B-241092.3, Feb 11, 1991, 90-2 CPD ***

B-241092.3, Feb 11, 1991, 90-2 CPD ***

PROCUREMENT - Bid Protests - Moot allegation - GAO review PROCUREMENT - Competitive Negotiation - Offers - Evaluation - Technical acceptability DIGEST: 1. Protest alleging that technical evaluation should have taken into account protester's satisfactory performance on prior contracts with same agency is without merit; firm is not entitled to presumptions based on prior performance but, rather, must demonstrate its capabilities in its proposal. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties 2. Protest of agency's decision to conduct procurement using negotiated procedures instead of sealed bidding is dismissed as untimely where not filed at General Accounting Office prior to time set for receipt of initial proposals.

Attorneys

Lambrecht Sons, Inc.:

Lambrecht Sons Inc. protests the award of a contract to FASCO, Inc. under request for proposals (RFP) No. DABT19-90-R-0017, issued by the Department of the Army for painting of military family housing at Fort Leavenworth, Kansas.

We dismiss the protest.

The RFP provided for award of a contract to the offeror whose proposal represented the overall best value to the government, technical, price and other factors considered. Three offerors, including Lambrecht and FASCO, submitted proposals. After evaluating the proposals, the Army requested best and final offers (BAFO) from all three offerors. Lambrecht refused to submit a BAFO, complaining to the Army that the BAFO request amounted to an improper auction. Lambrecht also filed a protest against the BAFO request in our Office. We dismissed the protest as untimely. LambrechtSons Inc., B-241092, Sept. 24, 1990, 90-2 CPD Para. 253. We also noted that there is nothing inherently improper in an agency's request for BAFOs in a negotiated procurement. Id.

After evaluating BAFOs, the Army determined that although Lambrecht's initial proposal was the lowest priced at $144,271, FASCO's revised proposal represented the best overall value to the government, and awarded the contract to FASCO for $169,171. Lambrecht then filed this protest of the award.

In its initial protest filing, Lambrecht challenged the award to FASCO at a higher price than Lambrecht offered. In its report on the protest, the Army explains that FASCO's technical proposal earned 856.6 out of 1,000 points, while Lambrecht's earned 613.2 points; the contracting officer determined that FASCO's substantial technical advantage outweighed the 14.7 percent price difference between the offers. In its comments on the agency report, Lambrecht does not challenge the Army's determination except to assert that it has performed three similar contracts for the same activity in a satisfactory manner, and that it submitted the same technical proposal for a previous procurement and received a high score. This argument is without merit; there is no legal basis for favoring a firm with presumptions based on the offeror's prior performance. Intelcom Support Servs., Inc., B-225600, May 7, 1987, 87-1 CPD Para. 487. Lambrecht does not otherwise take issue with specific aspects of the Army's determination concerning the relative merits of the proposals-- indeed, Lambrecht admits that it deliberately refused to correct its proposal deficiencies in a BAFO-- we have no basis to consider the protest further.

The remainder of Lambrecht's comments argue at length that the agency improperly used negotiated procedures instead of sealed bidding. We will not consider this untimely issue. As we pointed out in our decision on Lambrecht's prior protest, a protest of an agency's decision to use negotiated procedures instead of sealed bidding concerns a solicitation impropriety which, under our Bid Protest Regulations, must be protested prior to the time set for receipt of initial proposals. 4 C.F.R. Sec. 21.2(a)(1) (1990); Fiber-Lam, Inc., B-237716.2, Apr. 3, 1990, 69 Comp.Gen. ***, 90-1 CPD Para. 351.

The protest is dismissed.