Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest dismissed in part, denied in part.
- Where agency responded to earlier protest, in which the agency tender official (ATO) challenged the adequacy of the solicitation’s workload information, by stating that it would provide additional workload data, and earlier protest was withdrawn, ATO was required to re-file a protest challenging the ongoing alleged inadequacy of information prior to submitting agency tender.
- The solicitation contained no ambiguity regarding inclusion of vehicle fuel costs where it specifically stated that “fuel is considered Government-furnished,” and agency confirmed this provision in responding to ATO question regarding the cost of fuel.
General Counsel P.C. Highlight:
The ATO, after an initial protest, again asserts that the PWS was “contradictory, confusing, and inaccurate” and that “[d]espite consistent, good-faith efforts by the . . . MEO team, the agency consistently failed to correct mistakes.” The protest maintains that, despite the agency’s actions taken in response to the ATO’s November 2007 protest, the agency “continued to fail to fully and accurately answer questions.” The ATO’s protest is based entirely on the adequacy of the agency’s responses to three ATO questions.
First, the ATO’s protest refers to Question T-0092-CE, concerning the solicitation requirements to provide support for special events. The protest asserts that “[t]he MEO attempted to meet all service requirements in support of special events in the most comprehensive manner,” but maintains that “the data provided . . . in Appendix 11B was inaccurate, ambiguous and incomplete.” The protest notes that, in response to the ATO’s question, the agency stated that it was “[u]nable to locate this workload data.” Based on this response, the ATO asserts that “even the agency was confused about the work load data.”
In November 2008, the agency submitted a report responding to the ATO’s October 2008 protest, stating that, although the agency did not have the data to respond to the ATO’s question on June 4, 2007–that is, at the time it published the response to Question T-0092-CE–the agency subsequently obtained the required information, compiled that data in appendix 11B, and posted it to the FedBizOpps website on June 20. The contracting officer further states that appendix 11B was thereafter published as an attachment to the RFP in September 2007. Finally, the contracting officer states that, following the ATO’s first protest in November 2007, the agency published a notice advising offerors that additional comprehensive data regarding the special events workload requirements was available on the Federal Technical Data Solutions (FedTeDS) Internet website.
The ATO did not re-file its protest challenging the adequacy of the solicitation information prior to submitting the agency tender in February 2008. The Bid Protest Regulations contain strict rules requiring timely submission of protests. These rules require that protests based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of proposal must be filed prior to that time. Thus, if the ATO believed that the additional information provided by the agency in response to the ATO’s first protest continued to be inadequate to facilitate preparation of the agency tender, the ATO was required to protest that matter before submitting it’s tender. Since it did not, to the extent its protest is based on the alleged inadequacy of solicitation information, the protest is untimely and, therefore, must be dismissed.
Next, the protest refers to Question T-16-405-CE, in which the ATO questioned the sufficiency of the workload data in appendix 16B related to the solicitation requirements to manage environmental matters. The agency responded to this question on July 30, stating the offerors should “review the final RFP upon posting for the workload information necessary to prepare a proposal.” The protest asserts that this is another example of the agency’s “fail[ure] to provide a proper answer.” In responding to the protest, the contracting officer points out that the agency published its response to Question T-16-405-CE in July 2007–more than a month before the agency published the solicitation in September 2007. The contracting officer further states that, following the agency’s July 2007 response, appendix 16B was revised and republished with the RFP, and that, following that republication, the ATO did not again question the sufficiency of the data.
The ATO did not re-file its protest challenging the adequacy of the solicitation information prior to submitting the agency tender in February 2008. Further, in its post-agency report comments, the ATO has not further addressed this matter in anyway. Accordingly, as discussed above with regard to question T-0092-CE, this protest issue is dismissed as not timely raised and, in any event, has been abandoned.
Finally, the ATO’s protest refers to Question T-02-626, and the agency response, regarding the historic data for vehicle operation and maintenance provided by the agency in RFP appendix 2FF. The ATO asserts that the agency’s response regarding fuel costs was misleading and/or ambiguous and that the MEO reasonably concluded that additional costs for vehicle fuel had to be included in the agency tender. The record does not support this assertion. Specifically, as discussed above, section H-019 of the solicitation, titled “Government Provided Fuel,” explicitly advised the offerors: “[t]he service provider is authorized to use the self-service base service station to Sheppard AFB to refuel Government furnished and service provider acquired vehicles and equipment. . . . This fuel is considered Government-furnished.” Consistent with this unambiguous solicitation provision, the agency’s response to Question T-02-626-CE confirmed the directions of that provision, stating that the historic data in appendix 2FF, which had been provided for use in preparing proposals, did not include the cost of fuel.
On this record, the ATO cannot persuasively argue that it reasonably believed the agency tender should include the cost of vehicle fuel. To the contrary, the solicitation expressly provided that such costs were not to be included in proposals because the fuel would be provided by the government, and the agency re-enforced the solicitation provision in responding to the ATO’s question. On the record here, GAO finds no merit in the ATO’s assertion that the solicitation information and/or the agency response to Question T-02-626-CE was misleading or created ambiguity with regard to the service provider’s fuel costs; the ATO’s protest to the contrary is denied. The protest is dismissed in part and denied in part.