Latvian Connection, LLC; Solution Managers International--USA, LLC

Decision

Matter of: Latvian Connection, LLC; Solution Managers International--USA, LLC

File: B-408182.3, B-408182.4

Date: August 13, 2013

DIGEST

Agency acted reasonably in amending a solicitation for energy-efficient shelters, rather than canceling and reissuing the solicitation, where the nature and scope of the changes were not so substantial as to warrant the cancellation and reissuance of the solicitation.

Latvian Connection, LLC, of Kuwait, City, Kuwait, and Solution Managers International--USA, LLC, of St. Tampa, Florida, protest the decision of the Department of the Army, Army Contracting Command New Jersey, to amend, rather than cancel, Request for Proposals (RFP) No. W15QKN-12-R-0070, for energy-efficient, rigid-walled shelters. The protesters, neither of which submitted proposals in response to the solicitation, assert that the changes made to the solicitation by the amendment are so substantial that the agency must cancel the solicitation and issue a new one to afford all potential offerors an opportunity to compete for the contract.

We deny the protests.

BACKGROUND

On October 12, 2012, the Army, on behalf of the U.S. Army Logistics Innovation Agency, issued the solicitation as a small business set-aside, for single-story and two-story energy-efficient shelters for the Kuwait Energy Efficient Project (KEEP) at Camp Buehring, Kuwait. The RFP contemplated the award of an indefinite-delivery/indefinite-quantity (ID/IQ) contract, with fixed-price line items, with a two-year performance period. The estimated total value of the program was $29,429,017. RFP at 6.

The solicitation advised that proposals would be evaluated based on three evaluation factors: technical, price, and past performance. RFP at 70. For purposes of award, the technical factor was considered significantly more important than the price factor, which was considered more important than the past performance factor. Id. The two non-price evaluation factors, when combined, were considered significantly more important than the price factor. Id. To be considered for award, a proposal was required to receive a rating of at least acceptable for the technical factor, including all subfactors. Id.

The agency received proposals from sixteen offerors by the November 26 closing date. Neither Latvian nor Solution Managers submitted proposals. The agency evaluated the proposals, and on March 15, 2013, awarded the contract to Technology and Supply Management.

Initial Protests at GAO

On April 8 and April 9, respectively, two of the unsuccessful offerors, Sea Box, Inc., and Relyant, LLC, protested the Army’s evaluation under the solicitation and decision to award to Technology and Supply Management.[1] One of the protesters argued, among other things, that the agency improperly failed to consider life cycle costs in its evaluation as required by Section 368 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81) and Defense Federal Acquisition Regulation Supplement (DFARS) § 215.101-70. Contracting Officer’s Statement, Latvian Protest (Latvian COS) at 3; COS, Solution Manager’s Protest (Solution COS) at 3. Another protest ground alleged that the agency improperly used an unstated evaluation scheme in its price evaluation by abandoning the weights listed in the RFP’s sample pricing table. The agency decided to take corrective action in response to the protests, and on April 22, our Office dismissed the protests as academic.

Amendments 0008 and 0009

As corrective action, the agency terminated the award to Technology and Supply Management, and amended the solicitation to permit submission of revised proposals from those offerors that had submitted proposals in response to the solicitation’s original November 26, 2012, due date for receipt of proposals. Latvian COS at 3 ¶ 11; Solution COS at 3 ¶ 11. On May 23, 2013, the agency issued amendment 0008 to the solicitation, which advised offerors of the following changes and instructions:

1. All offerors are required to resubmit their Technical and Price Volumes based on the changes to the PWS and this solicitation . . . . Offerors that resubmit are cautioned to carefully review all the changes from this amendment and to submit their Volumes in accordance with this amended solicitation’s Section L and Section M. Offerors are advised to resubmit new Technical and Price Volumes, not changes, as a new evaluation will be conducted in the Technical and Price Factors.

2. The guaranteed minimum has been changed to $10,000,000.00.

3. “Life Cycle Costs” has been added as a fourth sub-factor under the Technical Evaluation Factor. Offerors must address this subfactor in their resubmission of the Technical Proposal.

4. Attachment 0001, “Performance Work Statement” [PWS] dated 25 October 2012, has been replaced in its entirety with the “Performance Work Statement” dated 14 May 2013.

5. CLIN 0007, Electrical Components Documentation, has been added in its entirety. . . .

6. There is no change to the Past Performance Factor, therefore, no new evaluation will be performed.

7. As of January 2013, a brand new Uniform Facilities Code (UFC) 1-201-01, has been published to govern the use of Non-Permanent DoD Facilities in Support of Military Operations. UFC 1-201-01 is one of two UFC’s that have been reflected in this requirement. Offerors must carefully read this amendment and the updated PWS to ensure their resubmission of Technical and Price are in accordance with the changes.

* * * * *

10. All other terms and conditions remain unchanged.

RFP amend. 0008 at 2. The deadline for the submission of revised proposals was June 12.

On June 5, the Army issued amendment 0009, which responded to questions raised in response to amendment 0008 and clarified the requirement based on those questions. Latvian COS at 5; Solution COS at 5; Agency Report (AR), Tab V, Amendment Questions/Answers (June 5, 2013).[2] The deadline for revised proposals remained June 12.

On June 6, Latvian requested, via email, that the contracting officer extend the deadline for receipt of proposals until June 28 because the current closing date did not provide it with sufficient time to prepare a proposal for submission. AR, Tab S, Email from Latvian to Agency (June 6, 2013). The contracting officer responded that the “amendment is for vendors that proposed before the original solicitation close date in November 2012.” AR, Tab S, Email from Agency to Latvian (June 6, 2013).

On June 7, Latvian filed its protest with our Office, followed by Solution Managers, on June 10.

DISCUSSION

The protesters assert that the changes made to the solicitation by amendments 0008 and 0009 are so substantial that the agency must cancel the solicitation and issue a new one to afford all potential offerors, including them, an opportunity to compete for the contract. As discussed below, we find the agency reasonably decided to amend, rather than cancel and reissue, the solicitation.

Federal Acquisition Regulation (FAR) § 15.206(e) states that a contracting officer should cancel a solicitation under the following circumstances:

If, in the judgment of the contracting officer, . . . an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

Our review of agency decisions about whether an amendment to a solicitation requires cancellation is limited to whether the exercise of agency discretion is reasonable. See Government Contract Servs. Co., B-294367, Oct. 25, 2004, 2004 CPD ¶ 215 at 4; The New Jersey & H St. Ltd. P’ship, B-288026, B-288026.2, July 17, 2001, 2001 CPD ¶ 125 at 4.

The protesters assert that the changes made to the RFP and PWS by amendments 0008 and 0009 are so substantial[3] that the agency is required to cancel the solicitation. The protesters’ initial protest filings, however, consist of nothing more than catalog listings of the revisions made to the solicitation and PWS by amendment 0008. The protesters argue that the substantiality of these revisions are demonstrated by the fact that the amendment requires the resubmission of new technical and price volumes, not just changed pages, and replaces the previous PWS in its entirety with a new PWS.

The agency asserts that the changes are minor, and simply highlight or clarify requirements already in the original solicitation. In its response to the protests, the agency provides point by point refutations as to why the changes to the solicitation and PWS are not substantial. As discussed below, we agree with the agency that amendments 0008 and 0009 merely clarify the RFP’s original requirements, and do not constitute changes in scope that obligated the agency to cancel the solicitation. Although we do not address each change to the solicitation, we have reviewed all of the arguments raised by the protesters and find no basis to sustain the protest.

First, amendment 0008 clarified the basis of the price evaluation by stating that the agency would not use the weights listed in the RFP’s sample price table as part of its price evaluation.[4] Prior to the issuance of the amendment, an offeror questioned whether the weights listed in the sample price table were used during the evaluation.[5] The agency explains that it amended the RFP because it did not intend to use these weights during its evaluation. Latvian COS at 6; Solution COS at 6.

Similarly, amendment 0008 clarified the Army’s regulatory obligation to consider life cycle costs as part of its evaluation by adding life cycle costs as a fourth technical subfactor.[6] The agency explains that this change is not substantial because the life cycle cost information was included in the original PWS requirements, and the Agency was required by regulation to consider it during its evaluation. Latvian COS at 7; Solution COS at 7. However, to clarify this issue, the agency amended the solicitation’s evaluation criteria to reflect its regulatory obligations in this regard.[7] Id.

Next, with regard to the revisions to the PWS, the agency explains that it replaced the original October 25, 2012, PWS in its entirety with the revised PWS in order to avoid confusion by the offerors. Latvian COS at 8; Solution COS at 8. The agency explains that the changes to the PWS either involve clarifying or adding illustrative examples and references about requirements already included in the previous PWS.[8] For example, the prior PWS required offerors to comply with all UFC requirements, while the revised PWS added references to specific UFC provisions to highlight an offeror’s responsibility to adhere to the particular requirements that applied to the RFP.[9] See MIL-STD-3007F (Dec. 13, 2006).

As for the change in the minimum guaranteed dollar value, the agency explains that this adjustment was based on a change in the anticipated amount of two-story shelters to be delivered under Delivery Order 0001, from 120 shelters to 80 shelters. Latvian COS at 6-7; Solution COS at 6-7. The agency notes, however, that the RFP’s overall requirement has not changed from the initial solicitation--to deliver up to 230 two-story shelters and up to 50 single-story shelters. The agency contends that this change is insignificant as the offerors are not required to propose anything for Delivery Order 0001, and that, in fact, the anticipated amount of shelters to be delivered under Delivery Order 0001 is subject to change again based on the successful offeror’s proposal and shelter design. Id.

In response to the agency’s detailed point-by-point explanations, the protesters’ comments merely reiterate the catalogue of changes to the solicitation that were listed in their protests, and reassert generally that these changes must be substantial because the agency replaced the PWS and is requiring revised technical and price proposals. The protesters do not explain why any of the changes to the RFP and PWS were substantial, or even how the changes altered the requirement in any way.[10] In this regard, the protesters fail to meaningfully refute the agency’s position or demonstrate that the agency’s position is unreasonable.

As discussed above, the FAR requires a contracting officer to consider whether the amendment is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them. FAR § 15.206(e). Here, we conclude that the record supports the contracting officer’s decision that the amendment was not substantial. As the agency notes, amendments 0008 and 0009 merely clarify requirements already in the initial solicitation, and the magnitude of the changes are not beyond what reasonably could have been anticipated. While amendment 0008 required offerors to submit new technical and price proposals, and involved replacing the previous PWS with a revised PWS, as well as implemented other revisions, the fact of revision, in itself, is not the prerequisite under the regulation which requires cancellation of the solicitation and reprocurement. Rather, the magnitude of the change in relation to the original RFP governs whether a solicitation should be canceled and reissued. See Alamo Aircraft Supply, Inc., et al., B-278215.4, Mar. 11, 1998, 98-1 CPD ¶ 76 at 4-5 n.5 (discussing similar circumstances concerning a solicitation amendment and noting that the result would be the same under FAR § 15.206(e)).

In light of the Army’s reasonable judgments concerning the solicitation amendments, and the protesters’ failure to provide support for their arguments or otherwise meaningfully respond to the agency report, we find no basis to sustain the protests.[11]

The protests are denied.

Susan A. Poling
General Counsel