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1. Tiger Enterprises, Inc., B-403475.2, February 15, 2011
Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied
Keywords: Competitive Range Determination
General Counsel P.C. Highlight: The determination of whether a proposal is in the competitive range is principally a matter within the judgment of the procuring agency. GAO will review that judgment only to ensure that it was reasonable and in accord with the solicitation and applicable statutes and regulations.
Tiger Enterprises, Inc. (Tiger) protests its elimination from the competitive range under a request for proposals (RFP), a small business set-aside issued by the Department of the Army (Army), for the lease of washers and dryers.
The RFP was issued for the purpose of awarding a requirements contract for the lease of washers and dryers. The RFP contemplated a best value source selection considering past performance and price, with past performance being more important. The RFP advised that price would not be assigned an adjectival rating, but that "unreasonably high or unrealistically low proposed prices may be grounds for eliminating a proposal from the competitive range." The Army determined that Tiger's proposal was excellent under the past performance factor, but its price was too high.
Tiger asserts that because it received the highest possible rating under the past performance factor and because the Army did not make a determination that its price was unreasonably high or unrealistically low, the Army had no basis to exclude Tiger from the competition.
GAO states that the determination of whether a proposal is in the competitive range is principally a matter within the judgment of the procuring agency. GAO will review that judgment only to ensure that it was reasonable and in accord with the solicitation and applicable statutes and regulations. The record confirms that the Army excluded Tiger based on Tiger's unreasonably high price. Specifically, Tiger's price was 100.8% higher when compared to other offeror's with the same past performance rating. Where, as here, the protester's price was more than twice as much as the price offered by an equally-rated, lower cost offeror, there is no basis to question the Army's determination. The protest is denied.
2. JRS Management, B-404022.2, February 15, 2011
Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied
Keywords: Protesting Terms of the Solicitation
General Counsel P.C. Highlight: The determination of an agency's actual needs and the best method of fulfilling them is primarily within the agency's discretion, a contracting agency must specify its needs and solicit offers or quotations in a manner designed to achieve full and open competition; restrictive provisions or conditions may be included only to the extent necessary to satisfy those needs.
JRS Management (JRS) protests the terms of a request for quotations (RFQ), issued by the Department of Justice, Federal Bureau of Prisons (BOP), for educational support services at the Federal Detention Center (FDC) in SeaTac, Washington.
BOP issued the RFQ for the purpose of acquiring Spanish GED Instructor/Tutor services in order to assist Mexican citizen inmates achieve the educational equivalent of a GED certificate. The RFQ contemplates the award of a fixed-price requirements contract to the firm submitting the lowest-priced, technically acceptable quotation. Technical acceptability included compliance with specified educational requirements, which initially included the requirement to receive a satisfactory security clearance prior to award and attendance at three days of training with the Yakima school district to gain certification from the Mexican International Adult Education Administration. BOP then amended the solicitation to reflect the fact that the Yakima school district no longer offered a specific online training program (CONEVyT Portal). Vendors were instead instructed to provide proof of CONEVyT Portal certification with their quotations.
JRS protests the terms of the amended solicitation, primarily contending that the requirement to be trained and certified at the time of quotation submission, is unduly restrictive of competition.
GAO states that while the determination of an agency's actual needs and the best method of fulfilling them is primarily within the agency's discretion, a contracting agency must specify its needs and solicit offers or quotations in a manner designed to achieve full and open competition; restrictive provisions or conditions may be included only to the extent necessary to satisfy those needs. The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency's needs.
Based on the record, it is clear that the agency considers proof of certification at the time of quotation submission as necessary to accomplish its legitimate minimum needs. The agency explained that if the vendor is allowed to wait until after award to obtain the needed certification, the possibility exists that the vendor could fail or not successfully complete the CONEVyT Portal training. In that case, the agency would be without a qualified instructor to perform the contract services until the vendor either took the course again, or the contract was terminated and the requirements re-solicited. GAO finds the position to be reasonably supported and well within the scope of discretion properly afforded to the agency. The protest is denied.
3. Distributed Solutions, Inc.--Costs, B-403566.2, February 14, 2011
Link: GAO Opinion
Agency: Department of Labor
Disposition: Request denied
Keywords: Reimbursement of Protest Costs; Corrective Action
General Counsel P.C. Highlight: When an agency takes corrective action following the filing of a GAO protest, protester should be reimbursed its protest costs only if an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest.
Distributed Solutions, Inc. (DS) requests that GAO recommend that the firm be reimbursed the costs of filing and pursuing its protest of the terms of a solicitation, issued by the Department of Labor (DOL), for an acquisition management system.
DOL issued a request for information (RFI) seeking market feedback from potential sources to determine whether there were vendors capable of offering a product to satisfy DOL's general need for a new electronic procurement system. DOL then modified its requirements and issued the solicitation to vendors holding a current Federal Supply Schedule (FSS) contract with the General Services Administration (GSA). In all, DOL issued four amendments to the solicitation. DS raised numerous challenges to the terms of the RFQ. Because the record was unclear, GAO advised the parties that a hearing was likely necessary and requested that the agency further explain its position in response to interrogatories sent by GAO to the parties. The agency advised that it was taking corrective action and GAO dismissed the protest. In this filing, DS requests that GAO recommend that it be reimbursed the reasonable costs of filing and pursuing its protest, including reasonable attorneys' fees since its protest was clearly meritorious and the corrective action was taken after the agency filed its report.
GAO states that under the Competition in Contracting Act of 1984, GAO may recommend that protest costs be reimbursed only where it finds that an agency's action violated a procurement statute or regulation. GAO's Bid Protest Regulations provide that where the contracting agency decides to take corrective action in response to a protest, GAO may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys' fees. This does not mean that costs should be reimbursed in every case in which an agency decides to take corrective action; rather, a protester should be reimbursed its costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest. Thus, as a prerequisite to GAO recommending that costs be reimbursed where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. A protest is "clearly meritorious" when a reasonable agency inquiry into the protester's allegations would show facts disclosing the absence of a defensible legal position. The mere fact that an agency decides to take corrective action does not establish that a statute or regulation clearly has been violated.
Here, GAO states that it is not appropriate to recommend that DS recover its protest costs because, even if the corrective action was in response to the protester's original protest, as it alleges, that protest was not clearly meritorious. Whether the protest was meritorious was not apparent from the record, which is why GAO requested comments from GSA and informed the parties that a hearing was likely needed to complete and clarify the record. The request is denied.
4. U.S. Bank, B-404169.3, February 15, 2011
Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest dismissed
Keywords: Protest Jurisdiction; Task Orders
General Counsel P.C. Highlight: GAO does not have jurisdiction to consider a protest of an ID/IQ task or delivery order except where the protester alleges that the task order is beyond the scope, period, or maximum value of the ID/IQ contract under which the order is issued or where the order is valued in excess of $10,000,000.
U.S. Bank (USB) protests the issuance of a task order by the General Services Administration (GSA) under a request for quotes (RFQ) for third party payment services.
GAO does not have jurisdiction to consider a protest of an ID/IQ task or delivery order except where the protester alleges that the task order is beyond the scope, period, or maximum value of the ID/IQ contract under which the order is issued or where the order is valued in excess of $10,000,000. USB's protest does not argue that the scope, period, or maximum value of the contract was increased, but does argue that the value of the task order exceeds $10 million.
The RFQ sought quotes to provide third-party payment services (3PPS) to facilitate transactions for GSA's transportation management services solution (TMSS) under a task order. The competition was limited to vendors holding GSA Smart Pay 2 ID/IQ contracts.
The TMSS is a system that provides freight shipping for federal agencies through contractors known as transportation service providers (TSP). The 3PPS is intended to enable federal agencies to quickly and efficiently pay bills, to permit GSA to better track the transportation services, and to ensure that GSA receives the industrial funding fee (IFF) amounts it is entitled to collect for the transactions. As relevant here, the 3PPS vendor receives funds from the customer agencies and pays the TSP for the shipping work. Use of the 3PPS for payment of shipping transactions will not be mandatory for non-GSA user agencies or TSPs. Amendment No. 1 to the RFP contained a spreadsheet, which indicated the estimated volume of freight and household goods shipments for fiscal year 2009 totaled $174 million. The RFQ anticipated the issuance of a task order with a one-year base period with eight one-year options. The 3PPS task order was to be awarded on a no-cost basis. The successful vendor would be permitted to charge transaction fees to the TSPs who participate in the payment functions of the 3PPS. These fees are the only funds that will be earned by the 3PPS vendor in the performance of the task order.
GSA issued the task order to another offeror and USB filed a protest with GAO, arguing that the award was flawed because the agency unreasonably evaluated the vendors' costs and technical approaches. GSA requested that GAO dismiss the protest, arguing that GAO did not have jurisdiction because the value of the order was less than $10 million. GAO advised the parties that it would not dismiss the protest because GAO viewed the amount of fees to be earned by the 3PPS vendor to be the "value" of the task order, and USB had provided evidence that, based on $174 million figure stated in Amendment No. 1 to the RFQ, the total fees would likely be greater than $10 million. GSA advised GAO that it would take corrective action by canceling the order issued and issuing a revised solicitation that better reflected the agency's understanding of the transaction volumes anticipated by the agency for the duration of the task order. GSA then issued Amendment No. 2 to the RFQ, which stated the agency's estimate of the volume of transactions anticipated to be processed during performance of the 3PPS task order and which permitted vendors to submit revised quotes. GSA again awarded the task order to another offeror and USB protested.
Again GSA argues that GAO does not have jurisdiction to hear the protester because this task order is valued at less than $10 million. Here, USB and GSA agree that that the value of the task order is the total of the anticipated fees that the vendor will charge the TSPs over the term of the contract, including options. GAO agrees. The protester and agency disagree, however, as to the total fees that the vendor will earn over the course of contract performance, and whether those fees will be more or less than $10 million.
Amendment No. 1 to the RFQ indicated that the cost of shipping freight and household goods through GSA's transportation program in fiscal year 2009 was $174 million. Amendment No. 2 to the RFQ stated that the $174 million figure should not be viewed as a likely amount for the task order because that figure included $24 million in shipments by the Department of State, which subsequently established a separate agreement for payment of processing services and would not be using the 3PPS system. In Amendment No. 2, however, the agency further advised that the 2009 transaction volume did not reflect the agency's estimates for transactions under the new 3PPS system. Specifically, the agency stated that it anticipated "adoption [of the 3PPS system] by customer agencies to be slow during the base and first option periods, as the awardee markets the 3PPS alternative to customer agencies." In this regard, as discussed above, use of the 3PPS for purposes of payment is not mandatory for non-GSA customers and TSPs who provide services to non-GSA agencies; TSPs who do not agree to use the 3PPS for payment by agencies will not be required to pay fees to the 3PPS vendor. For those reasons, the agency provided the following estimates in the revised RFQ:
GSA estimates that the dollar volume for 3PPS in the first year will be $5,000,000. This amount may be slightly higher depending on when 3PPS actually becomes operational. The dollar value for 3PPS estimated for the first option period is approximately $20,000,000. GSA has estimated that customer agency adoption of 3PPS, beginning in the second option period, will grow in increments of approximately 33% per year.
Based on this information, the total volume of transactions anticipated by GSA for the nine-year task order would be $537,770,000 and applying the awardee's transaction fee of 1.01% to this amount yields a task order value of $5,431,465. Based on the estimates set forth in the solicitation, GAO concludes that the value of the task order here is less than $10 million and that it lacks jurisdiction to hear the protest. The protest is dismissed.
5. Metasoft, LLC--Reconsideration, B-402800.2, February 17, 2011
Link: GAO Opinion
Agency: Department of the Navy
Disposition: Request for reconsideration denied
Keywords: Reconsideration Request
General Counsel P.C. Highlight: To prevail on a request for reconsideration, the requesting party must either show that GAO's decision contains an error of fact or law, or present information not previously considered that warrants the decision's reversal or modification.
Metasoft, LLC (Metasoft) requests that GAO reconsider its previous issued opinion denying a protest of the terms of a request for proposals (RFP), issued by the Department of the Navy, for support services, including software maintenance and upgrades.
Metasoft, in its initial protest, raised a number of arguments that it claimed supported it position that the RFP should be set aside for small businesses. GAO denied the protest, finding that the record supported the agency's determination that it could not expect to receive offers from at least two responsible small businesses capable of providing at least 50% of the services. GAO declined to address the protester's argument that the agency overstated its technical requirements, finding the argument to be untimely since it was based on information furnished to Metasoft on April 9, yet the protest argument was not raised until June 7 in the protester's comments on the agency report.
Metasoft has requested that GAO reconsider its decision maintaining that GAO erred when it determined that its argument regarding the overstated technical requirements was untimely. GAO states that to prevail on a request for reconsideration, the requesting party must either show that GAO's decision contains an error of fact or law, or present information not previously considered that warrants the decision's reversal or modification. A request for reconsideration that reiterates arguments made previously and merely expresses disagreement with the prior decision does not meet the standard for granting reconsideration.
GAO finds that the rejection of the protester's argument was proper. GAO's Bid Protest
Regulations do not contemplate the piecemeal presentation or development of
protest issues through later submissions - citing examples, or providing alternate or
more specific legal arguments missing from earlier general allegations of
impropriety. GAO will dismiss a protester's piecemeal presentation of arguments that could have been raised earlier in the protest process. Because the protester did not present its argument earlier in the protest process, even though it could have done so, the protester's argument was properly rejected as untimely. Similarly, Metasoft's argument regarding the severability of the independent verification and validation test task order is also untimely. This argument appeared for the first time in the protester's supplemental comments, filed on June 21, which was 52 days after the initial protest filing. Therefore, because the protester did not present this argument earlier in the protest process, even though it could have done so, the argument was untimely. The request for reconsideration is denied.
