Liberty Power Corporation, B-295502, March 14, 2005

B-295502 Mar 14, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Liberty Power Corporation protests the General Services Administration's (GSA) award of contracts to Pepco Energy Services, Inc. and Constellation NewEnergy, Inc., under request for proposals (RFP) No. GS-00P-05-BSC-0335, for electric power supply to various federal and non-federal facilities. Liberty, a small disadvantaged business (SDB) concern, asserts that GSA improperly failed to accord it an SDB price evaluation adjustment. We sustain the protest. View Decision B-295502, Liberty Power Corporation, March 14, 2005 Decision Matter of: Liberty Power Corporation File: B-295502 Date: March 14, 2005 J. Alex Ward, Esq., and Kali N. Bracey, Esq., Jenner & Block, for the protester. Alison L. Doyle, Esq., and Jason N. Workmaster, Esq., McKenna, Long & Aldridge, for Pepco Energy Services, Inc.; Thomas C. Wheeler, Esq., Carl L. Vacketta, Esq., and Eliza P. Nagle, Esq., DLA Piper Rudnick Gray Cary, for Constellation NewEnergy, Inc., intervenors. Richard R. Butterworth, Esq., General Services Administration, and Kenneth Dodds, Esq., Small Business Administration, for the agencies. David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Where solicitation established an evaluation scheme providing for application of price evaluation adjustment on behalf of eligible small disadvantaged business (SDB) offerors, and agency, through its exchanges with protester prior to the submission of price proposals, led firm to believe that adjustment would be applied in the event that protester established its eligibility, agency cannot defend its failure to accord protester the preference on the basis that the preference in fact is not authorized; rather, having led protester to base its price proposal on the expectation that it would benefit from the SDB price evaluation adjustment if it established its eligibility, if agency believes adjustment is not authorized for this procurement, agency should amend the solicitation to delete adjustment and reopen discussions so as to permit offerors to submit revised proposals. 2. Contracting officer's determination to deny a small disadvantaged business (SDB) concern the benefit of an SDB price evaluation adjustment essentially on the basis that the SDB could not comply with this provision must be referred to the Small Business Administration for final determination. DECISION Liberty Power Corporation protests the General Services Administration's (GSA) award of contracts to Pepco Energy Services, Inc. and Constellation NewEnergy, Inc., under request for proposals (RFP) No. GS-00P-05-BSC-0335, for electric power supply to various federal and non-federal facilities. Liberty, a small disadvantaged business (SDB) concern, asserts that GSA improperly failed to accord it an SDB price evaluation adjustment. We sustain the protest. The RFP, issued on September 22, 2004, contemplated award of a contract, for a base period of 10 months with 2 option years, to the responsible offeror or offerors whose technically acceptable proposal or proposals offered the low total evaluated price for electricity supply commodity components up to the delivery point, including energy, capacity, ancillary services, and network firm transmission, necessary for the firm supply of electricity to a number of federal and non-federal facilities in the Pepco service territory in Maryland and the District of Columbia. The solicitation reserved to the government the right to make separate awards for the Maryland and District of Columbia requirements. The solicitation required offerors to furnish evidence of technical qualifications, including evidence that the offeror possessed the requisite licenses, network transmission agreements,comparable experience, risk management measures related to providing retail electric supply, and plans to supply the energy required by this contract to the delivery point. RFP C.1(c). Technical proposals from eightofferors, including Liberty, were received by the October 21 closing time. Although the contracting officer was concerned that Liberty's experience was limited, such that "there is a question as to whether Liberty has the capability to handle two large load groupings," he ultimately determined that Liberty met the minimum qualifications and was "responsible for purposes of submitting pricing." Solicitation Summary and Award Decision at 7. This protest concerns the evaluation of the subsequently submitted price proposals. In this regard, the RFP provided that "[o]ffers will be evaluated by adding a factor of tenpercent to the price of all offers, except offers from [SDB] concerns that have not waived the adjustment.