inch column clearance requirement, and noted that the quotation did not address whether the machine would even operate in that position. Quotation, attach. 7; SSER, Tab 10, at 2. The drawing also depicted a centerline for the existing flat iron, which suggested to the TET that CDI intended to reposition it even though the RFQ prohibited relocation of the machine. RFQ at 4. (Consistent with the TET's concern, CDI's cover letter suggested that the agency amend the RFQ, in part, to permit relocation of the flat iron. Quotation Letter at 1.) Based on the conflict between the quotation's claim that CDI's equipment would fit within the available space and the other indications that it would not, we find the TET reasonably concluded that CDI's quotation did not adequately establish that its equipment would meet the agency's requirements. We conclude that the agency reasonably rejected the quotation as unacceptable.  (Chicago Dryer Inc., B-402340, February 16, 2010)  (pdf)

A source selection evaluation board (SSEB) evaluated the proposals. Gohman's price was low at $11,125,266; Holte's was second low at $11,157,587. AR, Tab 15, Source Selection Decision, at 3. However, the SSEB determined that Gohman had qualified its offer by stating that its price did not include SAC/WAC fees¹. AR, Tab 14, SSEB Report, at 10. Due to omission of this required pricing element, the agency determined that Gohman had not agreed to be responsible for SAC/WAC fees, and that its proposal therefore was ineligible for award. AR at 7; AR, Tab 14, SSEB Report, at 10. By letter dated July 29, the Army notified Gohman that its proposal was found not to be the best value because its price was incomplete based on its exclusion of SAC/WAC fees, and that award was made to Holte. AR, Tab 9, Notice of Award, at 1.

Following a debriefing, Gohman filed an agency-level protest, arguing that the SAC/WAC fees were not required. The agency dismissed the protest, citing the language of RFP section 00800, advising offerors that they were responsible for all charges related to temporary utilities. AR, Tab 10, Contracting Officer Response to Agency Protest, at 2. On September 8, Gohman filed this protest with our Office.

Gohman asserts that, contrary to the Army's determination, it "bid everything that was required to be bid under the terms" of the RFP. Protest at 3.

Where a protest challenges an agency's technical evaluation, we will review the evaluation record to determine whether the agency's judgments were reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Government Acquisitions, Inc., B-401048 et al., May 4, 2009, 2009 CPD para. 137 at 8. It is well-settled that a proposal that fails to conform to a solicitation's requirements cannot form the basis for an award. Id.

The evaluation and rejection of Gohman's proposal were unobjectionable. The solicitation clearly provided that the contractor would be responsible for all costs related to providing temporary utilities, that is, utilities necessary during the construction of the center. There is no dispute that sewer and water service constitute utilities--and, as noted above, the list of utilities in the Design Submittal, at paragraph 1.3, included sewer and water. It likewise is undisputed that Gohman's proposal specifically provided that its price excluded SAC/WAC fees. Under these circumstances, the agency reasonably determined that Gohman had not agreed to be responsible for the costs of SAC/WAC during construction, contrary to the RFP's express requirements, and that its proposal therefore was unacceptable.

In challenging the agency's determination, Gohman cites paragraphs 1.29 and 1.31 of the Design Submittal, and asserts that the only costs associated with utilities are those related to obtaining permits, installing temporary utilities (and returning them to their original configuration), and gaining access to the utilities. Protest at 5-6. Gohman claims that "Nowhere, however, in the Solicitation does it mention utility fees generally or SAC/WAC fees particularly," which, it asserts, "makes sense" because these fees "are not determinable until a plan is submitted to the Metropolitan Council by the Army Architect," id. at 6, and that, indeed, there may be no SAC/WAC fees assessed against the Army. Protester Comments at 2.

Gohman's argument that it properly excluded the SAC/WAC fees because the RFP did not specifically identify those fees as among the utility costs to be borne by the contractor is without merit because it ignores the plain language of RFP section 00100, paragraph 10. As noted above, that provision stated that the contractor "will pay all charges (hook up fees, metering, monthly usage, etc.) resulting from temporary utilities." This language was sufficiently inclusive that, in the absence of an exception for SAC/WAC fees, it should have been clear that these fees were among the utility charges that were to be the responsibility of the contractor. The language cited by the protester as well as the language in RFP section 00100, paragraph 10 make it clear that the contractor is responsible for all utility charges. The fact that utility fees ultimately may not be assessed is irrelevant, particularly since Gohman concedes that it does not know conclusively that such fees will not be assessed under any circumstances. Protest at 6; Protester Comments at 2.  (W. Gohman Construction Co., B-401877, December 2, 2009) (pdf)

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¹ Sewer and water accessibility charges (SAC/WAC).

DeVal's protest is based on a flawed premise, namely, that the RFQ did not require quotations to include any specific information apart from welding experience. Here, the RFQ advised vendors that their quotations would be evaluated under certain criteria, including experience with welding standards and a technical assessment. RFQ at 34. To this end, the RFQ, as amended, specifically advised vendors that "[p]art of the review for your quote to be considered technically responsive, is that you must include your past experience in meeting the welding standards in the SOW and Drawings" and that lack of past experience would not be counted against a quotation. RFQ, amend. 0001 at 2 (emphasis added). However, the RFQ's instructions also included the requirement that, "[a]s a minimum," vendors show "[a] technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation." RFQ at 33, incorporating by reference FAR sect. 52.212-1. The RFQ's technical requirements were set forth in the SOW and, in addition to welding standards, included requirements that the skids be fabricated based on specified drawings, specifications, and standards listed in the SOW, nondestructive test inspection load testing, applicable test reports, marking and packaging, and delivery. RFQ at 7. The SOW also provided that the contractor's facility "shall be . . . in compliance with ISO 9001: 2008 Quality Management Systems." RFQ at 6. We think the RFQ provision requiring that vendors provide sufficient information to permit the agency to "evaluate compliance with the requirements," together with the provision for a technical assessment as part of the technical acceptability determination, were sufficient to put DeVal on notice that all RFQ requirements had to be addressed in its quotation, and that the agency would evaluate the information provided in determining acceptability.

DeVal's quotation did not include information addressing all of the RFQ requirements. Rather, it only included a copy of the RFQ, with pricing and representations, a copy of DeVal's limited warranty, and welding process information. This left the agency unable to assess whether DeVal intended to meet all requirements. For example, the RFQ's SOW required fabrication of complete skids, with all constituent fabricated and procured parts and assemblies produced in accordance with the specified government drawings, Department of Defense (DoD) standards, and industry specifications and standards listed in the SOW. RFQ at 7. In this regard, the SOW identified the primary drawing (No. 3967AS100, major assembly), along with 11 revised drawings and four DoD standards. RFQ at 6. Without information from DeVal regarding its plan to fabricate the skids, the agency could not perform the technical assessment called for under the RFQ to determine that DeVal would provide items meeting these requirements. See West Coast Research Corp., B‑281359, B-281359.2, Feb. 1, 1999, 99-1 CPD para. 27 at 3 (where vendor fails to address specifically identified requirements, agency need not presume vendor's acceptance of those requirements). Likewise, while DeVal now asserts that it is compliant with ISO 9001 requirements, the failure of its quotation to address this requirement in any way made it impossible for the agency to determine that DeVal met it. We conclude that the agency reasonably evaluated DeVal's quotation as technically unacceptable. See Carlson Wagonlit Travel, B‑287016, Mar. 6, 2001, 2001 CPD para. 49 at 3 (offeror is responsible for submitting an adequately written proposal); West Coast Research Corp., supra.

The protest is denied.  (DeVal Corporation, B-402182, December 17, 2009)  (pdf)

The SFO at issue here was published in November 2008, and contemplated the award of a long-term operating lease to support the activities of NOAA’s MOC-P. Among other things, the solicitation sought offers to provide 31,000 square feet of office, warehouse and related space, 1,960 linear feet of pier space, and 20,000 square feet of equipment laydown space. Agency Report (AR), Tab 7, SFO, at 5. The solicitation provided that the lease award would be based on the offer determined to be most advantageous to the government based on application of the following evaluation factors: location of site; site configuration and management; quality of building and pier; availability; past performance and project financing; quality of life; and price. AR, Tab 7, SFO amend. 3, at 2. The solicitation also provided that: “An award of contract will not be made for a property located within a base flood plain or wetland unless the Government has determined that there is no practicable alternative.” SFO at 7.

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Bellingham protests that the agency failed to comply with the SFO provision that stated: “An award of contract will not be made for a property located within a base flood plain or wetland unless the Government has determined that there is no practicable alternative.” See SFO at 7. More specifically, Bellingham protests that Newport’s proposed pier was clearly within a designated floodplain area; that the agency had no reasonable basis to conclude otherwise; and that the agency was, therefore, required to make a determination as to whether there was a practicable alternative to Newport’s offer.

The agency responds that it “properly concluded that Newport’s offered property is not located within the base floodplain,” and that, having so concluded, that the agency “was not required to and properly did not conduct a practicable alternative analysis.” AR, Tab 2, at 15. In maintaining that Newport did not propose property within the designated floodplain area, the agency refers to the fact that the “finished level” of Newport’s proposed pier is projected to be higher than 9 feet NGVD (the applicable BFE) asserting: “[I]f the finished level of the pier were built below 9 NGVD it would be located within the base floodplain and likely impacted by flooding; if it were built above 9 NGVD it would not be in the base floodplain.” Agency Response to Protester’s Comments, Oct. 16, 2009, at 2. The agency also references Newport’s conclusory representation, provided in response to the agency’s discussion question, quoted above, that “all proposed facilities and structures will be designed above the BFE.” On this basis, the agency maintains that it reasonably concluded that Newport’s proposed pier was outside the designated floodplain area and, accordingly, maintains the agency had no obligation to--and did not--consider whether there was any practicable alternative.

Our Office has previously considered whether, in leasing real property, an agency has properly considered the particular floodplain requirements that are at issue here. See, e.g., Ronald Brown, B-292646, Sept. 20, 2003, 2003 CPD para. 170; Vito J. Gautieri, B‑261707, Sept. 12, 1995, 95-2 CPD para. 131; Alnasco, Inc., B-249863, Dec. 22, 1992, 92-2 CPD para.430; Wise Inv., Inc., B-247497, B-247497.2, 92-1 CPD para. 480; Oak Street Distribution Ctr., Inc., B-243197, July 2, 1991, 91-2 CPD para. 14; Western Div. Inv.; Columbia Inv. Group, B-213882, B-213882.2, Sept. 5, 1984, 84‑2 CPD para. 258. In this regard, we have noted that the floodplain requirements flow from Executive Order (EO) No. 11988, 42 Fed. Reg. 26,951 (1977), which precludes a federal agency from providing direct or indirect support of flood plain development when there is a practicable alternative. We have further noted that the purpose of EO No. 11988 is to minimize the impact of floods on human health and safety, as well as to minimize the impact on the environment. See Vito J. Gautieri, supra., at 2-3. In considering compliance with these floodplain requirements, we have held that an agency must, at a minimum, consider whether a proposed structure will be located within a designated floodplain area. See, e.g., Ronald W. Brown, supra., at 1-2 (agency reasonably concluded that floodplain provisions did not bar award of lease where proposed building was not located within the floodplain area, even though the periphery of the site was within the floodplain); see also Oak Street Distribution Ctr., supra., at 3-4 (agency properly awarded lease where proposed building was not within floodplain); cf. Wise Inv., Inc., supra., at 2-4 (award of lease not prohibited where ground level of site had been elevated by filling).

Here, based on the record discussed above, there can be no reasonable doubt that Newport’s offer proposed to build its pier structure within the designated floodplain area. Further, as noted above, Newport’s construction of the pier was a significant aspect of its offer in that the solicitation required offerors to provide a minimum of 1,950 linear feet of pier space. AR, Tab 7, at 7. Finally, it is clear that the pier structure may have an environmental impact on the floodplain area within which it is to be located.

As discussed above, Newport’s proposed pier construction within the designated floodplain area was expressly presented to the agency by the very engineering firm the agency retained to, among other things, inform the agency on floodplain matters. Consistent with that notification, in conducting discussions with Newport, the agency requested that Newport address the floodplain issue in the context of the location of its proposed pier; yet, Newport did not. Finally, the fact that the “finished level” of the pier may be above the BFE has no bearing on the clearly apparent fact that the pier structure itself is to be constructed within the designated floodplain area, which will, among other things, require Newport to drive hundreds of concrete piles “approximately 15 feet below the mudline.” See AR, Tab 20 at 4-18. In this regard, neither Newport’s proposal nor the agency’s contemporaneous evaluation documents, address the specific environmental issues identified in the EA report, including the potential for debris to be trapped against the concrete pier piles or the pier’s alteration of the way floodwaters circulate and flow within the bay.

On this record, there was no reasonable basis for the agency to conclude that Newport’s proposal did not fall within the scope of either the solicitation’s express floodplain limitations or EO No. 11988’s limitations regarding potential environmental impacts. Accordingly, the agency was required to consider the environmental impact of Newport’s proposed pier structure and to determine whether there was a practicable alternative to Newport’s offer; the record is clear it did not.  (Port of Bellingham, B-401837, December 2, 2009)  (pdf)

The RFP, which contemplated the award of a cost-reimbursement contract for a 3-year base period with four 1-year option periods, provided that cost would be evaluated by adding the total proposed cost for the base period and all option periods. RFP at 72. The RFP also stated that the agency intended to make award on the basis of initial proposals, without discussions. Id. at 65. Manthos submitted a cost proposal for the base period, but did not include any pricing for the option periods. Protest at 5; Agency Report at 4. The agency did not reject the proposal but, instead, attempted to calculate option prices from the information included in the proposal. The agency ultimately determined that TEC's proposal, not Manthos's, represented the "best value," and thus made award to TEC. Manthos challenges the evaluation and selection decision on several grounds.

The protest is without merit. While the agency did not reject Manthos's proposal for failure to include option prices, this omission rendered the proposal unacceptable. In this regard, since offerors were required to provide option year prices and those prices were to be evaluated for purposes of determining the total evaluated price, option prices were a material solicitation requirement. Robotic Sys. Tech., B‑271760, May 14, 1996, 96-1 para. 229 at 4. In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Cajar Def. Support Co., B‑239297, July 24, 1990, 90-2 CPD para. 76. Since Manthos did not provide the required option year prices, its proposal did not conform to the material terms of the RFP, and therefore could not be accepted for award. See Joint Venture Penauillie Italia S.p.A; Cofathec S.p.A; SEB.CO S.a.s; CO.PEL.S.a.s., B-298865, B-298865.2, Jan. 3, 2007, 2007 CPD para. 7 at 6.

Manthos argues that the agency should have permitted Manthos to provide its missing option year prices through clarifications. We disagree. In this regard, clarifications are "limited exchanges" agencies may use to allow offerors to clarify certain aspects of their proposals or resolve minor or clerical mistakes. Federal Acquisition Regulation (FAR) sect. 15.306(a)(2). As is relevant here, an agency may allow an offeror to correct a mistake or clerical error in a cost or price proposal through clarifications only where both the existence of the mistake and the amount intended by the offeror are apparent from the face of the proposal. Joint Venture Penauillie, supra, at 8. Here, while it was clear from Manthos's proposal that the option year pricing had been omitted, the proposal specifically stated that "Option Years 1 through 4 will also be priced upon request." Cost Proposal at 8. Based on this statement, it is clear that the omission was not a mistake--despite the clear requirement in the RFP for option year prices, Manthos purposely omitted them from its proposal. Under these circumstances, the option prices could not be added through clarifications.  (Manthos Engineering, LLC, B-401751, October 16, 2009) (pdf)

OLCR Inc. of Chester, Pennsylvania, and Revolutionize of Las Vegas, Nevada, protest the rejection of their proposals under request for proposals (RFP) No. DJD-09-R-0017, issued by the Drug Enforcement Administration (DEA), Department of Justice, for basic cable television service at DEA's Training Academy in Quantico, Virginia. OLCR and Revolutionize, which provide satellite television service, argue that the RFP did not require the contractor be a cable service provider.

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In sum, we conclude that the protesters knew, or should have known, that satellite service would not be permitted under this RFP for basic cable service. In this regard, we do not agree with the protesters that the inclusion of NAICS code 517110 indicated that satellite service providers would be permitted to compete under this RFP. Although the NAICS code does include both cable and satellite television services, it also includes other types of services such as telephone, broadband Internet, and Voice over Internet Protocol services that are not being solicited here. As the agency explains, the RFP did not solicit proposals for a wired telecommunications carrier generally, which could include any number of the services listed under the code, but specifically solicits cable video programming. Apart from the reference to satellite service in the NAICS code, the RFP, read as a whole, reasonably informed vendors that the agency was seeking basic cable service, not service from satellite providers.  (OLCR Inc.; Revolutionize, B-401575; B-401575.2, September 24, 2009)  (pdf)

Controlled Systems argues that MCPA's quotation does not comply with a material term of the solicitation, and should have been found to be technically unacceptable. Specifically, the protester contends that by including the term--"FOB Point: Shipping Point" in its quotation--MCPA took exception to the solicitation requirement for "FOB Destination."

A quote that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. See, Muddy Creek Oil and Gas, Inc., B-296836, Aug. 9, 2005, 2005 CPD para. 143 at 2.

Here, we find that MCPA's quote did conform to the RFQ's material terms and conditions. With respect to the delivery terms, although MCPA's quotation stated that delivery would be "FOB Shipping Point," the firm quoted a price for delivery, "FOB Destination" to Fort Sill, which was part of MCPA's total price. Given that MCPA quoted complete pricing for the supply, delivery and installation of the power converters on a turnkey basis, as contemplated by the RFQ, we think that the Army reasonably concluded that the inclusion of the "FOB shipping point" term, which was inserted below the firm's quoted prices and was not specifically associated with any of the priced CLINs, was a minor error. The purchase order issued to MCPA by the Army provided for delivery to Fort Sill at the price quoted by MCPA. Agency Report, Tab 22, Purchase Order, at 4.  (Controlled Systems, B-401208.2, July 8, 2009)  (pdf)

Ashbury maintains that, while Horus offered in its FPR to provide an alternate reticle that purported to meet the requirements and objective of the RFP, in fact, its proposal did not provide the agency with a reasonable basis for finding it acceptable. More specifically, Ashbury maintains that the agency improperly failed to test Horus's replacement reticle, as contemplated under the RFP, instead accepting Horus's mere promise to provide a compliant reticle. Ashbury asserts that this promise could not reasonably form the basis for the agency to find that the replacement reticle met the objective of the RFP of being similar to the reticle currently in use in the USMC Scout Sniper Day Scope, or that it was technically equivalent to the one offered by Ashbury.

Agencies are required to evaluate proposals in a manner that is consistent with the terms of the solicitation. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD para. 83 at 10. Our review of the record shows that the agency improperly failed to obtain a telescope from Horus that was configured with its alternate reticle and, consequently, did not evaluate and test the alternate reticle proposed by Horus in accordance with the requirements of the RFP.

As quoted above, the solicitation provided that the agency "will subject production samples to any and all of the examinations and tests specified in the detailed performance Specification." RFP at 68. The record shows, however, that, after receiving Horus's proposal revision, the agency neither required Horus to identify a specific model nor did anything to examine or test Horus's proposed alternate reticle. The record contains no indication that the agency obtained a sample telescope with the alternate reticle installed, or that it in any way critically evaluated the change in the firm's proposed reticle, despite the fact that this was a key attribute of the telescopes. Instead, the agency accepted Horus's unsubstantiated representation that its alternate reticle was [deleted] and, in apparent reliance on that representation, concluded that its alternate reticle was not only acceptable, but also met the performance specification objective of being similar to the reticle in the USMC Scout Sniper Day Scope. In this regard, the agency's second technical evaluation report simply notes, without elaboration, that the alternate reticle meets the objective requirement of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope. Technical Evaluation Report, Nov. 26, 2008, at 3.

The agency's actions were unreasonable in view of the fact that Horus's originally‑proposed reticle was found technically unacceptable. In contrast, as noted, the reticle offered by Ashbury was shown through the agency's testing procedures to have met both the threshold requirements and the objective of the performance specification of being similar to the reticle in the USMC Scout Sniper Day Scope. The agency's acceptance of the alternate Horus reticle was unreasonable because doing so was inconsistent with the stringent testing requirements that the RFP stated would be applied to establish technical acceptability. Moreover, the agency's actions constituted an improper waiver of the testing requirements for Horus, but not Ashbury. As a result of the waiver, although Horus's proposal was higher priced than Ashbury's, it is not clear whether Horus submitted a technically acceptable proposal. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., supra. We therefore sustain this aspect of Ashbury's protest.  (Ashbury International Group, Inc., B-401123; B-401123.2, June 1, 2009)  (pdf)

The RFP's statement of work established the following requirement:

The contractor shall have a facility within 15 miles of CMS for the duration of this contract. The contractor's Project Management staff shall be located at this facility. The facility must accommodate contractor staff working on this contract and provide for meeting space.

RFP sect. C.1.2. NGIT asserts that CGI's proposal did not comply with this provision because CGI proposed to perform the majority of its work at a facility more than 15 miles away from CMS headquarters, in Woodlawn, Maryland. The agency responds that its evaluation was reasonable because this provision required only that project management staff--not all staff--perform at the nearby facility, and CGI met this requirement.

To be reasonable, the interpretation of solicitation language must be consistent with the solicitation when read as a whole and in a manner that gives effect to all of its provisions. BellSouth Telecomm., Inc., B--258321, Jan. 6, 1995, 95--1 CPD para. 10 at 6. NGIT's assertions here simply are not reasonable. Reading the quoted provision as a whole, while it is plain that offerors were required to have a facility within 15 miles of CMS headquarters, it is just as plain, contrary to NGIT's interpretation, that the provision does not require all staff to be located there; rather, only project management staff is specified. The remainder of the provision only generally calls for accommodation of staff working on the contract and provision of meeting space; it does not require that all other contractor personnel be located at the facility. To read the provision otherwise would make the requirement specifying the location of project management personnel redundant and the provision, at best, patently ambiguous; the protester was obligated to challenge any such ambiguity prior to submitting its proposal. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2009); see, e.g., Poly‑Pacific Techs., Inc., B‑293925.3, May 16, 2005, 2005 CPD para. 100 at 3. We conclude that there was no basis for the agency to reject or downgrade CGI's proposal for proposing to locate non-project management staff more than 15 miles from CMS.

Our conclusion is not changed by NGIT's reliance on the RFP's requirement that the contractor "interact" with CMS personnel (RFP sect. C.2) and to work "closely" with CMS personnel on numerous tasks listed in RFP section C.3. These provisions do not require that the interaction or work occur at a facility within 15 miles of CMS. Likewise, NGIT's assertion that, under its incumbent contract for a portion of this requirement, members of its technical staff were "routinely" called upon to attend impromptu face-to-face meetings (Response to Motion to Dismiss at 3) is not a basis for finding that the RFP here required offerors to propose to locate all staff at the nearby facility. Each federal procurement stands on its own; prior practice involving meetings at a nearby facility does not establish the same requirement here. See Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD para. 244 at 2 n.2. In fact, the provision calls for the facility to include meeting space, but does not mandate that all staff work be performed at the site.  (Northrop Grumman Information Technology, Inc., B-401198; B-401198.2, June 2, 2009)  (pdf)

The RFP, which contemplated award of up to 10 fixed-price, indefinite-delivery/indefinite-quantity contracts, contained the Federal Acquisition Regulation (FAR) Rights in Data-Special Works clause, which states in part that the “Government shall have unlimited rights in all data delivered under this contract.” FAR sect. 52.227-17(b)(1).

(Sections deleted)

The protester’s initial proposal made no mention of the Rights in Data clause; its final revised proposal contained the following language: “All materials will be cleared for educational and museum presentation use for the life of the programs, up to twenty years.” Agency Report (AR), Tab 11, Protester’s Final Proposal Revisions at 17. The protester’s proposal received 95.64 points, including seven out of ten points under the comprehensive plan factor. Nonetheless, the contracting officer (CO) found the proposal unacceptable, however, because it took exception to the Rights in Data clause and the clause regarding ownership of products, quoted above, by restricting the nature and the duration of the agency’s use of the materials to be produced under the contract.

The protester argues that an offeror’s understanding of the Rights in Data clause was but one portion of the comprehensive plan factor, which was worth a maximum of ten points, and that the failure of the protester’s proposal to comply with that clause was properly considered in the comprehensive plan factor scoring. Having considered this aspect of the proposal under the criterion announced in the RFP, the CO’s subsequent determination that the protester’s proposal was unacceptable was inconsistent with the RFP, the protester asserts, given the overall high score that the proposal received. We disagree.

In negotiated procurements, a proposal that fails to comply with the material terms[2] of the solicitation should be considered unacceptable and may not form the basis of award. Nordic Air, Inc., B-400540, Nov. 26, 2008, 2008 CPD para. 223 at 3. We will not disturb an agency’s determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulation. Id. Further, when a dispute exists as to the exact meaning of a solicitation requirement, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. Id. Here, it is unclear what purpose was served by the agency’s inclusion of an offeror’s understanding of the Rights in Data clause as one aspect of the comprehensive plan evaluation factor. But the protester’s interpretation--that the agency was restricted to the comprehensive plan evaluation factor when considering a proposal’s understanding of that clause--negates both the text of the clause, which is included in full in the solicitation, as well as the Ownership of Products provision in the RFP, quoted above, requiring offerors to grant to the agency unrestricted use of the materials produced under the contract. When read as a whole, then, the only reasonable interpretation of the RFP is that it requires proposals to offer the agency unrestricted data rights. Because the protester’s proposal failed to do so, we see no reason to question the agency’s decision to exclude it from the competition as unacceptable.

The protester argues that, because its proposal contained no explicit deviations or exceptions, under the RFP’s standard “deviations and exceptions” clause,[3] the agency could not reasonably conclude that the proposal offered the agency less than unrestricted rights in the materials produced under the contract. The protester’s proposal restricted the agency’s manner and duration of use of the materials created under the contract. To say that such a statement may not be deemed a deviation from the terms of the RFP because it was not in a proposal section labeled “deviations and exceptions” is an unpersuasive attempt to elevate form over substance. The plain language of the protester’s proposal clearly took exception to a material term of the RFP.

Even if its proposal had taken such an exception to the RFP, the protester argues, “this would not have afforded the government the right to find the offer ‘unacceptable’, under the explicit terms of the very contract clause that the NPS itself drafted.” Comments on AR at 2. We disagree. The deviations and exceptions clause merely states that deviations from the terms of the RFP will not automatically render a proposal unacceptable, and the record in this case does not support an allegation that the protester’s proposal was “automatically” deemed unacceptable. Rather, the CO determined that the protester’s final proposal revisions failed to comport with a material term of the solicitation, and she therefore determined that the proposal was unacceptable.  (Northern Light Productions, B-401182, June 1, 2009) (pdf)

Spectrum first protests that the products offered by MTM do not have a Federal Information Processing Standards (FIPS) 140-2 validation, and as such do not meet a mandatory requirement set forth in the solicitation. The protester's argument here is based upon Spectrum's analysis of publicly-available information concerning MTM's quoted product, and Spectrum's understanding of the FIPS validation process.

The record reflects that in evaluating MTM's quotation the agency found that MTM had responded "yes" to the requirement set forth in the RFQ's Vendor Solution Matrix that the "[c]ryptographic module in the product is NIST [National Institute of Standards] FIPS 140-2 compliant," and that MTM's quotation also expressly provided that MTM "uses a FIPS 140-2 Certified Cryptographic module in all products." Agency Report (AR), Tab 2, MTM Quotation, at 14.

Based upon our review of the record, the agency reasonably found that MTM's quotation provided the information requested by the solicitation, and agreed without exception to furnish a product in accordance with the terms of the solicitation. While Spectrum contends that the agency could not accept MTM's quotation representation without further investigation, an agency may accept a quotation's representation that indicates compliance with the solicitation requirements, where there is no significant countervailing evidence reasonably known to the agency evaluators that should create doubt whether the offeror will or can comply with the requirement. Alpha Marine Servs., LLC, B-292511.4, B-292511.5, Mar. 22, 2004, 2004 CPD ¶ 88 at 4. Here, notwithstanding the detailed arguments by Spectrum as to why MTM's quotation will not provide a product that meets the FIPS 140-2 certification requirement, the record does not indicate there was any countervailing evidence reasonably known to the agency evaluators before award that should have created doubt that MTM would or could honor its quotation. Whether MTM actually delivers a product compliant with the terms of the solicitation is a matter of contract administration, which is for consideration by the contracting agency, rather than our Office. Standard Mfg. Co., Inc., B‑236814, Jan. 4, 1990, 90‑1 CPD ¶ 14 at 3. GAO does not review matters of contract administration under our bid protest function. 4 C.F.R. § 21.5(a) (2008); Nilson Van & Storage, Inc. B‑310485, Dec. 10, 2007, 2007 CPD ¶ 224 at 4.  (Spectrum Systems, Inc., B-401130, May 13, 2009)  (pdf)

KBR argues that the agency's determination that its proposal was unacceptable was unreasonable. The protester first argues that its force protection "assumption is consistent with the terms of the RFP," and "merely describes certain circumstances KBR anticipates may occur during the course of performance and states KBR's understanding of the manner in which the Army would respond." Protest at 10. The protester continues here by providing a lengthy explanation as to why, in its view, the force protection assumption set forth in its proposal "was nothing more than a brief encapsulation of those solicitation provisions" pertaining to force protection. Protester's Comments at 14. The protester argues that "[n]owhere does the Assumption state or suggest that KBR would determine what constitutes 'necessary force protection,'" and that "[i]t is clear to KBR . . . that a contractor cannot issue orders to the military regarding the deployment of military forces for force protection." Protester's Comments at 3, 17.

The protester further argues that the Army's determination that KBR's force protection assumption rendered its proposal unacceptable was unreasonable because "[n]owhere in KBR's proposal is there any explicit or implicit statement by KBR that its performance is contingent upon the [force protection assumption]," and that the "assumption can have no effect on the cost that KBR would ultimately charge to the Army" because of other RFP provisions that require Army approval under "stringently defined conditions" before the contractor can incur force protection costs. Protest at 11. The protester also points out that it "included a nearly identical assumption in its proposal for this same work under the LOGCAP III proposal, and the solicitation and task order for this work under the LOGCAP III contract contains similar force protection provisions." Id. at 11 n.1.

The evaluation of proposals is a matter within the discretion of the contracting agency, and in reviewing protests against allegedly improper evaluations, it is not our role to reevaluate proposals. Rather, our Office examines the record to determine whether the agency's judgment was reasonable, in accord with the evaluation factors set forth in the solicitation, and whether the agency treated offerors equally in its evaluation of their respective proposals and did not disparately evaluate proposals with respect to the same requirements. Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc., B-309752 et al., Oct. 5, 2007, 2008 CPD para. 83 at 10. A protester's mere disagreement with the agency's judgment does not render the evaluation unreasonable. Landoll Corp., B-291381 et al., Dec. 23, 2002, 2003 CPD para. 40 at 8.

The agency explains that "there is perhaps no more crucial issue in a contract for the provision of services on the battlefield, than the level of force protection to be provided by the military to the contractor." Contracting Officer's Statement at 7. The agency's overriding concern with KBR's force protection assumption was that "the entire assumption implies that KBR will be the one determining what 'necessary force protection' it will require." AR at 4; see Contracting Officer's Statement at 4; AR, Tab 9, Decision by Task Order Determining Official to Remove KBR from Consideration for Award (Oct. 29, 2008), at 2. The agency explains that this is in direct conflict with the provisions of the applicable contract clauses, and, as incorporated by reference, chapter 6 of Army Field Manual 3-100.21 and the "Applicable Theater Anti-Terrorism/Force Protection Guidelines," which provide that determinations as to whether force protection is needed and at what level rest with the combatant commander and are to be made in accordance with those publications. AR at 4-5; Contracting Officer's Statement at 4-5;

The agency also points to several specific clauses in KBR's assumption that cause the agency concern. For example, the second sentence of KBR's force protection assumption states that the provision of "necessary" force protection "includes, but is not limited to, the security at the KBR work site and movement throughout the Area of Operations, to include between work sites, living/messing areas and ingress/egress to the Area of Operation." See AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. The agency argues that the requirement that force protection be provided to KBR personnel "between work sites, living/messing areas and ingress/egress to the Area of Operation" is "an overt augmentation of the solicitation provisions." Contracting Officer's Statement at 5. The agency adds that, in its view, KBR's force protection assumption, through the use of the phrase "includes, but is not limited to," in describing the force protection to be provided, "establishes a minimum level of force protection to be provided by the military, and then goes on to subject the Government to indeterminate responsibility for the provision of force protection." Id.

The agency also argues that the last sentence of KBR's force protection assumption, which states that "[i]t is assumed soldiers will be positioned in over watch of the site and where KBR personnel encounter a hostile threat, it is further assumed that U.S. Army personnel will intervene without delay," constitutes an "augmentation of the force protection provisions of the solicitation." Contracting Officer's Statement at 6; see AR, Tab 13, KBR Proposal, Proposal Narrative, at 3. In this regard, the agency contends that KBR's assumption that "'soldiers will intervene without delay' imposes a requirement that impinges upon the combatant commander's latitude in determining the appropriate course of action in hostile circumstances." Id. at 6.

Finally, with regard to KBR's argument that its force protection assumption should not cause the agency concern because "KBR included a nearly identical assumption in its proposal for this same work under the LOGCAP III proposal, and the solicitation and task order for this work under the LOGCAP III contract contains similar force protection provisions," see Protest at 11 n.1., the agency notes that "force protection has been a contentious issue" under that contract. Contracting Officer's Statement at 8; see AR at 7. The agency specifically states here, and the protester does not argue otherwise, that KBR has requested "reimbursement for costs of force protection, and when denied KBR submitted a claim of $19 [million]." AR at 7.


The agency concluded that the acceptance of KBR's proposal would subject "the Government to increased risk of a contractor claim, or refusal to perform in the event of a dispute concerning what constitutes the appropriate level of force protection," and thus the agency rejected KBR's proposal as unacceptable. Contracting Officer's Statement at 8.

Our review of the record provides no basis to find the agency's evaluation and rejection of KBR's proposal unreasonable or otherwise objectionable. As explained by the parties and set forth in chapter 6 of Army Field Manual 3-100.21, "[p]rotecting contractors and their employees on the battlefield is the commander's responsibility," and "[t]he mission, threat, and location of contractor operations determine the degree of force protection needed." AR, Tab 4, Army Field Manual 3‑100.21, ch. 6, at 6-2. With regard to the agency's primary concern, we believe that KBR's force protection assumption is, considered most favorably to the protester, unclear as to who determines what force protection is necessary. That is, although KBR's assumption does not specifically state that KBR assumes that it will be able to determine or be required to have input in determinations concerning force protection, it nevertheless provides no guidance in this regard, and is thus ambiguous as to whether the assumption is consistent with, or is taking exception to, the RFP's force protection provisions. Given that the solicitation provided that force protection would be provided in accordance with, among other things, chapter 6 of Army Field Manual 3-100.21, which provides that the combatant commander determines, based upon the terms of the manual, the force protection needed for contractor personnel, we find the agency's rejection of KBR's proposal because of the ambiguity introduced by KBR's assumption to be unobjectionable. Nu-Way, Inc., B-296435.5; B-296435.10, Sept. 28, 2005, 2005 CPD para. 195 at 5; Rel‑Tek Sys. & Design, Inc., B-280463.3, Nov. 25, 1998, 99‑1 CPD para. 2 at 4.  (Kellogg Brown & Root Services, Inc., B-400614.3, February 10, 2009) (pdf)

In a nutshell, the dispute between the protester and the agency arises over the method used to calculate an offeror’s compliance with the solicitation’s small business subcontracting goals. Simply put, the solicitation established goals for various types of small businesses, which were stated in terms of a percentage of total subcontracted dollars. In calculating compliance with the stated goals, Granite first subtracts the value of its major electrical subcontractor, which is a large business, and then calculates its compliance with the solicitation’s goals. In contrast, the agency includes the value of this significant subcontract, and calculates the goals using the larger total.

Granite’s approach of deducting the value of the work to be provided by its large business electrical subcontractor before calculating its compliance with the RFP goals using the much smaller resulting number, means that Granite erred in two ways. First, its claimed percentages of the amount of total subcontracted dollars going to the various categories of small businesses were significantly overstated because they are not based on the total amount of Granite’s subcontracting dollars. In addition, because Granite overstated the resulting percentages, it failed to take the opportunity to explain why it could not meet the solicitation-required minimums. Finally, even if the agency wanted to accept Granite’s representation about why it could not meet the solicitation’s overall small business subcontracting goal--i.e., 76.07 percent of subcontracted dollars--Granite’s FPR says nothing about the other applicable small business goals--i.e., the goals applicable to WOSBs, SDBs, HUBZone small businesses, VOSBs, or SDVOSBs. In short, Granite’s proposed approach to subcontracting does not do either of the two things this solicitation required with respect to these other categories of small businesses--i.e., either meet the applicable goals, or explain why the goals could not be met.

To the extent that Granite asserts that its subcontracting plan was a draft plan that could have been revised prior to award if the agency was not satisfied, we disagree. As quoted previously, the RFP clearly indicates that the agency would evaluate an offeror’s small business subcontracting plan as part of the non-price evaluation and would then evaluate further only those proposals rated acceptable under each non-price factor. Consistent with that evaluation scheme, the agency would again review and approve the subcontracting plan of the technically acceptable offeror whose proposal was deemed the lowest-priced. This approach does not mean the agency acted improperly when it decided not to accept a proposal that did not address the requirements of the solicitation and give Granite a third opportunity to address the situation (since this matter was clearly raised during discussions) after the selection decision.

Under the circumstances here, we think the agency acted reasonably when it concluded that Granite had not responded adequately to the small business subcontracting requirements set forth in this solicitation.  (Granite Construction Company, B-400706, January 14, 2009) (pdf)

When an agency evaluates proposals for the award of a cost-reimbursement contract, an offeror’s proposed estimated cost of contract performance is not considered controlling since, regardless of the costs proposed by an offeror, the government is bound to pay the contractor its actual and allowable costs. Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004 CPD para. 164 at 9; PADCO, Inc.--Costs, B-289096.3, May 3, 2002, 2002 CPD para. 135 at 5; see Federal Acquisition Regulation (FAR) sect. 16.301. As a result, a cost realism analysis is required to determine the extent to which an offeror’s proposed costs represent the offeror’s likely costs in performing the contract under the offeror’s technical approach, assuming reasonable economy and efficiency. FAR sections 15.305(a)(1), 15.404-1(d)(1), (2); The Futures Group Int’l, B-281274.2, Mar. 3, 1999, 2000 CPD para. 147 at 3. A cost realism analysis involves independently reviewing and evaluating specific elements of each offeror’s cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the unique methods of performance and materials described in the offeror’s proposal. FAR sect. 15.404-1(d)(1); Advanced Commc’ns. Sys., Inc., B-283650 et al., Dec. 16, 1999, 2000 CPD para. 3 at 5. Based on the results of the cost realism analysis, an offeror’s proposed costs should be adjusted when appropriate. FAR sect. 15.404-1(d)(2)(ii).

The evaluation of competing cost proposals requires the exercise of informed judgment by the contracting agency. We review an agency’s judgment in this area only to see that the agency’s cost realism evaluation was reasonably based and not arbitrary. Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD para. 16 at 26. An agency’s cost realism analysis need not achieve scientific certainty; rather, the methodology employed must be reasonably adequate and provide some measure of confidence that the agency’s conclusions about the most probable costs under an offeror’s proposal are reasonable and realistic in view of other cost information reasonably available to the agency as of the time of its evaluation. See Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005, 2005 CPD para. 112 at 10-11.

The protester argues that NAVSEA unreasonably accepted Metro’s unrealistically low capped indirect rates and failed to consider the risk presented by these low capped rates in determining that Metro’s proposal represented the best value to the government. According to the protester, this was contrary to the terms of the solicitation, which expressly stated that the agency would perform a cost realism evaluation and admonished offerors not to submit unrealistically low costs. In support of this allegation, the protester highlights the fact that Metro proposed indirect rates (overhead and G&A) at levels below its forward pricing rates, as well as the then-current information the agency had regarding Metro’s indirect rates. Because Metro capped its indirect rates at such unrealistically low levels, the protester alleges that Metro will be operating at a loss under the contract and that the agency failed to properly consider this risk in its selection of Metro for award.

The agency essentially argues that because Metro capped its indirect rates, upward adjustment to Metro’s rates was not warranted; any decision about Metro’s ability to perform at the rates capped below actual costs is solely a matter concerning Metro’s responsibility; and it in fact considered Metro’s ability to perform at the capped rates as part of its affirmative responsibility determination.

As a general matter, the contractor bears the risk of cost overruns for a particular category or type of work in a cost-reimbursement contract when the contractor agrees to a cap or ceiling on its reimbursement for that category or type of work. Thus, when offerors propose such caps, and no other issue calls into question the effectiveness of the cap, upward adjustments to capped costs are improper. Vitro Corp., B-247734.3, Sept. 24, 1992, 92-2 CPD para. 202 at 7. Here, there is nothing in the record to suggest that the rate caps proposed by Metro were in any way illusory; thus, we agree with the agency’s contention that it was not required to upwardly adjust Metro’s capped indirect rates, notwithstanding the fact that the agency itself found Metro’s capped rates to be “significantly” lower than its then-current rates.

Nevertheless, the agency could not simply ignore the risk presented by these capped rates in concluding that Metro’s proposal was the best value. As noted previously, the solicitation expressly admonished offerors not to propose unrealistically low costs because of NAVSEA’s concern that a proposal with unrealistically low costs due to an offeror’s decision to submit a proposal below its anticipated costs “may cause problems for the Navy as well as the contractor during contract performance.” RFP at 138. Recognizing that the capped indirect rates proposed by Metro shifted the risk of cost overruns for those rates entirely to Metro, the imposition of the cap in fact exacerbated the issues identified by DCAA regarding Metro’s financial condition [Deleted], and thereby further hampering its ability to perform under its government contracts--the very concern articulated in the RFP. While NAVSEA was clearly aware of the concerns regarding Metro’s financial situation, and the fact that the rate caps would potentially place Metro [Deleted], thereby potentially affecting its performance under the contract, the agency failed to consider the risks posed by Metro’s low rates.

NAVSEA argues that the issue of Metro’s ability to perform at its capped rates was solely a matter concerning Metro’s responsibility, a matter which the protester did not challenge, and was expressly considered as part of that determination. While we agree that, as a general matter, a decision about an awardee’s ability to perform a contract at rates capped below actual costs is a matter of an offeror’s responsibility, see, e.g., Vitro Corp., supra, at 7; Halifax Tech. Serv., Inc., B-246236.6 et al., Jan. 24, 1994, 94-1 CPD para. 30 at 9, where, as here, the solicitation expressly instructs offerors not to submit unrealistically low costs or prices, the risk stemming from an offeror’s decision to propose unrealistically low capped rates is a matter for the agency’s consideration in the context of its evaluation of proposals and source selection decision process. The agency’s failure to consider Metro’s capping of its rates in that context was inconsistent with the terms of the solicitation. We therefore sustain the protest in this regard. (MCT JV, B-311245.2; B-311245.4, May 16, 2008) (pdf)

The sole issue before us is the interpretation of GSAR 552.270-1(c)(7). Plaintiff argues that the inclusion of this clause in the SFO obligated GSA to consider on the merits all offers, even those deviating materially from the stated requirements. In effect, plaintiff suggests that, even though its offer did not make use of the site which formed the basis of the SFO, this clause means that there can be no non-conforming offers and that the failure to include Tin Mills in the competitive range could only be effected after a full examination of the advantages and disadvantages of its offer. It contends that the particular site on which the building was located was not, in any event, a material requirement and that Tin Mills could not be left out of the competitive range without a substantive explanation which must pass muster under an Administrative Procedures Act style review.

Defendant argues that GSAR 552.270-1(c)(7) permits GSA to consider offers that depart from solicitation requirements but does not obligate it to do so. The failure to justify a refusal to consider changing the solicitation terms, it contends, is not subject to court review. Although not strictly necessary to its argument, defendant also contends that if GSA had been interested in Tin Mills’ offer, the agency would have had to amend the solicitation and notify all bidders. The SFO process, defendant contends, should be interpreted in the context of the statutory requirement for full and open competition, 41 U.S.C. § 253, and the background principle set out in FAR 15.206, which requires the government to amend the solicitation if a proposal of interest deviates from the stated solicitation requirements.

We must first examine what, if any, obligation the GSAR clause imposes on the government to consider an offer that departs from the stated solicitation requirements. If we find that this clause imposes an obligation on the agency to consider non-conforming offers, we must then examine whether the failure to open the sale to offers which deviate from what the agency seeks is subject to court review. Only if that determination is subject to court review, need we also consider whether the government had to amend the solicitation before awarding a nonconforming offer.

We begin by noting the obvious: Nothing in the language of the clause (“Offerors may submit proposals that depart from stated requirements.”) compels plaintiff’s reading. GSAR 552.270-1(c)(7). There is certainly no explicit promise to consider non-conforming proposals. And, as we explain below, there is good reason not to imply such a promise.

In negotiated procurements, “the court will take a more deferential view of whether an agency’s actions were rational or reasonable than it will in sealed bidding.” John Cibinic, Jr. & Ralph C. Nash, Jr., Formation of Government Contracts 1554 (3rd ed. 1998) (citing Logicon, Inc. v. United States, 22 Cl. Ct. 776 (1991)); see also Cincom Sys. v. United States, 37 Fed. Cl. 663, 672 (1997) (“[contracting officials’] discretion is especially broad in negotiated procurements”); 126 Northpoint Plaza Ltd. P’ship v. United States, 34 Fed. Cl. 105, 107 (1995) (“In negotiated procurements, contracting officials possess ‘broad discretion in the process of obtaining the contract most beneficial to the government.’”) Here, the CO eliminated Tin Mills’ offer from the competitive range because it was “nonresponsive.” AR 1203. Although the concept of responsiveness or “an unconditional promise to comply with the terms of a solicitation,” does not apply directly to negotiated procurements, offers must comply with the material terms and obligations in a SFO to merit consideration. Gardiner, Kamya & Assocs., P.C., 1995 WL 19599, B-258400, 95-1 CPD ¶ 191, *2 n.1. Stated inversely, “[a] proposal that fails to satisfy a material solicitation term is unacceptable and may not form the basis for an award.” Integrated Business Solutions, Inc. v. United States, 58 Fed. Cl. 420, 428 (2003) (citing Marisco, Ltd., 1989 U.S. Comp. Gen. LEXIS 719, B-235773, 89-2 CPD ¶ 8; Minigraph, Inc.-Recon., 1990 U.S. Comp. Gen. LEXIS 1350, B-237873.3, 90-2 CPD ¶ 492).

Consistent with this general approach, GSAR 570.303-4, “Changes to SFOs,” provides that, if the government’s requirements change, “either before or after receipt of proposals, issue an amendment.” Similarly, GSAR 570.306, “Evaluating offers,” instructs COs that they “must evaluate offers solely in accordance with the factors and subfactors stated in the SFO.” This strongly suggests, not only that the agency has no obligation to consider nonconforming offers on the merits, but that it would be improper to do so without first changing the solicitation and notifying other bidders.

We also take note of FAR 15.206(d), which applies to negotiated procurements and specifically addresses when the agency must amend the solicitation. Although that regulation was not specifically incorporated in the SFO here, it reflects general background principles applicable to negotiated procurements:

If a proposal of interest to the Government involves a departure from the stated requirements, the contracting officer shall amend the solicitation, provided this can be done without revealing to the other offerors the alternate solution proposed or any other information that is entitled to protection [].

48 C.F.R. § 15.206(d). In short, only proposals of interest to the government need to be pursued, and, because they imply a departure from the advertised terms of the SFO, other bidders must be notified.

Plaintiff suggests that GSAR 552.270-1(c)(7) is an exception to this approach; that by soliciting non-conforming offers, any proposal submitted in response is per se responsive. Although Tin Mills takes the position that the alternate site it offered was not a material deviation, it argues that, even if plaintiff’s deviation from the terms of the SFO had been material, GSAR 552.270-1(c)(7) required GSA to consider and evaluate its offer. The agency could only reject it after weighing the advantages and disadvantages suggested by Tin Mills and explaining its reasoning to plaintiff and to the court. According to plaintiff, if GSA did not want to evaluate alternative proposals, it should have either not included the GSAR clause or stated that the location of the building was a mandatory requirement, exempt from this clause.

Such an interpretation would lead to a scenario for bid protests which is completely untethered to the requirements of the SFO. It would effectively make all solicitation requirements optional. The agency could be called upon to justify its stated requirements to any offeror. We cannot adopt this interpretation.

Instead, we agree with defendant that Tin Mills’ offer could be excluded from the competitive range because it materially departed from the solicitation requirements. Tin Mills had every reason to know that a fundamental predicate of the solicitation was the site selected by the government for the building. The solicitation specified that the offerors should use the 1550 Earl Core Road site in submitting proposals for the building. The executed option to purchase that site was included with the solicitation. The three amendments made to the SFO were all specific to the Glenmark site. These events left no room for plaintiff to doubt defendant’s commitment to construct a building on the Glenmark site. (Tin Mills Properties, LLC v. U. S. and Glenmark Holding, LLC, No. 08-375C, July 15, 2008) (pdf)

Product Support Subfactor Evaluation

Boeing also complains that the Air Force misevaluated Northrop Grumman’s proposal under the product support subfactor. This subfactor required the agency to evaluate the “offeror’s proposed product support approach for an efficient, effective and comprehensive support program for the service life of the KC-X fleet.” RFP sect. M.2.2.3. Specifically, Boeing contends that the Air Force improperly ignored Northrop Grumman’s refusal to commit to providing the required support necessary to allow the agency to achieve initial organic depot-level maintenance capability within the time required by the RFP, namely, within 2 years after delivery of the first full-rate production aircraft. Boeing’s Post-Hearing Comments at 84. The Air Force evaluated Boeing’s and Northrop Grumman’s proposals to be essentially equal under the product support subfactor. See AR, Tab 54, Source Selection Decision Document, at 10; Tab 55, PAR, at 34.

Offerors were informed that the long-term support concept for the KC-X program was for two levels of organic maintenance: organization level and depot level, and that a program objective was a product support approach that effectively addressed all the integrated support elements, including “[t]imely, cost effective transition to organic support.” RFP, SOO for KC-X SDD, at 1-2. One of the specific minimum program tasks required by the SOO with regard to “logistics” was for the contractor to

[p]lan for and support the Government to achieve an initial organic [depot]-level maintenance capability in accordance with the [Source of Supply Assignment Process] for core-designated workloads, at a minimum, within two years after delivery of the first full-rate production aircraft.

Id. at 14; see also RFP, SOO for KC-X LRIP and Full-Rate Production, at 1. The RFP instructed offerors to ensure that their proposed contractual statements of work (SOW) would “conform to the Government’s SOO” and that “[t[he proposed SOWs shall define the tasks required for the KC-X program, ensuring all minimum requirements of the Government provided SOOs and preliminary [work breakdown structure] have been addressed.” See RFP sections L.2.1, L.8.3.7.2.

The Air Force recognized in its evaluation that, although Northrop Grumman promised to provide the necessary planning and support for the agency to achieve an initial depot-level maintenance capability, the firm did not commit to providing this required support within 2 years after delivery of the first full-rate production aircraft, as required by the RFP. Thus, at the mid-term briefing, Northrop Grumman was informed that the timing of the firm’s proposed depot level maintenance support was “unclear,” see AR, Tab 199, Northrop Grumman’s Mid-Term Briefing, at 134, and then again at the pre-final proposal briefing, Northrop Grumman was informed that the agency had assigned it a weakness for its failure “to include the time frame for initial organic depot standup in Offeror’s Production SOW (SOO states within two years after delivery of the first full-rate production aircraft).” See AR, Tab 205, Northrop Grumman’s Pre-Final Proposal Revision Briefing, at 141. Northrop Grumman did not resolve its failure to commit to the 2-year timeframe for this product support requirement during the procurement. In the firm’s final proposal revision, Northrop Grumman stated in one place that resolution of this “timing issue will be determined in coordination with the Government at contract award” and, in another place, that action to “resolve government identified weaknesses” would occur “after contract award.” See AR, Tab 187, Northrop Grumman’s Final Proposal Revision, KC-X Program Summary Document, at 2-3.

In its final evaluation, the SSET evaluated Northrop Grumman’s refusal to commit to providing these product support services within the 2-year timeframe as a weakness. AR, Tab 46, SSET Final Briefing to SSAC and SSA, at 360, 362. The SSAC concluded that this was an “administrative documentation oversight” because Northrop Grumman had promised to provide the required services and its “cost/schedule documentation is consistent with standing up depot capability within two years of delivery of the first full-rate production aircraft.” AR, Tab 55, PAR, at 34. The SSA concurred with the SSAC that this was “merely an administrative oversight.” AR, Tab 54, Source Selection Decision, at 10.

We agree with Boeing that Northrop Grumman’s refusal to commit to the required 2‑year timeframe within which to provide these depot-level maintenance planning and support services cannot be reasonably viewed as an administrative or documentation oversight. As noted above, Northrop Grumman was clearly informed several times by the Air Force of the agency’s concern that the firm had not committed to the required timeframe, and Northrop Grumman responded that it was not resolving this failure before award. Although throughout the protest and during the hearing, the agency steadfastly asserted that Northrop Grumman’s failure to so commit was an “oversight,” see, e.g., Air Force’s Memorandum of Law at 151-53, in its post-hearing rebuttal comments, the agency admitted for the first time that Northrop Grumman’s “omission” appeared to be a conscious decision. See Air Force’s Post‑Hearing Rebuttal Comments at 9. Northrop Grumman also finally admits in its rebuttal comments that its decision to not commit to the 2-year timeframe was “intentional.” Northrop Grumman’s Post‑Hearing Rebuttal Comments at 29 n.13.

The Air Force and Northrop Grumman argue, however, that, apart from Northrop Grumman’s refusal to commit to the 2-year timeframe, Northrop Grumman committed generally and specifically to performing the planning and support services solicited by the RFP in its proposal and proposal revisions, and that the firm would otherwise be obligated to perform the required services under whatever schedule the agency chooses. See, e.g., Air Force’s Post-Hearing Rebuttal Comments at 11; Northrop Grumman’s Post-Hearing Rebuttal Comments at 29. The parties disagree as to whether Northrop Grumman’s proposal demonstrates the ability to provide the required services within 2 years of delivery of the first full-rate production aircraft, and based on our review of Northrop Grumman’s proposal and revisions, we find that it is far from clear whether or not Northrop Grumman’s proposed schedule establishes that it would perform these services within the 2-year time frame.

Whether or not Northrop Grumman’s proposed schedule accommodates providing these product-support services within the 2-year timeframe misses the point, however. By explicitly refusing to contractually commit to the 2-year timeframe for providing these services in the SOW as it was repeatedly requested to do, we think that Northrop Grumman has taken exception to this solicitation requirement. See C‑Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD para. 150 at 3. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. See TYBRIN Corp., B‑298364.6; B‑298364.7, Mar. 13, 2007, 2007 CPD para. 51 at 5.

The Air Force and Northrop Grumman also argue that the 2-year requirement is not a material solicitation provision. However, their arguments in this regard are belied by the agency’s contemporaneous actions during the procurement and the testimony of the SSET product support subfactor team chief. As noted above, the agency repeatedly raised this matter with Northrop Grumman during discussions in an unsuccessful effort to have the firm commit to this solicitation requirement, and Northrop Grumman just as steadfastly refused to commit. Moreover, the SSET product support subfactor team chief identified the purpose or intent of this particular SOO requirement as follows: “It was a binding function to bind it to a specific time line,” see HT at 1216, and that this 2-year requirement was “an important requirement.” HT at 1245. We find, from our review of the record, that the requirement to plan for and support the agency’s achieving an initial organic depot‑level maintenance capability within 2 years after delivery of the first full-rate production aircraft was a material requirement.

In sum, the Air Force improperly accepted Northrop Grumman’s proposal, where that proposal clearly took exception to a material solicitation requirement.  (The Boeing Company, B-311344; B-311344.3; B-311344.4; B-311344.6; B-311344.7; B-311344.8; B-311344.10; B-311344.11, June 18, 2008) (pdf)

On July 25, 2007, the Air Force issued the RFP for certain air conditioning units (units capable of both cooling and heating) to be installed at locations surrounding Aviano Air Base, Italy. The RFP required the units to meet various specifications, including that they be “EUROVENT certified” in a certain class, and that the air conditioner data be available at the website www.eurovent-certification.com. AR, Tab 18, at 1. In response to the RFP, the agency received six proposals, including the protester’s and the awardee’s. While the protester proposed one item at a single price, the awardee proposed six different brands of air conditioner at different prices, with four priced lower than the protester’s. The other four proposals were eliminated from the competition for reasons not relevant here. The agency then sought information from C&H and Sanson Bruno regarding their proposed items’ Eurovent certification. Contracting Officer’s (CO) Statement at 1.  The agency determined that the awardee’s four lowest-priced items were not Eurovent certified. With regard to the fourth lowest priced item, the agency requested product information from Sanson Bruno, and ultimately concluded that this item was not listed on the Eurovent website. The agency then requested information from C&H. The protester responded with a statement from another firm--apparently the supplier of the units to C&H--that the units were “from Bonaga Italia, brand Sermond, Model SRF 12 H registered with Eurovent under the serial number MSH 12HRN1.” AR, Tab 13, B, at 3. The agency subsequently searched the Eurovent website and discovered that the brand name associated with this model number actually was Midea, manufactured by GD Midea Air Conditioning Company, Ltd. There was no mention of the brand name Sermond on the website. Legal Memorandum at 3. The agency then questioned C&H about its product a second time, and the protester responded with two more certifications, one from itself and one from Bonaga Italia. Both certifications stated that the proposed unit was marketed with the brand Sermond by Bonaga Italia, and was certified under the code MSH 12HRN1 of GD Midea Air Conditioning Equipment Company, Ltd. on the Eurovent certification website. Based on this exchange, the agency concluded that the protester’s proposal was ineligible for award because there was no item under the Sermond brand listed on the Eurovent website. The agency thus made award to Sanson Bruno for its fifth lowest-priced unit, which was listed on the Eurovent website, at a price higher than C&H’s. Upon learning that the agency had determined that its product was ineligible for award, C&H filed this protest.  C&H primarily asserts that it should have received the award because its proposed unit actually was listed on the Eurovent website. In this regard, the protester asserts that its unit was in fact the Midea unit listed on the website, the only difference between the two units being the marketing name.  Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. Gear Wizzard, Inc., B‑298993, Jan. 11, 2007, 2007 CPD para. 11 at 2. The procuring agency has primary responsibility for evaluating the technical information supplied by an offeror and determining the acceptability of the proposed item; we will not disturb such a determination unless it is shown to be unreasonable. Alpha Marine Servs., LLC, B‑292511.4, B‑292511.5, Mar. 22, 2004, 2004 CPD para. 88 at 4.  The agency’s determination that C&H’s proposed product was unacceptable for failing to meet the Eurovent listing requirement was reasonable. It is undisputed that C&H’s proposed Sermond brand product was not listed on the Eurovent website under the brand as stated in C&H’s proposal. This led the agency to seek information from C&H clearly establishing that its proposed Sermond product in fact was listed on the website. In response, C&H provided only statements from itself and a supplier that the Sermond product was actually a Midea product, with no independent information supporting the claim. C&H provided no supporting information from the manufacturer or from Eurovent, and the agency’s search of the website under “Midea Manufacturing” did not yield any items with the Sermond brand. Legal Memorandum at 6. We note that, in connection with its protest, C&H has provided a letter from GD Midea Air Conditioning Equipment Company, Ltd. stating that the proposed unit is in fact identical to the listed Midea unit. Protester’s Comments, Dec. 17, 2008, exh. 1. However, given C&H’s failure to provide this information in response to the agency’s request during the evaluation process, the agency reasonably concluded at that time that the protester had failed to demonstrate that its product was listed on the Eurovent website. (C&H SERVICE Srl, B-310790, February 5, 2008) (pdf)

Connectec submitted its proposal on August 9, but did not include a proposed delivery schedule. CO Statement at 2. UNICOR awarded the contract to Teutech on August 20, and posted a notice of the award on August 29. Id. Subsequently, Connectec contacted UNICOR requesting an explanation of the decision to award the contract to Teutech at a higher price. Connectec Letter, Sept. 5, at 1. UNICOR explained that Connectec’s proposal was rejected because it failed to include a proposed delivery schedule. CO Statement at 2. Connectec filed an agency-level protest, which UNICOR denied. CO Letter, Sept. 17. Subsequently, Connectec filed this protest.  Connectec does not disagree that it failed to provide delivery information. Instead, it contends that UNICOR should not have excluded its proposal from consideration for award because the agency has, in the past, awarded contracts based on proposals that did not contain delivery information.  Generally, a delivery schedule or time of performance requirement is regarded as a material requirement of a solicitation. See, e.g., Muddy Creek Oil and Gas, Inc., B‑296836, Aug. 9, 2005, 2005 CPD para. 143 at 2. A proposal that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. Bannum, Inc., B-291847, Mar. 17, 2003, 2003 CPD para. 74 at 3. Here, the RFP provided for a delivery date, stated that delivery was one of three evaluation factors, and noted twice that delivery and past performance were significantly more important than price. RFP at 6, 9. Therefore, information about an offeror’s ability and intent to make timely deliveries was a material part of each proposal, and UNICOR reasonably determined that the lack of delivery information rendered Connectec’s proposal technically unacceptable and ineligible for contract award.  The protester argues that it has been awarded contracts in the past without a proposed delivery schedule. Protest at 1. To support this assertion, the protester provided a prior solicitation under which it claims to have received award without providing delivery terms. Protester’s Comments, Nov. 5, 2007, exh. 1. Our review of this solicitation shows that it does not use the same evaluation scheme as here; delivery was not a separate evaluation factor. Id. Furthermore, even if this assertion is true, the protester cannot rely on past practices to excuse its failure to satisfy the requirements of the RFP here, as each procurement stands alone. GM Indus., Inc., B‑231998, Oct. 25, 1988, 88-2 CPD para. 388 at 5.  In our view, the RFP clearly indicated that offerors must identify a delivery date in order to be considered for award. Therefore, UNICOR reasonably excluded Connectec from consideration when the company failed to include the required delivery information in its proposal.  (Connectec Company, Inc., B-310460, November 27, 2007) (pdf)

The Air Force reasonably rejected CMC’s proposal. While the protester’s argument is focused on whether the items labeled deficiencies met (or exceeded) the RFP requirements or could be corrected through minor revisions, we note that the number of words affected and the ease of correction are not the defining considerations. Rather, even where proposal deficiencies could be corrected without lengthy revisions, the need for numerous corrections and revisions may provide a reasonable basis for an agency to conclude that the proposal evidenced an inherent lack of understanding or awareness of the current RFP’s requirements. See Pace Data Sys., Inc.; Senior Care Storage Co., B‑236083, B‑236083.2, Nov. 6, 1989, 89‑2 CPD para. 429 at 5 (even where proposal deficiencies may be viewed as minor in nature taken individually, the cumulative effect of the deficiencies is sufficient to support the agency’s conclusion that the proposal was unacceptable). Such was the case here. CMC’s proposal was not responsive to numerous aspects of the RFP, did not correspond to other aspects, and contained extraneous information. CMC does not dispute that evaluated deficiencies existed, and given the number and nature of those deficiencies--which suggested that CMC may have submitted information from an old proposal without updating various aspects of the requirements--we think the agency reasonably could conclude that CMC lacked an understanding or awareness of the RFP requirements. Further, while CMC’s proposed 50-day maintenance rotation (and other proposal features) may have exceeded the RFP requirements, the agency could view this in the context of the proposal as a whole; rather than an intended enhancement, the agency apparently considered this to be another example of the proposal’s failure to correspond to the requirements of the current RFP, reinforcing its concern that CMC did not understand, or was unaware of, the actual requirements. Again, given the nature and number of the identified deficiencies, this conclusion was unobjectionable. (C. Martin Company, Inc., B-299382, April 17, 2007) (pdf)

Here, as noted above, the solicitation specifically required that, to be evaluated as technically acceptable, an offeror’s proposed management plan must “ensure timely, professional and high quality performance.” RFP at 65. Particularly in light of the requirements at issue here, the length of an offeror’s proposed workweek is clearly encompassed within the stated requirement for high quality performance. Further, in conducting discussions with WII regarding this matter, the agency explicitly advised WII that the agency considered WII’s proposed [DELETED] workweek to be “excessive,” and that such a management approach would “exhaust and demoralize a guard force.” Notwithstanding this explicit language indicating that the proposed workweek was unacceptable to the agency, WII neither provided a meaningful response to the agency’s concerns, nor revised its proposed management approach. Procuring agencies are generally in the best position to determine their actual requirements and the best method for meeting them. In reviewing protests challenging an agency’s assessments with regard to a particular performance approach, our Office will not substitute our judgment for that of the agency; rather, we will review the record to determine whether the judgments are reasonable and consistent with the solicitation criteria. See, e.g., RMS Indus., B-247233, B-247234, May 1, 1992, 92-1 CPD para. 412. Here, based on our review of the entire record, we find no basis to question the agency’s determination that WII’s proposed [DELETED] workweek was excessive, that it would exhaust and demoralize WII’s guard force and, therefore, that it rendered WII’s proposal unacceptable for failure to comply with the solicitation requirement that an offeror’s proposed management approach would “ensure timely, professional and high quality performance.” Although WII continues to express disagreement in this regard, it has provided nothing to demonstrate that the agency’s determination was unreasonable. (Wackenhut International, Inc., Wackenhut Puerto Rico, Inc., Wackenhut Jordan, Ltd.--a Joint Venture, B-299022; B-299022.2, January 23, 2007) (pdf)

Here, as discussed above, the solicitation defined the acceptable level of performance in terms of the maximum percent of defective work that will be allowed. RFP, Performance Work Statement, at 31. More specifically, the solicitation provided that “[l]aundry is clean, dry, free of lint and odor, spots and stains removed,” and that the acceptable level of deviation from this standard was limited to “5% per month.” Similarly, with regard to damaged items, the solicitation’s “Performance Standard” specified that, “[l]aundered items are not physically damaged due to improper processing or carelessness,” and that the acceptable deviation from this standard was limited to “2.5% per month.” RFP at 50-51. The agency concluded that, contrary to the solicitation’s specified requirements, Stewart’s proposal effectively provided that virtually every laundered item could permissibly contain holes and stains--provided the holes were limited in size and number to the alternative standards that Stewart identified, and provided the stains were similarly limited in size and number and/or were sufficiently “light.” Accordingly, the agency concluded that Stewart’s proposal did not offer to meet the solicitation’s stated performance requirements.  Stewart complains that the agency should have interpreted the quality standards identified in its proposal as applying only to the portion of items that the solicitation permitted to deviate from the stated requirements--that is, 5 percent per month with regard to stained items and 2.5 percent per month with regard to damaged items. However, nothing in its proposal advised the agency regarding this purported interpretation and intent to comply with the solicitation’s specified quality standards.  Here, Stewart’s inclusion of quality standards that conflicted with the solicitation’s stated standards--even if viewed in a light most favorable to Stewart--created an ambiguity regarding Stewart’s intention to comply with the RFP’s requirements. Since the agency selected Balfurd’s proposal for award without discussions, as contemplated by the solicitation, the agency properly rejected Stewart’s proposal as technically unacceptable for failure to clearly meet the solicitation’s stated requirements. On the record here, we have no basis to question the agency’s actions. (Stewart Distributors, B-298975, January 17, 2007) (pdf)

The agency’s rejection of GWI’s proposal was unobjectionable. DLA explains, citing Defense Federal Acquisition Regulation Supplement sect. 204.7201, that a CAGE code is a “contractor identification code” assigned to a contractor’s name and address, so as to avoid any confusion regarding the entity identified. Letter from DLA to GAO, Dec. 15, 2006, at 1. CAGE codes are assigned to discrete business entities for a variety of purposes (e.g., facility clearances and pre-award surveys) to dispositively establish the identity of a legal entity for contractual purposes. See Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 5. Here, the RFP included a CAGE code for Dana’s part that identified the manufacturing entity as “Dana Corp. Spicer Universal Joint Div.,” at an address in Holland, Ohio. The agency states, and GWI does not dispute, that GWI’s proposed parts were to be manufactured by [DELTED], not by Dana’s Spicer Universal Joint Division in Holland, Ohio, and Dana has advised the agency that it is not aware of any approved sites to manufacture this part outside the United States. Agency Motion to Dismiss, exh. 2, at 2. The agency advises that [DELETED] is not included under the specified CAGE code; as a foreign entity, it would be assigned a different code, specifically, a North Atlantic Treaty Organization commercial and government entity code. Thus, while GWI appears to be proposing the specified Dana part, the information subsequently developed by the agency indicates that the part would be manufactured by [DELETED] that was not contemplated by the agency’s source approval. We think this was a legitimate and reasonable basis for the agency’s action here, that is, rejecting GWI’s proposal as unacceptable.  (Gear Wizzard, Inc., B-298993, January 11, 2007)  (pdf)

The record here shows that Prudent failed to follow the detailed instructions set forth in section M of the RFP requesting experience information and explaining how that information would be reviewed. As set forth above, the RFP required offerors to provide sufficient information to establish that the offeror (or its key personnel, or its subcontractors) had relevant (“same or similar”) experience within the past 3 years; to make this showing, offerors were asked to identify up to five contracts for review by the agency. For these five contracts, offerors were to describe “the type and quantity of service provided, the value of those services, the contract award date, the contract completion date, and the name and title, address, telephone number, fax number, and email address (if available) of a person familiar with the offeror’s performance.” RFP at M-3. Although Prudent’s proposal broadly claims to meet the RFP’s experience requirements in a brief two-paragraph discussion titled "Experience and Past Performance," Agency Report (AR), Tab 7, at 15, there is no place in its proposal where it provides the information requested by the RFP so that HUD evaluators could verify for themselves whether the company meets the experience requirement. Specifically, there is also no place in the proposal where Prudent identifies five contracts for review by the agency; there is no description of any kind about the work performed; and there is no indication of when the relevant work might have occurred. At best, the proposal identifies seven entities as references--two for Prudent, and five others, one for each of five subcontractors--and provides for each a point of contact, mailing address, and telephone number. AR, Tab 7, at 18-19. In our view, given the detailed instructions in section M of the solicitation about the information the agency needed to make its assessment, these omissions alone provide a reasonable basis for the agency to conclude that the proposal was unacceptable. See, e.g., Interstate Gen. Gov’t Contractors, Inc., B-290137.2, June 21, 2002, 2002 CPD para. 105 at 5 (it is the responsibility of the offeror to provide sufficient information about the projects in its proposal to ensure they will be assessed as relevant). (Prudent Technologies, Inc., B-297425, January 5, 2006) (pdf)

Nothing in Marine Industries’ proposal establishes that a company can implement a QA system based on ISO 9001-2000 only as an upgrade to an existing QA system. Further, Marine Industries has provided no evidence that implementation of a plan based on ISO 9001-2000 necessarily implies the existence of a precursor plan, such that the agency should have evaluated the proposal based on such an assumption. Accordingly, because the protester failed to represent that its new QA plan would be in place by the time of contract award and failed to furnish any description of an already implemented QA plan, we think that the evaluators reasonably determined that it had failed to comply with the RFP requirement for a description of its company QA plan for certifying completed work. (Marine Industries NW, B-297207, December 2, 2005) (pdf)

A quotation that fails to conform to material terms and conditions of the solicitation should be considered unacceptable and may not form the basis for an award. CAMS Inc., B-292546, Oct. 14, 2003, 2003 CPD para. 191 at 2; L.S. Womack Inc., B-244245, Sept. 30, 1991, 91-2 CPD para. 309 at 2. Material terms of a solicitation are those which affect the price, quantity, quality, or delivery of the goods or services offered. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD para. 115 at 3. Here, Muddy Creek’s quotation altered several material terms of this solicitation. Specifically, Muddy Creek’s quotation altered the location of deliveries, limited the type of modified meals available, and added terms regarding the advance notice of the number of meals to be provided. Since Muddy Creek’s quotation failed to conform to material terms of the solicitation, the agency correctly deemed the quotation unacceptable. As a final matter, we recognize that certain conversations between Muddy Creek and Bureau employees may have led the company to expect that it would be awarded a sole-source contract, and that Muddy Creek apparently thought the RFQ here was that sole-source contract, and not a competitive solicitation. Once Muddy Creek received the RFQ, however, the protester’s continued expectation that it was receiving a sole-source contract was unreasonable. The solicitation indicated it was a request for quotations on its face, and it included a description of the basis for award, which listed the factors of past performance, ability to meet schedule, price, and responsiveness. Muddy Creek, therefore, should have realized the agency was not negotiating a sole-source contract, but was conducting a competition, and cannot now prevail in its protest that it was treated unreasonably when the agency rejected its quotation because of the changes Muddy Creek made to the material terms and conditions of the solicitation. (Muddy Creek Oil and Gas, Inc., B-296836, August 9, 2005) (pdf)

Before leaving this topic, we recognize that the agency and Titan argue that since this was a performance-based procurement the agency was evaluating technical solutions, not staffing levels. They also point out, correctly, that there was no requirement for any particular staffing approach, and that this means the changes made by Titan in response to the reopened competition should not be seen as affecting the nature of Titan's performance-based offer. We cannot agree with this assertion. The solicitation's evaluation scheme contained a management/technical evaluation factor which was supposed to include a review of the evidence of an offeror's technical proficiency. RFP amend. 3, at 6. In addition the final memorandum of the source selection evaluation board (SSEB)--which was based on Titan's earlier technical proposal, since revised technical proposals were not submitted here--expressed the view that Titan's approach allowed "[reduced] staffing levels in the out years while maintaining a highly skilled technical staff." AR, Tab 23, at 25. Given the changes Titan made to the mix of technical staff in its final FRP, we are not sure this observation remains valid for this proposal. In our view, the situation here is similar to the situation we encountered in DynaLantic Corp. , supra . In DynaLantic , after originally making award, but then finding it necessary to terminate that contract for default, an agency requested an additional round of best and final offers (BAFO) from the remaining offerors, limiting them to price and delivery schedule revisions. The successful offeror in the recompetition included in its revised BAFO a list of six changes which allowed it to reduce its earlier price by 48 percent. In our decision, we concluded that the awardee's reduced price, in fact, reflected changes to its technical proposal, contrary to the ground rules established for the submission of revised BAFOs. Here, we think Titan has essentially done the same thing. In changing the staffing mix of labor categories overall, and in offering a completely different staffing approach for off-site work, Titan did not follow the ground rules set by the agency in this reopened competition. As a result, offerors that followed the agency's instructions were placed at a disadvantage, and did not have the same opportunity to achieve the price reduction Titan was able to achieve. (Resource Consultants, Inc., B-293073.3; B-293073.5; B-293073.6, June 2, 2004) (pdf)

Gold Cross next asserts that the agency improperly eliminated its quotation from the competition based on price alone, without considering the high quality of its technical submission. This argument is without merit. While the RFQ provided for a best value evaluation based on comparative technical and price considerations, the agency also was required to consider whether the protester's quoted price was too high in an absolute sense. In this regard, before awarding a fixed-price contract, an agency is required to determine that the price offered is fair and reasonable. Federal Acquisition Regulation (FAR) 15.402(a). Here, the agency states that it rejected Gold Cross's quotation pursuant to the contracting officer's determination that the quoted price was so high that award to the firm would not be in the public interest, no matter the quality of its technical submission. Contracting Officer's Statement of Facts at 2. This was tantamount to finding that Gold Cross's price was unreasonably high. A price reasonableness determination may be based on various price analysis techniques, including comparison of prices received among themselves and to an independent government estimate (IGE). FAR 15.4041(b)(2). A price reasonableness determination is a matter of administrative discretion that we will question only where it is clearly unreasonable or there is a showing of bad faith or fraud. The Right One Co. , B-290751.8, Dec. 9, 2002, 2002 CPD 214 at 5. The contracting officer considered the prices received and the IGE, and concluded that Gold Cross's price was so high--approximately 20 times the awardee's price, 8 times the third vendor's price, and 10 times the IGE--that award could not be made to the firm. Given this great disparity in pricing, there was nothing improper in the contracting officer's determining that Gold Cross's price was unreasonable and eliminating it from the competition on this basis. See , e.g. , Rhimco Indus., Inc. , B-247600, June 8, 1992, 92 CPD 499 at 2 (a price 42 percent higher than government estimate constitutes an unreasonable price). Since Gold Cross could not receive the award due to its unreasonable price, the results of any technical evaluation the agency may have subsequently performed were immaterial; even if Gold Cross's technical submission received the highest possible rating, it could not receive the award due to its unreasonable price. Consequently, there was nothing improper in the agency's failure to evaluate Gold Cross's technical submission.  (Gold Cross Safety Corporation, B-296099, June 13, 2005) (pdf)

In proposing a keyboard that has 107 keys, ITG's proposal failed to meet the mandatory requirement of the solicitation that the keyboard have 104 keys, and therefore could not be accepted for award. See White Storage & Retrieval Sys., Inc. , B-250245, Jan. 19, 1993, 93-1 CPD 70 at 3. Although the agency assigned ITG's proposal a rating of acceptable under this factor, the record shows that the agency recognized the proposal's non-compliance with this solicitation requirement in eliminating its proposal from the competitive range.  (Integration Technologies Group, Inc., B-295958; B-295958.2, May 13, 2005) (pdf)

We turn then to the protester's argument that it included a pricing contingency in its proposal and deviated from the required delivery schedule based on its understanding that the Navy was seeking an improved CNVD, and that it would have offered a lesser quality system without the pricing contingency and delivery schedule deviation if it had been apprised that the Navy was willing to consider systems that were not an improvement over its "baseline" CNVD. [8] While the protester contends that "[i]n order to exceed the performance of the Baseline unit, OSTI was required to incorporate an expensive high-performance image intensifier into its device whose cost and delivery could not be guaranteed by the manufacturer," the solicitation did not require the protester to incorporate the particular tube in question into its product. The protester elected to do so itself. Moreover, even assuming for the sake of argument that the RFP had required this particular tube and that the supplier of the tube would not guarantee its price, this did not require the protester to pass any risk of a price increase on to the government. Solicitations frequently require offerors to bear pricing risks, and the bottom line is that where an RFP requires fixed prices and a proposal does not offer fixed prices, the proposal as submitted cannot be considered for award. Georgetown University--Recon. , B-249365.3, June 7, 1993, 93-1 CPD 434 at 5. Similarly, award generally cannot be made on the basis of a proposal that takes exception to a required delivery schedule. American Fuel Cell & Coated Fabrics Co. , B-293020, Jan. 12, 2004, 2004 CPD 13 at 5. (Optical Systems Technology, Inc., B-292743.2, November 12, 2004) (pdf)

The agency reasonably rejected TJLs proposal as unacceptable. One of the factors for which TJLs proposal received a no go rating was experience building castinplace concrete structures, under which offerors were to provide documentation of at least two projects, with no time frame limits, that demonstrate experience building cast-in-place concrete structures. RFP at 21. In response to this requirement, TJLs proposal stated only that [TJL] does not self perform the actual cast in place concrete. However, TJL does perform the excavation and backfill for the subcontractor for this work. TJL Proposal, Vol.1,3.7. The proposal made no mention of projects--performed by TJL or a subcontractor--involving castin-place concrete structures, and did not include any other information--such as the name of the subcontractor with which it previously had performed--that might give the agency further guidance in evaluating the protesters experience in this area. Given TJLs manifest failure to present the required information establishing that it possessed the required experience, the agencys no go rating was reasonable.  (T. J. Lambrecht Construction, Inc., B-294425, September 14, 2004) (pdf)

Here, SuccessTech’s proposal failed to meet a material RFP requirement, and therefore was unacceptable. A firm delivery or service commencement date set forth in a solicitation is a material requirement, precluding acceptance of any proposal not offering to meet that date. Hawaiian Tel. Co., B-187871, May 2, 1977, 77‑1 CPD ¶ 298 at 9. In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for an award. Plessey Elec. Sys. Corp., B‑236494, Sept. 11, 1989, 89-2 CPD ¶ 226 at 2; Telenet Communications Corp., B‑224561, Feb. 18, 1987, 87‑1 CPD ¶ 181 at 3. The RFP stated that the performance period (contract term) “shall be for a period of 12 months commencing or within 15 days after notice/date of award.” RFP § F.2. The RFP’s statement of work provided that within “15 calendar days after award, the Contractor shall begin work for the Contract period.” RFP § C.9.b. SuccessTech’s initial startup plan did not include any identifiable time frames or schedule. When permitted to supplement its plan in discussions, SuccessTech stated that it assumed “at least thirty days advanced notice of contract award” and provided a 30‑day transition schedule leading up to a start date when transition was to be completed and the firm would “assume all duties.” Protest attach. 9, at 2-3. Since SuccessTech’s plan did not call for contract performance to begin within the required 15 days of award, it could not be accepted for award. (SuccessTech Management & Services, B-294174, July 6, 2004) (pdf)

The Federal Acquisition Regulation (FAR) authorizes the contracting officer to exclude proposals from the competitive range that are not among the “most highly rated.” FAR § 15.306(c)(1). Further, an agency is not generally required to include a proposal in the competitive range when, in order to be selected for award, the offeror would have to essentially rewrite its entire proposal. See, e.g., Source AV, Inc., B-234521, June 20, 1989, 89-1 CPD ¶ 578. Finally, agencies are not required to retain a proposal in the competitive range simply to avoid a competitive range of one, since conducting discussions and requesting final revised proposals from offerors with no reasonable chance of award would benefit neither the offerors nor the government. SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD ¶ 59 at 5. (Fiserv NCSI, Inc., B-293005, January 15, 2004 (pdf)

As indicated above, SOCOM relied upon the tests performed by an ISO-certified and accredited laboratory testing facility to conclude that USIA's material did not meet the abrasion requirement. SOCOM explains that testing of USIA's material was performed by one of Natick's evaluators, who has a 4-year degree in textile technology and over 15 years of experience in performing the test. Although USIA has presented test results purportedly performed by Thor-Tex's manufacturer showing compliance with the abrasion requirement, the submitted documentation is not on its face designated as a test by the manufacturer and does not identify the product number of the tested material, and does not reflect that the tests were performed by an ISO‑certified and accredited laboratory facility. Thus, the protester has provided no basis to question the independent tests of the ISO-certified facility. While USIA argues that the varying test results suggest that the agency may have mishandled the storage and/or rushed the testing of the fabric, we find no credible evidence of mishandling or improper testing by this ISO‑certified facility, to which the offerors directly delivered their samples. Given the test results, we find that the agency properly eliminated USIA's proposal from the competition prior to the full technical proposal evaluation.  (USIA Underwater Equipment Sales Corporation, B-292827.2, January 30, 2004) (pdf)

DSCC’s argument does not address the problem with Flinchbaugh’s quotation. To be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Fox Dev. Corp., 287118.2, Aug. 3, 2001, 2001 CPD ¶ 140 at 2. Here, although it is true that the RFQ did not expressly preclude the possibility of subcontracting the packaging, Flinchbaugh’s quotation provided for both the inspection and acceptance at the packaging facility, instead of at the actual manufacturing facility as required by the provisions in section B. The fact that the solicitation allows multiple inspection points does not mean that acceptance can be anywhere but at the manufacturing facility, as required by the RFQ. There is only one “final acceptance” under a contract for supplies. That is, acceptance is acknowledgment by the agency that the supplies conform with applicable contract quality and quantity requirements, and title to supplies passes to the government upon formal acceptance, regardless of when or where the government takes physical possession; this is the point where the government obtains title to the supplies and assumes the risk of loss. See FAR §§ 46.501, 46.505. Accordingly, compliance with the requirement that acceptance be at the manufacturing facility was a material term, which Flinchbaugh’s quotation did not satisfy; thus, an order could not be issued based on Flinchbaugh’s quotation. See Rel-Tek Sys., & Design, Inc., supra; Scientific-Atlanta, Inc., B-255343.2,B-255343.4, Mar. 14, 1994, 94-1 CPD ¶ 325 at 9.  (CAMS Inc., B-292546, October 14, 2003) (pdf)

By placing language in its proposal which stated that providing the required capacity was subject to availability, Americom made both its technical offer and its fixed pricing contingent, in response to a solicitation which required fixed prices for the specific proposed technical solution. This is an impermissible deviation from a material RFP term that renders the proposal unacceptable and ineligible to form the basis for award. SWR, Inc., B-284075, B-284075.2, Feb. 16, 2000, 2000 CPD ¶ 43 at 6-7; Beckman Coulter, B-281030, B-281030.2, Dec. 21, 1998, 99-1 CPD ¶ 9 at 6. Americom’s protest characterization of this contingency as standard language that it was willing to remove from its proposal is without consequence or legal effect. This impermissible contingency rendered Americom’s proposal technically unacceptable and properly subject to elimination from the competitive range; an agency is under no obligation to conduct discussions with an offer to permit it to cure the noncompliance which provided the basis for the proposal’s exclusion. SOS Interpreting, Ltd., B-287505, June 12, 2001, 2001 CPD ¶ 104 at 12.  (Americom Government Services, Inc., B-292242, August 1, 2003) (pdf)

It is true that Anteon's proposal did not satisfy the minimum water depth requirement so that the agency essentially waived the requirement when it concluded that the 1-inch shortfall was acceptable. Nevertheless, we find no prejudice to the protester in the agency's actions, as the water depth shortfall was reasonably determined to be “negligible” and the protester has not shown how it would have altered its proposal to improve its competitive standing had it been given an opportunity to respond to the relaxed requirements. Absent prejudice to the protester, we deny this ground of protest. See 4-D Neuroimaging, B-286155.2, B‑286155.3, Oct. 10, 2001, 2001 CPD ¶ 183 at 10-11; see also Magnaflux Corp., B‑211914, Dec. 20, 1983, 84-1 CPD ¶ 4 at 3-4 (agency permitted to waive deviation from specification which was minor and did not result in prejudice). (Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003)  (pdf)

An agency is not required to include an offeror in the competitive range when the proposal, to be acceptable, would have to be revised to such an extent that it would be tantamount to a new proposal. Source AV, Inc., B-234521, June 20, 1989, 89-1 CPD ¶ 578. Even where individual deficiencies may be susceptible to correction through discussions, the aggregate of many such deficiencies may preclude an agency from making an intelligent evaluation, and the agency is not required to give the offeror an opportunity to rewrite its proposal. Ensign-Bickford Co., B-211790, Apr. 18, 1984, 84-1 CPD ¶ 439. Accordingly, on the basis of the record here, we find no basis to question the agency's exclusion of Austin's proposal from the competitive range.  (The Austin Company, B-291482, January 7, 2003)  (txt version)

While exclusion of technically unacceptable proposals is frequently permissible, it is not generally required. More specifically, the significance of the weaknesses and/or deficiencies in an offeror's proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment.  (Albert Moving & Storage, B-290733; B-290733.2, September 23, 2002)  (txt version)

We conclude that the agency reasonably rejected CSWI's proposal. As quoted above, in describing its proposed program/project manager, CSWI duplicated the narrative from the RFP for the contract manager position and inserted a per-hour ceiling labor rate. It is this duplication of contract manager requirements, plus the insertion of an hourly rate, that caused CSWI's proposal to be considered, at best, ambiguous with respect to whether the firm intends to provide contract management services at no direct cost to the government in accordance with the terms of the RFP or whether the firm intends to charge an hourly rate as contained on page B-69 of its proposal for the required management services. On this record, where CSWI's intentions are not clear and unambiguous from the face of its proposal in terms of providing contract management services at no direct cost to the government, we have no basis to question the reasonableness of the agency's rejection of the firm's proposal.  (Consolidated Services Worldwide, Inc., B-290751.7, October 21, 2002)  (pdf)

Further, although SHBS's proposal identifies more than 20 architects and engineers and includes their resumes and professional certificates, it fails to specify which of these personnel will be used to perform the rapid response design work.  Based on SHBS's failure to indicate which of its professional personnel would perform the design work, the agency reasonably concluded that its proposal was weak under the technical capability subfactor.

It was incumbent on the protester to provide adequate information, beyond mere promises to hire qualified subcontractors when the need arises, to permit the agency to evaluate the firm's capability under this element. See DynCorp Int'l LLC, B‑289863, B‑289863.2, May 13, 2002, 2002 CPD P: 83 at 9. Given SHBS's failure to provide the required information, the agency reasonably concluded that its proposal was weak in this area.  (Sayed Hamid Behbehani & Sons, WLL, B-288818.6, September 9, 2002)  

Our Office has found no reason to question similar cascading set-aside preference provisions used by HUD for certain real estate services. HUD has explained that such an approach promotes the interests of small business concerns and also provides the agency with an efficient means to continue the procurement in the event that sufficient small business participation is not realized. HUD explains that the cascading set-aside approach was formulated in conjunction with, and has been endorsed by, the SBA. See The Urban Group, Inc.; McSwain and Assocs., Inc., B-281352, B-281353, Jan. 28, 1999, 99-1 CPD ¶ 25 at 7. The cascading set-aside preference provision used in the RFP here reasonably put large businesses on notice that, if the agency receives a sufficient number of eligible small business offers, large business proposals received simply would not be considered for award. See id. As such, the cascading set-aside preference terms establish, at best, only a potential for participation of large businesses in the competition for award.  (Carriage Abstract, Inc., B-290676; B-290676.2, August 15, 2002) (pdf)

The Navy reasonably determined that G&M's management plan consisted largely of conclusory statements and lacked supporting documentation.  For example, while acknowledging that its proposal did not expressly address the management of subcontractors, G&M contends that its proposal did specify having an International Organization for Standardization (ISO) 9000 quality program, which includes a subcontractor management program.  Notwithstanding this claim (which itself was unsupported), it was G&M's responsibility to demonstrate in its proposal how it intended to successfully accomplish and manage all PWS requirements; it was not the agency's obligation during the evaluation process to fill in the gaps or to perform a “leap of faith.”  Since G&M had the burden of submitting an adequately written proposal, yet failed to do so, we have no basis to question the reasonableness of the agency's evaluation.  Quality Elevator Co., Inc., B-271899, Aug. 28, 1996, 96-2 CPD ¶ 89 at 4.  (G&M Industries, B-290354, July 17, 2002)

Our analysis begins with the premise that an offeror may elect not to charge for a certain item and if it indicates a commitment to furnish the item in question, for example, by inserting "$0" in its proposal, its proposal is compliant. GTSI Corp., B-286979, Mar. 22, 2001, 2001 CPD ¶ 55 at 6; Integrated Protection Sys., Inc., B-229985, Jan. 29, 1988, 88-1 CPD ¶ 92 at 2. Here, while under the terms of the RFP, offerors were requested to insert a "service fee" for each period of performance, the RFP did not prohibit a firm from proposing a fee of zero, or even a negative fee, and such a fee was not inconsistent with the terms of the RFP. Under N&N's pricing scheme, where the firm inserted on the RFP schedule a service fee of "$zero" for the base period and a fee of zero plus an incentive (discount fees/rebates) for the option periods, the firm committed to provide the required services for no cost to the government in any of the performance periods. N&N did not take exception to the RFP requirement to identify its proposed service fees; rather, N&N elected not to charge the agency for providing the required services in any of the performance periods, plus it proposed discount fees/rebates in the option periods. We have no basis to object to N&N's pricing scheme.  (SatoTravel, B-287655, July 5, 2001)

The agency maintains that there was no difference between Petchem's initial proposal and its final proposal revision in terms of the firm's commitment to satisfy the RFP's transit speed requirement, especially since under the predecessor contract, Petchem's vessel was required to satisfy the same transit speed requirement. Memorandum from CO to GAO (Mar. 8, 2001). The agency notes that the reference to "@ 80%" in Petchem's initial proposal had been inserted by hand to the vessel characteristic sheet completed by Petchem for the "Christine S"; the agency viewed the failure of Petchem to add that handwritten notation to the same sheet in its final proposal revision and the failure of the agency to include "@ 80% rated horsepower" in Petchem's contract as clerical errors.  Here, there is no dispute that the RFP's minimum transit speed requirement, as quoted above, was material. Although Petchem stated in its initial proposal that its proposed vessel would meet this material requirement, in its final proposal revision, Petchem did not state that its proposed vessel would transit at 9 knots in moderate weather "@ 80% rated horsepower." Since Petchem's final proposal revision did not satisfy the RFP's minimum transit speed requirement, the agency's acceptance of the firm's proposal meant that the agency waived this requirement for Petchem. The award to Petchem on the basis of its nonconforming proposal was improper.  (Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001)

Here, it is undisputed that the solicitation specifically mandated submission of a letter of intent for any proposed project manager who was not employed by the offeror at the time the proposal was submitted. Further the solicitation identified the project manager as the only "key personnel," and described the role of the project manager as "essential to the work to be performed." RFP at 20. Clearly, in light of the essential nature of this position, submission of the required assurance that a non-employee proposed as project manager would, in fact, be available to serve as such constituted a material solicitation requirement. Indeed, Triumph's ultimate inability to provide the sole "key personnel" it proposed, and on which its proposal was evaluated, demonstrates the significance of this requirement. Accordingly, Triumph's failure to comply with this requirement rendered its proposal technically unacceptable and, thus, could not form a valid basis for contract award.  (Special Operations Group, Inc., B-287013; B-287013.2, March 30, 2001)

Where an offeror proposes a particular individual for a key position with the intention of removing that individual from the position after an unspecified transition period under the contract, and the agency relies on the offeror's representation that the individual will be performing the work in evaluating its proposal, the agency reasonably rejected the proposal once the agency learned of the offeror's actual intent.  (S. C. Myers & Associates, Inc., B-286297, December 20, 2000)

Agency reasonably rejected as technically unacceptable a proposal that was noncompliant with material solicitation requirements that proposed service engineers possess current training certifications issued by specified equipment manufacturers.  (Techseco, Inc., B-284949, June 19, 2000)

Agency's rejection of the protester's proposal on a construction project as technically unacceptable is unobjectionable where the proposal's project schedule failed to address demobilization, which was reasonably considered to be a material solicitation requirement; the fact that neither the protester's nor the awardee's proposals addressed final inspection does not render the agency's rejection improper, because final inspection was the agency's responsibility, so that the offerors' failure to address this item was immaterial.  (Encorp-Samcrete Joint Venture, B-284171; B-284171.2, March 2, 2000)

Any proposal that does not conform to material terms and conditions of the RFP should be considered unacceptable and may not form the basis for an award. Integrated Sys. Group, B-272336, B-272336.2, Sept. 27, 1996, 96-2 CPD para. 144 at 6. When an agency relaxes its requirements, either before or after receipt of proposals, it must issue a written amendment to notify all offerors of the changed requirements. CNA Indus. Eng'g, Inc., supra, at 4. We will sustain a protest where an agency, without issuing a written amendment, relaxes an RFP specification to the protester's possible prejudice (e.g., where the protester might have altered its proposal to its competitive advantage had it been allowed to respond to the relaxed requirements). Id.  (SWR, Inc., B-284075; B-284075.2, February 16, 2000)

In a negotiated procurement, a proposal that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. See International Sales Ltd., B-253646, Sept. 7, 1993, 93-2 CPD para. 146 at 2. Here, the record shows that the protester clearly took exception to material solicitation requirements, thus rendering its proposal technically unacceptable.  (Wellco Enterprises, Inc., B-282150, June 4, 1999)

The record indicates that the agency established the competitive range on the basis that the three proposals included in the competitive range were considered the most highly rated proposals and that Spectrum's proposal was evaluated as unacceptable and therefore not among the most highly rated proposals. The record shows that at the time of this evaluation, the TET determined a variety of areas in Spectrum's proposal that were unacceptable primarily because of perceived manning shortages. The agency now admits that its evaluation of Spectrum's proposal that served as the basis for the competitive range determination was defective because several of concurrently stated reasons for finding Spectrum's proposal unacceptable were unsupported, and that only the security aspect of Spectrum's proposal is now regarded as unacceptable. None of the proposals included in the competitive range was found to be technically acceptable, but all were rated susceptible of being made acceptable (the same rating that was initially assigned to Spectrum's proposal). Thus, we cannot find from this record that Spectrum would not have been among the most highly rated proposals on the procurement, which contemplated award to the low-priced acceptable offeror.  (Spectrum Sciences & Software, B-280700, November 9, 1998)

Based on our review, we agree with the protester that the three deficiencies in Nations' proposal cited by the agency for its elimination from the competitive range did not provide a reasonable basis to reject Nations' proposal, as they were either the result of misevaluation, or readily correctable, or similar to features in the competitive range proposals. Furthermore, although, as noted, the agency states that Nations' deficiency under the staffing sub-subfactor was less important than the other deficiencies, we find that the contracting officer could not reasonably conclude that Pulau's staffing approach was better justified and more detailed than Nations' as the stated basis for distinguishing the two proposals.  (Nations, Inc., B-280048, August 24, 1998)

E. Materiality of Deficiencies

It is well-established that “‘a proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 (Fed. Cir. 2009) (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996)). Further, “[t]o be acceptable, a proposal must represent an offer to provide the exact thing called for in the request for proposals, so that acceptance of the proposal will bind the contractor in accordance with the material terms and conditions of the request for proposals.” Centech, 554 F.3d at 1037.

As described above, the Court has upheld the TEP’s findings as to three of the four inconsistencies it identified between Prescient’s proposal and the terms of the solicitation. Prescient contends, however, that there is nothing in the record that reflects HUD’s consideration of whether Prescient’s failures to meet the requirements of the solicitation were “material” ones. Pl.’s Mem. at 32. It further argues that even assuming that its proposal was inconsistent with the solicitation in one or more of the respects identified in the TEP report, the inconsistencies “whether taken individually or collectively, are not material and should not be the basis for a determination of technically unacceptable.” Id.

Prescient’s arguments lack merit. As noted, the TEP rated Prescient’s technical proposal unacceptable. Under the solicitation, a finding of technical unacceptability means that the proposal contained deficiencies. A “deficiency” is defined, in pertinent part, as “a material failure of a proposal to meet a Government requirement.” AR Tab 2H at 656. In its report, the TEP specified and discussed each of the four deficiencies that formed the bases for the unacceptable rating. AR Tab 9A at 4407–08. Thus, the TEP’s conclusion that Prescient’s proposal was unacceptable was necessarily also a conclusion that the inconsistencies it identified constituted material failures to meet the requirements of the solicitation. In that regard, the Court notes that a separate discussion of materiality is not required because the TEP’s path of reasoning can be discerned from its report considered in the context of the solicitation’s requirements. See State Farm, 463 U.S. at 43 (court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”) (quoting Bowman, 419 U.S. at 286).

Further, the TEP’s conclusion that Prescient’s proposal materially failed to meet the terms of the solicitation is supported by the record. “A solicitation term is material where it has more than a negligible impact on the price, quantity, quality, or delivery of the subject of the bid.” Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 505 (2009) (citations omitted). By contrast, “[d]e minimis errors are those that are so insignificant when considered against the solicitation as a whole that they can safely be ignored and the main purposes of the contemplated contract will not be affected if they are.” Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996); see also E.W. Bliss, 77 F.3d at 448–49 (observing that “[w]here a defect in a bid is trivial or a mere formality, not material, the bid is not required to be rejected out of hand”) (quoting M.W. Kellogg Co./ Siciliana Appalti Costruzioni v. United States, 10 Cl. Ct. 17, 26 (1986)).

In this case, each of the three inconsistencies that the Court has concluded the TEP reasonably identified constitutes a failure to comply with a material term of the solicitation.

Thus, the failure to seek GTR approval before conducting a second appraisal implicates one of the “five primary objectives” for asset managers—specifically, the objective that requires them to “ensure that properties are accurately and competitively valued.” See AR Tab 2H at 494–95. The proposal’s reduction in the length of the exclusive listing period for insured with escrow properties, within which owner occupants, among other select prospective purchasers can bid on the properties, implicated another of the five primary objectives—ensuring that “sales create owner occupant opportunities.” See id. It also frustrated agency policy by reducing the window within which certain non-profit organizations and governmental entities might take advantage of the discounts available to them during the exclusive listing period. See id. at 530. The reduction in the lottery period similarly subverts HUD’s goal of offering certain types of properties to eligible persons at a discount under its “Good Neighbor Next Door” program. Id. at 529.

Further, it was not the responsibility of the agency to sift through Prescient’s proposal and piece together a compliant offer. Rather, “[i]t is well established that all offerors . . . are expected to demonstrate their capabilities in their proposals.” Software Eng’g Servs., Corp. v. United States, 85 Fed. Cl. 547, 555 (2009) (quoting Int’l Res. Recovery, Inc. v. United States, 60 Fed. Cl. 1, 6 (2004)). “Undoubtedly, an offeror carries the burden of presenting ‘an adequately written proposal, and an offeror’s mere disagreement with the agency’s judgment concerning the adequacy of the proposal is not sufficient to establish that the agency acted unreasonably.’” Westech Intern., Inc. v. United States, 79 Fed. Cl. 272, 296 (2007) (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). Indeed, under the solicitation at issue in this case, a proposal had to “clearly meet[] the requirements of the solicitation” in order to be rated technically acceptable. AR Tab 2H at 655.

In short, each of the terms of the solicitation with which Prescient failed to comply is directly related to the accomplishment of important agency objectives under the procurement. None of them involved “de minimis errors” that “can safely be ignored.” Further, the TEP’s conclusion that Prescient failed to clearly meet the requirements of the solicitation is amply supported by the record. Therefore, the Court finds that the TEP’s conclusion that Prescient’s proposal was technically unacceptable was neither arbitrary, capricious, nor contrary to law.  (Prescient, Inc. v. U. S. and Matt Martin Real Estate Management LLC, No. 16-109C, April 6, 2016)  (pdf)

Sentrillion contends that [United States Marshals Service’s] USMS erred in concluding that Sentrillion failed to satisfy the requirements for partnership agreements and business licenses. (sentence deleted)

The Requirement for Partnership Agreements

Sentrillion alleges that USMS improperly concluded that its teaming agreements did not meet the requirement for “evidence of a partnership” in the form of a “signed partnering agreement.” Pl.’s Mot. for Judgment on the AR (“Pl.’s Mot.”) 12-16. According to Sentrillion, the term “partnership agreement” or “partnering agreement” reasonably encompassed its agreements to negotiate subcontracting agreements if it were awarded the USMS contract. Id. at 14-15.

Sentrillion’s interpretation of the requirement is untenable. The solicitation asked for evidence of partnerships to provide services if an offeror partnered with other companies under the Business Licenses subfactor. AR Tab 3 at 8378. USMS’s May 7, 2013 discussion letters explained that to satisfy this requirement, offerors needed to provide “signed partnering agreements” at the time final proposals were submitted. AR Tab 53 at 73505; AR Tab 53a at 73506.2. This requirement was clear; it mandated actual agreements to provide services -- not preliminary agreements to negotiate that could later evaporate. AR Tab 53 at 73505; see also AR Tab 53a at 73506.2; cf. LaSalle Partners v. United States, 48 Fed. Cl. 797, 804-05 (2001) (finding that plaintiffs’ letter expressing an intent to form a joint venture upon being awarded the contract failed to meet the solicitation’s requirement for an “executed joint venture agreement”).

The indeterminate agreements to negotiate that Sentrillion proffered as “teaming agreements” are a far cry from “signed partnering agreements.” For example, Sentrillion’s teaming agreement with Diebold -- the proposed subcontractor on which Sentrillion most heavily relied -- stated that the parties would enter into “good faith negotiations with the intent of entering into a mutually acceptable subcontract agreement” if Sentrillion were awarded the contract. AR Tab 38c at 69794; see also id. at 69710-865. This agreement’s nonbinding nature was plain, providing: “if Sentrillion and Teaming Member cannot reach an agreement within said period for negotiation [60 days], Sentrillion shall be free to contract with another source.” Id. at 69794. The teaming agreements provided no assurance that team members would actually perform any services or that any particular subcontractor -- whose licenses or applications had been provided -- would carry out services in a given location.

Sentrillion also claims the Government’s interpretation of the “partnership agreement” requirement was arbitrary and capricious, arguing that agencies “routinely” permit offerors to submit teaming agreements. While Sentrillion characterizes its agreements as teaming agreements -- an undefined term in this procurement -- what constitutes an acceptable agreement depends on the solicitation’s stated requirements. Here, by offering agreements to negotiate, Sentrillion ignored the solicitation and discussion letter requirement for evidence of partnerships in the form of signed partnering agreements.   (Sentrillion Corporation v U. S. and Tyco Integrated Security, LLC, No. 13-636C, January 23, 2014)  (pdf)

On February 17, 2011, the Marine Corps issued Request for Quotation (“RFQ”) M67400- 11-T-0031 for items on a General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) contract.

(sections deleted)

The parties’ cross-motions for judgment on the administrative record primarily turn on the parties’ conflicting interpretations of the term “metal pop-up bed.” For the reasons stated earlier, the court has concluded that the solicitation unambiguously required a bed consisting of a metal bed platform with an associated lifting apparatus. In the alternative, if the solicitation was ambiguous, the ambiguity was latent.

It is blackletter law that a procuring agency may only accept an offer that conforms to the material terms of the solicitation. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (“To be acceptable, a proposal must represent an offer to provide the exact thing called for in the request for proposals, so that acceptance of the proposal will bind the contractor in accordance with the material terms and conditions of the request for proposals.” (citing E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996))). “[A] contract award based on [a materially nonconforming] proposal violates the procurement statutes and regulations.” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1329 (Fed. Cir. 2011) (quoting E.W. Bliss, 77 F.3d at 448). A solicitation term is “material” if failure to comply with it would have a nonnegligible effect on the price, quantity, quality, or delivery of the supply or service being procured. USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 457 (2010) (citing Centech Grp., 554 F.3d at 1038).

Here, the solicitation unambiguously required a metal pop-up bed, which DCI did not offer. This specification was a material term because it had a non-negligible effect on the price of the beds. Thurston offers beds with either wooden platforms or metal platforms on its GSA schedule contract. First Gittinger Decl. ¶¶ 6, 8. The price of its metal models is $[***] more per unit than the price of the wooden ones. Id. ¶ 8. If the agency had properly articulated a desire for 364 wooden pop-up beds, Thurston mathematically might have lowered its quote by over $[***]. This price discrepancy is hardly negligible, considering that DCI’s winning bid was $[***] and it beat Thurston’s offer by a mere $[***]. Because DCI failed to comply with a material term of the solicitation, the agency could not legally accept it.

Even if the requirement for a metal pop-up bed were a latent ambiguity, the government would be in no better a position. Under the principle of contra proferentem, a latent ambiguity in a solicitation will be construed against the government. See Metropolitan Van & Storage, Inc. v. United States, 92 Fed. Cl. 232, 267 (2010) (“[I]f [the agency] did not craft the solicitation as artfully as it should have, [the agency] will be responsible for the resulting impact on the procurement.”); see also Linc Gov’t Servs., 96 Fed. Cl. at 708-09 (noting that contra proferentem is applicable in solicitations “if there is a genuine [latent] ambiguity that remains unresolved,” id. at 709); Rotech Healthcare, 71 Fed. Cl. at 406 (“If, as the government suggests, some portions of [the solicitation] conflicted with one another, . . . the conflict created, at best, a latent ambiguity which must be construed against the government, as drafter, under the principle of contra proferentem.” (citing Turner Constr. Co. v. United States, 367 F.3d 1319, 1321 (Fed. Cir. 2004))). In short, the Marine Corps must bear the consequences of incorporating the term “metal pop-up beds” in the solicitation. Cf. Metropolitan Van, 92 Fed. Cl. at 267-68 (finding that the government acted illegally in accepting awardee’s proposal since it did not comply with a reasonable interpretation of a latently ambiguous solicitation term).

The government argues that, even if the solicitation did require a metal bed platform, the agency was justified in relying on DCI’s statement that its “offering will conform to the specifications in every way.” AR N-147. This contention is based on the Federal Circuit’s ruling in Allied Technology Group, 649 F.3d 1320. In that case, the court held that “[w]here an offeror has certified that it meets the technical requirements of a proposal, the [c]ontracting [o]fficer is entitled to rely on such certification in determining whether to accept [its] bid.” Id. at 1330 (citing Centech Grp., 554 F.3d at 1039). If the offeror’s certification turns out to be erroneous, the defect is addressed as a matter of contract administration rather than in a bid protest. Id. (citing Centech Grp., 554 F.3d at 1039). In short, if the agency accepts a proposal based on a misleading representation, the dispute is solely between the agency and the awardee. See Spectrum Sys., Inc., B-401130, 2009 CPD ¶ 110, at 3, 2009 WL 1325352, at *2 (Comp. Gen. May 13, 2009). An exception to this rule arises where the offeror’s proposal contains other information that should lead the agency to conclude that the offeror’s certification was inaccurate. Allied Tech. Grp., 649 F.3d at 1330. Under those circumstances, the protestor can argue that the agency contravened procurement laws in accepting the offeror’s nonconforming proposal. Id. at 1330-31.

The government argues that, under the rule laid out in Allied Technology Group, the Marine Corps was entitled to rely on DCI’s representation that its offering was compliant. This argument fails in two respects. First, the contracting officials’ own affidavits demonstrate that they were not misled by DCI’s statement into believing that the proposal offered a conforming product, i.e., a metal pop-up bed. When the agency officials evaluated DCI’s proposals, they had no illusions about what was being offered: a pop-top bed with a wooden platform. See Higa Decl. ¶ 5 (“[T]he evaluation was conducted in a manner consistent with . . . the [g]overnment’s specifications for the [p]op [t]op [b]ed being made of wood with metal pn[eu]matic rams or shock absorbers.” (emphasis added)); Redfearn Decl. ¶ 10 (“The only metal parts required for the pop top beds are . . . pneumatic rams or shock absorbers and metal powder coated gang lock.”); id. ¶ 7 (“[T]he pop top beds manufactured by DCI meet all the [g]overnment’s requirements and performance standards as stated in the Statement of Work.”). Because the agency did not “rely on [DCI’s representation] in determining whether to accept [its] bid,” Allied Tech. Grp., 649 F.3d at 1330, Thurston can raise the issue in its bid protest.

Second, even if the instant case did fit within the boundaries of Allied Technology Group, the government’s argument would still fail because other portions of DCI’s proposal indicated that the company was offering a wooden bed platform. “Where a proposal, on its face, should lead an agency to the conclusion that an offeror could not and would not comply” with a specification, that noncompliance is properly the subject of a bid protest. Allied Tech. Grp., 649 F.3d at 1330 (quoting Centech Grp., 554 F.3d at 1039). Here, there was “significant countervailing evidence” within DCI’s proposal that DCI was not compliant with the requirement for a metal pop-up bed. Cf. Spectrum, 2009 WL 1325352, at *2. On the very same page in which DCI described its pop-top bed the company wrote that “[a]ll items are constructed of solid OAK and finished accordingly.” AR N-148. This statement alone should have raised the question of whether the bed platform was made of metal. Moreover, nothing in DCI’s description of its proffered pop-top bed, i.e., DCI’s entire sleeping unit, would allay this concern. See AR N-148 to -149. The specifications for DCI’s bed do not mention the word “metal” once. See id. The only indication that DCI was offering a metal pop-up bed is the generic representation that its “offering will conform to the specifications in every way.” AR N-147. The agency was faced with contradictory statements: that all of DCI’s furniture was made of oak, and that its offer satisfied the specification for a metal pop-up bed.20 Under the circumstances, it was arbitrary and capricious for the agency to accept either of these claims as correct without further inquiry.  (Furniture by Thurston v. U. S. and DCI, Inc., No. 11-663, February 23, 2012)  (pdf)

A. Was ADCI’s Proposal Ineligible for Award?

Global contends that ADCI’s bid was noncompliant with the requirements of the RFQ. Pl.’s Mem. at 2. Plaintiff correctly cites the principle that award to a bidder whose proposal is materially noncompliant with a solicitation’s requirements is improper. See E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (noting that “a proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations” (internal quotations and citations omitted)). But the test for noncompliance is generally a test of facial noncompliance, not a test as to whether the subjective, undisclosed intent of an offeror is noncompliant with the solicitation’s requirements. See id. at 449 (upholding a contract award because the protestor did not show that the government “acted arbitrarily and capriciously in awarding the contract on the basis of its belief that [the awardee’s] proposal included a [required item]”).

There was no requirement in the solicitation that ADCI note or describe its contemplated LESO, and ADCI chose not to do so. If, as it now appears, ADCI priced its bid assuming that the Coast Guard would allow it to use Telecom Italia as a LESO, that assumption was not apparent on the face of its bid. ADCI’s compliance with the requirement that Stratos remain the LESO for the cutters’ INMARSAT communications is a matter of contract administration, or contractor responsibility, not a matter of the responsiveness of ADCI’s bid. See SecureNet Co. v. United States, 72 Fed. Cl. 800, 810 (2006) (noting that when a contractor’s “violation of [a contract requirement] would not be apparent until actual contract performance,” the government had no duty to evaluate whether the contractor’s proposal had taken exception to that requirement); see also Radio TV Reports, Inc., B-192958, 79-2 CPD ¶ 27 (Comp. Gen. July 12, 1979) (denying protest despite post-award allegations that the awardee did not intend to perform contract as stated in its bid, because such concerns relate to the contractor’s responsibility, not to the responsiveness of the bid); E. Brokers, Inc. & Jan Pro Corp., B-193774, 79-1 CPD ¶ 75 (Comp. Gen. Jan. 31, 1979) (denying protest despite allegations of a below cost winning bid and concerns that the awardee’s contract performance would be substandard, because these issues relate to the contractor’s responsibility or contract administration, not to the responsiveness of the winning bid). As the Government Accountability Office (GAO) has stated:

We [the GAO] have held on numerous occasions that the test to be applied in determining the responsiveness of a bid is whether the bid as submitted is an offer to perform, without exception, the exact thing called for in the invitation, and upon acceptance will bind the contractor to perform in accordance with all the terms and conditions thereof. Unless something on the face of the bid, or specifically a part thereof, either limits, reduces or modifies the obligation of the prospective contractor to perform in accordance with the terms of the invitation, it is responsive.

To Eugene Drexler, 49 Comp. Gen. 553, B-168518, 1970 CPD ¶ 21 (Comp. Gen. Mar. 10, 1970) (citations omitted). Because ADCI’s proposal was facially compliant with every solicitation requirement, and its price was determined to be reasonable and the lowest of the three bids received, ADCI’s proposal was eligible for award.

Plaintiff relies on numerous GAO decisions which have sustained protests because an awardee tardily offered to correct a noncompliant bid after award. See Pl.’s Reply at 24. However, each of the winning bids discussed in these cases was noncompliant on its face. See Universal Yacht Servs., Inc., B-287071, B-287071.2, 2001 CPD ¶ 74 (Comp. Gen. Apr. 4, 2001) (sustaining protest because awardee’s proposal did not promise required performance and the resulting contract waived the solicitation requirement that the awardee had not promised to deliver); Tri-State Gov’t Servs., Inc., B-277315, B-277315.2, 97-2 CPD ¶ 143 (Comp. Gen. Oct. 15, 1997) (sustaining protest where awardee had submitted a price schedule which did not conform to the format required by the solicitation, thus reaping an advantage not allowed other offerors); Multi-Spec Prods. Group Corp., B-245156, B-245156.2, 92-1 CPD ¶ 171 (Comp. Gen. Feb. 11, 1992) (sustaining protest where awardee had deleted certain material solicitation specifications in its proposal but was nonetheless awarded contract); Martin Marietta Corp., 69 Comp. Gen. 168, B-233742, B-233742.4, 90-1 CPD ¶ 132 (Jan. 31, 1990) (sustaining protest because “[t]he specification required offerors to select hardware and software on the basis that requirements had to be met at the time of award” and the awardee’s proposed hardware and software did not comply with a material requirement of the solicitation). None of these decisions addressed a facially compliant bid where the awardee was alleged to have had a noncompliant intent. The authorities cited by plaintiff are inapposite, and the court found no authority to support plaintiff’s argument that a facially compliant bid must be rejected as nonresponsive in the event that post-award contract modifications are proposed by the awardee.

In plaintiff’s reply brief, Global points out another reason why ADCI’s bid was allegedly noncompliant with the solicitation: “ADCI did not comply with the requirement to reveal its exceptions and assumptions in connection with its proposal to utilize Telecom Italia for the Fleet-55 terminals.” Pl.’s Reply at 9. However, as the court has previously discussed, judicial review of the contract award focuses on whether the award was supported by facial compliance of the winning bid with the requirements of the solicitation. See, e.g., Blount, Inc. v. United States, 22 Cl. Ct. 221, 226 (1990) (“Matters of bid responsiveness must be discerned solely by reference to the materials submitted with the bid and facts available to the government at the time of bid opening.”). Here, the government could not divine that ADCI had neglected to list its exceptions and assumptions, if any, regarding Telecom Italia. By not listing any assumptions regarding Telecom Italia, ADCI’s bid was facially compliant with all material requirements of the solicitation.

Even if, as plaintiff alleges, ADCI’s bid was not compliant with the solicitation requirement demanding the submission of “[a]ny other relevant information to include exceptions/assumptions related to this RFQ,” AR at 53, the court does not regard this requirement as a material solicitation requirement in this instance. See Blount, 22 Cl. Ct. at 227 (“Material terms and conditions of a solicitation involve price, quality, quantity, and delivery.”) (citation omitted). ADCI’s proposal affirmed that ADCI [ ]. AR at 100, 107. ADCI agreed to perform all solicitation requirements without exception, including using Stratos as the LESO for contract services. Id. at 424i. Thus, all material terms of the solicitation affecting price and delivery of services have been complied with by ADCI. The court finds that ADCI’s bid was compliant with all material aspects of the solicitation, and was eligible for award.

At oral argument, plaintiff’s counsel cited for the first time to over a dozen GAO decisions which, in plaintiff’s view, hold that proposals, despite being facially compliant with a solicitation’s requirements, must nonetheless be rejected by the government as noncompliant for reasons of ambiguity, insufficient detail, later discovery of the undisclosed noncompliant intent of the offeror, or for otherwise failing to bind the offeror to a contract in accordance with the solicitation’s requirements. Defendant’s argument that ADCI’s proposal was facially compliant with the solicitation, and that award to ADCI was therefore unassailable, was presented in its moving brief. See Def.’s Mot. at 13-16. Plaintiff responded to defendant’s argument in its response/reply brief, and cited to numerous GAO decisions, discussed supra, in support of its position that later discovered “noncompliance” of a winning proposal should invalidate a contract award. See Pl.’s Reply at 21-25. Plaintiff sought to supplement those authorities at oral argument by attempting to orally file what is, in the court’s view, an improper sur-reply; plaintiff’s only justification was counsel’s vague reference to the existence of new, yet unidentified, arguments in defendant’s reply brief. Defendant would be prejudiced by plaintiff’s proposed filing, because defendant’s counsel was understandably unable to respond at oral argument to fourteen GAO decisions that were neither discussed nor cited in plaintiff’s briefs.

The court denies plaintiff’s request to consider these additional authorities, because such a use of oral argument abuses the adversarial process. The citations offered by plaintiff are not simply citations to additional authority for arguments already advanced – these decisions encompass new theories and arguments. For example, two of the decisions relied upon by plaintiff at oral argument suggest that post-award negotiations between an awardee and the government may, in certain circumstances, constitute illegal discussions under 10 U.S.C. § 2305(b)(4) [(2006)]. See Fed. Data Corp., 69 Comp. Gen. 150, B-236265, B-236265.2, 90-1 CPD ¶ 104 (Comp. Gen. Jan. 25, 1990); Dresser-Rand Co., B-237342, 90-1 CPD ¶ 179 (Comp. Gen. Feb. 12, 1990). This argument, and this statute, were never argued by plaintiff to provide reasons for sustaining this bid protest. Plaintiff must not be allowed to advance new legal theories at oral argument, prejudicing defendant. See Arakaki v. United States, 62 Fed. Cl. 244, 246 n.9 (2004) (“The court will not consider arguments that were presented for the first time in a reply brief or after briefing was complete.”) (citing Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002)); Res. Recycling Corp. v. United States, 56 Fed. Cl. 612, 618 (2003) (noting that “courts are rightfully loathe to allow a party to raise an issue at oral argument for the first time because there is a lack of notice to the court and adversary”) (citing Cubic Def. Sys. v. United States, 45 Fed. Cl. 450, 466-68 (1999)). Plaintiff waived any right to advance arguments it had not briefed prior to oral argument. See Cubic, 45 Fed. Cl. at 467 (ruling that arguments presented for the first time at oral argument were “out of order”).  (L-3 Global Communications Solutions, Inc., v. U. S., No. 08-101C, August 15, 2008) (pdf)

The Federal Circuit, in Alfa Laval Separation, Inc., held that where a protestor can demonstrate an instance in which a procuring official failed to abide by a mandatory solicitation provision, the protestor will prevail, provided it can demonstrate that, but for the violation, it had a substantial chance to receive the award. See Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999); Beta Analytics Int'l, Inc. v. United States, 44 Fed. Cl. 131, 138 (1999); MVM, Inc. v. United States, 46 Fed. Cl. 137 (2000).  (Mangi Environmental Group, Inc. v. U.S., No. 00-29C, June 29, 2000)