1. Philips Healthcare Informatics, B-400733.8, B-400733.11, B-400733.13, December 2, 2009
Link: GAO Opinion
Agencies: Department of Veterans Affairs
Disposition: Protest dismissed.
Keywords: Interested party; firm fixed-price proposal
Philips Healthcare Informatics (PHI) protested the award of a commercial item contract to AGFA HealthCare Corporation (AGFA) by the Department of Veterans Affairs (VA) under a request for proposals for picture archiving and communication system (PACS) services for Veterans Integrated Service Network 20 (VISN 20). PHI challenged the agency's evaluation of its own proposal, AGFA's proposal, and the agency's price/technical tradeoff.
In the procurement, the VA evaluated eligible proposals from PHI, AGFA, and FujiFilm Medical Systems USA, Inc. Proposals for the firm fixed-price contract were to contain pricing for 58 contract line item numbers (CLIN). PHI's proposal priced seven CLINs for data migration at zero dollars. When the contract was awarded to AGFA as best value PHI protested and AGFA intervened in the protest. In its comments to the Agency Report, the intervenor asserted that PHI's proposed price, including its $0 CLINs, was not a fixed-price proposal. The Agency agreed and both the intervenor and the Agency argued that PHI lacked standing because its proposal was not in line for award and therefore PHI was not an interested party under the GAO rules. GAO agreed that PHI's price proposal was defective and thus PHI failed to offer a firm fixed-price proposal.
GAO further concluded that, because, PHI's proposal was ineligible for the award, PHI was not an interested party and its protest was therefore dismissed.
2. Chicago Dryer Company, B-401888, December 8, 2009
Link: GAO Opinion
Agencies: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Sole-source
In September, the Department of Veterans Affairs (VA) posted a pre-solicitation notice advising of its intent to acquire a G.A. Braun Delta 3S32 ironer, available only from G.A. Braun, to be installed at the VA Medical Center in Canandaigua, New York. The notice advised that the contracting officer had determined that "the only reasonable source is G.A. Braun," since "the item and size is only made by Braun and repairs and technical support is specific to G.A. Braun." Chicago Dryer Company (CDC) then challenged the sole-source justification, asserting that it manufactures equipment that meets VA requirements. The VA countered by stating that its market research indicated that only an ironer manufactured by G.A. Braun could meet their requirements and that the sole-source was therefore justified.
Generally, the Competition in Contracting Act (CICA) mandates "full and open competition" in government procurements obtained through the use of competitive procedures; however, there are several exceptions, including when an agency's requirements can only be satisfied by one responsible source. The GAO has thus recognized that an agency's legitimate need to standardize the equipment it uses may provide a reasonable basis for imposing restrictions on competition.
In this protest, CDC does not challenge the VA's stated requirements for interoperability with installed Braun equipment at VAMC Canandaigua but, rather, states that it can supply equipment meeting those requirements. Typically, a protester challenging an agency's sole-source determination on the basis that its product meets the agency's needs has the burden of showing that this is the case. Here, CDC did not establish that it could provide a flatwork ironer meeting the VA's needs. Additionally, and as identified by the VA, CDC asserted that it had provided equipment compatible with G.A. Braun equipment at other VA medical centers, but it did not provide any specific reference to an actual customer for which it provided an ironer compatible with the existing system.
As such, the GAO found that CDC had not shown an ability to supply a product that met the VA's needs, and therefore there was no basis upon which it could question the issuance of the purchase order to Braun.
3. Honeywell Technology Solutions, B-400771.6, November 23, 2009
Link: GAO Opinion
Agency: National Aeronautics and Space Administration (NASA)
Disposition: Protest denied.
Keywords: Corrective action; Final proposal revisions
The National Aeronautics and Space Administration (NASA), Goddard Space Flight Center issued a request for proposals in January, 2008, in which it sought proposals to provide personnel, materials, and facilities necessary to perform all space communications network services (SCNS) program requirements.
Three offerors, including incumbent Honeywell and ITT, submitted proposals by the closing date, at which time the contracting officer decided that discussions with offerors were necessary, and established a competitive range consisting of the Honeywell and ITT proposals. NASA conducted discussions, followed by the offerors' submission of final proposal revisions (FPR). Honeywell's proposal was found to be lower in evaluated cost. But, NASA's source selection authority (SSA) determined that ITT's proposal was technically superior to that of Honeywell under both the mission suitability and past performance factors. In October 2008, the SSA found, among other things, that while both offerors possessed highly relevant past performance, ITT had a quality advantage relating to systems engineering and developmental tasks that outweighed the higher cost of its proposal, and thus, ITT's proposal represented the best value to the government.
In October 2008, Honeywell protested various aspects of the evaluation and source selection decision. In January 2009, , the GAO sustained Honeywell's protest in part, finding that NASA's evaluation of ITT's past performance was not reasonable or in accordance with the solicitation and recommended that NASA reevaluate ITT's past performance in making a new source selection determination. This reevaluation also found that ITT's proposal offered the best value to the government, which Honeywell protested again. Following an alternative dispute conference conducted by the GAO, NASA announced its intent to take corrective action in the form of conducting discussions with offerors regarding past performance, permitting offerors to submit FPRs limited to past performance information, reevaluating and then making a new source selection determination. Based on the proposed corrective action, the GAO dismissed Honeywell's second protest. Honeywell then filed an agency-level protest, which was denied by NASA, asserting that NASA's planned corrective action was insufficient because it ignored the fact that offerors' proposals had become outdated.
The GAO stated that when corrective action does not also include amending the solicitation, it will not question an agency's decision to restrict proposal revisions so long as it is reasonable in nature and remedies the established or suspected procurement impropriety. As such, the GAO found that NASA's decision to limit the scope of its corrective action was reasonable. The GAO also found that Honeywell failed to establish that NASA's decision permitting offerors to update their past performance information would have a material impact on the cost or technical proposals. The GAO concluded that NASA could have chosen to permit offerors to also revise their technical and cost proposals, but that its decision not to represents a reasonable exercise of its discretion. GAO denied Honeywell's protest.
4. G4S Government Services, B-401694, November 4, 2009
Link: GAO Opinion
Agencies: Department of Homeland Security
Disposition: Protest denied.
Keywords: Price realism evaluation
The Department of Homeland Security's (DHS) Bureau of Immigration and Customs Enforcement (ICE) issued a request for proposals for the intensive supervision appearance program, a contract that was awarded to BI Incorporated. The request established four evaluation factors; technical, past performance, E-Verify, and price, with the technical and past performance factors having equal importance and both being more important than the E-Verify factor. After conducting an evaluation, the ICE source selection authority determined that BI's proposal was both technically superior and lower priced than the proposals of the other offerors. G4S protested this decision on a number of different grounds: ICE's price realism analysis of BI's proposal was flawed, ICE's evaluation of offerors' proposals as to the staffing and operations plan sub-factors was improper, and ICE's evaluation of offerors' past performance was unreasonable.
G4S contended that because BI's price was significantly below both the independent government estimate and the price of the other offerors it reflected an inadequate understanding of the work requirements and/or posed a high performance risk. But, the GAO found that ICE's price realism analysis of BI's proposal was unobjectionable. The record established that ICE performed various analyses regarding BI's price realism and proposal risk, in particular, an analysis of BI's field office staffing ratios, BI's use of different staffing ratios for different types of cases, and the comparison of BI's staffing ratios to the current ISAP program staffing ratios, as well as the comparison of BI's unit, contract line items (CLIN), and overall prices to those of the other offerors. Based on these factors, the staffing estimates were reasonable and the corresponding prices were realistic.
The GAO then evaluated G4S's next challenge regarding ICE's evaluation of its proposal under the staffing and operations plan sub-factors. The GAO denied this ground, finding the complaint to be nothing more than a mere disagreement with an agency's evaluation, which is not sufficient to render the evaluation unreasonable.
And finally, the GAO considered G4S's challenge of its past performance evaluation by ICE. GAO noted that a protester must show actual prejudice arising from the basis of its protest. GAO found that, even if G4S prevailed on this ground, they would not have received a higher performance rating than BI. Thus, GAO determined that ICE's evaluation was proper, and that at best, even if all errors as alleged by G4S were true, that there would be technical parity between the two proposals, and that BI's would still remain the lower-priced and would remain in line for award.
5. Innovative Technologies Corp., B-401689, B-401689.2, B-401689.3, November 9, 2009
Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Incumbent status; Price realism
The protest of alleged improprieties that were apparent on the face of a task order solicitation, when filed after the issuance of the task order, was dismissed as untimely under GAO's Bid Protest Regulations. The protest that the Air Force unreasonably evaluated the competitors' proposals, based primarily on the Air Force's alleged failure to sufficiently credit the protestor's incumbent status and advantages, was denied where the record showed that the Air Force's evaluation was reasonable and in accordance with the stated criteria. Any alleged misrepresentations made by the awardee of a task order are not to be considered material when the agency does not rely upon them. The nature and extent of an agency's price realism analysis of proposals responding to a fixed-price task order solicitation are matters within the reasonable exercise of the agency's discretion.
6. Light-Pod, Inc., B-401739, B-401739.2, November 12, 2009
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: Small Business Administration; Responsibility-related factors
When the record shows that a procuring agency has reasonably determined a small business protestor's proposal to be technically unacceptable on the basis of factors not related to responsibility, referral to the Small Business Administration for a Certificate of Competency review is not required, even when the proposal is also found to be unacceptable on responsibility-related considerations.
7. Prudent Technologies, Inc., B-401736.3, December 9, 2009
Link: GAO Opinion
Agency: Environmental Protection Agency
Disposition: Protest denied.
Keywords: Mistake; Clear and convincing evidence
The Environmental Protection Agency (EPA) was correct in permitting the correction of a mistake in a bid where the bidder's intended bid amount is ascertainable from the face of the bid and it is logically supported by clear and convincing evidence. Because the authority to correct mistakes alleged after a bid opening but prior to the award is vested in the procuring agency, and because the weight to be given the evidence in support of an asserted mistake is a question of fact, the GAO will not disturb an agency's determination concerning bid correction unless it is unreasonable.
8. Hotel Contracting Services, Inc., B-401807, B-401807.2, November 25, 2009
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Small business set-aside
A protest challenging the Army's evaluation of a proposal for a hotel as unsatisfactory because the proposed facility was located too far from the airport to meet the solicitation's timeframes was denied because the record supported the reasonableness of the Army's determination. The protest of an Army decision to not set aside the procurement exclusively for small businesses was found to be untimely when that fact was not protested at the time proposals were due but only after award. The GAO further stated that it would not entertain a post-award challenge to the adequacy of a set-aside decision based solely on the fact that the competition resulted in responses from two or more small businesses. Evidence to challenge a small business set aside must be prospective at the time of release of the RFP and not retrospective.
9. Computers Universal, Inc., B-401564.2, December 7, 2009
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Corporate capability; Past performance
In a solicitation that provided for multiple awards of indefinite-delivery/indefinite-quantity contracts for professional services, the Army reasonably concluded that the proposal presented moderate risk under the corporate capability factor and unknown risk under the past performance factor, and therefore it was not among the proposals that provided the best value to the government notwithstanding its comparatively low price. In reviewing protests challenging an agency's evaluation of proposals, the GAO will not substitute its judgment for that of the agency regarding the merits of the proposal; rather it will examine the agency's evaluation only to ensure that it was reasonable and consistent with the solicitation's evaluation criteria, and with applicable statutes and regulations. The Army was found to have reasonably determined that Computer Universal Inc.'s lower price was not worth the added risk of its proposal.
10. IAP-Leopardo Construction, Inc., B-401923, December 2, 2009
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Keywords: Mistake; Clear and convincing evidence
A protest challenging the Department of the Army's decision to allow the correction of a low bidder's mistake of misplacing a decimal point when entering two subcontractor quotes was denied because the Army reasonably determined that there was clear and convincing evidence of the mistake. The GAO stated that an agency may permit the correction of a bid where clear and convincing evidence establishes both the existence of a mistake and the bid actually intended, so long as the correction would not result in displacing one or more lower bids. Whether the evidence meets the clear and convincing standard is a question of fact and the GAO will not question an agency's decision based on the evidence unless it lacks a reasonable basis.
11. Department of the Army - Reconsideration, B-401472.2, December 7, 2009
Link: GAO Opinion
Agency: Department of the Army
Disposition: Request for reconsideration denied.
Keywords: Reconsideration
The Department of the Army's request for reconsideration of a decision that sustained a protest of a sole-source extension of a contract was denied because the Army did not show any error of fact or law in the decision. During a protest regarding an awardee's status as a Service-Disabled Veteran-Owned Small Business Concern (SDVOSBC) the Army determined that it would permit the awardee to continue performing the contract, notwithstanding the Small Business Administration's (SBA) determination that the awardee was not a SDVOSBC. In that protest, the GAO determined that the Army had not provided a reasonable basis for the sole-source extension, and sustained the protestor's challenge. The Army then requested reconsideration, but failed to show that the GAO's decision contained material errors of law or fact that warrant any modification or reversal to its prior decision.
12. BW JV1, LLC, B-401841, December 4, 2009
Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Bid bond
The Department of Veterans Affairs (VA) was found to have properly rejected the bid of a joint venture that submitted a bid bond that was executed by a corporation, when the joint venture agreement provided that both joint venture members were required to execute the bid bond. BW JW1, LLC submitted the lowest priced bid in response to an invitation for bids (IFB) by the VA, but only one of the LLC's corporate members executed the bond documents that accompanied the bid. The VA rejected the bid, citing FAR §§ 14.404-2(a) and 28.101-4(a), which require the rejection of bids that fail to conform to the essential requirements of the IFB or where bidders fail to furnish a bid guarantee in accordance with the requirements of the IFB.
