Sterling Services, Inc., B-291625; B-291626, January 14, 2003

Sterling Services, Inc., B-291625; B-291626, January 14, 2003 TITLE: Sterling Services, Inc., B-291625; B-291626, January 14, 2003 BNUMBER: B-291625; B-291626 DATE: January 14, 2003 ********************************************************************** Sterling Services, Inc., B-291625; B-291626, January 14, 2003 Decision Matter of: Sterling Services, Inc. File: B-291625; B-291626 Date: January 14, 2003 Walter Bull for the protester. Clarence D. Long, III, Esq., Department of the Air Force, for the agency. Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protester is not an interested party to maintain protest challenging proposal evaluation where it did not acknowledge material amendment; protester would be ineligible for award even if protest of evaluation were sustained. 2. Protest that awardee's offered fixed price is unreasonably low is denied; purpose of price reasonableness determination in fixed-price context is to ensure that price is not unreasonably high, as opposed to unreasonably low. DECISION Sterling Services, Inc. protests the award of contracts under request for proposals (RFP) Nos. F04626-02-R-0114 (RFP 0114) and F04626-02-R-0115 (RFP 0115), issued by the Department of the Air Force to acquire aircraft wash services and transient alert services, respectively, at Travis Air Force Base, California. Sterling maintains that the agency misevaluated proposals under both solicitations. We dismiss the protest as to RFP 0114 and deny the protest as to RFP 0115. RFP 0114 The record shows that, after receiving and evaluating proposals but before making award, the agency issued an amendment that changed the period of performance (shortening it by 2 months) and incorporated a revised wage determination from the Department of Labor into the solicitation. The amendment was issued September 24, 2002 and required that proposal revisions be submitted by September 25. Agency Report (AR), exhs. 18, 45. The amendment was transmitted to Sterling by facsimile and e-mail on September 24. However, Sterling did not acknowledge the amendment or submit a revised proposal in response to the amendment, despite the agency's repeated inquiries at the time. Shortly thereafter, on September 27, the agency sent Sterling a letter advising that its proposal had been eliminated from consideration because of the firm's failure to acknowledge the amendment. AR, exh. 45. Prior to receiving the agency's September 27 letter (and apparently in response to being advised that award was made to another concern), by letter of October 3 Sterling requested a debriefing. In response, by letter dated October 10, the agency described the evaluation of Sterling's proposal, noted the firm's failure to acknowledge the amendment and provided information on the technical and price ranking of the successful offeror. This letter was received by Sterling on October 21. On October 30, Sterling filed a protest in our Office alleging that the agency had misevaluated both its and the awardee's proposals. Sterling's initial letter of protest made no mention of the agency's rejection of the proposal for failure to acknowledge the amendment. In its report to our Office, the agency noted this fact and asserted that, since the proposal was properly rejected, Sterling is not an interested party to maintain a protest with respect to any aspect of the evaluation, since the firm would be ineligible for award even if its evaluation challenge were successful. In its comments responding to the agency report, Sterling asserted for the first time that the amendment was not material, and that it therefore was improper for the agency to reject its proposal for failing to acknowledge it. Under our Bid Protest Regulations, protests such as this must be filed within 10 days after the basis of protest was or should have been known. 4 C.F.R. S: 21.2(a)(2) (2002). Sterling was advised twice of the agency's rejection of its proposal for failure to acknowledge the amendment, first, in the agency's letter dated September 27, and again in the agency's debriefing letter of October 10. Consequently, any objection by Sterling to the agency's rejection of its proposal for failure to acknowledge the amendment had to be filed in our Office no later than 10 days after October 21, the date Sterling received its debriefing letter. Sterling's October 30 protest made no mention of the agency's rejection of its proposal on this basis; Sterling did not raise this argument until December 13, in its comments responding to the agency report. Since this was more than 10 days after October 21, it amounts to an untimely challenge to the agency's rejection of the Sterling proposal.