Platinum Business Corporation

Decision

Matter of:  Platinum Business Corporation

File:  B-415584

Date:  January 18, 2018

DIGEST

Protest is denied where the record shows that the agency did not waive material terms of the solicitation and the protester failed to demonstrate that it suffered any competitive prejudice resulting from the agency's actions.

Platinum Business Corporation (PBC), of Laurel, Maryland, protests the award of a contract to Vesa Health & Technology, Inc., of San Antonio, Texas, under request for proposals (RFP) No. HSCG23-17-R-P1C000, issued by the Department of Homeland Security, United States Coast Guard, for multidisciplinary personal healthcare services.  PBC asserts that the agency improperly waived material solicitation requirements when evaluating the awardee's price proposal.

We deny the protest.

BACKGROUND

The Coast Guard issued the RFP on April 28, 2017, as a small business set-aside, for multidisciplinary personal healthcare services to be performed within three regions (i.e., North, South, and West).  The RFP contemplated one fixed-price contract award for all three regions or separate fixed-price contract awards for each region.  RFP at 37.  Services were to be performed over a 1-year base period and four 1-year option periods.  RFP at 4.  Proposals were to be evaluated, on a best-value tradeoff basis, using three factors:  technical and management approach, past performance, and price.  RFP, amend. 00002 at 2-4. 

Following the close of the solicitation period, the agency distributed pricing spreadsheets to all offerors.  Contracting Officer's Declaration, Nov. 15, 2017, at 1.  The offerors were provided the following instruction:

You are being contacted because you submitted a timely response to the United States Coast Guard Solicitation for Multidiscipline Healthcare Services under Request for Proposal Number #HSCG23-17-R-P1C000.  If you are still interested in your proposal being considered for award, you SHALL COMPLETE AND RETURN the information on the attached spreadsheet to [agency officials no later than] MIDNIGHT, EST, MONDAY[,] SEPTEMBER 18, 2017.  If you DID NOT propose on a specific region, you are asked to annotate on the specific worksheet.  You are instructed NOT to change the NTE FIXED amounts stated for the ADDITIONAL SERVICES or the TRAVEL.

E-mail from Agency to Offerors, Sept. 15, 2017.  The e-mail cautioned that any offerors who failed to complete and return the pricing spreadsheet would have their proposals evaluated as non-responsive and would be eliminated from consideration for award.  Id.

The pricing spreadsheet contained eight tabs.  Agency Report (AR), attach. 3, Vesa Pricing Spreadsheet.  Tab 1 requested identifying information, including the offeror's name, address, and contact information.  Id.  In Tabs 2-6, offerors were required to provide pricing for the base period and the option periods.  Id.  These tabs also included fixed amounts for additional services in all three regions and travel in the West region.  Id.  Tab 7 required offerors to provide any phase-in pricing information.  Id.  Tab 8 required offerors to provide the total price for all base and option periods.  Id.

PBC and Vesa both submitted pricing spreadsheets in response to the e-mail.  PBC's spreadsheet included all requested information but was not formatted to include the fixed amounts for additional services and travel in its total price.  Agency Request for Dismissal, PBC Pricing Spreadsheet.  Vesa's spreadsheet did not include a completed Tab 1, but the requested identifying information was provided in its e-mail cover letter.  AR, attach. 3, Vesa Pricing Spreadsheet.  Vesa also formatted its spreadsheet so that the fixed amounts for additional services and travel were included in its total price.  Id.

On September 29, the agency awarded a contract for all three regions to Vesa in the amount of $80,777,918, and notified PBC that its proposal was not selected for award.  On October 18, PBC filed a protest with our Office alleging that the agency made an improper best-value tradeoff decision.  PBC asserted that its proposal represented a better value because it had submitted lower prices for at least two of the regions. 

On November 6, the agency requested dismissal of the protest.  The agency demonstrated that PBC had not submitted lower prices for two regions but rather that PBC's pricing information failed to include the fixed amounts for additional services and travel.  The agency explained that PBC's prices were higher than Vesa after PBC's submitted prices were corrected to include the fixed amounts for additional services and travel.  In its response to the agency's request for dismissal, PBC asserted new protest grounds.  The firm alleged that Vesa's proposal had failed to complete Tab 1 in the pricing spreadsheet, altered the fixed amounts for additional services and travel in the pricing spreadsheet, and submitted unrealistically low prices.  On November 9, our Office dismissed PBC's initial protest ground as abandoned, and PBC's alternate protest ground that Vesa had submitted unrealistically low prices as untimely.  GAO E-mail to the Parties, Nov. 9, 2017.

DISCUSSION

PBC argues that Vesa's proposal was unacceptable because it failed to comply with material terms of the solicitation.  Specifically, the protester contends that Vesa's proposal was unacceptable because it failed to complete Tab 1 of the pricing spreadsheet and improperly reformatted its pricing spreadsheet to include the fixed amounts for additional services and travel.  Protester's Comments at 3-4.  The agency responds that Vesa's e-mail cover letter contained all of the identifying information that would have been provided in Tab 1 and that Vesa correctly entered its pricing information.  Agency Legal Memorandum at 2-3.  Therefore, according to the agency, any deviations by Vesa from the e-mail instruction were minor informalities that could be waived.  Id. at 3.

In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award.  ARBEiT, LLC, B-411049, Apr. 27, 2015, 2015 CPD ¶ 146 at 4.  We will not disturb an agency's determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulations.  Northern Light Productions, B-401182, June 1, 2009, 2009 CPD ¶ 117 at 3.  Further, we will read a provision restrictively only where it is clear from the solicitation that such a restrictive interpretation was intended by the agency.  Nordic Air, Inc., B-400540, Nov. 26, 2008, 2008 CPD ¶ 223 at 3.

Here, the agency's instruction required offerors to complete the entire pricing spreadsheet.  Although Vesa did not complete Tab 1, it provided all of the requested information in the cover letter of its e-mail.  Contracting Officer's Declaration, Nov. 15, 2017, at 1.  Further, Tab 1 was plainly not intended to collect any substantive information but rather was intended to label each pricing spreadsheet as belonging to a particular offeror.  In these circumstances, we find that the agency reasonably concluded that Vesa's e-mail cover letter satisfied the purpose and intent of Tab 1 because it still provided the identifying information that could distinguish its pricing spreadsheet from other submissions, albeit in a different format.  See Penn Parking, Inc., B-412280.2, Feb. 17, 2016, 2016 CPD ¶ 60 at 4 (concluding that an offeror's submission of a certification that deviated from the specified language in the solicitation was a minor informality because the provided certification satisfied the purpose and intent of the requirement).  Accordingly, this deviation constituted a minor informality that did not require rejection of Vesa's pricing spreadsheet.

As to PBC's alternate argument, the agency's instruction stated that offerors were not permitted to change the fixed amounts.  That instruction does not state that offerors were not allowed to format their spreadsheets to ensure that the total pricing information was accurate, and thus, we find that the agency reasonably evaluated Vesa's proposal as conforming to the terms of the solicitation in this regard.  Nevertheless, to the extent that Vesa's actions could be construed as altering the fixed amounts, we consider such action to be a minor deviation.  The purpose and intent of the pricing spreadsheet was to ensure that the agency received accurate pricing information.  Vesa's goal in reformatting its spreadsheet was not to decrease or increase the fixed amount but rather to fix any embedded formulas calculating total price in order to ensure that those formulas included amounts for additional services and travel.  Accordingly, we find that the agency reasonably accepted Vesa's pricing spreadsheet because any reformatting was consistent with the purpose and intent of the solicitation.

Moreover, even where an agency arguably may have relaxed a material solicitation requirement, the protester must still show that it was prejudiced by the agency's action.  Competitive prejudice is an essential element of a viable protest and there is no basis for finding prejudice and sustaining a protest where the protester fails to demonstrate that, but for the agency's actions, it would have had a substantial chance of receiving the award.  Lockheed Martin Corp., B-411365.2, Aug. 26, 2015, 2015, CPD ¶ 294 at 14.  In order to demonstrate unfair competitive prejudice from a waiver or relaxation of the terms and conditions of an RFP, a protester must show that it would have altered its proposal to its competitive advantage had it been given the opportunity to respond to the altered requirements.  Id.

Here, we have no basis to conclude that PBC was prejudiced by Vesa's failure to complete Tab 1 or because Vesa may have reformatted its spreadsheet.  PBC has not alleged that it would have changed its price proposal to its competitive advantage had it known that the agency would have accepted an incomplete Tab 1 or reformatted spreadsheets.  Cf. Penn Parking, Inc., supra, at 5 (concluding that the protester was not prejudiced because the protester did not specify how it would have altered its proposal in light of relaxed solicitation requirements).  Accordingly, the protest is denied because PBC has failed to demonstrate that it suffered any competitive prejudice.

The protest is denied.

Thomas H. Armstrong
General Counsel