1990 Digest
Protest of failure to receive priority to operate vending machines is sustained. Under Randolph-Sheppard Act, State blind licensing agency is entitled to priority; fact that some locations are licensed to agency does not mean organization is not entitled to additional locations; if exception is to be made, procedure for consideration of exception by Department of Education must be followed; otherwise, sites sought by agency should be provided to it.
Protests of exclusion from competitive range under solicitation for asbestos abatement services are denied. Protester has burden to show that exclusion determination was arbitrary, capricious, or abuse of discretion; burden is not met here; it was offeror's responsibility to supply an emergency action plan and insurance information, and offer which lacked it is properly determined unacceptable.
Protest of award of contract for mobile postal retail van is denied. Where solicitation provided for award on the basis of a price/technical trade off, award was properly made to significantly higher-ranked technical proposal at slightly higher price; disagreement with technical evaluation is not sufficient basis for successful challenge.
Protest of award of contract for food vending services is dismissed in part and denied in part. Protest of terms of amendment is untimely made after offers are due; protester which is not in line for award if successful offeror is displaced lacks standing to challenge successful offer; record provides no basis to conclude that evaluation was arbitrary; whether awardee complies with contract requirements is matter for contract administration, not protest; contention that award should have been based on highest commissions is incorrect given solicitation evaluation criteria.
Protest of award of contract for direct access storage devices is denied. Timeliness of protest involving domestic-source eligibility of offered items is measured from protester's knowledge of item's source, not earlier knowledge of contract award; while compliance with Buy American requirement is matter of contract administration, protest jurisdiction extends to proper application of Buy American evaluation factor; vendor's certification and subsequent representation properly informed contracting officer's decision not to apply 6% price differential; that decision is part of determination of vendor's responsibility, and not subject to review absent fraud or bad faith, not here alleged.
On reconsideration, prior decision is adhered to; decision by General Services Board of Contract Appeals said to be contrary to decision is not "binding law" and, given differences in GSBCA and postal protest jurisdictions, need not be applied here; our office similarly lacks authority to order an investigation whether the end item is, indeed, domestic; other arguments repeat contentions already made.
Protest of award of contract for vehicle washing services is dismissed. Contention that awardee improperly used information gained in previous employment with protester in preparing offer is not for protest consideration; matter is for resolution by the parties; in any event, the allegations do not show a violation of the certificate of independent price determination, which is to prevent collusion, not hinder competition.
Protest against determination of nonresponsibility as to contract for renovation of office space is denied. Determination that offeror lacked experience necessary to complete complex phased project was reasonably based and not arbitrary or capricious.
Protest of award of contract for canvas hampers is denied. Protest of provision of canvas inserts by Federal Prison Industries, Inc., (UNICOR) as awardee's subcontractor is challenge to affirmative determination of awardee's responsibility not subject to upset because neither fraud, abuse, nor definitive responsibility criteria are implicated; contention that subcontract would be violation of Convict Labor or Walsh-Healey Act clauses is matter for contract administration, not protest.
Request for reconsideration neither offers new facts nor identifies errors of law, but instead incorrectly suggests errors of fact, affords no basis for reconsideration, and request is denied.
Protest of rejection of bid for coin-operated photocopy services is denied. Bid was nonresponsive for including daily, as well as monthly copy numbers, creating an ambiguity, as well as for providing more than one commission rate.
Protest of award of contract for post office construction is denied. Contention that offeror is not a small business nor a minority-owned business as to solicitation limited to minority-owned business is challenge to affirmative determination of responsibility; record establishes that firm is 51% minority-owned, and evidence does not establish role of non-minority individual in day to day operations or decision-making; "affiliation" of firm with larger corporation is not material, since small business status was not an element of the award.
Request for reconsideration is denied where request merely disagrees with conclusion previously reached, reiterating arguments previously made, but providing neither new facts nor contentions of errors in law.
Protest of award of contract for spiral mail chutes is denied. Contention that awardee cannot provide conforming chutes is challenge to affirmative determination of responsibility; specification requirement that chutes be of "proven design" is not a specific objective requirement in the nature of a definitive responsibility criterion; level of performance required during contract performance is a matter of contract administration, not the protest process; absent fraud or abuse, determination of responsibility cannot be overturned
Protest of consideration of late bid for highway mail transportation contract is denied. Late bid sent by certified mail five days before bid opening time may be considered consistent with late bid provision of solicitation; contracting officer's position that postmark is authentic is adopted; there is no discrepancy between date of postmark and later date certified mail receipt was signed where signing was delayed by mishandling of bid after receipt; regulation governing mishandling after receipt would also allow bid consideration.
Protest of award of contract postal unit is dismissed. Contention that solicitation requirement that unit be "in Magnolia Plaza area" required unit to be located in Magnolia Plaza shopping center, and not nearby, was challenge to ambiguous solicitation term which is untimely raised after offers are received; protester submitting protest by facsimile has obligation to assure its timely receipt.
Protest of award of contract for quality assurance services is dismissed in part and denied in part. Protest is alleged with sufficient specificity to be considered; evaluation of competing offers was proper; fourth-ranked offeror lacks standing to challenge first-ranked offeror's intention to use independent contractors instead of employees.
Protest of award of architect/engineer services contract is denied. Contracting officer's decision not to award protester a contract after agreeing on terms is akin to cancellation of solicitation after receipt of offers, reduction of budget which removed requirement for the services was reasonable basis for decision; absent evidence of malice or intent to harm offeror, prejudice will not be presumed.
Protest against terms of solicitation for electronic PBX system is dismissed in part and denied in part. After purchasing agency establishes prima facie basis for its requirements, protester must demonstrate that requirements are clearly unreasonable; burden is not met where bases for requirements that system be owned, not leased, premise-based, and digital in construction are not clearly unreasonable.
Protest against rejection of proposal for large canvas hampers is denied. Offer that proposed item other than the item described in the specification is technically unacceptable; contention that specification is unduly restrictive is untimely raised after offers are due.
Protest of award of contract for computer maintenance is dismissed in part and denied in part. Solicitation manifests that technical factors will be more important than price; contention that solicitation is ambiguous is untimely raised; that awardee's technical proposal was substantially superior to protester's has a reasonable factual basis; price/technical trade-off had a reasonable basis.
Protest of award for intelligent channel service units is dismissed in part and denied in part. Challenge of brand name or equal requirement is to solicitation terms and must be raised before offers are due to be timely; determination that offer for listed brand-name item was technically acceptable is not arbitrary or capricious; contracting officer may find protest to contracting officer meritorious without advising other offerors; where evidence shows evaluators made honest error in evaluating awardee's price, claims of bad faith in cancellation of initial award which are not accompanied by evidence are unsupported.
Protest of award of contract for modular parts cabinets is dismissed in part and denied in part. Challenge to solicitation's requirement for cabinets of specific dimensions is untimely raised subsequent to the receipt of offers; where protester's offered cabinets did not meet size requirements, rejection of its offer was proper.
Protest of terms of solicitations for coin-operated photocopy services is denied. Reasonable basis exists for requirement that photocopy machines offered be of a model introduced into the market within three years.
Protest against determination of nonresponsibility for highway mail transportation contract is dismissed. Where "appeal" of determination states no grounds, and only grounds are raised in response to contracting officer's statement more than fifteen working days after contract award, protest is untimely.
Protest of failure to solicit previous incumbent for replacement emergency highway mail transportation service is sustained. Where prior contract was terminated for convenience after contractor declined to negotiate reduction in service hours, decision to terminate is not within protest jurisdiction; incumbent's prior objections, on grounds of safety, to reduced hour schedule do not justify failure to provide information about reprocurement once prior incumbent inquires about it.
Protest against determination of nonresponsibility for highway mail transportation contract is denied. Commercial credit check establishing bidder's financial problems, obtained after bidder failed to provide financial information, supported determination of financial nonresponsibility; prior inadequate performance, even in the absence of default termination, also supports nonresponsibility finding.
Protest of award of contract for energy management system is dismissed. Where contracting officer properly found protester's offered system technically unacceptable, protester is not interested party and lacks standing to challenge acceptability of awardee's offered system; protest which challenges technical acceptability of system listed as "equal" in solicitation is untimely raised after offers are due; supplemental issues based on contracting officer's statement are untimely raised more than ten working days after statement was received.
Protest of issuance of purchase order for tag and label racks is sustained. Where solicitation listed no evaluation factors other than price, award was to be made on the basis of price; award to higher-priced quoter on the basis of "best value" taking into account perceived advantages which outweighed price was improper; solicitation was defective for failing to identify essential characteristics of designated brand-name items; purchase order should be terminated for convenience and requirement resolicited.
Protest of failure to be solicited for a highway mail transportation contract is denied; record establishes omission was inadvertent, adequate competition was obtained, and prices received were reasonable.
Violation of regulatory requirement that prior incumbent contractor be solicited for replacement service does not require reconsideration of previous decision; where bids have been received and exposed, resolicitation would be inappropriate because of potential harm to those bidders.
Protest of issuance of purchase orders for neighborhood delivery and collection boxes is sustained. Where oral solicitation of quotations failed to inform quoters of any technical factors to be considered in evaluation quotes, it was improper to apply technical factors having to do with perceived problems with quoter's past performance not previously communicated to the quoter, which remains an approved source; degree of performance precludes cancellation of issued orders.
Protest of award of contract for maintenance of television monitors is denied. Contention that awardee cannot perform is challenge to affirmative determination of responsibility, not subject to challenge absent fraud, abuse, or failure to apply definitive responsibility criterion; contention of fraud or bad faith is not supported by proof of intent to harm protester; challenge of conclusion that offeror has access to monitor's specifications does not demonstrate failure to apply definitive responsibility criterion; that price may be below cost does not preclude award.
Protest of award of contract for provision of bus operators is denied. Offer which did not conform to solicitation on its face was properly evaluated for compliance with solicitation; where offer was 60% higher than successful offer, that offer would have been selected even if offers were technically equivalent; contention that awardee is not responsible is unsupported; evaluation of offers was not unreasonable.
Protest of terms of solicitation for commemorative collections binders is dismissed in part and denied in part. Elements of original protest resolved by solicitation amendment are moot; remaining contention that padding requirement is unduly restrictive is rebutted by showing that material is readily available;
Protest of award of heat exchanger installation contract is denied in part and dismissed in part. Offeror which declines to furnish requested information about its financial condition after questions about that condition arise may be found nonresponsible; contention that contracting officer improperly disclosed offeror's proposed "equal" item is untimely raised, but disclosure did not affect result.
Protest of award of contracts for international ocean mail transportation service is dismissed. New contentions first raised in response to contracting officer's statement are untimely raise more than fifteen days after contract award; protester was not in line for award if successful bidder is displaced, so is not "interested party" to challenge that award in absence of challenges to intervening bidders.
Protest of award of photocopy services contract is dismissed in part and denied in part. Protester's alternate proposal offering variable commission rates was properly rejected given the single rate scheme contemplated by the solicitation; offer does not violate Texas law regulating coin-operated machine commissions; offeror not in line for award lacks standing to challenge propriety of successful offer; objections to evaluation criteria are untimely raised.
Protest of award of contract for air transportation of mail is sustained. Where protester, incumbent contractor on segment, identifies flight not meeting schedule requirement in response to contracting officer's request for additional information, proposal should not have been rejected as technically unacceptable, since evaluation criteria did not include flight schedules; flight schedules were relevant to offeror's responsibility, but contracting officer should have also used additional evidence (past schedule performance, OAG schedules, etc.) in that determination or conducted clarifications to determine offeror's intent. Since award of other segments to protester establishes its responsibility, award of segment is to be terminated for convenience and new award made to protester.
Contracting officer's request for reconsideration offers no basis for reversal of prior decision, since it merely disagrees with the decision; contention that protester did not intend to offer service complying with schedule requirement is inconsistent with protester's position in the course of the protest, but if inquiry discloses protester's unwillingness to offer such service, segment should be resolicited.
Protest of award of indefinite quantity contract for repair and alteration construction services is dismissed. Protest to General Counsel received more than ten days after protester received contracting officer's denial of initial protest is untimely; protester found nonresponsible lacks standing to challenge award.
Protest of terms of solicitation for indefinite quantity construction services is denied. Contracting officer's refusal to lessen requirement that performance bond be furnished in the maximum contract amount is not arbitrary or made in bad faith; objection to regulatory requirement is a matter outside protest jurisdiction.
Protest by incumbent provider of technical support services of award of contract for computer-aided design services is dismissed in part and denied in part. Challenges to the evaluation of protester's offer are untimely raised well after contract award; questions of the propriety of transferring work previously done by protester to new contractor are matters of contract administration not for protest review; when contract expires, whether to add the work to another existing rather than to recompete is a matter within the contracting officer's discretion and not for protest review; socioeconomic policies do not set forth enforceable requirements; contentions of bias are not supported on record.
Protest of simplified purchase of photocopy machines is sustained. Award based on factors other than price was in error because non-price evaluation factors were not communicated to the offerors; circumstances of award and performance do not justify relief.
Protest of award of food service contract is denied. Evaluator's judgment of protester's sanitation was not arbitrary or in violation of regulations; where site visit did not affect evaluation, objections to conduct of site visit were irrelevant; fact that evaluators may have had experience with incumbent does not demonstrate their lack of objectivity; there was no impropriety in the selection of "non-professionals" as evaluators.
Protest of award of labor-hour contracts for logistics management specialists is denied. Where review of protester's proposal demonstrated that personnel proposed did not meet mandatory qualifications, solicitation did not require personnel interview, nor consideration of personnel's possible equivalent qualifications; fact that awardees, who were husband and wife, submitted identical price proposals raises question of collusion or restraint of trade not for protest review, but submission of identical prices by related individuals does not appear to violate applicable principles.
Protest of issuance of purchase order for sealing tape items by simplified purchasing is dismissed in part and denied in part. Objections to unduly restrictive requirements could have been made prior to submission of offers; where protester can offer only one of three requested items and contracting officer contemplates singe purchase order, determination of offeror's technical unacceptability is not arbitrary or capricious, although intent to make single award could have been disclosed; protester has not shown that specifications lacked a reasonable basis.
Protest against award of service contract for data entry clerks is dismissed. Fifth low offeror, which would not be in line for award if low offeror were displaced, lacks standing to challenge low offeror's proposal; contention that low offeror's price would not allow compensation to employees at Service Contract Act rates would not preclude award.
Protest against determination of offeror's nonresponsibility for construction contract is denied. Record supported contracting officer's determination of offeror's unsatisfactory past performance.
Protest of terms of contract for delivery bar code sorters is dismissed. Where solicitation is limited to offerors whose equipment has been tested under a Modification and Test Agreement, protester, whose equipment had not been so tested, lacks standing to protest; protester does not have standing under an exception for potential subcontractor; protester had constructive notice of availability of MTAs since they were synopsized in the Commerce Business Daily; contention that broad specification for printers infringed protester's technology is not within protest jurisdiction.
Protests of contracting officer's extensions of existing photocopy service contracts is dismissed. Where, as result of previous protest, contracting officer terminated various contracts, but allowed previously incumbent contractors to extend performance under their earlier contracts, protester should have known about continuation of contract services shortly thereafter, so that protest four months later was untimely.
Protest of terms of solicitations for photocopy services is denied. Where solicitation included new service, in addition to service being reprocured following default termination, issuance of new solicitation was proper; flat rate commission requirement is appropriate and solicitation is not ambiguous with respect to it; terms of contract were not unduly restrictive, determination of minimum needs was reasonable.
Protest of proposed issuance of purchase orders for audio and video-cassette mailers is denied. Protester has not shown that oral request for quotations imposed conditions on it which differed from those offered other quoters; protester was given opportunity to propose its best price on the packaging terms it now urges, and cannot now complain; in absence evidence of intention to issue separate orders for separate items, protester is not entitled to split award.
Protest of award of solicitation for elevator maintenance is dismissed. Protest received more than fifteen working days after contract award is untimely and not for consideration; fact that simplified purchase procedure does not require notice of award to unsuccessful offerors and that protester thus did not receive notice does not alter that result.
Protest of award of highway mail transportation contract is dismissed. Protest received in November following June date of contract award is untimely; contention that contractor is violating regulations applicable to contract performance presents matter of contract administration outside protest jurisdiction.
Protest objecting to inclusion in solicitation for bard code readers of protester's drawings is dismissed. The appropriate remedy for a claim of violation of proprietary rights by the government is an action for damages; such a claim is not cognizable under our protest jurisdiction.
Protest of use of contract air carrier, rather than scheduled U.S. carrier, for one-time transportation of mail to Germany is sustained in part and denied in part. Protest jurisdiction extends to contract modifications challenged as outside the scope of the contract; representative of carriers disadvantaged by the diversion of mail volume has standing to protest; while substantial contract performance may preclude relief, protest is not moot and resolution of questions presented may have prospective utility; protest jurisdiction extends to exercise of emergency transportation contracting authority; while circumstances for outbound mail justified emergency contract, procedures followed were not those for emergency contracting, since no determination and finding was prepared, and emergency contracting procedures do not include acquisition of services by contract modification; no emergency was shown as to use of flight for return mail.
Protest of award of contract for electric utility services is denied. This office lacks jurisdiction to resolve question whether awardee qualifies to provide the required service under state law; state authority is to police compliance with utility laws; awardee, not contracting officer, must comply with state law. Contention that awardee is not in compliance with state law is insufficient to overturn affirmative determination of awardee's responsibility; contracting officer has not abused authority to determine that award is in Postal Service's best interests.
Reconsideration is not appropriate where request merely disagrees with conclusions reached without demonstrating errors of law or presenting new information not previously considered.
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