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) |