Integrated Business Solutions, Inc. v. United States

58 Fed. Cl. 420, 2003 U.S. Claims LEXIS 326, 2003 WL 22674326
CourtUnited States Court of Federal Claims
DecidedNovember 6, 2003
DocketNo. 03-2222-C
StatusPublished
Cited by8 cases

This text of 58 Fed. Cl. 420 (Integrated Business Solutions, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Integrated Business Solutions, Inc. v. United States, 58 Fed. Cl. 420, 2003 U.S. Claims LEXIS 326, 2003 WL 22674326 (uscfc 2003).

Opinion

OPINION

WILLIAMS, Judge.

This pre-award protest presents the issue of whether an agency must consider an offer- or’s initial proposal when the offeror’s final proposal revision (FPR) has been properly rejected as late. Plaintiff, Integrated Business Solutions, Inc. (IBS), although conceding that its FPR was late, nevertheless challenges the National Science Foundation’s (NSF) refusal to consider its initial proposal which it claims was still a viable pending offer. This matter comes before the Court on Plaintiffs Motion for Summary Judgment pursuant to RCFC 56 and Defendant’s Motion for Judgment on the Administrative Record pursuant to RCFC 56.1. These motions were filed on October 17, 2003, briefing was completed on October 29, 2003, oral argument was held on October 31, 2003, and Plaintiff filed a Supplement to the Administrative Record with the consent of Defendant on November 4, 2003.

As more fully explained below, because the agency acted reasonably and in accordance with law in refusing to consider Plaintiff’s initial proposal, Defendant’s Motion for Judgment on the Administrative Record is granted, and Plaintiffs Motion for Summary Judgment is denied.

Background

The following factual background is derived from the Administrative Record (AR).1 The Solicitation

On July 17, 2002, NSF issued solicitation number CPO-0200006 for a fixed-price contract to provide facility management services, including mail, reproduction, proposal processing, shipping, receiving, conference support, chauffeur, supply, publication, and warehouse services. AR at 80-233.

The solicitation incorporated Federal Acquisition Regulation (FAR) § 52.215-1, titled “Instructions to Offerors — Competitive Acquisition,” and stated that the Government intended to evaluate proposals and award a contract without discussions. The solicitation additionally cautioned that an offeror’s initial proposal should contain the best terms from a price and technical standpoint. AR at 83.

Paragraph (c)(1) of FAR § 52.215-1 set forth the procedures for submitting proposals, as follows:

Unless other methods (e.g., electronic commerce or facsimile) are permitted in the solicitation, proposals and modifications to proposals shall be submitted in paper media in sealed envelopes or packages (i) addressed to the office specified in the solicitation, and (ii) showing the time and date specified for receipt, the solicitation number, and the name and address of the offeror.

48 C.F.R. § 52.215-l(c)(l). Paragraph (c)(2) of this FAR provision further stated that the first page of a proposal must identify “persons authorized to negotiate on the offeror’s behalf with the Government in connection with this solicitation.” 48 C.F.R. § 52.215-1(c)(2). In addition, the solicitation directed that proposals be in writing and delivered by mail or by hand. AR at 83. With respect to late submissions, the solicitation provided that “[pjroposals, including modifications, received at the issuing office after the closing [422]*422date and time specified on the cover page of this solicitation will be considered as late submissions and handled accordingly.” AR at 83.

The solicitation established the period of performance to run from November 15, 2002, through November 14, 2005, and authorized potential additional performance periods called award terms which could be elected by the parties. AR at 126. It also required that each proposal “be specific and complete in every detail” and “conform to all solicitation provisions, clauses, or other requirements.” AR at 144. Finally, the solicitation set forth specific instructions for the submission of paper proposals such as the use of three-ring binders and different colors for revised text. Id.

NSF amended the solicitation five times prior to the deadline for submission of initial proposals. AR at 914-18.

Initial Proposals

IBS submitted its initial proposal on August 22, 2002. AR at 333-616. In its proposal, IBS identified Federal Management Systems, Inc. (FMS) as its subcontractor for the procurement. AR at 334. The proposal did not, however, list Dr. Abe Kellizy, a Senior Associate at FMS, as either an authorized representative of IBS or as a “person! ] authorized to negotiate on [IBS’s] behalf with the Government in connection with this solicitation.” See 48 C.F.R. § 52.215-1(c)(2).

The initial proposal included, as an attachment, the subcontracting agreement between IBS and FMS, which stated that any proposal submitted by the parties in response to the solicitation was required to list IBS as the prime contractor and FMS as the subcontractor. AR at 527. Nowhere in the subcontracting agreement was there any language granting the subcontractor authority to act on behalf of the prime contractor, or granting Dr. Kellizy the right to act on behalf of IBS. AR at 526-32.

Discussions

On February 24, 2003, NSF determined that IBS’s initial proposal was one of four within the competitive range. AR at 267. That same day, NSF requested that IBS answer eleven questions related to its proposal and scheduled IBS’s oral presentation as part of its discussions with the offerors in the competitive range. AR at 267-69. IBS responded with a fifty-one-page submission on February 27, 2003. AR at 921-71.

On March 5, 2003, NSF conducted oral discussions with IBS. AR at 263. Plaintiff alleges that, “[d]uring this [March 5, 2003] meeting, IBS clarified and confirmed the terms of its August 22, [2002] offer, [and that] IBS’s confirmed offer was good for 60 days (or until May 6, 2003) pursuant to the terms of its offer and the RFP.” Pl.’s Compl. If 6, Tr. at 10-11.2

The Agency’s Request for Final Proposal Revisions and Amendment 6 to the RFP

By letter dated March 10, 2003, the agency requested FPRs and issued Amendment 6 to the solicitation, stating:

The purpose of this letter is to inform you that all discussions have been concluded and as a result the National Science Foundation requests that you submit your final proposal revision (FPR). The FPR gives your organization an opportunity to submit its best terms from a technical and cost/ price standpoint.
An original and six copies of Volume I, Pricing Proposal, and an original and six copies of Volume II, Technical Proposal constituting your FPR must be submitted to Kristin Spencer, National Science Foundation, Division of Contracts Policy and Oversight, 4201 Wilson Boulevard, Room 475; Arlington, VA 22230, by 10:30 AM (EST) on Thursday, March 13, 2003. Review Section A2 of the solicitation for important delivery and deadline information. Any modification of a former offer received after the date and time specified above will be handled in accordance with the Instructions so Offerors — Competitive Acquisition [423]*423provision of the solicitation (FAR 52.215 1).
An official authorized to bind your organization must sign the FPR.

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58 Fed. Cl. 420, 2003 U.S. Claims LEXIS 326, 2003 WL 22674326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/integrated-business-solutions-inc-v-united-states-uscfc-2003.