B-297800.3, Skyline ULTD, Inc., August 22, 2006

B-297800.3 Aug 22, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Skyline ULTD, Inc. protests the rejection of its proposal for failure to acknowledge solicitation amendments under request for proposals (RFP) No. 6FG2005MTV00001, issued by the General Services Administration for information technology services. Skyline contends that the amendments are not material and that its failure to acknowledge them should be waived as a minor informality. We deny the protest. View Decision B-297800.3, Skyline ULTD, Inc., August 22, 2006 Decision Matter of: Skyline ULTD, Inc. File: B-297800.3 Date: August 22, 2006 Albert B. Krachman, Esq., and Brian S. Gocial, Esq., Blank Rome LLP, for the protester. Adele Ross Vine, Esq., General Services Administration, for the agency. Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging rejection of proposal for failure to acknowledge solicitation amendment is denied where amendment contains material terms affecting legal relationship of the parties, including obligation for contractor to monitor changes in foreign travel danger area status and promptly coordinate such changes with contracting agency. DECISION Skyline ULTD, Inc. protests the rejection of its proposal for failure to acknowledge solicitation amendments under request for proposals (RFP) No. 6FG2005MTV00001, issued by the General Services Administration for information technology services. Skyline contends that the amendments are not material and that its failure to acknowledge them should be waived as a minor informality. We deny the protest. The RFP, set aside for service-disabled, veteran-owned small businesses, provides for the award of multiple indefinite-delivery, indefinite-quantity contracts for information systems engineering, operation, and maintenance services for a 5-year base period and a 5-year option period. RFP at F-1, L-1, L-14. The RFP advised that the agency intended to make all awards on the basis of the offerors' initial proposals without conducting discussions. Id.Each proposal was to be initially evaluated for –acceptability,— including a review for –completeness and adherence to instructions.— Id. at M-1. –Any material failure to follow directions (nonconformance),— including the omission of –required information of a material nature,— was to result in rejection of the proposal. Id.In this regard, all offerors were advised that –[o]ffers that fail the Acceptability review will not be considered further.— Id.Awards were to be made to the firms with proposals determined to offer the overall best value to the agency considering price and technical factors. Id. at M-1, M-2. Acceptability reviews were performed for each proposal submitted by the scheduled closing time. Skyline's proposal failed the acceptability review and was rejected from further consideration for award because it failed to acknowledge receipt of two solicitation amendments which the agency considered to be material.[1] This protest followed. The RFP advised offerors that performance of the work could take place in locations subject to designation by the State Department as foreign travel danger areas; in this regard, for existing orders, the contracting officer was to determine whether or not performance would continue despite such designation. RFP sect. B-10. One of the amendments that Skyline failed to acknowledge, amendment No. 6, revised the RFP's –foreign area travel/work— terms. Specifically, regarding changes in foreign travel danger area status (i.e., where the State Department warns Americans not to travel to an area or issues danger pay for work there), the amendment provided that –[c]ontractors have an affirmative duty to monitor area status during order performance and promptly coordinate with the applicable [ordering contracting officer] on changes in area status.— RFP amend. 6 at 3. The agency explains that this additional, affirmative requirement for the contractor to specifically monitor changes in danger area status will better protect the government in terms of potential liability for damages that might result from a delay in agency contracting personnel learning of a change in status, and a resulting delay in determining whether or not to continue performance of existing orders. The agency explains that prior to the amendment, the government was solely responsible for monitoring area status changes, since there was no explicit requirement for the contractor to do so. The agency also asserts that, without the amendment, it may face greater litigation risk in contractor disputes for recovery of losses or injuries that could occur from a delay in agency action to halt contract performance or protect contractor personnel due to a delay in learning of a change in foreign travel danger area status.