Agency: Department of the Air Force
Disposition: Protest Dismissed
Decided: June 9, 2020
General Counsel P.C. Highlight: Protests must be filed no later than 10 days after the protester knew, or should have known, of the basis for protest, whichever is earlier.
Summary of Facts
American Systems Group (ASG) protests the award of a contract to Summit Services, Inc., under RFQ No. FA4690-19-Q-A035 by the Department of the Air Force. ASG challenges the agency’s decision to reject the firm’s quotation as being unrealistic pursuant to a price realism evaluation.
The RFQ was issued on September 16, 2019 as a competitive set-aside for participants in the Small Business Administration’s Historically Underutilized Business Zone program. The RFQ sought quotations to provide administrative support services and award was to be made on a best-value basis considering past performance and price.
Under the RFQ’s stated evaluation scheme, quotations were to be evaluated for responsiveness and price. The agency would then make a best-value award decision based on the past performance evaluation and a determination that the vendor’s price was fair and reasonable. The solicitation stated that the agency “reserves the right to award a contract to other than the lowest priced quote if the lowest priced quote is judged to have a performance rating of unacceptable.”
Twenty-one quotations were received, including one from ASG. The Air Force found that ASG proposed a price below the calculated cutoff price, and excluded it based on a determination that the proposed TEP was unrealistic. ASG was informed that it would not be awarded the contract on February 20, 2020. In that letter, ASG was notified of the winning quotation’s price and that ASG’s quotation “was not accepted because [its] quote was not determined to be the best value in accordance with the evaluation factors.”
ASG requested a debriefing and the Air Force provided a written explanation on February 27, notifying ASG that the firm’s TEP “did not meet the price evaluation standard for realism.” ASG filed an initial protest on February 28, and the Air Force asked GAO to dismiss the protest, arguing that ASG’s challenge was untimely. However, GAO requested that the parties submit additional briefings on their respective interpretations of the price realism requirement found in the solicitation. The parties complied, and ASG argued, for the first time, that the Air Force’s method of performing the price realism evaluation was inconsistent with the terms of the solicitation. GAO declined to dismiss the protest at that time and requested that the Air Force submit an agency report to provide a full record for review. ASG filed this protest on March 4.
Basis of Protest
ASG first argues that the agency “capriciously adopted” a 25% price realism factor in its price analysis. ASG then argued that the agency’s method of performing the price realism evaluation to quotations was inconsistent with the terms of the solicitation. The Air Force argued that ASG’s allegations should be dismissed as untimely, because ASG knew or should have known of this basis of protest at the time of award.
GAO concluded that ASG’s allegations were untimely. Under Bid Protest Regulations, a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals must be filed before that time. ASG argues that the agency “capriciously adopted” a 25% price realism factor in its price analysis. However, the solicitation clearly states that factor. Thus, GAO determined vendors were on notice that a price realism analysis was contemplated under the solicitation. Since ASG’s first allegation is essentially a challenge to the terms of the solicitation, ASG was required to file its protest prior to the closing time for receipt of initial proposals, but did not.
Additionally, under GAO regulations, “protests must be filed no later than 10 days after the protester knew, or should have known, of the basis for protest, whichever is earlier.” GAO determined that ASG’s argument that the agency misapplied the price realism criteria in its evaluation, could have been raised in its initial protest, but was not.
GAO explained that ASG knew from the unsuccessful vendor notice it received on February 20 both its own price and that of the awardee. ASG subsequently learned from the Air Force’s February 27 letter that ASG’s quotation was rejected based on the agency’s price realism analysis. Based on these facts, GAO determined that ASG could have, but did not, raise this allegation in the initial protest filed on February 28.
ASG based its argument on information available at the time of award and prior to production of the agency report. Since ASG did not raise this allegation within 10 days of when it knew or should have known of the basis of protest, GAO concluded the allegation is untimely.
The GAO dismissed the protest on this basis.