B-234887, Apr 24, 1989, 89-1 CPD 403

B-234887: Apr 24, 1989

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Protest of agency's failure to include non-cost/price evaluation factors in solicitation is untimely when not filed prior to the closing date for receipt of initial proposals. Alleged improprieties that are apparent on the face of a solicitation must be filed by that date. Who is vested with a wide degree of discretion in exercising his business judgment. Is not precluded from finding an offeror to be responsible simply because he initially determined the firm to be nonresponsible. Blane argues that the RFP's stated evaluation criteria were defective and that Melcon was nonresponsible. Was August 29. Cost or price and other factors considered. /1/ Six proposals were received on August 29.

B-234887, Apr 24, 1989, 89-1 CPD 403

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: 1. Protest of agency's failure to include non-cost/price evaluation factors in solicitation is untimely when not filed prior to the closing date for receipt of initial proposals. Alleged improprieties that are apparent on the face of a solicitation must be filed by that date. PROCUREMENT - Contractor Qualification - Responsibility - Contracting officer findings - Affirmative determination - GAO review 2. Contracting officer, who is vested with a wide degree of discretion in exercising his business judgment, is not precluded from finding an offeror to be responsible simply because he initially determined the firm to be nonresponsible.

Blane Corporation:

Blane Corporation protests the award of a contract to Melcon Systems, Inc., under request for proposals (RFP) No. N61339-88-R-0025, issued by the Department of the Navy for the acquisition of military targets. Blane argues that the RFP's stated evaluation criteria were defective and that Melcon was nonresponsible.

Based on the protester's initial submissions, we dismiss the protest.

The closing date for receipt of initial proposals under this RFP, a small business set-aside, was August 29, 1988. The RFP basically provided that award would be made to that responsible offeror whose offer, conforming to the solicitation, would be most advantageous to the government, cost or price and other factors considered. /1/

Six proposals were received on August 29. Following preaward surveys, the contracting officer determined that while Melcon was the lowest-priced offeror, it was nonresponsible because it lacked the cash flow or credit to perform the contract, and it could not meet the required delivery schedule. The contracting officer referred the question of Melcon's responsibility to the Atlanta regional office of the Small Business Administration (SBA) for possible issuance of a certificate of competency (COC). The regional office did not reach the responsibility question because it determined that Melcon was engaged in a joint venture and, therefore, was not a small business. Melcon appealed to the SBA's Office of Hearings and Appeals which reversed the regional office and held that Melcon was not part of a joint venture. Apparently, after the SBA's final size status ruling, the contracting officer reconsidered his initial nonresponsibility determination and found Melcon to be responsible. March 10, 1989, the contract was awarded to Melcon, as the lowest, responsible offeror. Blane, the third lowest offeror, filed this protest on March 22.

Blane first argues that the evaluation was defective because offerors did not know what criteria, in addition to price, would be used in the evaluation since no factors other than price were identified in the solicitation. To the extent Blane is asserting the solicitation award methodology was defective, its protest is untimely. Our Bid Protest Regulations require that a protest based upon alleged improprieties in a solicitation which are apparent prior to the closing date for receipt of proposals must be filed prior to the closing. 4 C.F.R. Sec. 21.2(a)(1) (1988). Here, the alleged defect in the RFP evaluation scheme, the lack of technical evaluation factors, was apparent from the RFP. However, Blane did not protest this issue until March 22, 1989, approximately 7 months after the closing date for receipt of proposals, and, accordingly, this ground of protest is untimely. See Mictronics, Inc., B-228404, Feb. 23, 1988, 88-1 CPD Para. 185.

We point out, however, that there is no requirement that an RFP include technical evaluation factors. In the absence of such factors, award simply is based on price. Since the solicitation did not specify any "other" factors to be considered in evaluating proposals, it should have been clear from the solicitation that price would be the determining award factor. See, e.g., Colt Industries, Inc., B-231213.2, Jan. 23, 1989, 89-1 CPD Para. 49; Berkey Marketing Companies, B-224481 et al., Nov. 20, 1986, 86-2 CPD Para. 596; Squibb Vitatek, Inc., B-208153, Mar. 29, 1983, 83-1 CPD Para. 320. Thus, the Navy's award to Melcon as the low offeror is not objectionable since it was consistent with the RFP's statement that award would be based on price.

Blane also argues that Melcon should not have received the award because the contracting officer initially determined, based on the results of the preaward survey, that Melcon was nonresponsible. There is no merit to this argument. The determination of a prospective contractor's responsibility is the duty of the contracting officer who is vested with a wide degree of discretion and business judgment. See Herbert Bauer GmbH & Co., B-225500.3, Aug. 10, 1987, 87-2 CPD Para. 142. The contracting officer also has broad discretion as to whether or not a preaward survey should be conducted and, if conducted, the degree of reliance to be placed on the results of the survey. Id. Further, a contracting officer is not precluded from finding an offeror to be responsible simply because he initially believed the offeror to be nonresponsible. The fact that the contracting officer changed his assessment of Melcon's responsibility does not itself indicate any impropriety, and Blane has not alleged that the contracting officer's reconsideration of his initial determination of nonresponsibility was made in bad faith or was fraudulent.

In any event, we have been advised by the Navy that there is another offeror that would be in line for award if Melcon's offer were rejected. As a result, Blane is not an interested party to challenge the award to Melcon since, even if we were to sustain its protest against award to Melcon, it would not be in line for award. 4 C.F.R. Sec. 21.0(a) and 21.1(a); Schlumberger Industries, B-232608, Dec. 27, 1988, 88-2 CPD Para. 626.

Blane has requested that a conference be held on the merits of its protest. However, no useful purpose would be served by holding such a conference since it is clear from the initial protest submission that the protest is without merit. See Engineering and Professional Services, Inc., B-228437, Nov. 3, 1987, 87-2 CPD Para. 439.

Accordingly, the protest is dismissed.

/1/ As part of the cost evaluation, section M of the RFP specified that transportation costs would not be evaluated; that the government would multiply unit prices by stated quantities; and that prices for basic and option quantities would be considered nonresponsive if materially unbalanced.