Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Protest that agency unreasonably determined that awardee offered a superior delivery schedule is denied where agency reasonably evaluated protester’s schedule as offering only the required schedule and awardee’s as offering an accelerated schedule.
General Counsel P.C. Highlight:
DPS asserts that the agency unreasonably determined that the awardee offered a superior delivery schedule to that proposed by DPS. Offerors were required to complete Schedule F for both the ATV’s and the trailers by indicating how many days after receipt of the order (DARO) it would begin delivery, how many items it would deliver per month, and when delivery would be completed. Offerors were required to meet the agency’s objective schedule, which required ATV deliveries to begin 90 DARO, with 194 ATVs delivered every 30 days (except for the 86 ATVs in the last delivery), and for delivery to be completed 420 DARO. For trailers, the government’s objective delivery schedule was for delivery to begin 90 DARO, with 12 trailers delivered per month (2 in the last month), and delivery completed 300 DARO. The solicitation further provided that the agency would favorably consider a credible, expedited schedule.
The agency considered the awardee’s accelerated delivery schedule to be substantially superior to DPS’s proposal of the required schedule. While the Army recognized that DPS offered a better delivery schedule for trailers, the agency found this was offset by the awardee’s superior delivery schedule for ATV’s. DPS asserts that the agency failed to consider that its proposed delivery schedule was more advantageous than the schedule proposed by the awardee based on a letter from its subcontractor that was included with its proposal. In addition to providing a delivery schedule, offerors were required to provide documentation that their proposed delivery schedule was credible. Notwithstanding the subcontractor’s statement that it could do better, the fact remains that DPS clearly proposed only a delivery schedule that mirrored the agency’s objective schedule and this is what the subcontractor confirmed it could do. While the subcontractor indicated that it could exceed the delivery schedule that is not the schedule that DPS proposed.
DPS also asserts that the agency unreasonably evaluated its proposal under the small business participation factor. Pursuant to the solicitation, large business offerors were required to submit a small business subcontracting plan. Small businesses (SB) were not required to submit a small business subcontracting plan, but were required to complete a chart which listed the dollar amount and percentage of subcontracting dollars that SB’s and small disadvantaged businesses (SDB) would perform. GAO states that as an initial matter, it is noted that the protester was not required to submit a small business subcontracting plan; rather, it was required to submit information which demonstrated what percentage of subcontracting dollars it intended to subcontract to SB and SDB’s. In so far as DPS believes it should not have been evaluated on this information, under Bid Protest Regulations, a protest that involves a solicitation impropriety must be filed prior to the closing date for the receipt of proposals. Here, it was clear from the face of the solicitation that the agency intended to evaluate the proposed SB and SDB subcontracting participation of every offeror, including those that were small businesses themselves. Specifically, the solicitation provided that “[t]he following small business participation proposal submission instructions apply to every offeror… regardless of size status.” All offerors, including those that were themselves small businesses were instructed to complete the small business participation table, and identify the extent to which U.S. SB concerns and SDB firms will be utilized as first-tier subcontractors in performing the contract. Thus, if DPS believed that as a small business its proposed subcontracting participation should not have been evaluated, it was required to protest before the July 18 closing date for the receipt of proposals. Since DPS did not submit its protest until after award, any challenge to the solicitation terms in this regard is untimely and will not be considered. The protest is denied.