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Wednesday, May 13, 2015

Protest of too little time to submit offer after amendments

Matter of: Financial Asset Management Systems, Inc., B-409722.9, April 24, 2015
Financial Asset Management Systems, Inc. (FAMS), of Atlanta, Georgia, protests a request for proposals (RFP) issued by the Department of Education for student loan debt collection and administrative resolution services. FAMS contends that the agency failed to provide sufficient time to prepare proposals. [There was another more substantive issue raised, but this is the one considered important for this post.]

The solicitation, issued on July 30, 2013, provided for a 2-phase procurement for the award of multiple indefinite‑delivery/indefinite-quantity contracts for a 5-year base period and a 5-year option period for student debt collection and administrative services. Phase I was completed in April 2014; 42 firms were selected to submit phase II proposals. This protest concerns phase II of the procurement. As relevant, the agency issued amendment No. 17 to the solicitation on December 19, 2014, which revised the evaluation criteria. At that time, the closing date for receipt of proposals was January 16, 2015. On January 13, the agency issued amendment 20, which provided answers to 359 questions submitted by the offerors; the January 16 closing date, however, remained unchanged.

Thirty-seven firms, including FAMS, an incumbent contractor, submitted timely proposals.

The protester contends that the agency was required to extend the closing date for the receipt of proposals in order to afford offerors adequate time to prepare their proposals, but failed to do so. In this regard, the protester points to the fact that amendment No. 20 included agency answers to 359 offeror questions only 3 days before the RFP’s closing date, and that the agency provided incumbent contractors with completed past performance questionnaires for their incumbent contracts with the agency only 2 days before the closing date.

The determination of what constitutes a sufficient amount of time for proposal preparation is a matter committed to the discretion of the contracting officer; we will not object to that determination unless it is shown to be unreasonable.

FAMS generally suggests that the “type and quantity of questions” that were answered in amendment No. 20 required additional proposal preparation time. Comments at 10. The protester, however, has not identified specific questions or answers that required additional proposal response time, nor has it identified any change to the solicitation’s terms effected by the amendment. Moreover, we fail to find the sheer number of questions and answers alone to be persuasive proof of a need for more than 3 days of proposal preparation time, especially where, as here, the answers did not revise solicitation terms and several questions were repetitious.

Similarly, regarding the fact that FAMS--along with all other incumbent contractors--received its completed past performance questionnaire from the agency only 2 days prior to the closing date, the protester fails to identify information in that questionnaire that the firm did not already have from the agency and its CPCS data months earlier. The protester has failed to show that it could not have reasonably prepared its proposal, including an explanatory narrative of its past performance, within the 28 days between amendment No. 17’s provision of the revised past performance evaluation terms and the closing date for the receipt of proposals. In sum, the protester has provided no basis to establish that the agency acted unreasonably by not extending the solicitation closing date due to the issuance of answers to offeror questions or the release of past performance questionnaires to the incumbent contractors.

The protest is denied.
The protestor simply did not convince GAO, or provide convincing evidence, that it was prejudiced in its preparation of its proposal, since 36 other offerors had no trouble adequately meeting the deadline, and FAMS did also submit a timely proposal, if one shown to be deficient when the submissions were opened and evaluated. 

It might have helped the protestor's cause had it protested the timing issue rather than submit a proposal, since GAO generally rejects protests about the nature of the solicitation after submission of offers or bids when the protester also submitted one; it seems to feel that gives the protester two bites at the apple.

Further, the solicitation had already dragged out almost two years from issuance, no doubt due to the multiple questions and amendments necessitated from the crowd of interested parties.

It may have been a factor in the result that there was more than ample competition from numerous other offerors; thus, the admonishment to foster competition was not pertinent.

And, the result may have been influenced by the fact that the substantive reason given to protest had no traction. It's hard to win a protest if you don't have something going for you that invites the compassion of the adjudicator that you've been unfairly dealt with.

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