B-228434.2, Feb 4, 1988

B-228434.2, Feb 4, 1988

DIGEST: 1. Bid protest based upon alleged apparent solicitation impropriety must be filed prior to the closing date for the receipt of initial proposals. 2. Procuring agency has the discretion to exclude from the competitive range a proposal with significant informational deficiencies which would require major revision to be considered technically acceptable. 3. Procuring agency is required to hold discussions only with offerors within the competitive range. 4. Protester's mere conjecture is insufficient to establish that an agency conducted a procurement in a biased manner.

Imagineering Systems Corporation:

Imagineering Systems Corporation protests the award of a contract to Corporate Jets, Inc., under request for proposals (RFP) No. DEA 87-R 2058, issued by the Drug Enforcement Administration (DEA) for aircraft maintenance and repair for DEA's aviation unit. Imagineering Systems alleges that the solicitation requirements were overly restrictive, its proposal was improperly excluded from the competitive range, the agency failed to hold discussions with the protester and the agency was biased against the protester.

We dismiss the protest in part and deny it in part.

The RFP evaluation criteria provided that proposals could receive a maximum of 100 points, as follows: (1) management organization-40 points (2) technical experience-35 points (3) manpower utilization-15 points and (4) total cost-10 points. DEA received proposals from three offerors, Kay Associates, Inc., Corporate Jets, Inc. and Imagineering Systems. DEA found both Kay's and Corporate Jets' proposals technically acceptable, but excluded Imagineering's proposal from the competitive range on the ground that major revision would be necessary to correct technical deficiencies. By letter dated September 21, 1987, the contracting officer notified Imagineering that its proposal had been rejected. Following written discussions with Corporate Jets and Kay, best and final offers were requested from these two offerors; award was made to Corporate Jets whose proposal received a perfect score of 90 points in the technical areas.

Imagineering protests that the RFP was overly restrictive because it required the submission of a detailed staffing plan, which favored the incumbent contractor. Under our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1) (1987), a bid protest such as this which is based upon an alleged impropriety which is apparent from a solicitation must be filed prior to the closing date for the receipt of initial proposals. Brunswick Corp., et al, B-225784.2 et al, July 22, 1987, 87-2 CPD Para. 74. Imagineering's protest against the requirement was untimely filed after the closing date.

Imagineering next protests the exclusion of its proposal from the competitive range. Since the contracting agency is responsible for defining its own needs and the best methods of accommodating them, the evaluation of the proposal and the resulting determination of whether an offeror is in the competitive range is within the agency's discretion. Maxima Corp., B-220072, Dec. 24, 1985, 85-2

Para. 708. A procuring agency properly may exclude from the competitive range a proposal which is considered so deficient, compared to other proposals, that it would require major revisions to be acceptable. Educational Computer Corp., B-227285.3, Sept. 18, 1987, 87-2 CPD Para. 274. In this case, the pro-tester's refusal to provide required information caused the contracting officer to conclude that Imagineering's offer was technically inadequate and not amenable to being made acceptable without major revisions. Further, Imagineering's cost proposal was the highest of the three which were submitted.

Imagineering's proposal was considered technically unacceptable because of the protester's failure to comply with the RFP requirements for a staffing plan and an indication of requisite technical experience. It is the offeror's obligation to submit an adequately written initial proposal in order to establish that what it proposes will meet the government's needs. Id. We find that DEA reasonably determined that Imagineering omitted substantial, significant information from its proposal, and reasonably concluded that the proposal was deficient in these areas.

Contrary to protester's assumption, a procuring agency is required to hold discussions only with offerors within the competitive range. Delcor International, B-221230, Feb. 13, 1986, 86-1 CPD Para. 160. Since Imagineering's proposal was properly excluded from the competitive range, DEA was under no obligation to enter into discussions with Imagineering.

Finally, the protester alleges that DEA was biased against Imagineering because it is a woman-owned business. Bias will not be attributed to procurement officials based on inference or supposition. Complere, Inc., B-227832, Sept. 15, 1987, 87-2 CPD Para. 254. Imagineering has submitted no evidence of prejudicial motive or treatment on the part of DEA officials. Imagineering complains that it was denied a site visit while another offeror was granted a site visit, however, the record discloses that this was primarily the result of Imagineering's actions. particular, Imagineering did not request a site visit until 9 days before the date for receipt of initial proposals, and failed to provide a telephone number. The contracting officer attempted to contact Imagineering, but the telephone company did not have the correct number at the address provided by Imagineering. As a result, the contracting officer was unable to timely schedule a site visit. In any event, the lack of a site visit was not material to the elimination of the protester's proposal from the competitive range since this resulted primarily from Imagineering's inability or refusal to provide required information. We do not find this to be indicative of bias, nor is there any evidence of bias in the record.

The protest is dismissed in part and denied in part.