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4 CFR 21.5 (f): Lack of detailed statement of the legal and factual grounds of protest

Comptroller General - Key Excerpts

New Next, Applied asserts that the agency improperly "failed to perform a proper price reasonableness analysis." Protest at 8. In this regard, Applied alleges that TK proposed lower labor rates than did Applied, and, therefore, TK will be unable to retain qualified personnel to perform the contract. Id. at 8-9. According to Applied, the agency's alleged failure to analyze the reasonableness of TK's comparatively lower pricing threatens the successful performance of the contract. Protest at 9; Comments at 4.

Applied's argument reflects a lack of understanding as to the distinction between price reasonableness and price realism. The purpose of a price reasonableness review in a competition for the award of a fixed-price contract is to determine whether the prices offered are too high, as opposed to too low. Sterling Servs., Inc., B-291625, B-291626, Jan. 14, 2003, 2003 CPD ¶ 26 at 3; WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 4 n.2. Arguments, such as the one raised by Applied here, that an agency did not perform an appropriate analysis to determine whether prices are too low such that there may be a risk of poor performance concern price realism. C.L. Price & Assocs., Inc., B-403476.2, Jan. 7, 2011, 2011 CPD ¶ 16 at 3; SDV Solutions, Inc., B-402309, Feb. 1, 2010, 2010 CPD ¶ 48 at 4. A price realism evaluation is not required where, as here, a solicitation provides for the award of a fixed-price contract and does not include a requirement for a price realism evaluation. C.L. Price & Assocs., Inc., supra; WorldTravelService, supra, at 3. Accordingly, we dismiss Applied's allegation because it does not constitute a valid basis of protest. See 4 C.F.R. § 21.5(f) (2011); New Orleans Support Servs. LLC, B-404914, June 21, 2011, 2011 CPD ¶ 146 at 3; JSW Maint., Inc., B-400581.5, Sept. 8, 2009, 2009 CPD ¶ 182 at 6-7 n.3; WorldTravelService, supra, at 4 n.2.  (Applied Business Management Solutions Incorporated, LLC, B-405724, December 15, 2011)  (pdf)

The threshold issue presented here is whether CSI timely requested a post-award debriefing, pursuant to FAR sect. 15.506(a)(1), which provides that “[a]n offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with [FAR] [sect.] 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award.” Contrary to CSI’s position, we conclude that CSI’s September 22 e-mail, in which the firm simply asked the agency “if [it] could get all the bid results from the above[‑]subject project,” did not constitute a request for a post-award debriefing pursuant to FAR sect. 15.506(a)(1).

More specifically, in its September 22 e-mail, CSI made no reference to a request for a post-award debriefing--all CSI requested was to “get all the bid results.” While CSI is correct that no specific language is prescribed in the FAR in terms of how to request such a debriefing, we believe that a protester must reasonably communicate to an agency that it is, in fact, seeking a formal debriefing, rather than simply making a general informational request. In our view, CSI’s September 22 e-mail fails to convey anything more than that the firm was seeking unspecified “bid results,” not a formal debriefing to be conducted in accordance with FAR sect. 15.506, which specifies the procedures for the conduct of the post-award debriefing and the information to be provided to offerors during such a debriefing. Moreover, we point out that, in contrast to CSI’s September 22 e-mail, CSI’s letter dated October 8 constituted a clear request for a debriefing where the firm referenced the post-award debriefing provisions in FAR sect. 15.506 and specifically “request[ed] [a] debriefing within 5 days of this letter, to the extent practicable”; however, because CSI’s October 8 debriefing request was not timely made within 3 days after the firm received notice of award, the agency was not obligated to accommodate this untimely request. FAR sect. 15.506(a)(4)(i).

Thus, as a direct result of not timely requesting a post-award debriefing, CSI has failed to state sufficient legal and factual grounds for our Office to consider its protest. In this regard, the jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. sections 3551-3556 (2000 & Supp. IV 2004). Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met. Pacific Photocopy and Research Servs., B‑278698, B-278698.3, Mar. 4, 1998, 98-1 CPD para. 69 at 4. To achieve this end, our Bid Protest Regulations, 4 C.F.R. sect. 21.1(c)(4) and (f) (2008), require that a protest include a detailed statement of the legal and factual grounds for protest. This requirement contemplates that protesters will provide, at a minimum, either allegations or evidence sufficient for this Office to reasonably conclude that a violation of statute or regulation has occurred. See, e.g., View One, Inc., B-400346, July 30, 2008, 2008 CPD para. 142 at 3. Bare assertions that an award was improper, with neither evidence nor explanation of the protester’s theory regarding the alleged violation, are insufficient to satisfy this Office’s requirements. Id.

Here, by CSI’s own admission, as set forth above, in filing its protest “prematurely,” it made “certain assumptions . . . on the basis of belief,” acknowledging that it “still does not have knowledge that the bases it makes [in its] protest are true and accurate,” and that it “makes the allegations based on its good faith belief.” For example, in challenging the evaluation of its own proposal, CSI states that it “was denied information from the [a]gency and cannot determine if it was deemed an acceptable bidder.” Protest at 6. CSI speculates that while its price, including options, was lower than Baldi’s price, “it is possible that the [a]gency determined CSI to be nonacceptable . . . and/or the [a]gency applied a preference to Baldi’s bid price.” Id. CSI concludes that “[w]ithout further information, CSI has no information and cannot provide any detail concerning this basis for protest.” Id.

This example illustrates that CSI’s protest is based on speculation as a direct result of the firm’s failure to timely request a post-award debriefing. On this record, we conclude that CSI’s protest, based on bare allegations, without any supporting evidence for its positions, fails to comply with the requirement that a protest provide a sufficiently detailed statement of the legal and factual grounds for protest. 4 C.F.R. sect. 21.1(c)(4) and (f). Accordingly, CSI’s protest does not warrant further consideration by our Office.

Finally, CSI contends that even if its protest is untimely, we should consider it pursuant to the “good cause” and “significant issue” exceptions to our timeliness rules. 4 C.F.R. sect. 21.2(c). The short answer to CSI’s contention is that these exceptions to our timeliness rules are not applicable in this situation where CSI’s protest is dismissed because it fails to state legally and factually sufficient grounds for protest. In other words, the exceptions to our timeliness rules address those limited circumstances under which we will consider an otherwise untimely protest; these exceptions do not remedy, and ultimately do not provide a basis for our consideration of, a protest that is legally and factually insufficient in the first instance.  (Coffman Specialties, Inc., B-400706.2, November 12, 2008) (pdf)

This request does not constitute a valid basis for protest because it contains no allegation of improper conduct by the agency. Swager Communications, Inc., B-220000.2, Nov. 21, 1985, 85-2 CPD para. 585 at 2, aff'd, B-220000.4, Dec. 23, 1985, 85-2 CPD para. 702. In this regard, our Bid Protest Regulations require that a protest include a detailed statement of the legal and factual grounds for protest, and that the grounds be legally sufficient. 4 C.F.R. sect.sect. 21.1(c)(4), (f) (1999). In other words, the protester must allege that the agency took particular actions and that these actions were contrary to law or regulation. Here, the protester has alleged neither. To the extent that the protester is under the impression that our Office will conduct investigations for the purpose of establishing whether a protester may have a valid basis for protest, it is mistaken. Our Office does not conduct investigations as part of our bid protest function. [5] Stabro Labs., Inc., B-256921, Aug. 8, 1994, 94-2 CPD para. 66 at 5; TSI Microelectronics Corp.--Recon., B-243889.2, Nov. 4, 1991, 91-2 CPD para. 423 at 2.  (Charleston Marine Containers, Inc., B-283393, November 8, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Applied Business Management Solutions Incorporated, LLC, B-405724, December 15, 2011  (pdf)  
Coffman Specialties, Inc., B-400706.2, November 12, 2008 (pdf)  
Charleston Marine Containers, Inc., B-283393, November 8, 1999  (PDF Version)  


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