Link: GAO Opinion
Agency: Department of State
Disposition: Protest denied.
1. Protest that clarification requests issued by agency in fact constituted discussions, such that agency was required to conduct discussions with protester, is denied; even if clarifications did constitute discussions, agency was not required to conduct discussions with protester, since its proposal was not included in competitive range.
2. Protester is not an interested party for purposes of challenging affirmative determination of awardee’s responsibility where record shows that, even if challenge were sustained, an intervening offeror would be next in line for award.
General Counsel P.C. Highlight:
CLI asserts that DOS was required to engage in discussions to ascertain the reason for the wide discrepancy in pricing–CLI’s overall evaluated price of approximately $[REDACTED] was significantly higher than FedSys’s ($26.1 million), Technatomy’s ($27.7 million), and Szanca’s ($22.3 million). First, regarding the language from RFP section B, although the awardees’ pricing was furnished to CLI along with their proposals, CLI has not pointed to any specific labor rate offered by the awardees or included in its own proposal that exceeded the recommended level of compensation for a government employee performing similar work and with similar responsibilities. Thus, on this record, there is no basis for us to question the agency’s price evaluation, or to find that CLI should have been included in discussions for purposes of discussing this matter.
Second, even if GAO found that the agency’s communications with the six offerors amounted to discussions rather than mere clarifications, there would be no basis for us to find that CLI was entitled to discussions. In this regard, the Federal Acquisition Regulation (FAR) permits an agency to limit the competitive range to only the “most highly rated proposals,” and does not require that discussions be held with offerors outside the competitive range. Here, following the proposal evaluation, the agency winnowed the competition down to the six offerors whose proposals received very good ratings under the technical factor and were lower priced than CLI’s; it eliminated CLI’s lower-rated proposal and those of the remaining eight offerors. This action was tantamount to a competitive range determination. CLI has made no showing that the agency unreasonably limited the competitive range in this manner, or that the agency otherwise would be required to extend discussions–assuming that discussions in fact were held–beyond those six offerors.
CLI next asserts that FedSys should have been determined to be nonresponsible and thus ineligible for award. In this regard, CLI notes that, in June 2007, in response to a protest CLI filed in connection with a Defense Intelligence Agency (DIA) procurement, the Small Business Administration (SBA) decertified FedSys as a qualified Historically Underutilized Business Zone (HUBZone) small business, finding that its principal office was not located within a HUBZone. CLI states that this decertification led to termination of the contract that had been awarded under the solicitation. According to the protester, FedSys’s decertification indicated that FedSys had misrepresented its status under the solicitation such that it lacked the requisite business integrity to be found responsible here. GAO states that where an intervening offeror, not the protester, would be in line for award if the protester’s challenge were sustained, GAO considers the protester’s interest to be too remote for it to qualify as an interested party. As noted above, CLI’s technical proposal was ranked only eighth technically and thirteenth as to cost/price, and was not included with the six proposals under consideration for award. Because there were a number of intervening offerors who would be in line for award ahead of CLI, CLI is not an interested party for purposes of questioning FedSys’s responsibility. The protest is denied.