INDUS Technology, Inc.
B-297800.13, Jun 25, 2007
INDUS Technology, Inc. protests its exclusion from consideration for the award of a contract under request for proposals (RFP) No. 6FG2005MYV000001, issued by the General Services Administration (GSA) for information technology services. INDUS argues that its proposal was improperly excluded from the competition for failing to provide the minimum acceptance period established by the RFP.
We deny the protest.
B-297800.13, INDUS Technology, Inc., June 25, 2007
Agency reasonably excluded offeror's proposals from competition where the cover letters accompanying the proposals provided for an acceptance period of 180 days, and the solicitation required a minimum acceptance period of 350 days and specifically stated that proposals providing less than the minimum acceptance period would be rejected.
INDUS Technology, Inc. protests its exclusion from consideration for the award of a contract under request for proposals (RFP) No. 6FG2005MYV000001, issued by the General Services Administration (GSA) for information technology services.
GSA issued the RFP on
The RFP provided that awards were to be made on a best value basis considering two evaluation factors, price and technical merit (which consisted of two subfactors, past performance (a pass/fail evaluation) and contract performance plan). The RFP also provided that prior to evaluating offerors' prices and technical proposals, GSA would review each proposal for completeness and adherence to instructions. RFP at M.2. According to the RFP, proposals that did not pass this acceptability review would not be further evaluated.
As it relates to the protest, offerors were instructed to submit their proposals using standard form (SF) 33. Section L of the RFP, entitled Instructions, Conditions, and Notices to Offerors, contained the following provision:
L.3. Offer Acceptance Period. The Offeror shall complete Block 12 of each SF33 submitted with full cognizance of the minimum acceptance period established herein.
(a) Acceptance period, as used in this provision means the number of calendar days available to the Government for awarding a Contract from the date specified in this solicitation for receipt of offers.
(b) This provision supersedes any language pertaining to the acceptance period that may appear elsewhere in this solicitation.
(c) The Government requires a minimum acceptance period of not less than 365 calendar days.
(d) Offerors may specify a longer acceptance period than the Government's minimum requirement.
(e) An offer allowing less than the Government's minimum acceptance period will be rejected.
(f) The offeror agrees to execute all that it has undertaken to do, in compliance with its offer, if that offer is accepted in writing within--(1) The acceptance period stated in paragraph (c), this provision; or(2) Any longer acceptance period as permitted by paragraph (d) of this provision.
RFP at L-11.
As explained by GSA, the lengthy acceptance period was considered necessary due to GSA's expectation that it would receive numerous proposals in response to the solicitation and the resulting time that it would take to evaluate those proposals. Contracting Officer's Statement at 3.
Section L of the RFP also incorporated by reference Federal Acquisition Regulation (FAR) sect. 52.215-1, Instructions to Offeror--Competitive Acquisition. RFP at L-15. This provision expressly states that [p]roposals may be withdrawn at any time before award. FAR sect. 52.215-1(c)(8). The RFP also informed offerors that GSA intended to make awards without discussions; however, GSA reserved the right to conduct discussions if they were determined to be in the government's interest. RFP at L-1.
In response to the RFP, which had a closing date of
Ultimately, the agency completed its evaluation of proposals in April 2006, and made its award determinations between the end of April and early May 2006. At that time, GSA received one agency-level protest and three protests were filed with our Office. The three protests filed with our Office had decision due dates in late August. Since the decision due dates were after the RFP's minimum proposal acceptance period, GSA was concerned that the remaining offerors' proposals would expire prior to resolution of the protests. As a consequence, GSA sent letters to the remaining offerors, on
On September 7,
With regard to the first issue, INDUS contends that the provision in the solicitation specifying rejection of proposals which allowed for less than the minimum acceptance period required by the RFP is invalid because it is in direct conflict with FAR sections 15.208(e) and 52.215-1 (which was incorporated in the solicitation), both of which provide that an offeror may withdraw its proposal any time before award.
Regarding the second issue,
In the alternative, INDUS argues that assuming the 180-day language contained in its cover letters was properly considered part of its proposals, the language created at most an ambiguity regarding the acceptance period; this ambiguity, INDUS asserts, was the result of a clerical error and should have been addressed through clarifications. Even accepting
The solicitation expressly provided that the agency intended to make award without discussions and the agency did in fact make award without holding discussions. FAR sect. 15.306(a)(2), which addresses clarifications and award without discussions, states in relevant part that where an award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals . . . or to resolve minor or clerical errors. Pursuant to this provision, an agency has broad discretion to decide whether to engage in clarifications with an offeror.
While we recognize that there may be a rare situation where it would be unfair to request clarification from one offeror but not from another, the mere fact that an agency requests clarification from one offeror and not another, does not constitute unfair treatment. General Dynamics--Ordnance & Tactical Sys., supra; see also, FAR sect. 1.102-2(c)(3) (providing that [a]ll contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same). As a consequence,
As a final matter,
In sum, given the explicit language in the RFP establishing a required minimum acceptance period of 350 days, and in the absence of a timely challenge to this provision, we have no basis to object to the agency's rejection of protester's proposals given the language in its cover letters limiting the acceptance period of its proposals to 180 days.
The protest is denied.
Gary L. Kepplinger
 The minimum acceptance period was changed from 365 days to 350 days through RFP amendment 7.
 The three protests filed with our Office were ultimately withdrawn or denied and are not otherwise relevant to this case.
 Block 12 of the SF 33, as issued in the RFP and as completed by