Prejudice is an essential element of every viable protest and, where it is not demonstrated or otherwise evident, we will not sustain a protest allegation, even where the record shows that the agency’s actions were arguably improper. GC Servs. Ltd. P’ship, B-298102, B-298102.3, June 14, 2006, 2006 CPD para. 96 at 7-8; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1681 (Fed. Cir. 1996). PM was not prejudiced by the alleged evaluation improprieties. While PM asserts that its proposal should have received a total technical score of 94.9 points, it does not challenge Four Seasons’s proposal’s score of 98 points, or the agency’s substantive evaluation findings supporting its conclusion that Four Seasons’s proposal was technically superior. Under these circumstances, even if we agreed with PM regarding the agency’s evaluation of its proposal, there would be no basis for questioning the award, since Four Seasons’s proposal still would be technically superior to PM’s (or, at worst, technically equivalent), and lower cost. These assertions thus do not provide a basis for sustaining the protest.

(Sections deleted)

In any case, as noted, PM’s evaluated cost was $71,351,906, while the awardee’s was $68,122,022.65, for a difference of $3,229,883.35, or approximately 4.4 percent. The record also shows that, in preparing its proposal, PM applied a [deleted] percent escalation rate for its SCA labor costs, AR exh. F, at 3, while Four Seasons applied a [deleted] percent escalation rate. Agency Supplemental Submission, Jan. 25, 2008, at 6. Given the approximately 4.4 percent difference between the firms’ prices, the record shows that the slight variance between their escalation rates ([deleted] percent) could not have affected the relative standing of their cost proposals. Accordingly, PM was not prejudiced by the escalation provision. GC Servs. Ltd. P’ship, supra. (PM Services Company, B-310762, February 4, 2008) (pdf)

We find that SERAPH was not prejudiced by the alleged improper evaluation of its two key personnel since, even if we agreed with SERAPH, it would not be in line for award. More specifically, the contemporaneous evaluation record shows that SERAPH’s proposal was not selected for award due to the agency’s evaluation conclusion that the proposal represented a moderate risk under the understanding of work evaluation factor, and not because the agency determined that SERAPH’s proposed personnel had inadequate experience. In this regard, the agency specifically stated in the competitive award memorandum that SERAPH’s proposed staff has the experience and training necessary to perform the contract. AR, Tab 9, at 15. While the memorandum includes the comments (stated above) concerning the two proposed personnel, the agency nevertheless concluded that “the noted risks are not significant to warrant an overall elevated risk rating.” Id. In other words, SERAPH’s green/low risk rating under the relevant past experience/proposed personnel factor was unaffected by the agency’s observations regarding the two personnel. (SERAPH Inc., B-297452, January 12, 2006) (pdf)

We will deny a protest where, notwithstanding that a solicitation overstated an agency’s requirements, the protester has not shown competitive prejudice; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award (or, in these circumstances, submitting an acceptable quotation). McDonald‑Bradley, B‑270126, Feb. 8, 1996, 96‑1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, the Navy has only supported a requirement for a single sample report, not the multiple sample reports specified in the RFQ. Nevertheless, and even after our Office identified the issue, IVI has made no attempt to show that it could have met the agency’s requirement for a single report, regardless of the time provided. As such, IVI has not been competitively prejudiced by the requirement for multiple reports in the RFQ. (Information Ventures, Inc., B-297225, December 1, 2005) (pdf)

While, as noted above, the contemporaneous documentation and hearing record evidence that the unacceptability of Cogent’s proposal under the design subfactor was based upon a number of evaluated weaknesses, the record also shows that the PEB considered some weaknesses to be more material than others. That is, the hearing testimony evidenced that the PEB, in its contemporaneous deliberations, considered weaknesses assessed--in Cogent’s design--with respect to its proposed scanner and its peak loading factor to be more significant than other identified weaknesses, even though the PEB did not specifically rank weaknesses.[10] See, e.g., TR at 47-50. Moreover, the Army admitted in its report that some of the weaknesses identified in the final consensus evaluation report actually concerned Cogent’s earlier proposals and not the firm’s final revised proposal. See AR at 29-34. The record shows that removing Cogent’s proposed scanner from the list of evaluated weaknesses under the design subfactor would require the agency to reconsider whether Cogent’s proposal remained unacceptable in light of the other evaluated weaknesses. Accordingly, we find from this record that there is a reasonable possibility, under a fair evaluation of Cogent’s final proposal under this subfactor, that Cogent’s proposal could be found acceptable. If Cogent’s proposal were found acceptable, the agency then would be required to perform a price/technical tradeoff to determine whether Cogent’s lower proposed price reflected the best value to the government.  (Cogent Systems, Inc., B-295990.4; B-295990.5, October 6, 2005) (pdf)

Med Optical also asserts that the agency’s evaluation of its proposal, in the areas of personnel qualifications and demonstrated capability, was unreasonable. We need not address these issues since the record shows that the protester was not prejudiced by any alleged errors in these areas. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-290126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, even if Med Optical had received perfect scores in both areas where it challenges the agency’s evaluation, its proposal would still be lower rated technically and substantially higher priced than the awardee’s. Accordingly, Med Optical would not be in line for award even if it prevailed in its challenge to the evaluation of its proposal. Marwais Steel Co., B‑254242.2; B-254242.3, May 3, 1994, 94-1 CPD 291 at 7. (Med Optical, B-296231.2; B-296231.3, September 7, 2005) (pdf)

Here, we agree with DOE that the record establishes that even if RCS were correct in its assertions, there was no possible prejudice to the protester. We first note that RCS has not protested the evaluation of LATA/Parallax's proposal or the evaluation of its own proposal under the key personnel evaluation criterion, and has abandoned its protest concerning the evaluation under the experience and past performance evaluation criteria. With regard to the remainder of RCS's protest, the record reflects that the agency downgraded the protester's proposal under the technical approach, integration and schedule, and project and risk management criteria because of the agency's determination that the protester's proposed approach posed certain risks. However, even if RCS had received the maximum score under each of these criteria, its overall score would have increased to only 835 points, which is still lower then the awardee's proposal's technical score of 860 points. [4] Given this, the fact that the protester's evaluated cost was47 million higher than the awardee's, and that the protester has made no claim that it would have been able to reduce its proposed costs, we fail to see how the protester was prejudiced by the alleged errors in the agency's evaluation, or how the protester would have a reasonable possibility for award if the solicitation had been amended and the protester given an opportunity to submit a proposal with a different technical approach "that would have complied" with what the protester argues was "the specified design." See EBA Ernest Bland Assoc. , B-270496, Mar. 13, 1996, 96-1 CPD 148 at 6. (Restoration and Closure Services, LLC, B-295663.6; B-295663.12, April 18, 2005) (pdf)

In essence, UVC was already competing with an understanding that a schedule as long as the 360-day schedule that UVC proposed would be acceptable; therefore, UVC was not competitively prejudiced by the agency's acceptance of LS's lower-priced proposal and a delivery schedule of 279 days, which was still shorter than UVC's proposed schedule. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions; that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Although UVC argues that allowing LS to have a longer schedule amounts to unequal treatment, UVC has failed to demonstrate competitive prejudice with respect to this ground of protest. (United Valve Company, B-295879, April 25, 2005) (pdf)

It is not improper for an agency to accept an expired offer without reopening negotiations where acceptance is not prejudicial to the competitive system. Krug Life Scis., Inc. , B-258669.2, Feb. 22, 1995, 95-1 CPD 111 at 4; The Fletcher Constr. Co., Ltd. , B-248977, Oct. 15, 1992, 92-2 CPD 246 at 6. Even where, as here, the acceptance period has expired on all offers, an agency may allow the successful offeror to waive the expiration of its proposal acceptance period without reopening negotiations and make award on the basis of the offer as submitted. The Fletcher Constr. Co., Ltd. , supra . Here, although the acceptance of Gentex's expired offer permitted Gentex to waive the expiration of the offer, because no changes were made to Gentex's proposal, this waiver did not prejudice the competitive system or provide Gentex with an unfair competitive advantage. Although Scot asserts that it can now provide a lower price to the agency, the agency was not required to reopen the competition when proposals expired to allow the offerors to revise their proposals. See BioGenesis Pac., Inc. , B-283738, Dec. 14, 1999, 99-2 CPD 109 at 6 (agency not required to consider protester's revised proposal submitted after proposals expired but could make award based on unchanged expired proposals). (Scot, Inc., B-295569; B-295569.2, March 10, 2005) (pdf)

In short, we agree with SBA that it erred in considering UEA for a Certificate of Competency (COC) because the COC process is not applicable to noncompetitive 8(a) acquisitions. SBA Report at 2; SBA Supplemental Report at 1-2. Although SBA failed to follow applicable regulations once CNCS determined that UEA was not responsible and referred the matter to SBA, we fail to see, and UEA has not explained, how it was prejudiced by this error. That is, the matter of UEA's responsibility was considered by SBA as part of its COC process, with SBA determining not to issue a COC to UEA. As such, it is clear from the record that SBA ultimately agreed with CNCS's determination regarding UEA's responsibility, with the end result remaining the same--CNCS does not contract with SBA for performance of the services by UEA. In short, whether the matter of UEA's responsibility was considered by SBA through the process provided for by the regulations that contemplates a determination as to whether SBA agrees with the procuring agency's nonresponsibility determination, or whether the matter of UEA's responsibility was considered by SBA through the COC process, nothing in the record indicates that the process or result would have differed in a manner that would have favored UEA--SBA considered the matter, and concluded that it did not disagree with CNCS's nonresponsibility determination. Thus, it is apparent that SBA would not have appealed the CNCS determination not to contract with UEA under the 8(a) program, which was the only appropriate action under applicable regulations that could be taken to contest the procuring agency's determination here. (United Enterprise & Associates, B-295742, April 4, 2005)  (pdf)

In addressing organizational conflicts of interest, our Office has held that, where the record establishes that a conflict exists, we will presume that the protester was prejudiced, unless the record establishes the absence of prejudice. See The Jones/Hill Joint Venture , B-286194.4 et al. , Dec. 5, 2001, 2001 CPD 194; TDF Corp. , B-288392, B288392.2, Oct. 23, 2001, 2001 CPD 178. Similarly, where, as here, the record establishes that a procurement official was biased in favor of one offeror, and was a significant participant in agency activities that culminated in the decisions forming the basis for protest, we believe that the need to maintain the integrity of the procurement process requires that we sustain the protest unless there is compelling evidence that the protester was not prejudiced. See Department of the Air Force--Request for Recon. , B-234060, B234060.2, Sept. 12, 1989, 89-2 CPD 228. As discussed below, the agency has failed to provide compelling evidence that Druyun's bias in favor of Boeing did not influence the various decisions leading to the award of the SDD contract to Boeing. (Lockheed Martin Corporation, B-295402, February 18, 2005) (pdf)

We will not sustain a protest absent a showing of competitive prejudice, that is, unless the protester demonstrates that, but for the agency's actions, it would have a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, CourtSmart has not stated or shown that it could or would have modified its quotation had it known of the agency's interpretation of the "fieldtested" requirement. Although CourtSmart argues that it was prejudiced because it was not given an opportunity to submit a revised quotation, [7] it does not state that the revisions it sought to make addressed the "field-tested" requirement. To establish prejudice in circumstances such as here, the protester must show that it would have submitted a different quotation that would have had a reasonable possibility for award had it known of the agency's interpretation of this provision. See Geo-Seis Helicopters, Inc. , B-294543, Nov. 22, 2004, 2004 CPD ___ at 3-4; Brown & Root, Inc. and Perini Corp., a joint venture , B270505.2, B270505.3, Sept. 12, 1996, 962 CPD 143 at 10-11. (CourtSmart Digital Systems, Inc., B-292995.8, December 9, 2004) (pdf)

With regard to AVCARDs protest of the evaluation and source selection decision, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agencys actions, it would have had a substantial chance of receiving the award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3. Here, the agency rated AVCARDs proposal lower than MSCs under all of the non-price evaluation factors. Given that AVCARDs proposal was significantly higher priced than MSCs, in order to prevail in its protest, AVCARD would have to demonstrate that the agency should have rated AVCARDs proposal higher than MSCs proposal in at least one of the non-price evaluation areas. Based on our review of the record, AVCARD cannot demonstrate this, and therefore cannot establish the requisite prejudice. (AVCARD, B-293775.2, December 30, 2004) (pdf)

SWR asserts that the agency improperly failed to take into account the relative weights of the evaluation factors in scoring the proposals. The agency concedes that it arrived at total evaluation scores for the proposals by averaging the factor and subfactor scores without taking into account the weights of the factors and subfactors. However, there is no basis for finding that correctly weighted scoring would have had any significant impact on the award decision. For example, the agency demonstrates in its report that under one reasonable weighting scheme the protester's total score would have increased from 77 to 78.2 points, while the awardee's total score would have increased from 94 to 94.6. AR, Tab 23, at 1-2. SWR questions the weighting scheme the agency uses, but does not identify any other scheme that would significantly change the scoring to SWR's advantage. Indeed, since Demosthenes's proposal was scored significantly higher than SWR's under every individual evaluation factor and subfactor, it is reasonable to conclude that its rating would remain significantly higher than the protester's under any rational scheme. We conclude that SWR has failed to show that it was competitively prejudiced by the agency's error; our Office will not sustain a protest absent a showing of such prejudice. See McDonald-Bradley , B270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). (SWR, Inc., B-294835; B-294835.2, December 20, 2004) (pdf)

Although we recognize that it is the agency's obligation to ensure that prospective contractors are registered in the CCR database before award, see FAR 4.1102(a), Kloppenburg has failed to establish that it was prejudiced by the award to Alutiiq before the firm's Chesapeake office was registered. Competitive prejudice is necessary before we will sustain a protest; where the record does not demonstrate that the protester would have had a reasonable chance of receiving award but for the agency's actions, we will not sustain a protest, even if deficiencies in the procurement process are found. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, DoDEA made award to Alutiiq only after confirming that Alutiiq's Chesapeake office would promptly register in the CCR database, and Alutiiq did so. Although the agency should have awaited the registration of Alutiiq's Chesapeake office in the CCR database before making award, Kloppenburg has failed to establish that it was prejudiced by this error. See Graves Constr., Inc. , B-294032, June 29, 2004, 2004 CPD 135 at 3. (Kloppenburg Enterprises, Inc., B-294709, December 10, 2004) (pdf)

Cross Match asserts that incorporating the noncompeted items at the quoted prices into Identix's BPA was inconsistent with the RFQ requirement that the prices for these items be equal to or lower than the prices for the evaluated items. We agree. DHS concedes that Identix's quoted pricing for some of the noncompeted items from Identix's GSA schedule exceeded the pricing for the evaluated items, but asserts that this was not a violation because the noncompeted item pricing did not need to meet the "equal or less" requirement until after the negotiation of pricing, which had not yet occurred, and because no orders had been issued. DHS Comments, June 8, 2004, at1819; DHS Comments, June 15, 2004, at 2. However, Identix's quotation was noncompliant with that pricing restriction when the BPA was awarded to Identix on September 30. While DHS may have intended subsequently to modify the BPA to remove the improper pricing, this does not alter the fact that the BPA as awarded included noncompliant pricing. As a result, the issuance of the BPA was inconsistent with the basis upon which quotations were issued and thus improper. It is generally improper for an agency to solicit quotations on one basis and then make award on a materially different basis. See Cellular One , B-250854, Feb. 23, 1993, 93-1 CPD 169 at 4; Ann Riley & Assocs., Ltd. , B241309.2, Feb. 8, 1991, 91-1 CPD 142 at4. This is the general rule, and it is a fundamental one in our federal procurement system, but it may be waived if competitors are not prejudiced thereby. See Cellular One , supra ; Ann Riley & Assocs., Ltd. , supra . Similarly, our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's improper actions, it would have had a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F. 3d 1577, 1581 (Fed. Cir. 1996). Cross Match argues that it was prejudiced because, by quoting pricing for the noncompeted items from Identix's GSA schedule that was higher than permitted by section2.1, Identix was in a position to gain an improper advantage by shifting its costs to the unevaluated pricing and reducing its evaluated pricing. (Cross Match Technologies, Inc., B-293024.3; B-293024.4, June 25, 2004) (pdf)

The parties agree that, during discussions, the protester suggested the possibility of savings through the use of smaller concrete blocks. The agency considered this suggestion and determined that it could be acceptable. It then held subsequent discussions in which the agency concedes that the "CO [contracting officer] apparently raised the block size issue with the other offerors as part of the discussions seeking cost savings in the precast concrete portion of the Project." Memorandum of Law at 302. The protester contends that the use of the smaller sized block was one of unique innovation that should not have been disclosed to other offerors during discussions. The agency contends that use of the small block size involved a change in the specifications that the agency was required to communicate to the other competitors in order to uphold fair competition. It is not necessary to resolve this dispute, however; if the protester is correct, it has nonetheless failed to demonstrate competitive prejudice. Even assuming that the disclosure were improper, the agency argues that the protester suffered no prejudice because both the protester's initial and final proposals are based on using the concrete block sizes described in the RFP, not the smaller block sizes that the protester mentioned during discussions. Memorandum of Law at 305-06. The agency also submits that the awardee, similarly, did not propose the use of smaller concrete blocks in either its original or revised proposals. Id. at 305. Thus the agency's actions in disclosing to other competitors the possibility of cost savings through the use of smaller concrete blocks had no effect on the protester's chance of receiving the award; had no disclosure occurred, the protester still would not have received the award. (DuRette Construction Company, Inc., B-294379, September 15, 2004) (pdf)

Cross Match asserts that incorporating the noncompeted items at the quoted prices into Identix's BPA was inconsistent with the RFQ requirement that the prices for these items be equal to or lower than the prices for the evaluated items. We agree. DHS concedes that Identix's quoted pricing for some of the noncompeted items from Identix's GSA schedule exceeded the pricing for the evaluated items, but asserts that this was not a violation because the noncompeted item pricing did not need to meet the "equal or less" requirement until after the negotiation of pricing, which had not yet occurred, and because no orders had been issued. DHS Comments, June 8, 2004, at1819; DHS Comments, June 15, 2004, at 2. However, Identix's quotation was noncompliant with that pricing restriction when the BPA was awarded to Identix on September 30. While DHS may have intended subsequently to modify the BPA to remove the improper pricing, this does not alter the fact that the BPA as awarded included noncompliant pricing. As a result, the issuance of the BPA was inconsistent with the basis upon which quotations were issued and thus improper. It is generally improper for an agency to solicit quotations on one basis and then make award on a materially different basis. See Cellular One , B-250854, Feb. 23, 1993, 93-1 CPD 169 at 4; Ann Riley & Assocs., Ltd. , B241309.2, Feb. 8, 1991, 91-1 CPD 142 at4. This is the general rule, and it is a fundamental one in our federal procurement system, but it may be waived if competitors are not prejudiced thereby. See Cellular One , supra ; Ann Riley & Assocs., Ltd. , supra . Similarly, our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's improper actions, it would have had a substantial chance of receiving award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher , 102 F. 3d 1577, 1581 (Fed. Cir. 1996). Cross Match argues that it was prejudiced because, by quoting pricing for the noncompeted items from Identix's GSA schedule that was higher than permitted by section2.1, Identix was in a position to gain an improper advantage by shifting its costs to the unevaluated pricing and reducing its evaluated pricing. We find no reasonable possibility of prejudice to Cross Match.  (Cross Match Technologies, Inc., B-293024.3; B-293024.4, June 25, 2004)  (pdf)

Where a proposal deviates from a specification by a negligible amount, the agency may waive the requirement, so long as it did not prejudice other vendors. Gulf Copper Ship Repair, Inc., B-292431, Aug. 27, 2003, 2003 CPD ¶ 155 at 4 (deviation of 1 inch water depth specification properly waived by agency); Magnaflux Corp., B-211914, Dec. 20, 1983, 84-1 CPD ¶ 4 at 3-4 (agency permitted to waive deviation from specification which was minor and did not result in prejudice); Champion Road Mach. Int’l Corp., B-200678, July 13, 1981, 81-2 CPD ¶ 27 at 4 (deviation of two horsepower is minor and should have been waived by agency where price, quantity, quality, and delivery were not affected). In our view, since the approximately one-half mile deviation from the 25-mile requirement appears minor on its face and, according to SSA, did not diminish the purpose of the restriction, it could reasonably be viewed by SSA as negligible. The deviation therefore was waivable, so long as First Federal, the only other vendor in the competition, was not prejudiced. There is no evidence of competitive prejudice. In this regard, while First Federal asserts that the waiver gave ISC an “unfair competitive advantage,” (Protest at 9), it does not show how it would have altered its proposal to improve its competitive standing had it been given an opportunity to respond to the relaxed requirement. See Copper Ship Repair, Inc., supra. For example, it does not assert that knowledge of the relaxation would have affected its price or the location of its proposed facility. Given the absence of any evidence of prejudice to First Federal, we conclude that the agency had a defensible legal position and, thus, that the protest was not clearly meritorious. It follows that there is no basis to recommend reimbursement of protest costs in this case. (First Federal Corporation--Costs, B-293373.2, April 21, 2004) (pdf)

Contracting agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. RS Info. Sys., Inc., B-287185.2, B-287185.3, May 16, 2001, 2001 CPD ¶ 98 at 4. Where the corrective action taken by an agency is otherwise unobjectionable, a request for revised price proposals is not improper merely because the awardee’s price has been exposed. Strand Hunt Constr., Inc., B-292415, Sept. 9, 2003, 2003 CPD ¶ 167 at 6. We have recognized a limited exception to that rule where the record establishes that there was no impropriety in the original evaluation and award, or that an actual impropriety did not result in any prejudice to offerors, reopening the competition after prices have been disclosed does not provide any benefit to the procurement system that would justify compromising the offerors’ competitive positions. Hawaii Int’l Movers, Inc., B‑248131, Aug. 3, 1992, 92-2 CPD ¶ 67 at 6, recon. denied, Gunn Van Lines; Dept. of the Navy--Recon., B‑248131.2, B‑248131.4, Nov. 10, 1992, 92-2 CPD ¶ 336. Here, while the agency correctly determined that there was a deficiency in the RFP, there is nothing in the record to establish, and the agency has not shown, a reasonable possibility that any offeror was prejudiced by the deficiency. In short, the record does not establish that the defective solicitation resulted in the reasonable possibility of prejudice to any of the offerors. Thus, given that SCG’s competitive position has been compromised by disclosure of its price, there is no benefit to the procurement system that would justify reopening the competition. Hawaii Int’l Movers, Inc., supra. Accordingly, we sustain the protest. By letter of today to the Secretary of Homeland Security, we are recommending that SCG’s award be reinstated. We also recommend that the agency reimburse SCG its costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2003). SCG’s certified claim for costs, detailing the time spent and the costs incurred, must be submitted to the agency within 60 days of receiving of our decision. 4 C.F.R. § 21.8(f)(1). (Security Consultants Group, Inc., B-293344.2, March 19, 2004) (pdf)

Nowhere in its protest submissions does Frasca allege that the “bundled” requirements precluded it from having a reasonable chance for award. To the contrary, it identified in its response to the “sources sought” notice and in its past performance proposal two firms that it affirmatively stated it would be teaming with to provide the training portion of the work, and provided past performance information concerning one of these firms, never suggesting to the Navy that the teaming arrangements had not been finalized or that bundling was impeding its ability to compete. Although Frasca now asserts that the teaming arrangements with these firms “did not come to final fruition,” Frasca does not contend that the discussions failed due to the bundling restrictions. Protester's Comments at 6. Rather, it complains only that it did not have sufficient time to submit a proposal when it was provided another opportunity to compete under the amended RFP, because Frasca had discontinued discussions with its potential teaming partners when its past performance proposal was rejected in October as untimely, and the Navy had established a short deadline for proposal submissions. Thus, the record shows that to the extent Frasca was unable to compete, it was due to the breakdown of teaming discussions caused by Frasca's untimely proposal submission, not by bundling. (Frasca International, Inc., B-293299, February 6, 2004) (pdf)

In this instance, while the protester argues that the bundling would adversely affect small business firms, many of whom are currently performing work included in the bundled procurement, the protester has failed to demonstrate that the consolidation significantly inhibits or precludes its ability to compete. In fact, FSI claimed that it can perform the entirety of the bundled requirements. In this regard, FSI stated that it responded to the “sources sought” notice “with full confidence that we could perform all aspects of the contract and more” and that “FSI is very qualified for this BPA,” and the record shows that FSI, through SBA, attempted to noncompetitively obtain this work under the 8(a) program. Protest at 8; Protester's Comments at 8. We conclude, therefore, that the protester has not made a showing of competitive prejudice as a result of the bundling of the agency's office supply requirements.  (Future Solutions, Inc., B-293194, February 11, 2004) (pdf)

D.N. also complains that the evaluation of contractor expertise was unequal. Here, D.N. argues that neither offeror had all of the required certifications, which were necessary for a blue rating, and thus Daston should only have received a purple rating like D.N.[8] Although we agree with D.N. in this regard, we see no prejudice to D.N. from this error. Daston was still rated superior to D.N. in the two more important technical factors, and was lower in price, so even if the contractor expertise ratings were made equal, there is no reasonable basis to conclude that D.N.’s proposal would have had a reasonable probability of being selected for award. See J.A. Jones/Bell, A Joint Venture, B-286458, B-286458.2, Dec. 27, 2000, 2001 CPD ¶ 17 at 4 n.1.  D.N. also contends that the Army failed to raise during discussions that the size of past projects was a concern in the evaluation of past performance, or that its subcontractor’s past performance under military contracts was limited to hardware support. Although these issues were not specifically raised during discussions, D.N. has not shown that it was prejudiced. It does not argue that it would have, or could have, identified contracts of a larger size, or that its subcontractor’s references would have included other than contracts for hardware support had these issues been raised, or that as a result of discussions its proposal would have been found sufficiently superior to Daston’s lower priced proposal to be selected for award. Continental Serv. Co., B‑271754, B‑271754.2, July 30, 1996, 96-2 CPD ¶ 65 at 6. (D.N. American, Inc., B-292557, September 25, 2003)  (pdf)

Nevertheless, even if SPAWAR should not have accepted Dell’s quotation as submitted and later permitted the firm to “correct” it via modification of the BPA, there is no basis for concluding that the agency’s actions prejudiced GTSI. In this regard, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. Parmatic Filter Corp., B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD ¶ 71 at 11; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). GTSI has not shown, nor does the record otherwise indicate, that it was prejudiced with respect to the monitor issue. The evaluated price of GTSI’s quotation ($[DELETED]) already included the price for the compliant monitors. Adjusting Dell’s price upward (to $[DELETED]) to reflect the higher price (an additional $[DELETED]) for the compliant Dell M992 19-inch and the Sony GDM-FW900 24-inch monitors as indicated in Dell’s February 17 response, still leaves the award price lowest by a substantial margin ($[DELETED]). Agency Memorandum to File, May 6, 2003, at 3. Further, even if SPAWAR had noted the ambiguity in Dell’s quotation before award and had reopened discussions to resolve it--which necessarily would have given GTSI the opportunity to revise its price--there is no basis for concluding that it would have lowered its price sufficiently to displace Dell as the low-priced vendor. Given Dell’s advantage under the non-price factors, we are unable to find that GTSI was prejudiced. (GTSI Corp., B-292298; B-292298.2; B-292298.3, August 14, 2003) (pdf)

That said, where an agency determines that an item other than the one specified in an RFQ will meet its needs, it generally should amend the RFQ and reopen the competition. U.S. Technology Corp., B-224372, Oct. 2, 1986, 86-2 CPD ¶ 383 at 3. We will sustain a protest objecting to an agency’s failure to amend an RFQ to clarify that products other than a specified one will be considered only if the protester establishes a reasonable possibility that it was prejudiced by the agency’s failure to amend, however; that is, where the protester offers some evidence that had it known of the potential for competition, it would have altered its quotation to its competitive advantage. See Datastream Sys., Inc., B-291653, Jan. 24, 2003, 2003 CPD ¶ 30 at 6. We have recognized the possibility of prejudice where a protester that was the only vendor offering the product specified in an RFQ alleges that it would have lowered its price had it been aware of the potential for competition, and where the vendor offering the specified product alleges that it could have offered a different, lower-priced, acceptable product had it been on notice that the agency would consider equivalent items. U.S. Technology Corp., supra, at 3. (Zarc International, Inc., B-292708, October 3, 2003)  (pdf)

The protester has made a prima facie showing of similarity between the work performed under the combat arms range project and the project to be performed here, which the Air Force has neither taken issue with nor attempted to rebut.  Even assuming that the agency should have regarded the combat arms range project as relevant and considered it in evaluating the protester's past performance, however, we see no basis to conclude that consideration of this contract would have resulted in an increase in Wadsworth's past performance rating. In this regard, prejudice is an essential element of a viable protest, and we will sustain a protest only where a reasonable possibility of prejudice is evident from the record. Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD ¶ 379 at 5-6. Here, Wadsworth's performance on the missile alert facility project, which was over six times greater in dollar value than the combat arms range project, was rated as “at best” satisfactory. In addition, only about a quarter of the value of the combat arms contract was for work similar to the work to be accomplished here, meaning that while the contract was relevant, its relevance was limited. In light of these factors, we see no reasonable possibility that the contracting officer would have raised the protester's overall past performance rating to very good based on its performance on the latter project. (Wadsworth Builders, Inc., B-291633, January 24, 2003)  (txt version)

The record here, which consists of, among other things, the individual evaluator score sheets for the oral presentations, does not contain any evidence that the agency's evaluation of Innovative Management's oral presentation was affected by Innovative Management's use of copied transparencies rather than originals. For example, while the record provides numerous statements regarding the strengths and weaknesses of Innovative Management's proposal and oral presentation, there is no mention or any other indication that any of these statements resulted from, or were somehow affected by, Innovative Management's use of copied transparencies. Accordingly, we fail to see how Innovative Management was prejudiced by the agency's alleged error in not having Innovative Management's original transparencies available for use during its oral presentation.  (Innovative Management, Inc., B-291375, November 20, 2002)  (txt version)

We recognize that it could be argued that the failure to exclude a firm with an alleged conflict of interest from a competition is a defect in a solicitation that should be challenged prior to the submission of proposals or quotations.  See 4 C.F.R. § 21.2(a)(1) (2002).  Solicitation provisions, however, are not generally the vehicle for excluding firms with a conflict of interest from competing for award; rather, conflicts are generally handled on a case-by-case basis without public notice through the solicitation.  Moreover, treating protests such as this one as premature may avoid unnecessary litigation, since the allegedly conflicted firm may not be the eventual awardee, either because it loses the competition or because the agency ultimately concludes that the firm has an impermissible conflict of interest.  See Saturn Indus.--Recon., B-261954.4, July 19, 1996, 96-2 CPD ¶ 25 at 5.  Unless the firm with the alleged conflict of interest is actually selected for award, the protester has not suffered any competitive prejudice; we will not sustain a protest absent a showing of such prejudice.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3 d 1577, 1581 (Fed. Cir. 1996).  (REEP, Inc., B-290688, September 20, 2002)

Competitive prejudice is a prerequisite to sustaining a protest.  Where the record does not demonstrate that, but for the agency's actions, the protester would have had a reasonable chance of receiving the award, our Office will not sustain a protest, even if a deficiency in the procurement is found.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).  Based on our review of the record, we find that the denial of the Blue Team's request to use a decommissioned DD 963 destroyer as an at-sea test platform did not result in competitive prejudice to the protester so as to warrant sustaining its protest in this regard.  (Bath Iron Works Corporation, B-290470; B-290470.2, August 19, 2002)

The record shows, as discussed below, that the agency’s actual needs were for three separate contractors to perform the three solicited sales. If the RFP did not sufficiently indicate that three awards to three separate contractors was contemplated, it would be defective, in that multiple awards to the same contractor under the RFP would not satisfy the agency’s actual need to limit each awardee to a single task order. However, under an amended RFP with this defect eliminated, METEC could not receive any additional task orders beyond the one that it already has. Accordingly, the protested awards under this RFP did not prejudice METEC. See Plum Run, B-256869, July 21, 1994, 94-2 CPD ¶ 38 at 6-7 (protester was not prejudiced by an award under a defective solicitation where the award would remain the same if the agency amended the solicitation and the protester revised its proposal); see also Recon Optical, Inc.; Lockheed-Martin Corp., Fairchild Sys., B-272239, B-272239.2, July 17, 1996, 96-2 CPD ¶ 21 at 3-4 (protesters do not have the direct economic interest necessary to protest awards to each other where the solicitation provides for multiple awards, the protesters received the fullest awards possible, and it would not be able to obtain an additional stake in the procurement, even if their protests were sustained).  (The METEC Group, B-290073; B-290073.2, May 20, 2002 (pdf))

SOS is correct that, where the relative weights of subfactors are not disclosed in the RFP, the subfactors are understood to be of equal importance to each other. North-East Imaging, Inc., B-256281, June 1, 1994, 94-1 CPD ¶ 332 at 2. However, competitive prejudice is an essential element of every viable protest. Geonex Corp., B-274390.2, June 13, 1997, 97-1 CPD ¶ 225 at 4. Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d. 1577, 1581 (Fed. Cir. 1996).  (SOS Interpreting, Ltd., B-287477.2, May 16, 2001)

Protester, a small disadvantaged business (SDB), was not prejudiced by agency's failure to apply 10-percent SDB evaluation preference provided for in solicitation, where (1) awardee was SDB, against which the preference would not apply in any case, and (2) there is no basis to conclude that protester inflated its bid price in reliance on application of preference.  (Si-Nor, Inc., B-286910, January 5, 2001)

We dismiss the protest as to this allegation because there is no showing that MCS was prejudiced by the consolidation of the requirements. Competitive prejudice is an essential element of every viable protest. Lithos Restoration Ltd., B-247003.2, 92-1 CPD para. 379 at 5. Where the record does not demonstrate that, but for the agency's actions, the protester would have had a reasonable chance of receiving the award, our Office will not sustain a protest, even if a deficiency in the procurement is found. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, although MCS strenuously argues that the claimed benefits of the agency's consolidated procurement approach are illusory and/or do not warrant consolidation, the protester has failed to demonstrate that the consolidation significantly inhibits or precludes its ability to compete. On the contrary, MCS vigorously argues that the requirements do not differ significantly in character from its current food service contracts, and it maintains that it can perform the consolidated requirement.  (MCS Management, Inc., B-285813; B-285882, October 11, 2000)

Turning to the protester's specific argument, while solicitation amendments generally must be issued in writing in order to afford firms an opportunity to respond to changed requirements, we will sustain a protest based on an agency's failure to issue a written amendment only where the failure prejudiced the protester. First St. Invs. Ltd. Partnership, B-270894.2, B-270894.3, Aug. 15, 1996, 96-2 CPD para. 69 at 7-8. There was no prejudice here.  (Aqua-Flo, Inc., B-283944, December 30, 1999)

Although contracting agency may have improperly performed a price/technical tradeoff between proposals in violation of the solicitation's evaluation scheme, the protester was not prejudiced by the improper tradeoff decision where the record shows that agency reasonably concluded that protester's proposal was technically unacceptable.  (SBC Federal Systems, B-283693; B-283693.2, December 27, 1999)

Here, we need not determine whether the exchanges with MTI constituted discussions--and thus whether the agency should have established a competitive range and conducted discussions with other offerors in it--because it is clear from the record that CMCI was not prejudiced by the agency's failure to hold discussions with it. In this regard, competitive prejudice is an essential element of every viable protest, Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5, and we will not sustain a protest for failure to hold discussions where it is apparent from the record that the protester could not have improved its proposal enough through discussions to be in contention for award. Schleicher Community Corrections Center, Inc., B-270499.3 et al., Apr. 18, 1996, 96-1 CPD para. 192 at 6, recon. denied, B-270499.6, Aug. 15, 1996, 96-2 CPD para. 68; Strategic Analysis, Inc., supra, at 5; Northrop Worldwide Aircraft Servs., Inc., B-262181, Oct. 27, 1995, 95-2 CPD para. 196 at 8-9, recon. denied, B-262181.3, June 4, 1996, 96-1 CPD para. 263. Such is the case here.  (Charleston Marine Containers, Inc., B-283393, November 8, 1999)

The determination that the scoring of prices here was not rational does not end our inquiry. Our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Because our decision here turns on prejudice, we set forth below a lengthy analysis of how prices should have been scored to accurately reflect the relative cost of these proposals to the government, as called for in the RFP. Based on our review, we conclude that MDI was not prejudiced by the agency's improper scoring of the price proposals.  (Medical Development International, B-281484.2, March 29, 1999)

The FASA protest prohibitions of 41 U.S.C. § 253j(d) and FAR 16.505(a)(9) both provide that the traditional protest routes of the “issuance or proposed issuance” of a task order or delivery order are not permitted, save for exceptions in the statute as developed by case law, which are not applicable to this case. See A & D Fire Protection, Inc. v. United States, 72 Fed. Cl. at 133-34. Alternatively, therefore, to the extent that ATI’s actions are in the nature of a protest to future task orders under the terms of its contract, this court is not the proper forum. For the foregoing reasons, the court concludes that ATI, which is currently in possession of an ID/IQ computer maintenance contract awarded by Customs, was not prejudiced by the award of a second computer maintenance contract to DTI and, therefore, has no standing to bring a protest against the second award. The clerk’s office shall DISMISS the plaintiff’s complaint, and enter JUDGMENT in favor of defendant and intervenor. Plaintiff’s motion for injunctive relief, and the remaining briefing schedule set out in the court’s Order of October 11, 2006, are mooted by this decision.  (Automation Technologies, Inc., v. U. S. and Digital Technologies, Inc., Defendant-Intervenor (No. 06-694C, October 27, 2006) (pdf)

The court finds that there was no prejudice to Systems Plus’s position in this best-value procurement. The solicitation did not, and was not required to, rate the relative importance of the different evaluation criteria. Accordingly, the Contracting Officer had broad discretion to determine how important each of the criteria would be in the evaluation. In his best-value determination, the Contracting Officer indicated that there was no particular “weight” assigned to the evaluation factors: “As . . . competing offeror proposals in the Technical areas become more equal in rating, the more important Price will become.” AR Tab 16 (Determination of Best Value) at 1. The Contracting Officer stated that “[f]rom a business point of view, the value of [NetStar’s] quote response (non-cost factors) supercedes [sic] any variances for interpreting the ranking of offerors for price.” Id. at 5 (emphasis added). It thus appears that the Contracting Officer determined that NetStar’s proposal was sufficiently superior to other offerors’ proposals that NetStar should be selected regardless of which measure of price was evaluated. The Contracting Officer was not required to choose the lowest-price proposal, and therefore his decision that NetStar offered the best value regardless of the manner in which price was measured will not be deemed arbitrary, capricious, or otherwise not in accordance with law pursuant to 5 U.S.C. § 706(2)(A). See Impresa Construzioni, 238 F.3d at 1332. The court thus finds that Systems Plus’s position in the procurement was not prejudiced by the Contracting Officer’s error in evaluating the pricing in the bidders’ proposals. Simply put, Systems Plus would not have been awarded the BPA even if the Contracting Officer had used the pricing analysis advocated by the plaintiff. (Systems Plus, Inc., v. U. S., and NetStar-1, Inc., No. 05-1219C, Reissued: February 28, 2006) (pdf)

In order to sustain a challenge to an award, the challenger must show a prejudicial violation of an applicable regulation. Impresa, 238 F.3d at 1333. “To establish prejudice, plaintiff must show that there was a ‘substantial chance’ it would have received the award but for the alleged error in the procurement process.” Info. Tech. & Applications Corp. v. United States (ITAC), 316 F.3d 1312, 1319 (Fed. Cir. 2003); see also Data General Corp. v. United States, 78 F.3d 1556, 1562 (Fed. Cir. 1996) (“[T]o establish prejudice, a protester must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”). Neither Precision nor Hawk complied with the source approval requirement. Because Precision failed to meet the source approval requirement, Precision cannot show that it would have had a “substantial chance” of receiving the award if defendant had required source approval. In fact, if the government had required compliance with the source approval requirement, Precision not only would have lacked a “substantial chance” of receiving the award; it would have been barred from receiving the award on account of that very requirement. Accordingly, because Precision itself does not qualify as an approved source, it cannot establish that it would have had a substantial chance of receiving the award if the government had required compliance with the source approval requirement, nor can it establish that it was prejudiced by Hawk’s receipt of the award without Hawk’s first obtaining source approval. Precision has not shown, and the court 9 is not persuaded, that AMCOM’s failure to comply with the source approval requirement in this solicitation was in any way “prejudicial” to Precision. See Impresa, 238 F.3d at 1333. Accordingly, Precision’s challenge to the award on this ground must fail. (Precision Standard, Inc., v. U. S., and Hawk Enterprises, LLC., No. 05-1125C, Filed: February 27, 2006) (pdf)

Because plaintiff cannot show that it was significantly prejudiced, it cannot prevail on the merits of its claim. In addition to prevailing on the merits, in order to obtain permanent injunctive relief, plaintiff must show: (1) that it will be immediately and irreparably injured; (2) that the public interest would be better served by the relief sought; and (3) that the balance of the hardships tips in favor of the plaintiff. Bannum I, 60 Fed. Cl. at 730; see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). While this court again acknowledges that plaintiff has shown the presence of an immediate and irreparable injury, Bannum I, 60 Fed. Cl. at 730-31, plaintiff cannot obtain injunctive relief based upon the satisfaction of this single factor. “Intervenor has proved beyond cavil that a bid protest pressed well into contract performance tips the scale in favor of the awardee.” Id. at 731; see also Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 846 n.9 (D.C. Cir. 1982). Finally, the public interest is served by having the BOP observe applicable procurement regulations in conducting its reviews, but not, based on the spread in the scores, when plaintiff cannot demonstrate that a potential change in scoring would make a difference. See Bannum I, 60 Fed. Cl. at 731; see also United States v. John C. Grimberg Co., 702 F.2d 1362, 1371 (Fed. Cir. 1983). Accordingly, based on the foregoing, plaintiff has failed to prove that the violation of the applicable procurement regulation prejudiced it. The Clerk of the Court shall enter judgment for defendant. (Bannum, Inc. v. U. S. and Dismas Charities, Inc., No. 03-1751C, January 18, 2006) (pdf)