TITLE: B-297450.3, Saturn Landscape Plus, Inc., April 18, 2006
BNUMBER: B-297450.3
DATE: April 18, 2006
*******************************************************
B-297450.3, Saturn Landscape Plus, Inc., April 18, 2006
Decision
Matter of: Saturn Landscape Plus, Inc.
File: B-297450.3
Date: April 18, 2006
John T. Bray, Esq., for the protester.
Maj. Lawrence M. Anderson, Department of the Air Force, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging certain agency decisions as improper because they
allegedly were made in bad faith is denied where the record shows that
there is no basis to question the propriety of the challenged decisions;
specifically, the record shows that the agency reasonably decided to
cancel the initial solicitation and issue a revised solicitation to
reflect reduced option periods and changed evaluation factors, and the
agency properly decided to set the procurement aside for Historically
Underutilized Business Zone (HUBZone) firms based on the reasonable
expectation of receiving two or more offers from HUBZone firms and making
award at a fair market price.
DECISION
Saturn Landscape Plus, Inc. protests certain decisions by the Department
of the Air Force regarding request for proposals (RFP) Nos.
FA5004-05-R-C004 and FA5004-06-R-C007, for landscape services at Eielson
Air Force Base (AFB), Alaska. Saturn asserts that the Air Force acted in
bad faith toward Saturn by: canceling the initial RFP instead of
reevaluating offers and making a new award decision; issuing the revised
RFP as a set-aside for Historically Underutilized Business Zone (HUBZone)
firms; and posting to the Federal Business Opportunities (FedBizOpps)
website allegedly "duplicitous" answers to questions submitted by
potential offerors. Saturn also protests the agency's alleged failure to
take timely corrective action in response to Saturn's initial protest of
the award decision under the original RFP.
We deny the protest.
On March 1, 2005, the Air Force issued RFP No. FA5004-05-C004 for
landscape services at Eielson AFB. The contract, a total small business
set-aside, was to be awarded to the firm whose proposal offered the best
value to the government. The base performance period was April 15, 2006 to
September 30, 2006, with nine 1-year options. Offerors were required to
submit their proposals by May 2; nine offerors, including Saturn and Hawks
Enterprises, submitted proposals. The contract was awarded to Hawks on
September 30. Saturn, the incumbent contractor, protested the award to our
Office on October 17, asserting, among other challenges, flaws in the
agency's past performance evaluation of the awardee. On December 2, the
agency advised that it intended to take corrective action, either by
terminating the award to Hawks, reevaluating all proposals, and making a
new award decision, or by canceling the solicitation and issuing a new
solicitation with a call for new proposals. On December 2, we dismissed
the protest as academic.[1] According to the Air Force, it received
notification of our decision to dismiss the protest on December 5. By
letter of December 6, the Air Force informed Hawks of the government's
intent to terminate the contract, effective that day.
The agency decided to issue a revised RFP to reflect the following
changes. After the initial solicitation was issued in March 2005, Eielson
AFB was included on the Base Realignment and Closure (BRAC) list. Although
Eielson AFB was ultimately removed from that list, the Air Force reports
that concern over future BRAC decisions regarding the base and a desire
for greater flexibility in planning prompted the agency to reduce the
number of option periods from nine to six. Technical evaluation factors
also were added to the two existing factors--past performance and
price--and the revised past performance information provided new
definitions of "relevant" past performance and "similar size." Agency
Report (AR), Tab 7, RFP at 8-9. The agency also made the determination to
set aside the procurement for HUBZone firms. In September 2005, the
contracting squadron at Eielson AFB received a protest regarding another
procurement, alleging that it should have been set aside for HUBZone
firms.[2] The contracting squadron canceled that solicitation and
determined that, for all future solicitations, it would conduct
appropriate market research for all potential set-asides. Consistent with
that determination, the agency here conducted market research, including a
search of the central contractor's registration website and the Small
Business Administration website and direct contact of several possible
offerors, to assess the appropriateness of the grounds maintenance
requirement for a HUBZone set-aside. The contracting officer concluded
that the solicitation was, in fact, suitable for a HUBZone set-aside.
Taken together, the contracting officer considered these changes
significant enough to warrant issuance of a new solicitation by the
agency.[3] AR, Tab 2, Contracting Officer's Statement of Facts, at 9.
The agency then published a presolicitation notice on January 23, 2006.
Interested parties submitted questions to the agency, which published,
without attribution, the questions and the agency's responses on February
1. On February 8, the agency issued the new solicitation, with a proposal
due date, as extended by amendment 3, of March 3. The protester then filed
this protest on February 10.
The protester contends that the agency's decision to resolicit under a
revised RFP, rather than reevaluate proposals and make a new award
decision under the original RFP, was made in bad faith. Contracting
officers are presumed to act in good faith; we will not attribute unfair
or prejudicial motives to procurement officials on the basis of inference
or supposition. Pride Mobility Prods. Corp., B-292822.5, Dec. 6, 2004,
2005 CPD para. 72 at 5. In order to show bad faith, a protester must
present virtually irrefutable evidence that the contracting agency
directed its actions with the specific and malicious intent to injure the
protester. Information Res., Inc., B-271767 et al., July 24, 1996, 96-2
CPD para. 38 at 2.
In deciding whether to cancel a solicitation, the contracting officer has
broad discretion and need only advance a reasonable basis for such a
decision. Sunshine Kids Serv. Supply Co., B-292141, June 2, 2003, 2003 CPD
para. 119 at 2. Here, as discussed above, the record contains evidence
that the agency made several material changes to the RFP--reducing the
number of option periods, revising the evaluation criteria, and setting
the procurement aside for HUBZone firms. Given the changes to the
solicitation, we see nothing unreasonable in the contracting officer's
decision to cancel the solicitation, see Global Solutions Network, Inc.,
B-289342.4, Mar. 26, 2002, 2002 CPD para. 64 at 3-4; Wilkinson Mfg. Co.,
B-210642 et al., Mar. 6, 1984, 84-1 CPD para. 270 at 3-4, and we likewise
find no evidence in the record that the agency's decision to cancel was in
any way motivated by bad faith toward Saturn.
The protester also alleges that the decision to set aside the procurement
for HUBZone firms was motivated by bad faith. Generally, our Office
regards a determination to set aside a procurement as a matter of business
judgment, within the agency's discretion. See York Int'l Corp., B-244748,
Sept. 30, 1991, 91-2 CPD para. 282 at 6. Here, as discussed above, based
on its market research, the agency concluded that there was a reasonable
expectation that offers would be received from two HUBZone firms and that
award would be made at a fair market price, as contemplated under FAR
sect. 19.305(b). The protester has not alleged that the agency's decision
to set aside the procurement was improper, and we see nothing in the
record to suggest that it was. To the extent Saturn asserts that the
decision was motivated by bad faith, there simply is nothing in the record
suggesting that the agency was motivated by a specific intent to harm the
protester. Id.
Saturn also alleges that the agency responses in the "Questions and
Answers" dated February 1, 2006, and posted to FedBizOpps, were
prejudicial to Saturn. Specifically, Saturn objects to responses one,
four, and five:
Q1. In February of 2004, the grounds maintenance contract with Saturn
was modified to add litter control, what was the additional cost per
month to the government?
A1. This is proprietary information, therefore we cannot give out the
additional cost.
Q4. Name of last contractor?
A4. Hawk and Company, Inc.
Q5. Bottom dollar value of last contract?
A5. $5,450,000.00.
AR, Tab 23, Questions and Answers. Saturn is concerned with how the 2004
modification to its contract became known to the firm that submitted the
first question, and Saturn asks why the agency did not answer questions
four and five by naming Saturn as the last contractor, along with the
amount of that contract.
Our Bid Protest Regulations, 4 C.F.R. sections 21.1(c)(4) and (f), require
that a protest include a detailed statement of the legal and factual
grounds for protest, and that the grounds stated be legally sufficient.
These requirements contemplate that protesters will provide, at a minimum,
either allegations or evidence sufficient, if uncontradicted, to establish
the likelihood that the protester will prevail in its claim of improper
agency action. Robert Wall Edge--Recon., B-234469.2, Mar. 30, 1989, 89-1
CPD para. 335 at 2. Saturn does not allege, and we see no basis to assume,
that any of the agency's responses violated any procurement law or
regulation. As a result, Saturn's allegations are insufficient to form a
valid basis of protest. In any event, the protester, which is not a
HUBZone firm, is ineligible for award under the revised RFP and therefore
is not an interested party to raise this ground of protest. Admiral Towing
and Barge Co., B-291849, B-291849.2, Mar. 6, 2003, 2003 CPD para. 164 at 5
n.5. Moreover, Saturn's assertion that the agency responses were made with
the intent to prejudice the protester contains no plausible explanation of
what that prejudice is, and some showing of prejudice is a necessary part
of any viable protest. Crane & Co., B-297398, Jan. 18, 2006, 2006 CPD
para. 22 at 9.
Unrelated to its allegations of bad faith, Saturn asserts that the agency
violated FAR sect. 33.104(g) [4] by failing to complete corrective action
in response to the initial protest within 60 days of receiving our
"recommendations." That FAR provision is inapplicable here in that we did
not issue a recommendation to the agency as part of a decision on the
protest; rather, the agency decided to take corrective action in response
to the initial protest. In any event, as discussed above, the agency took
immediate steps to terminate the contract initially awarded and within a
reasonable time reissued the solicitation. We see no basis on which to
question the speed with which the agency acted. See J&J/BMAR Joint
Venture, LLP--Costs, B-290316.7, July 22, 2003, 2003 CPD para. 129 at 3.
Finally, in a supplemental protest, Saturn alleged that the agency
improperly received and opened proposals during the pendency of this
protest, citing 4 C.F.R. sect. 21.0(f). That section of our Bid Protest
Regulations provides the definition of "adverse agency action," and
appears irrelevant to the protest allegation. In any event, an agency is
not required to suspend the closing date for receipt of proposals or its
evaluation of offerors' proposals while a protest is pending. Lifecare
Mgmt. Partners, B-297078, B-297078.2, Nov. 21, 2005, 2006 CPD para. 8 at
10 n.16.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The protester filed a request that we recommend that it be reimbursed
its protest costs on February 1, 2006. The request was untimely filed; our
Bid Protest Regulations require that such a filing be made within 15 days
of when the protester learns that our Office has closed the protest based
on the agency's decision to take corrective action. See 4 C.F.R. sect.
21.8(e) (2005).
[2] The Federal Acquisition Regulation (FAR) requires agencies to set
aside for HUBZone firms any acquisition exceeding the simplified
acquisition threshold, whenever the contracting officer has a reasonable
expectation that the agency will receive two or more offers from HUBZone
firms and that award will be made at fair market price. FAR
sect. 19.1305(b).
[3] The agency also asserts that the original solicitation contemplated
award of a fixed-price contract with economic price adjustment (EPA), and
that this contract type was determined to be inappropriate for this effort
and was revised in the resolicitation. The protester asserts that the
original solicitation did not, in fact, contain an EPA clause. Since, as
discussed below, we conclude that the agency's decision to cancel and
resolicit was proper on the other grounds asserted by the agency, the
issue concerning the contract type is not material to our resolution of
the protest.
[4] FAR 33.104(g) provides as follows:
If the agency has not fully implemented the GAO recommendations with
respect to a solicitation for a contract or an award or a proposed award
of a contract within 60 days of receiving the GAO recommendations, the
head of the contracting activity responsible for that contract shall
report the failure to the GAO not later than 5 days after the expiration
of the 60-day period. The report shall explain the reasons why the GAO's
recommendation, exclusive of costs, has not been followed by the agency.