Competitive Range Solutions, LLC

Decision

Matter of:  Competitive Range Solutions, LLC

File:  B-415274.2

Date:  April 4, 2018

DIGEST

Protest arguing that agency improperly waived a material solicitation requirement is dismissed as untimely where agency's interpretation of the requirement, while inconsistent with the protester's interpretation, was reasonable, and any ambiguity as to the intended meaning was patent, and thus should have been protested prior to the solicitation's closing date.

Competitive Range Solutions, LLC (CRS), a small business located in O'Fallon, Illinois,  protests the establishment of a Federal Supply Schedule (FSS) blanket purchase agreement (BPA) with Defense Acquisition Support CTA (DAS), of Washington, D.C.,[1] under solicitation No. HC1047-17-R-0018, issued by the Department of Defense, Defense Information Systems Agency (DISA), for agency program support.[2]  CRS argues that DISA improperly failed to reject as unacceptable the quotation submitted by DAS because one of that firm's teaming partners did not have an existing and current FSS contract, with the relevant special item numbers (SINs), at the time of quotation submission, which the protester asserts was a requirement of the solicitation.

We dismiss the protest.

BACKGROUND

The solicitation was issued on August 15, 2017, as a small business set-aside, and was limited to vendors holding General Services Administration (GSA) FSS contracts under either Information Technology Schedule 70 (IT-70) or the Professional Services Schedule (PSS).  The solicitation contemplated the establishment of five BPAs, each with a five-year ordering period, and envisioned that call orders issued under the BPAs would be fixed-price, with cost-reimbursable line items for other direct costs and/or travel.  Sol. at 7, 19.

The solicitation provided for award based on a three-step price/performance trade-off evaluation method, considering three evaluation factors:  price, technical/management plan, and past performance.  Sol. at 67.  The solicitation provided that step one of the evaluation would be the price evaluation.  Id.  Proposed prices would be evaluated for reasonableness, completeness, and unbalanced pricing, and the agency would then rank the offerors by total proposed price.  Id. at 67-68.  The solicitation provided that the agency would then "take [the] five Offerors with the lowest total proposed price[s] to move forward to Step 2 in the evaluation process."  Id. at 68.  For step two, the solicitation explained that the agency would evaluate the offerors' proposed technical/management plans for acceptability.  Id.  Those offerors found acceptable under this factor, would move to step three, to be evaluated under the past performance factor.  Id. at 69.  Ultimately, the agency would select for award "[t]he five lowest priced, technically acceptable [o]fferors with a Substantial Confidence past performance rating[.]"  Id. at 71.  If, however, there were not at least five proposals which were both technically acceptable and rated substantial confidence for past performance, the agency would conduct a best-value tradeoff analysis between past performance and price among those proposals rated technically acceptable.  Id.

As relevant here, the solicitation explained that "[t]he 'entity' submitting the proposal is considered the prime contractor," and that the prime contractor "must have a PSS or IT-70 contract under" one of six specified SINs.[3]  Sol. § L.2.0.1.  The solicitation also specified that "[o]fferors must propose on all task areas, therefore necessitating coverage for all SIN[s]," but provided that the offerors could "execute Contractor Teaming Arrangements (CTA) with other contract holders," as long as the "other schedule holders [ ] qualify as small businesses for the relevant SIN(s)."  Sol. § L.2.0.2.  In this regard, the solicitation provided that a "small business is any Offeror designated as a small business for the relevant GSA Schedule contract(s) in the relevant [special item numbers] SIN(s)," and that "[a]ny entity that does not meet this standard will be removed from consideration without further evaluation."  Sol. § L.1.1.1.  The solicitation also provided that "[o]fferors (including each member of a CTA) must have a PSS or IT Schedule 70 contract that covers the entire five-year ordering period of the BPA," and that "[t]his requirement can be satisfied as long as there are option periods in the relevant GSA Schedule contract(s) that, if exercised, will cover the BPA's ordering period."  Sol. § L.1.1.2.  The solicitation advised, however, that "if the relevant GSA Schedule contract(s) will expire prior to the end of the BPA's five-year ordering period," and "if no further option periods on the relevant GSA Schedule contract(s) are available," then "[o]fferors will not be eligible for award."  Id.

The agency received 35 quotations in response to the solicitation by the September 14, 2017, closing date.  Agency Report (AR), Tab 28, Price Negotiation Memorandum (PNM), at 3.  As relevant here, the contracting officer verified through the GSA e-Library[4] that each of the six lowest-priced firms, including all CTA members, were designated as small businesses for the relevant SINs under their GSA PSS or IT Schedule 70 contracts.[5]  The contracting officer also sent an email to the GSA Contracting Officer listed for each relevant PSS and IT Schedule contract to confirm information regarding the pertinent contracts, and ascertain whether the pertinent contracts had any options remaining.  See, e.g., AR, Tab 10, Period of Performance (POP) Validation, at 4. 

As relevant here, the lowest-priced firm, DAS, disclosed in its quotation that one of its CTA partners--VISTA Technology Services, Inc.--had a PSS contract with a period of performance expiring on November 2, 2019.  AR, Tab 4, DAS Quotation, Vol. III, Tab A, at 4.  The quotation advised, however, that VISTA had "submitted a new GSA streamline offer and will have a new GSA Schedule number and period of performance prior to award," and also provided the name and contact information for the relevant GSA Contracting Officer.  Id.

During the agency's evaluation of DAS and VISTA, DISA contacted the relevant GSA Contracting Officer for VISTA.  GSA confirmed that it had "Vista Technology's offer in-house," AR, Tab 10, POP Validation for Vista, at 3, and later stated that it was "hoping to have the Vista award complete done by 11/3/17."  Id. at 2.  On November 8, DISA again contacted GSA, noting that "GSA Advantage looks like the contract was awarded."  Id. at 1.  GSA responded that same day that, "Yes.....those are the new contract numbers."  Id.

On December 20, 2017, DISA advised CRS that its quotation had not been selected, and provided CRS with the following information regarding the firms that had been selected:

AR, Tab 30, Letter to CRS (Dec. 20, 2017), at 1.  The letter also stated that CRS's proposal had been rated as acceptable, with a substantial confidence past performance rating, and a total proposed price of $168,011,059.  Id.  The letter explained, however, that CRS's total evaluated price "was ranked 6 [out] of 35 offers."  Id.  CRS requested and received an in-person debriefing with DISA on January 3, 2018.  The protester states that, during this meeting, CRS was told by the agency that DISA evaluated CRS's proposal (despite it being the sixth-lowest price) because one of the selected firms had submitted a proposal based on a pending award for a new GSA schedule contract, and the agency was uncertain whether the firm's new schedule contract would be finalized by the time of establishment of the BPAs.  Protest, exh. 1, Declaration of CRS's Program Manager (Jan. 7, 2018), at 3.  This protest followed.

DISCUSSION

CRS argues that DISA should have rejected DAS's quotation as unacceptable because one of its CTA partners did not have an existing and current PSS or Schedule 70 contract, with the relevant SINs, at the time of quotation submission, which the protester asserts was a requirement of the solicitation.  In this regard, the protester contends that the agency waived a material solicitation requirement, to the protester's competitive disadvantage.[6]  The agency disagrees with the protester's interpretation, and contends that "there is no provision of the [solicitation] requiring a current PSS or IT Schedule 70 contract covering the BPA ordering period at time of quotation submission."  COS/MOL at 20 (emphasis in original).  Rather, the agency argues that "this was a requirement to be eligible for award."  Id.

As a general matter, where a dispute exists as to the meaning of a particular solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of the provisions; to be reasonable, an interpretation must be consistent with such a reading.  ProActive Techs., Inc.; CymSTAR Servs., LLC, B-412957.5 et al., Aug. 23, 2016, 2016 CPD ¶ 244 at 13.

In support of its interpretation, DISA points to the following solicitation provision:

Offerors (including each member of a CTA) must have a PSS or IT Schedule 70 contract that covers the entire five-year ordering period of the BPA.  This requirement can be satisfied as long as there are option periods in the relevant GSA Schedule contract(s) that, if exercised, will cover the BPA's ordering period.  Offerors will not be eligible for award if the relevant GSA Schedule contract(s) will expire prior to the end of the BPA's five-year ordering period, if no further option periods on the relevant GSA Schedule contract(s) are available.

Sol. § L.1.1.2.

The agency maintains that, because the provision specified that "[o]fferors will not be eligible for award" if they have no option periods remaining on their schedule contracts, DISA reasonably adhered to the solicitation language by requiring "a PSS or IT Schedule 70 contract with at least one remaining option period by the time of BPA award."  COS/MOL at 20.

The protester disagrees, and points to a question and answer (Q&A), which addressed the pertinent solicitation provision as follows:

[Question:]  If a CTA member has a current schedule with fewer than 5 years remaining, and a pending award for a new schedule, will the government consider their schedule relevant?
[Answer]:  No.

Sol., amend. 0001, Q&A No. 25, at 8. 

The protester argues that the Q&A, when read in conjunction with the above-quoted solicitation provision, "require[d] that offerors must submit proposals that are based upon current and awarded GSA Schedules and SINs, rather than GSA Schedules and SINs that were pending and did not yet exist."  Comments at 3.  In response to the protest, the agency explains that it "answered simply 'No' [to the Q&A question] because a CTA member with a new schedule award still pending at time of BPA award would render the CTA ineligible for award."  COS/MOL at 24.  The agency further maintains that it "reasonably answered the question that was asked and did not address whether a quotation would be removed from further consideration as a result of one CTA member having a new [s]chedule award still pending at time of quotation submission."  Id. at 24-25.  In this regard, the agency explains that it "interpreted the word 'relevant' [in the question] to mean 'eligible for award.'"  Id.

Based on our review of the record, we find nothing unreasonable regarding the agency's interpretation of the Q&A language.  In this regard, the agency's interpretation of the Q&A is consistent with § L.1.1.2 of the solicitation, which specified that "[o]fferors will not be eligible for award" if the "relevant GSA Schedule contract(s) will expire prior to the end of the BPA's five-year ordering period, if no further option periods on the relevant GSA Schedule contract(s) are available."  CliftonLarsonAllen, LLP, B-412938, B-412938.2, July 11, 2016, 2016 CPD ¶ 204 at 9-10 ("To be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner.").  There is no disagreement that VISTA, one of DAS's CTA partners, had a relevant GSA Schedule contract, with the relevant SINs, at the time of establishment of the BPAs. 

To the extent the protester interpreted the Q&A as indicating that quotations had to be based on GSA Schedule contracts in effect at the time of quotation submission, this interpretation is inconsistent with § L.1.1.2 of the solicitation, quoted above, which indicated that a GSA Schedule contract covering the BPA ordering period only had to be in effect at the time eligibility for award was determined.  Sol. § L.1.1.2.  The protester's interpretation would thus, at best, render the solicitation ambiguous.[7]  See Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8 (an ambiguity exists where two or more reasonable interpretations of the solicitation are possible).  Any such ambiguity would be obvious on the face of the solicitation, however, and therefore would constitute a patent ambiguity that should have been challenged prior to the time for receipt of initial quotations.  See 4 C.F.R. § 21.2(a)(1); Allied Tech. Grp., Inc., B-402135, B-402135.2, Jan. 21, 2010, 2010 CPD ¶ 152 at 9 n.10.  Accordingly, we find the protester's challenge untimely.

The protest is dismissed.

Thomas H. Armstrong
General Counsel