B-400177; B-400177.2, ECI Defense Group, July 25, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
2. Protester is not an interested party to maintain protest challenging proposal evaluation where it did not acknowledge material amendment; protester would be ineligible for award even if protest of evaluation were sustained.
ECI Defense Group protests the award of a contract to Thomas Instrument under request for proposals (RFP) No. SPM4A7-07-R-1322, issued by the Defense Supply Center Richmond (DSCR), Defense Logistics Agency, for aircraft actuator screwshaft assemblies. ECI argues that the agency’s evaluation of offerors’ proposals was improper.
The RFP, issued on
ECI submitted its proposal by the December 17 closing
date. As part of its proposal, ECI both
requested a waiver of the first article requirement (based upon prior
approval), and stated that it would make deliveries 372 days after receipt of
order. Agency Report (AR), Tab 4, ECI
On April 22, by amendment No. 0005, the agency changed the
base year’s guaranteed minimum quantity from 63 to 250 assemblies (in
comparison to the unchanged estimated quantity of 252 units) and established a
revised closing date of April 29. The
amendment also included a pricing table by which offerors could revise their
prices. RFP amend. 5, at 1-2. ECI did not submit amendment No. 0005, and
thereby either modify or confirm its pricing in light of the change to the base
year’s guaranteed minimum quantity, by the April 29 closing date. Instead, ECI signed and returned
amendment No. 0005 on April 30 without modifying its pricing. AR, Tab 13, ECI amend. 5,
The agency evaluated the proposals of ECI, Thomas
Instrument, and a third offeror. DSCR
determined that ECI was ineligible for award because the firm had failed to
respond to amendment 0005 in a timely manner.
AR, Tab 16, DSCR Evaluation Report, at 2. The agency also found ECI’s proposal to be
failing to comply with the RFP’s delivery schedule: ECI had proposed deliveries 386 days
after receipt of an order while, in light of the waiver of the first article
requirement, the RFP in effect required ECI to make deliveries 200 days after
receipt of an order.
ECI protests the agency’s determination that its proposal
was unacceptable. Specifically, the
protester argues that its proposal did in fact comply with the solicitation’s
delivery schedule and represented the best value to the government based on its
more favorable pricing. Protest,
The agency argues that ECI’s protest should be dismissed
because ECI is not an interested party.
The agency contends that ECI failed to timely acknowledge amendment No.
0005, a material amendment to the solicitation.
Because ECI did not have a valid (i.e., timely submitted)
proposal before the agency for consideration and thus is ineligible for award
even if it prevails in its protest, DSCR argues, ECI is not an interested party
to pursue its protest. Agency Dismissal Request,
ECI argues that its protest should not be dismissed on these grounds. The protester does not dispute that it failed to acknowledge and return amendment No. 0005 by the specified date. Rather, ECI argues that its late submission of amendment No. 0005 did not automatically mandate rejection of its proposal but instead made such action only discretionary on the agency’s part (and DSCR apparently elected to further consider ECI’s proposal). In support thereof, ECI points to the language of Standard Form (SF) 30, Amendment of Solicitation/Modification of Contract, which states in relevant part that “[f]ailure of your acknowledgement to be received at the place designated for the receipt of offers prior to the hour and date specified may result in rejection of your offer.”
We find that ECI
failed to timely acknowledge a material amendment and, as a result, is not an
interested party to challenge the agency’s evaluation of proposals. As a general rule, an offeror’s failure to
acknowledge a material amendment renders the proposal unacceptable and such
proposal may not form the basis for award.
Sterling Servs., Inc., B-291625, B-291626,
Here, amendment No. 0005 significantly altered the
guaranteed minimum quantity for the base year.
Instead of a guaranteed minimum quantity of 63 assemblies as contained
in the original RFP, the amendment changed the minimum quantity that DSCR was
required to purchase to 250 assemblies, in comparison to the unchanged
estimated quantity of 252 units. As
expressed in percentage terms, amendment No. 0005 changed the RFP’s
guaranteed minimum quantity for the base year from 25 percent (63 / 252
= .25) to 99 percent (250 / 252 = .99) of the estimated
quantity. While the evaluation of
proposals remained based on offerors’ prices for the estimated quantities,
offerors were able to, and did, propose different (i.e., tiered) pricing
based on the number of units that the agency actually purchased. For example, ECI’s base year price for the
guaranteed minimum quantity of 63 assemblies was $[DELETED] each, while
its base year price for the estimated quantity of 252 assemblies was $[DELETED]
each, a $[DELETED] difference per unit.
AR, Tab 9, ECI Email to DSCR,
In light of this, ECI
is not an interested party to challenge the agency’s evaluation of proposals. In order for a protest to be considered by
our Office, a protester must be an interested party, that is, an
actual or prospective offeror whose direct economic interest would be affected
by the award or failure to award a contract. 4 C.F.R. sections 21.0(a)(1), 21.1(a) (2008); Cattlemen’s
The protest is dismissed.
Gary L. Kepplinger
 The solicitation also included a schedule
for the agency test and evaluation of the contractor’s first article
 ECI proposed tiered pricing based on the number of assemblies actually purchased by the agency.
 While DSCR rejected ECI’s proposal as “non-responsive,” the record is clear that the solicitation here employed negotiated procedures pursuant to FAR Part 15. Accordingly, references to “nonresponsiveness” are inappropriate, since this concept is not applicable to negotiated procurements. See Lifecare Mgmt. Partners, B-297078, B-297078.2, Nov. 21, 2005, 2006 CPD para. 8 at 6 n.12; Marshall-Putnam Soil & Water Conservation Dist., B-289949, B-289949.2, May 29, 2002, 2002 CPD para. 90 at 4-5. We instead interpret the agency’s evaluation as concluding that ECI’s proposal was technically unacceptable for failing to comply with the RFP’s delivery schedule.
 Alternatively, ECI contends that the agency
should have held discussions with it regarding any perceived discrepancies in
its delivery schedule. Protest,
ECI also claimed that DSCR had failed to treat offerors equally and that the
agency was biased in favor of Thomas Instrument, Protest,
 While the award notice stated that ECI’s proposal had been found unacceptable for failing to comply with the required delivery schedule, AR, Tab 18, DSCR Letter to ECI, May 12, 2008, it was not until the dismissal request was filed with our Office that the agency informed ECI that its proposal was also considered untimely for failing to acknowledge amendment No. 0005 by the specified date.
 We also find ECI’s reliance on the alleged discretionary language contained within amendment No. 0005 (“[f]ailure of your acknowledgement to be received . . . prior to the hour and date specified may result in rejection of your offer”) to be misplaced. The use of the word “may” on SF 30 provides offerors with notice that a failure to timely acknowledge the amendment could result in rejection of their proposals, depending on the materiality of the amendment. When the amendment which an offeror fails to timely acknowledge is, as here, material in nature, however, the offeror’s proposal must be rejected. Moreover, even while DSCR also found ECI’s proposal to be noncompliant with the RFP’s delivery schedule, the agency’s contemporaneous evaluation determined ECI ineligible for award because of the offeror’s failure to timely acknowledge the material amendment here.