Omega Systems, Inc.
Highlights
Omega Systems, Inc. protests the rejection of its proposal as late under request for proposals (RFP) No. M67854-06-R-7017, issued by the U.S. Marine Corps to design, integrate, produce and document the Tactical Data Network Data Distribution System-Replacement (TDN DDS-R) production model.
B-298767, Omega Systems, Inc., November 6, 2006
Decision
Matter of: Omega Systems, Inc.
Tom W. Gilmore for the protester.
Raymond Fioravanti, General Dynamics C4 Systems, Inc., for the intervenor.
James B. McCloskey, Esq., U.S. Marine Corps, for the agency.
Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's assertion that its proposal should be considered for award despite late final proposal revision (FPR) because it was otherwise successful proposal that makes its terms more favorable to the government, is denied where record shows agency had determined prior to FPR request that protester's proposed price was not reasonable; protester's proposal thus was not otherwise successful proposal.
DECISION
Omega Systems, Inc. protests the rejection of its proposal as late under request for proposals (RFP) No. M67854-06-R-7017, issued by the U.S. Marine Corps to design, integrate, produce and document the Tactical Data Network Data Distribution System-Replacement (TDN DDS-R) production model.
The RFP, issued on
The agency received initial proposals by April 27 and, after conducting discussions with Omega and General Dynamics C4 Systems, Inc. (GDC4S), the two offerors in the competitive range, the agency requested final proposal revisions (FPR) by on June 13. On August 17, the agency requested second FPRs after advising the offerors of price concerns and amending the solicitation to change (among other things) the duration of the required warranties. GDC4S was informed at this time, through discussions, that OEM warranties were required. The second FPRs were due by on August 22, but Omega did not submit its proposal until The agency subsequently rejected Omega's proposal as late.[1] This protest followed.
Omega asserts that the agency was required to consider its late FPR pursuant to a solicitation provision stating that a late modification of an otherwise successful proposal that makes its terms more favorable to the government will be considered at any time it is received and may be accepted. RFP sect. L-1 (incorporating Federal Acquisition Regulation (FAR) sect. 52.215-1). Omega maintains that its proposal was the only acceptable one--and thus was the otherwise successful proposal prior to the request for second FPRs--because it was the only one that offered the required OEM warranties; based on discussions it had with component manufacturers, Omega believes GDC4S's proposal could not have included the required OEM warranties.
Omega's argument is without merit. An otherwise successful proposal is one that would result in the award of the contract to the offeror regardless of the late modification; generally, this means that the government may accept a favorable late modification only from the offeror already in line for award. Seven Seas Eng'g & Land Surveying, B'294424.2,
Omega's argument also fails because the record does not support its conclusion that GDC4S's proposal was unacceptable. The RFP did not specify that OEM warranties were required--as noted, that requirement was established through agency communications with the offerors--and did not call for any specific showing in the proposals that OEM warranties were being offered. GDC4S took no exception in its second FPR to the agency's request during discussions that it provide OEM warranties, and provided a price for warranties under the appropriate CLIN, as required by the agency. See Gentex Corp., B-271381,
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] Omega initially asserted that the agency erred in determining that its proposal was late. However, the agency addressed this argument in its motion to dismiss, and Omega has not responded to the agency's position in its subsequent submissions; we therefore consider this argument abandoned. See Symplicity Corp., B'297060,
[2] We note that the solicitation language provided only that the late modification may be accepted, not that the agency was required to accept it if Omega's was the otherwise successful proposal. However, the parties have not argued this point, and we need not address it here.