To satisfy this portion of the “commercial item” definition then, the question must weigh on whether [the awardee’s products] were “offered for sale” as the FAR requires. It appears obvious that [the awardee] has certainly offered their platforms for sale to the general public. The Administrative Record details various advertising and marketing efforts, and even the original [awardee’s] proposal included standard product brochures. Therefore the Court holds that [the awardee’s products] satisfied the FAR definition of “commercial items.” However, this is not to say that the statute is clear. The definition is broad, unclear, and will be interpreted as setting the “commercial item” standard very low. If the Federal Acquisition Regulations are intended to use the term in a very limiting way, its plain language does not communicate that intent.

Precision Lift, Inc. v. United States, 83 Fed. Cl. 661 (2008).

Determining whether a product or service is a commercial item is largely within the discretion of the contracting agency, and such a determination will not be disturbed by our Office unless it has been shown to be unreasonable

FAR Part 12 prescribes policies and procedures unique to the acquisition of commercial items and implements the preference established by, and the specific requirements in FASA for the acquisition of commercial items that meet the needs of an agency. FAR Part 12 was intended to establish acquisition policies more closely resembling those of the commercial marketplace as well as other considerations necessary for proper acquisition planning, solicitation, evaluation, and award of contracts for commercial items. FAR Part 12 specifies the solicitation provisions and clauses to be used when acquiring commercial items.

Agencies are required to conduct market research pursuant to FAR Part 10 to determine whether commercial items are available that could meet the agency’s requirements. FAR § 12.101. If market research establishes that the government’s needs can be met by the type of item (including services) customarily available in the commercial marketplace that would meet the definition of a commercial item at FAR § 2.101, the contracting officer is required to solicit and award any resulting contract using the policies and procedures in FAR Part 12. FAR §§ 10.002(d)(1), 12.102(a). One of the techniques for conducting market research is to contact knowledgeable individuals in government and industry regarding market capability to meet the requirements. FAR § 10.002(b)(2)(i).

Crescent Helicopters, B-284706 et al., May 30, 2000.

“Commercial item” means—

(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and—

(2) Any item that evolved from an item described in paragraph (1) of this definition through advances in technology or performance and that is not yet available in the commercial marketplace, but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Government solicitation;

(3) Any item that would satisfy a criterion expressed in paragraphs (1) or (2) of this definition, but for—

(4) Any combination of items meeting the requirements of paragraphs (1), (2), (3), or (5) of this definition that are of a type customarily combined and sold in combination to the general public;

(5) Installation services, maintenance services, repair services, training services, and other services if—

(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services—

(7) Any item, combination of items, or service referred to in paragraphs (1) through (6) of this definition, notwithstanding the fact that the item, combination of items, or service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor; or

(8) A nondevelopmental item, if the procuring agency determines the item was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments.

Under the governing Federal Acquisition Regulation, “contracts shall be awarded to… responsible prospective contractors only.” 48 C.F.R. § 9.103(a) (2001). Before awarding a contract, the contracting officer must “make… an affirmative determination of responsibility.” Id. § 9.103(b).

The regulations specify eight requirements that “a prospective contractor must” meet “[t]o be determined responsible.” Id. § 9.104-1. Only the first of these is at issue here. It provides that such contractor must “[h]ave adequate financial resources to perform the contract, or the ability to obtain them.” Id. § 9.104-1(a).

In the present case, the contracting officer affirmatively determined that [the awardee] was responsible because, as the [Government’s] first survey concluded, it “has satisfactorily demonstrated the requisite financial capabilities necessary for performance.” Relying on this survey and the other surveys, the contracting officer concluded that [the awardee’s] “facilities, cash flow and overall business prospects appear favorable both in the short and long term.” The information before the contracting officer included the fact that the parent [company] had guaranteed [the awardee’s] performance, details of the government’s progress payments during performance of the contract, and the reports in the surveys that [the awardee] would have available as working capital the proceeds of its parent company’s sale of a foreign subsidiary. Although [the awardee] and its parent had financial problems, we cannot say that the contracting officer’s determination that [the awardee] was financially responsible was arbitrary and capricious or without adequate factual basis. We cannot substitute our judgment for that of the contracting officer in making responsibility determinations.

“Contracting officers are ‘generally given wide discretion’ in making responsibility determinations and in determining the amount of information that is required to make a responsibility determination.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334-35 (Fed.Cir.2001) (quoting John C. Grimberg Co. v. United States, 185 F.3d 1297, 1303 (Fed.Cir.1999)). We agree with the Court of Federal Claims that the contracting officer examined all of the relevant financial data before him, and then carefully articulated a detailed explanation for his decision. The contracting officer‘s action was the product of reasoned decision making and was amply supported by facts in the record. Although the plaintiff might disagree with the weight that the contracting officer placed on certain financial factors, the record indicates that he at least considered them in his decision-making process.

Simply put, the contracting officer made an informed, complicated business judgment based upon ample factual support in the record, and the agency provided a coherent, reasonable explanation for the exercise of the contracting officer’s discretion. Responsibility decisions are largely a matter of judgment, and contracting officers are normally entitled to considerable discretion and deference in such matters. When such decisions have a rational basis and are supported by the record, they will be upheld.

Bender Shipbuilding & Repair Co., Inc. v. United States, 297 F.3d 1358 (Fed. Cir. 2002).

Under the Federal Acquisition Regulation, “[n]o purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility.” 48 C.F.R. § 9.103(b). In making the responsibility determination, the contracting officer must determine that the contractor has “a satisfactory record of integrity and business ethics.” 48 C.F.R. § 9.104-1(d). Furthermore, “[i]n the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility.” 48 C.F.R. § 9.103(b). FAR 9.105-2(b) requires that “[d]ocuments and reports supporting a determination of responsibility or nonresponsibility… must be included in the contract file.” However, the contracting officer is not required to explain the basis for his responsibility determination, and he has not done so here. Rather, the contracting officer signed the contract thereby making the required determination according to FAR 9.105-2(a) and in conclusory fashion determined that [the awardee] had “a satisfactory record of performance, integrity, and business ethics.”

Contracting officers are “generally given wide discretion” in making responsibility determinations and in determining the amount of information that is required to make a responsibility determination. But this discretion is not absolute.

Unfortunately, the regulations concerning responsibility determinations are cryptic, but this court in Trilon, 578 F.2d at 1360, and the Comptroller General have recognized that we may look to the more extensive debarment regulations for guidance, at least on questions related to the “integrity and business ethics” requirement.

In this case, [the protester] alleges that the contracting officer’s responsibility determination is arbitrary because [the awardee] does not fulfill the “satisfactory record of integrity and business ethics” requirement of FAR 9.104-1(d). This is said to be so because of the alleged involvement of [an individual found by an Italian court to have recently been involved in bid-rigging and involvement with a Mafia organization] and [this individual’s] relatives in [the awardee’s company], and the findings of the Italian court in 1997 that [this same individual was] engaged in criminal activities with respect to earlier contracts at the Sigonella base.

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001).

Although FAR 9.105-1(a) does require the contracting officer to have, or to obtain, enough information to make a responsibility determination, the contracting officer is the arbiter of what, and how much, information he needs. See id. Because responsibility decisions are largely a matter of judgment, contracting officers are generally given wide discretion to make this decision. Thus, although the contracting officer is given the discretion to seek additional or clarifying responsibility information from a contractor, he is not obligated to do so. Therefore, even though a few grids on the Comparison Chart were left blank, the contracting officer could have found that the information that was available was sufficient to make the ultimate decision of nonresponsibility. Similarly, the contracting officer may allow a contractor to cure problems related to its responsibility, but he may also properly make a nonresponsibility determination based on the existing record, without giving the contractor an opportunity to explain or defend against adverse evidence. Of course, courts may review such decisions by the contracting officer for an abuse of discretion; to the extent that [the protester] makes such an argument, however, we reject it for the reasons already set forth.

John C. Grimberg Co., Inc. v. United States, 185 F.3d 1297 (Fed. Cir. 1999).

Ordinarily, a contracting officer can rely on investigative reports coupled with an ensuing notice of proposed debarment in conducting a responsibility determination….

As an initial matter, contracting officers are obligated to treat all offerors equally, “evaluating proposals evenhandedly against common requirements and evaluation criteria.” Indeed, “an agency action is arbitrary when the agency offered insufficient reasons for treating similar situations differently.” This fundamental principle of equal treatment is applicable in the context of a responsibility determination.

…

Importantly, “[c]ontracting officers are ‘generally given wide discretion’ in making responsibility determinations and in determining the amount of information that is required to make a responsibility determination…. When such decisions have a rational basis and are supported by the record, they will be upheld.” Bender Shipbuilding & Repair Co., Inc. v. United States, 297 F.3d 1358, 1362 (Fed. Cir. 2002). Plaintiff has the burden of establishing that the responsibility determination was arbitrary and capricious. Impresa, 238 F.3d at 1337.

Afghan American Army Services Corp. v. United States, 106 Fed. Cl. 714 (2012).

To facilitate a contracting officer’s determination of responsibility and business integrity, all federal contractors are required to furnish representations and certifications. One of those certifications, pursuant to FAR 52.209-5, entitled “Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters (Dec 2001)” requires a certification that the corporation has not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for any commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery. Id.

Watts-Healy Tibbitts A JV v. United States, 82 Fed. Cl. 614 (2008).

…The court is mindful that an “agency’s decision is entitled to a presumption of regularity.” Impresa, 238 F.3d at 1338 (citing Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626-27 (1986)). In this case, however, that presumption is rebutted by the Government’s abuse of discretion in finding [the awardee] acceptable on a technical basis and the Navy’s admission that its due diligence was based on a “quick search on the website that indicates whether a company has been debarred,” and that, in fact, the Navy made no meaningful inquiry into the “adequa[cy of the awardee’s] financial resources… record of integrity and business ethics, [and] accounting and operational controls,” although it represented otherwise on the public record. The court does not consider an unverified answer to a “questionnaire” from one customer, about whom the Navy made no inquiry, to satisfy the requirements of 48 C.F.R. § 9.105- 1(a). In any event, under the requirements of the Solicitation, [the awardee] should have received no rating as to its past performance….

Naplesyacht.com, Inc. v. United States, 60 Fed. Cl. 459 (2004).

Where, as here, a small business is determined to be non-responsible, the matter must be referred to SBA for review under SBA’s COC [Certificate of Competency] procedures since, under 15 U.S.C. § 637(b)(7) (2006), SBA has the conclusive authority to determine a small business firm’s responsibility by issuing or refusing to issue a COC. Because SBA, not our Office, has conclusive authority to determine a small business firm’s responsibility, we generally will not review the SBA’s refusal to issue a COC, absent a showing of bad faith or failure to consider vital information. Bid Protest Regulations, 4 C.F.R. § 21.5(b) (2) (2011).

Notwithstanding SBA’s conclusive authority to determine a small business firm’s responsibility through the COC procedures, our Office has previously concluded that where new information probative of small business responsibility comes to light for the first time after denial of a COC, but before award, the contracting officer may reconsider his or her initial responsibility determination. On the other hand, where, after the SBA’s denial of a COC, no new information is presented to lead the contracting officer to determine that the concern is responsible, the contracting officer should proceed with award to another appropriately selected and responsible firm.

Orion Technology, Inc., B-405970, Jan. 13, 2012.

We agree with [the protester]. Because the requirement for an acceptable small business subcontracting plan generally is applicable to the “apparently successful offeror,” this requirement relates to an offeror’s responsibility, even where the solicitation requests the offeror to submit its plan with its offer. In addition, while an agency may provide for the technical evaluation of responsibility-type factors, such as a small business subcontracting plan, it may only do so when it is making a comparative assessment of those plans. A comparative evaluation means that competing proposals will be rated on a scale relative to each other rather than on a pass/fail basis. Here, the plans were evaluated on a pass/fail basis, and therefore, the agency’s evaluation of those plans concern an offeror’s responsibility.

Responsibility is to be determined based upon information received by the agency up to the time award is proposed to be made. The determination of a prospective contractor’s responsibility rests within the broad discretion of the contracting officer, who, in making that decision must rely upon his or her business judgment in exercising that discretion. We therefore generally will not question a negative determination of responsibility unless the determination lacked any reasonable basis.

A negative responsibility determination will not be found to be reasonable where it is based primarily on unreasonable or unsupported conclusions.

…

We also believe that the agency erred in its belief that further exchanges with [the protester] concerning its subcontracting plan would constitute discussions. We have found that where acceptability of a small business subcontracting plan is a responsibility issue, exchanges between the agency and an offeror concerning such plans are not discussions. To the extent that the contracting officer believed the agency needed additional assurances from [the protester], these communications would not have constituted discussions requiring the reopening of discussions with all offerors. Therefore, the contracting officer’s refusal to have further communication with [the protester] was based primarily upon the unreasonable and unsupported conclusion that such an exchange would constitute discussions.

MANCON, B-405663, Feb. 9, 2012.

Our Office views an agency’s determination of whether an offeror is affiliated with or is subcontracting to, a firm that is debarred, suspended or proposed for debarment to be matters of offeror responsibility. As a general matter, our Office does not review a CO’s affirmative determination of responsibility. Bid Protest Regulations, 4 C.F.R. § 21.5(c) (2011); We will, however, consider a challenge to a CO’s affirmative determination of responsibility where it is alleged that definitive responsibility criteria in the solicitation were not met, or where the protester identifies evidence raising serious concerns that, in reaching the responsibility determination, the CO unreasonably failed to consider available relevant information or otherwise violated statute or regulation. 4 C.F.R. § 21.5(c).

Active Deployment Systems, Inc., B-404875, May 25, 2011.

In making a negative responsibility determination, a contracting officer is vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency, since it must bear the effects of any difficulties experienced in obtaining the required performance. For these reasons, we generally will not question a negative determination of responsibility unless the protester can demonstrate bad faith on the part of the agency or a lack of any reasonable basis for the determination. Our review is based on the information available to the contracting officer at the time the determination was made.

M. Erdal Kamisli, B-403909.2, Feb. 14, 2011.

Finally, the protester asserts that the contracting officer’s negative responsibility determination constituted a wrongful de facto debarment, without affording [the protester] the procedural protections of FAR § 9.406-1(b). This argument is without merit. A de facto debarment occurs when the government uses nonresponsibility determinations as a means of excluding a firm from government contracting or subcontracting, rather than following the debarment regulations and procedures set forth at FAR subpart 9.4. A necessary element of a de facto debarment is that an agency intends not to do business with the firm in the future. The nonresponsibility determination here was based on current information regarding [the protester] and [a debarred company’s] close business relationship, and [the protester’s] use of [the debarred company’s] SOA [an Italian business certificate]. The record does not show that the agency intends to exclude the firm from other procurements based on its specific determination here.

Bilfinger Berger AG Sede Secondaria Italiana, B-402496, May 13, 2010.

At the outset, we note that where an agency determines the proposal of a small business such as the protester to be unacceptable under a responsibility-related factor, that is, a factor pertaining to its ability to perform, such as whether it has adequate corporate experience or production equipment and facilities, the determination is essentially one of nonresponsibility, meaning that referral to the Small Business Administration (SBA), which has the ultimate authority to determine the responsibility of small business concerns, is required. Where an agency rejects a proposal as technically unacceptable on the basis of factors not related to responsibility as well as responsibility-related ones, referral to the SBA is not required, however.

Light-Pod, Inc., B-401739.2, Nov. 12, 2009.

Since the determination of whether a particular contractor is responsible is largely a matter within the contracting officer’s discretion, our Office, as a general matter, will not consider a protest challenging an affirmative determination of responsibility, except under limited, specified circumstances—where it is alleged that definitive responsibility criteria in the solicitation were not met or evidence is identified that raises serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. This includes protests where, for example, the protester offers specific evidence that the contracting officer may have ignored information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible.

Esco Marine, Inc., B-401438, Sept. 4, 2009.

[T]he contracting officer rejected [the protester’s] offer on the ground that it was “nonresponsive” to the SFO requirements. Notwithstanding the contracting officer’s characterization, the requirement at issue concerns the offeror’s responsibility, not the technical acceptability of its offer. In this regard, as indicated by the heading under which the requirement was listed—“Evidence of Capability to Perform,” SFO ¶ 3.16—the requirement concerns the offeror’s ability to perform the contract, rather than the acceptability of its offer. An offeror who is found nonresponsible is not eligible for award. FAR § 9.103…. We will not question an agency’s nonresponsibility determination unless the record shows that it lacks a reasonable basis.

Melbourne Commerce, LLC, B-400049.2, Jan. 9, 2009.

In general, to be responsive, a bid must be an unequivocal offer to perform without exception all the material terms and conditions of the solicitation. Where a bidder provides information with its bid that does not constitute an unequivocal offer or which reduces, limits, or modifies a material requirement of the solicitation, the bid must be rejected as nonresponsive. Bid responsiveness is to be determined based upon the contents of the bid as of bid opening. Responsibility, by contrast, refers not to a bidder’s promise to perform, but rather its apparent ability and capacity to perform the contract requirements, and is determined not at the time of bid opening, but at any time prior to award, based on any information received by the agency up to that time.

…

It is well established that licensing-type requirements are matters of responsibility, not responsiveness. We have held that a solicitation requiring a bidder to obtain a specific license or permit concerns the bidder’s responsibility (i.e., its ability to perform), rather than bid responsiveness (i.e., its promise to perform). Much like a license or permit, a solicitation term requiring submission of information to a responsible third-party agency (i.e., not the procuring agency) for approval prior to contract performance is also a matter of responsibility.

SourceLink Ohio, LLC, B-299258, March 12, 2007.

The Federal Acquisition Regulation (FAR) provides that, in order to be found responsible, a prospective contractor must have, among other things, a satisfactory performance record; a prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be nonresponsible unless the contracting officer determines that the circumstances were properly beyond the contractor’s control or that the contractor has taken appropriate corrective action. FAR §§ 9-104-1(c), 9-104-(c); A nonresponsibility determination may be based upon the agency’s reasonable perception of inadequate prior performance, even where the agency did not terminate the prior contract for default, and the contractor disputes the agency’s interpretation of the facts or has appealed a contracting officer’s adverse determination. Nonresponsibility determinations are matters where the contracting officer is vested with broad discretion in exercising his or her business judgment. Accordingly, our review is limited to considering whether such a determination was reasonable when it was made, given the information the agency had before it at the time.

Daisung Company, B-294142, Aug. 20, 2004.

Procurement officials have substantial discretion to determine which proposal represents the best value for the government.

E.W. Bliss Co. v. U.S., 77 F.3d 445 (Fed. Cir. 1996)

Generally speaking, the United States Court of Federal Claims “will not disturb an agency’s best value decision merely because a disappointed bidder disagrees with the agency’s analysis”…. But if “ratings that provided the basis for the Agency’s tradeoff analysis and best value award were fundamentally flawed and arbitrary, the best value award itself was arbitrary and capricious.”

One Largo Metro, LLC v. United States, 109 Fed. Cl. 39 (2013).

In reviewing an agency’s evaluation of proposals and source selection decision, we examine the supporting record to determine whether the decision was reasonable, and in accord with the evaluation criteria listed in the solicitation and applicable procurement laws and regulations. The agency must have adequate documentation to support its judgment. Where, as here, the RFP contemplates that the relative merits of the proposals will be qualitatively compared, evaluation is not limited to determining whether a proposal is merely technically acceptable; rather, proposals should be further differentiated to distinguish their relative quality under each stated evaluation factor by considering the degree to which technically acceptable proposals exceed the stated minimum requirements or will better satisfy the agency’s needs. In fact, we have long stated that evaluation ratings should be merely guides for intelligent decision making, and that therefore evaluators and SSAs should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair, equitable, and consistent with the terms of the solicitation. In this regard, FAR § 15.308 requires a documented decision based on a comparative assessment of proposals against all source selection criteria in the solicitation.

…

Where the agency undertakes a cost/technical tradeoff, adequate documentation requires more than just generalized statements of proposal equivalency where the record evidences the existence of relative differences in proposals. Source selection decisions that are devoid of substantive analysis or consideration of whether one proposal is superior to another are insufficient to demonstrate the reasonableness of the agency’s decision. Id. Because the record here is devoid of any evidence that the SSEB [source selection evaluation board] or SSA considered the qualitative merits of the proposals under the staffing and implementation factors as required by the evaluation scheme, we find the evaluation of proposals and source selection decision to be unreasonable, and sustain the protest on this basis.

Trailboss Enterprises, Inc., B-407093, Nov. 6, 2012.

Source selection officials in negotiated procurements have broad discretion in making price/technical tradeoffs, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. Even where technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if the agency reasonably decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified.

WingGate Travel, Inc., B-405007.14, April 12, 2013.

We have long recognized that color or adjectival ratings are merely guides for intelligent decision-making in the procurement process. Therefore, evaluators and [Source Selection Authorities] should reasonably consider the underlying bases for ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation.

Source selection officials in negotiated procurements have broad discretion in making price/technical tradeoffs, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. Even where technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if the agency reasonably decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified.

CE Support Services JV, B-406542.2, Sep. 28, 2012.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of technical and cost evaluation results; cost/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the tests of rationality and consistency with the evaluation criteria. Where a cost/technical tradeoff is made, the source selection decision must be documented, and the documentation must include the rationale for any tradeoffs made, including the benefits associated with additional costs. FAR § 15.308. However, there is no need for extensive documentation of every consideration factored into a tradeoff decision, nor is there a requirement to quantify the specific cost or price value difference when selecting a higher-priced higher-rated proposal for award. FAR § 15.308.

MVM, Inc., B-407779, B-407779.2, Feb. 21, 2013.

[W]here an agency makes award to a higher-rated, higher-cost proposal in a best value acquisition, the award decision must be supported by a rational and adequately-documented explanation of why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a price premium. FAR § 15.308. An agency that fails to adequately document its source selection decision bears the risk that our Office may be unable to determine whether the decision was proper.

…

This generic, albeit often repeated, conclusion—that the [awardee’s] proposal offers the best value because it was ranked higher than the other two proposals and included more strengths than the other two proposals—does not meet the requirement for an explanation of why the higher-rated proposal is, in fact, superior, and why its technical superiority warrants paying a price premium.

Nexant, Inc., B-407708, B-407708.2, Jan. 30, 2013.

Source selection officials in negotiated procurements have broad discretion in determining the manner and extent to which they will make use of the technical and price evaluation results; price/technical tradeoffs may be made, and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the solicitation’s evaluation criteria. Even where, as here, technical merit is significantly more important than price, an agency may properly select a lower-priced, lower-rated proposal if it reasonably decides that the price premium involved in selecting a higher-rated, higher-priced proposal is not justified.

Crockett Facilities Services, Inc., B-406558.3, Dec. 13, 2012.

In conducting cost/technical tradeoffs, selection officials retain considerable discretion in determining the significance of technical point score differentials. The determinative element is not the difference in technical scores per se, but the considered judgment of the selection officials concerning the significance of the difference. Further, the business judgment of a source selection official in determining how much additional cost an agency is willing to incur to obtain the benefit of a higher rated proposal is governed only by the tests of rationality and consistency with established evaluation criteria. Id.

Native Resource-Rowe Joint Venture, Inc., B-297084, Sept. 13, 2012.

We recognize that while agency selection officials may rely on reports and analyses prepared by others, the ultimate selection decision reflects the selection official’s independent judgment. However, the independence granted selection officials does not equate to a grant of authority to ignore, without explanation, those who advise them on selection decisions. Furthermore, although source selection evaluators may reasonably disagree with the findings and recommendations of evaluators, their independent judgments must be reasonable, consistent with the stated evaluation scheme, and adequately documented.

Clark/Foulger-Pratt JV, B-4066227.2, B-406627.2, July 23, 2012.

With regard to the SSA’s duties, again, while the agency is correct that an SSA may generally rely on reports and analyses prepared by others and need not actually read the proposals, the ultimate source selection decision must represent the SSA’s independent judgment. FAR § 15.308. That is, the FAR as well as our bid protest decisions recognize that while an SSA may rely on the views of others in making a source selection, this does not allow an SSA to abrogate his or her responsibility to exercise independent judgment.

CIGNA Government Services LLC, B-401062.2, B-401062.3, May 6, 2009.

An agency’s source selection decision cannot be based on a mechanical comparison of the offerors’ technical scores or ratings per se, but must rest upon a qualitative assessment of the underlying technical differences among competing offers.

One Large Metro LLC, Metroview Development Holdings, LLC, King Farm Associates, LLC, B-404896 et al., June 20, 2011.

While the protester is correct that agencies must adequately document cost/technical tradeoff decisions, detailing the relative strengths and weaknesses of the various proposals and explaining the reasons underlying a cost/technical tradeoff, no cost/technical tradeoff was required here, since the proposals were determined to be technically equal and the agency made award to the offeror submitting the lowest priced proposal. Further, the award was consistent with the terms of the solicitation. Although the RFP provided that the non-price evaluation factors were significantly more important than price, it also provided that, as proposals became more equal under the non-price factors, the importance of price would increase. In this regard, in a negotiated procurement with a best value evaluation methodology, where selection officials reasonably regard proposals as being essentially equal technically, price properly may become the determining factor in making award, notwithstanding that the solicitation assigned price less importance than technical factors. In these circumstances, in the absence of a timely challenge to either the technical or cost evaluation results, we find the award to [the awardee] on the basis of its lowest priced, technically equal proposal to be unobjectionable.

DIT-MCO International Corporation, B-311403, June 18, 2008.

In determining whether a particular evaluation conclusion is rational, we examine the record to determine whether the judgment was reasonable and in accord with the evaluation criteria listed in the solicitation. Such judgments are by their nature often subjective; nevertheless, the exercise of these judgments in the evaluation of proposals must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected.

In order for us to review an agency’s evaluation judgment, an agency must have adequate documentation to support its judgment. In this regard, the Federal Acquisition Regulation (FAR) requires that agencies sufficiently document their judgments, including documenting the relative strengths, deficiencies, significant weakness, and risks supporting their proposal evaluations. See FAR §§ 4.801(b), 15.305(a), 15.308. While an agency is not required to retain every document or worksheet generated during its evaluation of proposals, the agency’s evaluation must be sufficiently documented to allow review of the merits of a protest. Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for the source selection decision.

In determining the rationality of an agency’s evaluation and award decision, we do not limit our review to contemporaneous evidence, but consider all the information provided, including the parties’ arguments, explanations, and hearing testimony. While we consider the entire record, including the parties’ later explanations and arguments, we accord greater weight to contemporaneous evaluation and source selection material than to arguments and documentation prepared in response to protest contentions.

…

We recognize that it is not unusual for individual evaluator ratings to differ from one another, or to differ from the consensus ratings eventually assigned. The overriding concern for our purposes is not whether the final ratings are consistent with earlier, individual ratings, but whether they reasonably reflect the relative merits of the proposals.

Systems Research and Applications Corporation, Booz Allen Hamilton, Inc., B-299818 et al., Sept. 6, 2007.

In reviewing protests of allegedly improper evaluations, our Office will examine the record to determine whether the agency’s judgment was reasonable, consistent with the stated evaluation scheme, and in accordance with applicable procurement statutes and regulations. Source selection officials are vested with a very broad degree of discretion to determine the manner and extent to which they will make use of evaluation results. Point scores are useful as guides but do not mandate automatic selection of a particular proposal. Whether a given point spread between two competing proposals indicates a significant superiority of one proposal over another depends on the facts and circumstances of each procurement and is primarily a matter within the discretion of the procuring agency; factors to be considered include effect on performance and what it would cost for the government to take advantage of any perceived superiority. Where proposals reasonably have been considered substantially technically equal, cost may properly become the determining factor for award notwithstanding that the evaluation criteria assigned cost less importance than technical factors. Even if one proposal receives a higher technical evaluation score in a procurement where technical factors are more important than cost, the award to the lower priced offeror is proper where the cost premium is not justified given the level of technical competence available at the lower cost.

Dismas Charities, Inc., B-289513.3, March 26, 2004.

According to the Federal Acquisition Regulation (FAR), when agencies intend to hold discussions with offerors in negotiated procurements:

[The protester] interprets FAR 15.306(c)(1) to mean that discussions are required if a competitive range is set. The text of FAR 15.306(c)(1), however, provides that setting a competitive range is required only if discussions are to be conducted, but not the reverse.

Information Sciences Corp. v. United States, 80 Fed. Cl. 759 (2008).

Contracting agencies are not required to retain a proposal in a competitive range where the proposal is not among the most highly rated or where the agency otherwise reasonably concludes that the proposal has no realistic prospect of award. Federal Acquisition Regulation § 15.306(c)(1). Where a proposal is technically unacceptable as submitted and would require major revisions to become acceptable, exclusion from the competitive range is generally permissible. Proposals with significant informational deficiencies may be excluded, whether the deficiencies are attributable to either omitted or merely inadequate information addressing fundamental factors. In reviewing an agency’s decision to eliminate a proposal from the competitive range, we will not evaluate the proposal anew, but rather, we will examine the agency’s evaluation to ensure it was reasonable and in accord with the provisions of the solicitation; in this regard, a protester’s mere disagreement with an agency’s evaluation does not establish that the evaluation was unreasonable.

Kaseman, LLC, B-407797, B-407797.2, Feb. 22, 2013.

Our Office will review an agency’s evaluation and exclusion of a proposal from the competitive range for reasonableness and consistency with the solicitation criteria and applicable statutes and regulations. In this regard, contracting agencies are not required to retain in the competitive range proposals that are not among the most highly rated or that the agency otherwise reasonably concludes have no realistic prospect of being selected for award. Federal Acquisition Regulation (FAR) § 15.306(c). Proposals with significant informational deficiencies may be excluded, whether the deficiencies are attributable to omitted or merely inadequate information addressing fundamental factors. The determination of whether a proposal is in the competitive range is principally a matter within the judgment of the procuring agency. A protester’s mere disagreement with the agency’s evaluation does not show that it lacked a reasonable basis.

CeReTechs Ltd., B-406873.3, Sept. 25, 2012.

[T]here is no requirement preventing an agency from including a technically unacceptable proposal in the competitive range for the purpose of conducting discussions. The determination of whether a proposal is in the competitive range is principally a matter within the sound judgment of the procuring agency. While exclusion of technically unacceptable proposals is permissible, it is not required. A fundamental purpose in conducting discussions is to determine whether deficient proposals are reasonably susceptible of being made acceptable.

Beyel Brothers, Inc., B-406640, B-406640.2, July 18, 2012.

Here, based upon our examination of the record, we conclude that the agency’s competitive range determination was unreasonable in that there is no evidence that price was considered in deciding whether a proposal should be included or excluded. In this connection, we recognize that an agency may properly exclude a technically unacceptable proposal from the competitive range regardless of its price. We also recognize that an agency has the discretion to exclude a technically acceptable proposal that is not among the most highly rated proposals where it determines that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted (provided that the solicitation notifies offerors, as the RFP here did, that the competitive range might be limited for purposes of efficiency). See FAR § 15.306(c)(2). An agency may not exclude a technically acceptable proposal from the competitive range, however, without taking into account the relative cost of that proposal to the government. That is, an agency may not exclude a technically acceptable proposal from the competitive range simply because the proposal received a lower technical rating than another proposal or proposals, without taking into consideration the proposal’s price. Similarly, an agency may not limit a competitive range for the purposes of efficiency on the basis of technical scores alone.

Arc-Tech, Inc., B-400325.3, Feb. 19, 2009.

The decision to establish a competitive range and the determination whether a proposal should be included therein is principally a matter within the sound judgment of the procuring agency. The significance of the weaknesses and/or deficiencies in an offeror’s proposal, within the context of a given competition, is a matter for which the procuring agency is, itself, the most qualified entity to render judgment. Our Office will review that judgment only to ensure it was reasonable and in accord with the solicitation provisions; a protester’s mere disagreement with an agency’s judgment does not establish that the judgment was unreasonable.

…

[T]he protester maintains that the agency impermissibly reopened the competitive range despite a FAR provision prohibiting it to do so. The provision in question provides as follows:

FAR § 15.307(a). Under this provision, the contracting agency is prohibited from accepting further proposal revisions from an offeror where the offeror’s proposal is excluded from the competitive range. In our view, this provision does not address the situation where, as here, the agency decides to establish a new and/or revised competitive range; it would be unreasonable to interpret this provision to effectively deprive the agency of the discretion to establish a new and/or revised competitive range, to conduct discussions with competitive range offerors, or to evaluate revised proposals. In fact, FAR part 15 recognizes the authority to make successive competitive range determinations albeit generally with the intent of narrowing the competitive range. However, GAO consistently has upheld the agency’s authority to establish successive competitive ranges.

Cambridge Systems, Inc., B-400680, Jan. 8, 2009.

Although agencies are not required to retain proposals in the competitive range that the agency reasonably concludes have no realistic chance for award, where, as here, a determination to exclude a proposal is based entirely on the proposal’s higher evaluated cost, the agency’s cost realism analysis must be reasonably thorough, accurate and complete. Where an agency’s cost realism analysis reflects material errors or flawed assumptions it cannot be considered reasonable.

Global, A 1st Flagship Company, B-297235, B-297325.2, Dec. 27, 2009.

[T]his court typically reviews the source selection plan, evaluation worksheets, consensus ratings and the source selection decision document for evidence of rational decision-making and adherence to the evaluation criteria expressed in a solicitation.

Huntsville Times Co. Inc. v. United States, 98 Fed. Cl. 100 (2011).

It is a fundamental procurement principle that agencies must evaluate proposals consistent with the terms of a solicitation and, while evaluation of offerors’ proposals is generally a matter within the procuring agency’s discretion, our Office will question an agency’s evaluation where it is unreasonable, inconsistent with the solicitation’s stated evaluation criteria, or undocumented. Contracting officials do not have the discretion to announce in the solicitation that they will use one evaluation plan, and then follow another without informing offerors of the changed plan. Further, while source selection officials may reasonably disagree with the evaluation ratings and results of lower-level evaluations, they are nonetheless bound by the fundamental requirements that their independent judgments be reasonable, consistent with the stated evaluation factors, and adequately documented.

Nuclear Production Partners LLC, B-407948 et al., April 29, 2013.

Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. While agencies properly may apply evaluation considerations that are not expressly outlined in the RFP, where those considerations are reasonably and logically encompassed within the stated evaluation criteria, there must be a clear nexus between the stated criteria and the unstated considerations. Although we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based.

Y&K Maintenance, Inc., B-4015310.6, Feb. 2, 2012.

As a general matter, in reviewing protests challenging an agency’s evaluation of proposals, our Office will not reevaluate proposals; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. A protester’s mere disagreement with a procuring agency’s judgment is insufficient to establish that the agency acted unreasonably.

…

The evaluation of an offeror’s past performance is within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. Where a solicitation calls for the evaluation of past performance, we will examine the record to ensure that the evaluation was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. An offeror’s mere disagreement with the agency’s evaluation judgments does not demonstrate that those judgments are unreasonable.

Colt Defense, LLC, B-406696, July 24, 2012.

Our Office will review an allegedly improper technical evaluation of product samples to determine whether the evaluation was fair, reasonable, and consistent with the evaluation criteria. We will not make an independent determination of the merits of an offeror’s proposal; rather, we will review the evaluation record, including the results of any test demonstration, to ensure that the agency’s technical judgment has a rational basis and is consistent with the stated evaluation criteria. Our Office affords particular deference to the technical expertise of agency personnel regarding judgments that involve matters of human life and safety and the conduct of qualification testing is an area where contracting agencies have broad discretion so long as their action is reasonable and does not prejudice potential offerors by, for example, treating them unequally.

Rocamar Engineering Services, Inc., B-406514, June 20, 2012.

As a general rule, agencies are required to advise offerors of the evaluation criteria against which proposals will be evaluated. Although agencies are not required to identify each and every element encompassed within the solicitation’s evaluation scheme, unstated evaluation considerations must reasonably be subsumed within the stated considerations.

IBM Global Business Services, Inc., B-404498, B-404498.2, Feb. 23, 2011.

[I]t is a fundamental principle of federal procurement law that a contracting agency must evaluate all offerors’ proposals against the solicitation’s stated evaluation criteria.

Wood Cuts, B-403960.3, May 19, 2011.

It is a fundamental principle of government procurement that competition must be conducted on an equal basis, that is, offerors must be treated equally and be provided with a common basis for the preparation of their proposals. Our Office will sustain a protest that an agency improperly relaxed its requirements for the awardee where the protester establishes a reasonable possibility that it was prejudiced by the agency’s actions.

Trammell Crow Company, B-311314.2, June 20, 2008.

An agency is obligated to conduct an evaluation consistent with the evaluation scheme set forth in the RFP. FAR § 15.305(a). We recognize that proposal evaluation judgments are by their nature often subjective; nevertheless, the exercise of these judgments in the evaluation of proposals must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are to be selected. In order for our Office to perform a meaningful review, the record must contain adequate documentation showing the bases for the evaluation conclusions and source selection decision.

…

…the assignment of adjectival ratings and the source selection should generally not be based upon a simple count of strengths and weaknesses, but upon a qualitative assessment of the proposals.

The Boeing Company, B-311344 et al., June 18, 2008.

In our view, a procuring agency’s technical personnel, who are most familiar with the government’s requirements, are in the best position to make judgments regarding the methods for meeting those requirements, and this Office will not question those determinations absent a showing that they are unreasonable. In this regard, we will afford particular deference to the technical expertise of agency personnel regarding judgments that involve matters of human life and safety.

Ultra Electronics Ocean Systems, Inc., B-400219, Sept. 8, 2008.

We find that the protesters’ speculative challenges to the qualifications of the Navy’s evaluators provide us with no basis to question the agency’s product sample evaluation. Moreover, we have long found that the selection of individuals to serve as evaluators is a matter within the discretion of the agency, and, accordingly, we do not review allegations, such as these, concerning the evaluators’ qualifications or the composition of evaluation panels absent a showing of possible fraud, conflict of interest, or actual bias on the part of evaluation officials, none of which have been alleged or shown here.

IMLCORP LLC, Wattre Corporation, B-310582 et al., Jan. 9, 2008.

The trial court cited a number of GAO bid protest cases holding that when “a solicitation indicates that price will be considered, without explicitly indicating the relative weight to be given to price versus technical factors, price and technical considerations will be accorded approximately equal weight and importance in the evaluation.” While neither the USPS [US Postal Service] nor this court is bound by those decisions, we conclude that they provide a reasonable interpretation of a solicitation that does not explicitly state the relative weights of technical and price factors. In view of those decisions, the contracting officer in this case made a reasonable judgment when he considered price and technical to be approximately equal and ultimately concluded that the additional cost of Guilford’s proposal would not offset its strong technical evaluation.

Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1348 (Fed. Cir. 2004).

The court begins its discussion by examining [the protester’s] contention that the [Agency’s] evaluation scheme was flawed. Federal law requires that in solicitations for competitive proposals, contracting agencies are required to describe “all significant factors and significant subfactors” that “the agency reasonably expects to consider in evaluating” the proposals, as well as “the relative importance assigned to each of those factors and subfactors.” 10 U.S.C. § 2305(a)(2)(A) (2000); accord id. § 2305(a)(3)(A). Agencies have the “broad discretion” to identify the relevant factors and subfactors and their relative importance. FAR § 15.304(c). While those factors may include technical excellence, management capability, personnel qualifications, prior experience, past performance, and small business participation, agencies must identify price as a factor that they will consider. 10 U.S.C. § 2305(a)(3)(A); FAR § 15.304(c)(1)(5). In addition, agencies must indicate whether the nonprice factors, when combined, are significantly more important than, approximately equal to, or significantly less important than price. 10 U.S.C. § 2305(a) (3)(A)(iii).

Femme Comp, Inc. v. United States, 83 Fed. Cl. 704 (2008).

It is fundamental that offerors should be advised of the basis on which their proposals will be evaluated. CICA requires that contracting agencies set forth in a solicitation all significant evaluation factors and their relative importance. 10 U.S.C. § 2305(a)(2)(A)(i), (ii) (2006). This standard is not satisfied where offerors are misled as to the manner in which price will be considered in the evaluation.

PCCP Constructors, JV, Bechtel Infrastructure Corporation, B-405036 et al., Aug. 4, 2011.

We recognize that CICA exempts solicitations in procurements using simplified procedures from the requirement that the relative importance of evaluation factors be disclosed. 10 U.S.C. § 2305(a)(2). Moreover, we are sensitive to the fact that the thrust of FAR parts 12 and 13 is to avoid the use of procedures that constrict and complicate the acquisition process, and that FAR §§ 12.602(a) and 13.106-1(a)(2) do not, on their face, limit a contracting officer’s discretion to disclose, or not disclose, the relative weight of evaluation criteria in a commercial item procurement conducted using simplified procedures. Nonetheless, basic principles of fair play are a touchstone of the federal procurement system, and those principles bound even broad grants of agency discretion. In addition, even when using simplified procedures—and before them, when using small purchase procedures—federal procurements must be conducted with the concern for a fair and equitable contest that is inherent in any competition.

Finlen Complex, Inc., B-288280, Oct. 10, 2001.

Furthermore, even the contracting officer’s post-protest trade-off analysis rests upon the incorrect assumption that technical factors were entitled to considerably greater weight than price in determining best value under this solicitation. In this regard, the contracting officer states as follows:

This is contrary to our well-settled rule that where, as here, a solicitation fails to specify the relative weights of technical and price factors, it must be presumed that they are of equal weight.

Locus Technology, Inc., B-293012, Jan. 16, 2004.

There are, however, exceptions to the “late is late” rule. A series of these are contained in FAR § 52.212-1(f)(2)(i), which provides that the “late is late” rule will not apply if the proposal—

See also FAR § 15.208(b)(1) (providing a similar rule for negotiated procurements); FAR § 52.215-1(c)(3)(ii)(A) (same for competitive acquisitions). The first two of the three exceptions in subparagraph (i) are commonly known as the “Electronic Commerce” and “Government Control” exceptions, respectively. A fourth regulatory exception, known as the “Emergency/ Unanticipated Event” exception, comes from FAR § 52.212-1(f)(4), which states—

See also FAR §§ 15.208(d); 52.215-1(c)(3)(iv). A fifth, and final, exception has been fashioned by GAO, which has long-held that a “hand-carried proposal that arrives late may be considered if improper government action was the paramount cause of the late submission and consideration of the proposal would not compromise the integrity of the competitive procurement process.” Noble Supply & Logistics, 2011 C.P.D. ¶ 67 (2011).

…

[I]n the case of an electronic delivery, the Government Control exception applies where the electronic proposal is received by a government server (or comparable computer) and is under the agency’s control prior to the deadline. This opens no Pandora’s (mail)box – it merely applies that exception, as written, to the technology that agencies themselves choose to employ.”

Insight Sys. Corp. v. United States, 110 Fed. Cl. 564 (2013).

However, even if [the protester’s] courier had arrived on time, [the protester’s] argument regarding the government-control exception still fails to be persuasive. [The protester] avers that the court should find the proposal was under government control the moment [the Government acquisition employee] stepped into the lobby. [The protester] cites no law or precedent supporting the proposition that a proposal can be under government control while it physically remains in the hands of the bidder. To the contrary, “[i]n non-electronic commerce cases, GAO has determined that the [g]overnment receives a bid at the time the bidder relinquishes control.” To “relinquish control” of a hand-delivered proposal, the offeror must permanently transfer control of the proposal to the government.

Castle-Rose, Inc. v. United States, 99 Fed. Cl. 517 (2011).

The requirement that offerors submit their proposals on time is a “strict rule with very limited exceptions.” John Cibinic, Jr. & Ralph C. Nash, Jr., Formation of Government Contracts 786 (3d ed. 1998). The late bid rule “may seem harsh, [but] it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors.” While the Government may lose the benefit of the special skills and experience of a late submission, “protecting the integrity of the competitive procurement process by ensuring fair and equal treatment among competitors is of greater importance than the possible advantage to be gained by considering a late submission….”

Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167 (2005).

Although submission deadlines typically are strictly enforced, the late proposal rule is not a draconian provision, and the FAR provides several explicit exceptions which permit consideration of an otherwise late proposal. Under the Government Control exception, a “late” proposal may considered if “it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition; and… it was received at the Government installation designated for receipt of proposals and was under the Government’s control prior to the time set for receipt of proposals.” § 15.208(b)(1).5 Similarly, while offerors generally must comply with all the requirements set forth in the solicitation, the FAR permits “[t]he Government [to] waive informalities and minor irregularities in proposals received.” FAR § 52.215-1(f)(3).

Elec. On-Ramp, Inc. v. United States, 104 Fed. Cl. 151 (2012).

It is an offeror’s responsibility to deliver its proposal to the place designated in the solicitation by the time specified, and late receipt generally requires rejection of the proposal. FAR § 15.208(a). Unless a preponderance of the evidence demonstrates that the proposal was at the designated location for receipt prior to the time set for closing, the proposal may not be considered for award. A late hand-carried proposal may be considered for award, however, if improper government action was the paramount cause of the late delivery and consideration of the proposal would not compromise the integrity of the competitive procurement process. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Id.

For example, our Office has held that a late hand-carried offer may be considered for award if the government’s misdirection or improper action was the paramount cause of the late delivery and consideration of the offer would not compromise the integrity of the competitive process. A late proposal may also be accepted if it is found to have been received at the designated government installation and was under the agency’s control at the time set for receipt of proposal. Nonetheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time.

RDT-Semper Tek, JV, LLC, B-408811, Dec. 9, 2013.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time and late delivery generally requires rejection of the proposal. FAR § 15.208. Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Proposals that are received in the designated government office after the exact time specified are late, and generally may not be considered for award. While the rule may seem harsh, it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the common deadline set for all competitors.

The agency contends that it was entitled to accept [the awardee’s] late proposal because the language of Federal Acquisition Regulation (FAR) § 52.212-1(f)(2)(i) “allows late offers to be considered if they are received before award and would not unduly delay award.” The agency also argues that its acceptance of [the offeror’s] late proposal was permissible under FAR § 52.212-1(f)(2)(ii), which allows the agency to accept a late modification of an “otherwise successful proposal” that makes its terms more favorable to the government.

The agency is mistaken with regard to both assertions. With regard to the agency’s first argument, FAR § 52.212-1(f)(2) states in its entirety:

FAR § 52.212-1(f)(2) (emphasis added).

In short, FAR § 52.212-1(f)(2)(i) provides that, in order for the agency to properly accept a late proposal pursuant to this provision, the proposal must be received before award, its acceptance will not unduly delay the acquisition, and one of the alternatives listed in subsections (A), (B), or (C) must apply. Here, the agency has not asserted that any of the alternatives in subsections (A), (B), or (C) apply, and our review of the record confirms that none is applicable. Accordingly, the agency’s acceptance of [the awardee’s] late proposal does not fall under the exceptions specified in FAR § 52.212-1(f)(2)(i).

Next, the agency’s assertion that [the awardee’s] late FPR constituted a late modification of an otherwise successful proposal that makes its terms more favorable to the government, and is therefore properly acceptable pursuant to FAR § 52.212-1(f)(2)(ii), is equally without merit. This exception applies only to an “otherwise successful proposal.” It is well-settled that the term “otherwise successful” restricts this exception to permit the government’s acceptance of a late modification offering more favorable terms only from the offeror already in line for the contract award. Thus, an offeror cannot avail itself of the late proposal submission provision where the agency has not already identified an “otherwise successful offeror.”

Here, the record establishes that, prior to the agency’s review of FPRs, the agency had not identified any offeror as being in line for award. To the contrary, even after receipt of FPRs, the source selection authority stated that there was “no clear-cut choice.” Accordingly, the exception set forth in FAR § 52.212-1(f)(2)(ii) is inapplicable, and there was no basis for the agency to accept [the awardee’s] late proposal.

Philips Healthcare Informatics, B-405382.2, B-405382.3, B-405382.4, May 14, 2012.

FAR § 52.215-1(c)(3)(i) states that if no time for submission is specified in the solicitation, the time for receipt is 4:30 p.m., local time. In [a previous decision] our Office stated that this FAR provision establishes 4:30 p.m. local time “as the close of business where the solicitation does not state a specific time for receipt of proposals.”

NCI Information Systems, Inc., B-405745, Dec. 14, 2011.

It is an offeror’s responsibility to deliver its proposal to the proper place at the proper time. FAR § 15.208(a) (offerors are responsible for submitting proposals so as to reach the designated government office by the specified time). Similarly, it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency. Proposals that are received in the designated government office after the exact time specified are “late,” and generally may not be considered for award.

Associated Fabricators & Constructors, Inc., B-405872, Dec. 14, 2011.

It is an offeror’s responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal. A proposal delivered to an agency by a commercial carrier is considered to be hand-carried and, if it arrives late, can only be considered for award if it is shown that some government impropriety during or after receipt by the government was the sole or paramount cause of the late arrival at the designated place. Improper government action in this context is affirmative action that makes it impossible for the offeror to deliver the proposal on time. Nevertheless, even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility to deliver a hand-carried proposal to the proper place by the proper time.

ERC, Inc., B-405563, Nov. 18, 2011.

To establish that government mishandling was the sole or paramount cause of the late receipt of a proposal, an offeror must first establish that it did not significantly contribute to the late delivery by not allowing enough time to permit a timely submission. Even in cases where the late receipt may have been caused, in part, by erroneous government action, a late proposal should not be considered if the offeror significantly contributed to the late receipt by not doing all it could or should have done to fulfill its responsibility to deliver a hand-carried proposal to the specified place by the specified time.

Offerors are responsible for allowing a reasonable time for proposals to be delivered from the point of receipt to the location designated for receipt of offers; failure to do so, resulting in late arrival at the designated location, cannot be attributed to governmental mishandling. Furthermore, delays in gaining access to a government building are not unusual and should be expected. Therefore, an offeror that does not submit a proposal sufficiently in advance of the closing time runs the risk that the agency’s reasonable internal delivery procedures will not get the proposal to the proper location by the required time.

CCSC, Inc., B-404802.3, July 18, 2011.

Offerors are responsible for submitting proposals, and any modifications to them, so as to reach the government office designated in the solicitation by the time specified in the solicitation. Federal Acquisition Regulation (FAR) § 15.208(a). Proposals, and modifications to them, that are received in the designated government office after the exact time specified are “late,” and will be considered only if received before award, and if the circumstances meet the specific requirements of the provision at FAR § 52.215-1. FAR § 15.208(b). Portions of proposals that are submitted late may not be considered by the agency, and if the proposal is unacceptable as timely submitted, it should be rejected as late. On the other hand, a proposal which does not provide all items required by the solicitation may not be automatically rejected if the proposal information received by the deadline is sufficient to constitute an acceptable proposal.

SafeGuard Services, LLC, B-404910, June 28, 2011.

Moreover, it is apparent that the paramount cause of [the protester’s] late delivery of its proposal stemmed from the fact that [the protester’s] representative arrived at the [Government] Building, according to her own version of events, with approximately 1 minute to spare. By allowing herself so narrow a margin of time, [the protester’s] representative assumed the risk that any number of events might intervene to prevent the timely submission of the proposal.

Lani Eko & Company, CPAs, PLLC, B-404863, June 6, 2011.

The protester’s first argument is without merit. While it is true that a contracting officer may provide oral notice of a solicitation amendment “when time is of the essence,” see Federal Acquisition Regulation (FAR) § 15.206(f), [the protester] has not alleged that the contracting officer ever in fact advised [the protester] that she would “amend” the solicitation to extend the closing date until December 23. Rather, [the protester] essentially argues that it understood the contracting officer’s oral assurance that its proposal would be evaluated even if submitted on the 23rd as implying that the RFP would be amended since there would not otherwise have been any basis for the contracting officer to consider its proposal. However, absent an unambiguous statement from the contracting officer conveying her intent to amend the closing date for all offerors, [the protester] could not reasonably disregard the solicitation’s express closing date and instead rely on an implied understanding of the contracting officer’s oral assurances, which were otherwise inconsistent with the terms of the RFP. We have repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency, and that an offeror relies on such oral advice at its own risk.

Noble Supply and Logistics, B-404731, March 4, 2011.

This Office has repeatedly held that the declaration of the agency official responsible for receiving bids or proposals is determinative with regard to the time a bid or proposal is received, absent a showing that the agency official’s declaration was unreasonable.

…

In determining whether a late-submitted proposal was “under the Government’s control” prior to the time set for receipt of proposals, it is clear that an offeror must, at a minimum, have relinquished physical custody of the proposal. This requirement is an obvious necessity in order to preclude any potential that an offeror could alter, revise, or otherwise modify its proposal after other offerors’ competing proposals have been submitted.

U.S. Aerospace, Inc., B-403464, B-403464.2, Oct. 6, 2010.

Generally, late quotations may be considered up to the time of issuance of the order, because an RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government’s purchase order represents an offer that the vendor may accept through performance or by a formal acceptance document. Moreover, we have found that language in an RFQ requesting quotations by a certain date does not establish a firm closing date for receipt of quotations, absent a late submission provision expressly providing that quotations must be received by that date to be considered.

M. Braun, Inc., B-298935.2, May 21, 2007.

Plaintiff’s primary challenge to the award of the Contract is that intervenor made a material misrepresentation in its proposal by listing [ ] as a supplier to be used in the completion of the procurement. In order to establish a material misrepresentation, “plaintiff must demonstrate that (1) [the awardee] made a false statement; and (2) the [agency] relied upon that false statement in selecting [the awardee’s] proposal for the contract award.” Blue & Gold Fleet, LP v. United States, 70 Fed. Cl. 487, 495 (2006) According to the Federal Circuit, the submission of a misstatement… which materially influences consideration of a proposal should disqualify the proposal. The integrity of the system demands no less. Any further consideration of the proposal in these circumstances would provoke suspicion and mistrust and reduce confidence in the competitive procurement system. Planning Research Corp. v. United States, 971 F.2d 736, 741 (Fed. Cir. 1992) (illustrating misrepresentation tactic known as “bait and switch” in which offeror submits proposal with the intent to substitute some aspect that it had used to win award). Thus, if plaintiff can establish that (1) intervenor falsely indicated that [ ] was a subcontractor that intervenor intended to use in the work performed under the Solicitation and (2) the [agency] relied upon this representation in the awarding of the Contract, then plaintiff has met its burden of proving a material misrepresentation.

GTA Containers, Inc. v. United States, 103 Fed. Cl. 471 (2012).

An offeror may not propose to use specific personnel that it does not expect to use during contract performance, as doing so would have an adverse effect on the integrity of the competitive procurement system and generally provides a basis for proposal rejection. To establish an improper bait and switch scheme, a protester must show: (1) a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, (2) that the misrepresentation was relied on by the agency, and (3) the misrepresentation had a material effect on the evaluation results.

Dorado Services, Inc., B-408075, B-408075.2, June 14, 2013.

Whenever an agency requests resumes as part of the submission of bids or proposals, there is a reasonable expectation that those individuals for whom resumes have been submitted are the personnel who will perform the contract. For that reason, a firm that knowingly or negligently represents that it would rely on specific personnel that it did not expect to furnish during contract performance may be found to have established an impermissible bait and switch scheme, where that misrepresentation was relied on by the agency and had a material effect on the evaluation results.

Coastal Environmental Group, Inc., B-407563, B-407563.3, B-407563.4, Jan. 14, 2013.

[W]e note that the purpose of a requirement for an offeror to provide letters of commitment for key personnel is to preclude an offeror from proposing an impressive array of employees, being evaluated on that basis, and receiving award, even where the persons proposed had never committed themselves to the offeror, and may have had no intention of doing so.

Native American Industrial Distributors, Inc., B-310737.3, B-310737.4, B-310737.5, April 15, 2008.

To establish an impermissible “bait and switch,” a protester must show that a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and had a material effect on the evaluation results. Where an offeror provides firm letters of commitment and the names are submitted in good faith with the consent of the respective individuals, the fact that the offeror, after award, provides substitute personnel does not make the award improper.

STG, Inc., B-298543, B-298543.3, Oct. 30, 2006.

[O]ur Office has held that in evaluating past performance, an agency may appropriately consider the experience of the individual members of a joint venture and, at the same time, consider the lack of experience of the joint venture.

…

To establish an impermissible “bait and switch,” a protester must show that a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and had a material effect on the evaluation results.

Even assuming for the sake of argument that there is evidence of an intention to switch here, the protester’s argument that an impermissible “bait and switch” occurred must fail because there is no evidence of baiting. In this connection, [the protester] has not alleged that [the awardee] intends to replace the individuals designated in its quotation with less qualified ones; its allegation is that [the awardee] intends to substitute for the individuals named in the quotation equally (or better) qualified employees of the incumbent. Since the substitution of equally qualified individuals for the ones designated in a quotation could not have had a material effect on the evaluation results, such a substitution does not constitute an impermissible “bait and switch.”

Data Management Services Joint Venture, B-299702, B-299702.2, Jul. 24, 2007.

[A]n agreement to work for a successful offeror, without reaching agreement on salary and benefits, is no more than a promise to negotiate for employment and is not a binding commitment. Similarly, we have stated that “salary and benefits are generally major considerations in accepting employment and an agreement contingent upon these factors is not, we think, the equivalent of a firm commitment to accept the position offered”…. an offeror’s submission of a proposal containing material misrepresentations should disqualify the proposal from consideration for award, [because] the integrity of the procurement process demands no less.

Patriot Contract Services – Advisory Opinion, B-294777.3, May 11, 2005.

The substitution of incumbent employees for proposed employees with an agency’s permission, and where there has been no misrepresentation, is not an improper bait and switch.

AdapTech General Scientific, LLC, B-293867, June 4, 2004.

Despite the various ways agencies attempt to address this issue in solicitations, the incumbent workforce is often the best possible source of individuals who will be familiar with the day-to-day requirements of performing these services. We also recognize that once competitions end, and the proverbial smoke clears, many incumbent employees are interested in retaining their jobs, regardless of the corporate entity that holds the contract with the government. Accordingly, we have held that, even where there is no requirement in an RFP to obtain commitments from incumbent personnel, an agency may nonetheless reasonably draw favorable conclusions about an offeror’s stated intent to retain as many of the incumbent employees as possible.

U.S. Facilities, Inc., B-293029, B-293029.2, Jan. 16, 2004.

It is blackletter law that a procuring agency may only accept an offer that conforms to the material terms of the solicitation. Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (“To be acceptable, a proposal must represent an offer to provide the exact thing called for in the request for proposals, so that acceptance of the proposal will bind the contractor in accordance with the material terms and conditions of the request for proposals.” A solicitation term is “material” if failure to comply with it would have a nonnegligible effect on the price, quantity, quality, or delivery of the supply or service being procured.

Furniture by Thurston v. United States, 103 Fed. Cl. 505 (2012).

[J]udicial review of the contract award focuses on whether the award was supported by facial compliance of the winning bid with the requirements of the solicitation.

L-3 Global Commc’ns Solutions, Inc. v. United States, 82 Fed. Cl. 604 (2008).

The record here supports the agency’s finding that [the protester’s] proposal failed to meet the solicitation’s technical specifications. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award.

Concept Analysis and Integration, LLC, B-406638.3, March 29, 2013.

[I]n determining the technical acceptability of a proposal or quotation, an agency may not accept at face value a promise to meet a material requirement, where there is significant countervailing evidence that was, or should have been, reasonably known to the agency evaluators that should create doubt whether the offeror or vendor will or can comply with that requirement. A proposal or quotation that contains an ambiguity as to whether the offeror will comply with a material requirement of the solicitation renders the proposal unacceptable.

Bahrain Telecommunications Company, B.S.C., B-407682.2, B-407682.3, Jan. 28, 2013.

A solicitation’s minimum acceptance period is a material requirement. An offeror’s compliance with a solicitation’s acceptance period is required so that all offerors share the same business risks of leaving their bids or proposals open for acceptance by the government for the same amount of time.

Where a proposal has expired, we have recognized that an offeror may extend its acceptance period and revive its proposal if doing so would not compromise the integrity of the competitive bidding system. Circumstances that compromise the system’s integrity include an offeror’s express or implied refusal of a request to extend its bid, and a subsequent request to revive the proposal subject to the offeror’s own interests. An offeror who is allowed to specify a shorter acceptance period would enjoy an unfair competitive advantage because it would be able to refuse the award after its bid acceptance period expired should it decide that it no longer wanted the award, for example, because of unanticipated cost increases, market fluctuations, shortages, or better profit opportunities elsewhere.

Global Automotive, Inc., B-406828, Aug. 3, 2012.

Any proposal that fails to conform to material terms of the solicitation may be considered unacceptable and not form the basis for an award. Even where individual deficiencies may be susceptible to correction though discussions, the aggregate of many such deficiencies may preclude an agency from making an intelligent evaluation, and the agency is not required to give the offeror an opportunity to rewrite its proposal. Further, communications with offerors before the establishment of the competitive range “shall not be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal.” FAR § 15.306(b)(2).

Orion Technology, Inc., B-405077, Aug. 12, 2011.

The requirement to propose fixed prices is a material term or condition of a solicitation requiring such pricing. Where a solicitation requests proposals on a fixed-price basis, a price offer that is conditional and not firm cannot be considered for award.

Solers, Inc., B-404032.3, B-404032.4, April 6, 2011.

An offeror has the obligation to affirmatively demonstrate that its proposal will meet the government’s needs, and has a duty to establish that what it is proposing will meet the solicitation requirements where required to do so. Where, as here, a solicitation requires offerors to furnish information necessary to establish compliance with the specifications, an agency may reasonably find a proposal that fails to include such information technically unacceptable.

…

[The protester] nevertheless argues that the agency unreasonably disregarded the commitment in its offer to comply with the material requirements of the solicitation, as evidenced by its submission of standard form (SF) 1442. [The protester] argues that by simply signing the SF-1442 a party agrees to and is obligated to perform, all material requirements of the RFP. However, simply submitting an SF-1442 is insufficient to comply with an RFP requirement to provide the detailed technical information necessary for evaluation purposes. Where a proposal contains a blanket offer of compliance to meet specifications, such as by signing an SF-1442, and also contains conflicting provisions which call that offer of compliance into question, the offer is ambiguous and may properly be rejected as technically unacceptable. Under such circumstances, there is no requirement that the agency conduct discussions so as to allow the offeror to correct the deficiencies in its proposal, where, as here, the solicitation expressly advised that it intended to make award without discussions.

Douglass Colony/Kenny Solar, JV, B-402649, June 17, 2010.

General solicitation provisions mandating that “the contractor” comply with federal, state, and local laws do not require that an offeror demonstrate compliance prior to award. Rather, compliance is a performance requirement that may be satisfied during contract performance and does not affect the award decision (except, possibly, as a general responsibility matter). Further, whether [the awardee] ultimately complies with the provision is a matter of contract administration that we will not review. 4 C.F.R § 21.5(a) (2009).

Freedom Scientific, Inc., B-401173.3, May 4, 2010.

Where a protester challenges an agency’s evaluation of a proposal’s technical acceptability, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award.

Sletten Companies/Sletten Construction Company, B-402422, April 21, 2010.

In reviewing a protest of an agency’s evaluation of proposals, our review is confined to a determination of whether the agency acted reasonably and consistent with the terms of the solicitation and applicable statutes and regulations. A firm delivery schedule or completion date set forth in a solicitation is a material requirement, precluding acceptance of any proposal not offering to meet that date. In a negotiated procurement, any proposal that fails to conform to material terms and conditions of the solicitation is unacceptable and may not form the basis for an award.

Boss Construction, Inc., B-402143.2, B-402143.3, Feb. 19, 2010.

While the agency did not reject [the protester’s] proposal for failure to include option prices, this omission rendered the proposal unacceptable. In this regard, since offerors were required to provide option year prices and those prices were to be evaluated for purposes of determining the total evaluated price, option prices were a material solicitation requirement. In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Since [the protester] did not provide the required option year prices, its proposal did not conform to the material terms of the RFP, and therefore could not be accepted for award.

Manthos Engineering, LLC, B-401751, Oct. 16, 2009.

In negotiated procurements, a proposal that fails to comply with the material terms of the solicitation should be considered unacceptable and may not form the basis of award. We will not disturb an agency’s determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulation. Further, when a dispute exists as to the exact meaning of a solicitation requirement, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation.

Northern Light Productions, B-297084, June 1, 2009.

Based upon our review of the record, the agency reasonably found that [the awardee’s] quotation provided the information requested by the solicitation, and agreed without exception to furnish a product in accordance with the terms of the solicitation. While [the protester] contends that the agency could not accept [the awardee’s] quotation representation without further investigation, an agency may accept a quotation’s representation that indicates compliance with the solicitation requirements, where there is no significant countervailing evidence reasonably known to the agency evaluators that should create doubt whether the offeror will or can comply with the requirement. Here, notwithstanding the detailed arguments by [the protester] as to why [the awardee’s] quotation will not provide a product that meets the FIPS 140-2 certification requirement, the record does not indicate there was any countervailing evidence reasonably known to the agency evaluators before award that should have created doubt that [the awardee] would or could honor its quotation. Whether [the awardee] actually delivers a product compliant with the terms of the solicitation is a matter of contract administration, which is for consideration by the contracting agency, rather than our Office. GAO does not review matters of contract administration under our bid protest function. 4 C.F.R. § 21.5(a) (2008).

Spectrum Systems, Inc., B-401130, May 13, 2009.

In sum, we hold that the [Government’s] decision to issue a MATOC [Multiple Award Task Order Contract] solicitation [instead of a seeking a sealed bid structure] “evinces rational reasoning and consideration of relevant factors.” Were we to conclude otherwise, we would be second-guessing the [Government’s] action. That is something we are not permitted to do.

Weeks Marine, Inc. v. United States, 575 F.3d. 1352 (Fed. Cir. 2009).

CICA requires the use of sealed bidding when: (1) time permits; (2) award will be based on price and other price-related factors; (3) discussions are not necessary; and (4) more than one bid is expected. 10 U.S.C. § 2304(a)(2)(A); Federal Acquisition Regulation (FAR) § 6.401(a); When an agency determines that these conditions are not met, CICA requires the use of negotiated procedures. 10 U.S.C. § 2304(a)(2)(B). The determination as to whether circumstances support the use of negotiated procedures is largely a discretionary matter within the purview of the contracting officer. FAR § 6.401. However, an agency must reasonably conclude that the conditions requiring use of sealed bidding are not present.

Ceres Environmental Services, Inc., B-310902, March 3, 2008.