[Protest of Army Contract Award for Remote Control Systems]

A firm protested an Army contract award, contending that: (1) it should have received the contract because it offered a lower cost proposal than the awardee; (2) since both the technical proposals were included in the competitive range, the proposals should be considered equal and award, therefore, should have been made to the offerer proposing the lowest cost; and (3) the Army's decision to require offers to include a ceiling on the government's liability in effect converted the proposed contract into a fixed-price contract, which should have been awarded on the basis of cost proposals alone. GAO noted that the competitive range in a negotiated procurement consists of all proposals that have a reasonable chance of being selected for award. GAO found that: (1) the establishment of the competitive range did not signify that technical proposals had received equal ratings; (2) the Army's decision to select a higher rated technical proposal was consistent with the evaluation scheme of the solicitation which provided that technical considerations were significantly more important than cost; and (3) the protester had made no showing that selection of the awardee's higher rated, higher cost proposal was unreasonable. The protester also argued that it was improper for the Army to award the contract since there was no requirement in the contract that the awardee actually follow the approach on which its technical rating was based. GAO found that the Army's actions in making the award, requiring offerers to specify a cost ceiling, and not incorporating the awardee's proposal in the contract were indicated to the offerers during negotiations and best and final offers. GAO also found that: (1) the protester did not file a protest before the due date for best and final offers; (2) the protest challenging the awardee's business qualifications concerns an affirmative determination of responsibility which GAO will not review; (3) the potential protest based on information which may be received pursuant to the Freedom of Information Act will be timely if it is filed within 10 days of receiving the information; and (4) the protest challenging the Army's evaluation of the protester's proposal was untimely since it was not filed within 10 days of the protester's debriefing by the Army. Accordingly, the protest was denied in part and dismissed in part.