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United States Court of Appeals for the Federal Circuit
December 19, 1996, DECIDED
[*1578] MAYER, Circuit Judge.
Statistica, Inc. appeals the decision of the General Services Administration Board of Contract Appeals in Statistica, Inc. v. Department of State, GSBCA No. 13426-P, 96-1 B.C.A. (CCH) P28,141 (1995), denying its protest challenging the Department of State's award to The Orkand Corporation of a contract for technical services to support the modernization of automated consular services systems. Because [**2] Statistica has not established any error in the board's decision, we affirm.
On January 20, 1995, the Department of State ("State Department" or "agency") issued Request for Proposals S-OPRAQ-95-R-0501 [*1579] ("RFP" or "solicitation") for technical services to support the modernization of key automated consular services systems operated by the Bureau of Consular Affairs. The procurement focused primarily on installation and maintenance of, and training for, the consular automated systems at embassies and consulates abroad. The RFP contemplated the award of an indefinite delivery/indefinite quantity, time-and-materials contract for a base year and four option years. The technical merit of proposals was more important than price, and the award was to go to the "responsible Offeror whose offer, conforming to the requirements of the solicitation, is evaluated as being the most advantageous to the Government." However, to the extent the agency considered offers to be technically equal, price was to become the "determining factor" for awarding the contract.
The solicitation set forth ten contract line item numbers (CLINs) for ten personnel positions or categories. It contained [**3] an estimated number of hours for each CLIN and required offerors to propose an hourly rate for each. The RFP contained four additional CLINs not here relevant. Among the many Federal Acquisition Regulation (FAR) clauses incorporated by reference in the solicitation was the provision entitled "Service Contract Act of 1965, as Amended," 48 C.F.R. § 52.222-41. However, the RFP did not contain or reference the FAR provision found at 48 C.F.R. § 52.222-46, entitled "Evaluation of Compensation for Professional Employees." That clause is required to be inserted in RFPs for contracts expected to exceed $ 500,000 when the service to be provided "will require meaningful numbers of professional employees." 48 C.F.R. § 22.1103. Because the contracting officer had decided that the contract would not involve meaningful numbers of professional employees, he did not include the clause. Finally, Section J of the RFP contained the Wage Determination issued by the Department of Labor, which established minimum hourly wage rates and fringe benefits for this service contract.
Four firms submitted offers in response to the RFP. The agency evaluated the four initial proposals but included only Statistica [**4] and Orkand in the competitive range, thereby eliminating the other two firms from further negotiations. In reviewing their respective cost proposals, the contracting officer became concerned with the base labor rates offered by each firm. Some of the rates were less than the wages specified in the Wage Determination for the personnel category the contracting officer thought corresponded to the pertinent CLIN. He was concerned further with the disparate mark-up of these rates for overhead.
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102 F.3d 1577 *; 1996 U.S. App. LEXIS 33146 **; 41 Cont. Cas. Fed. (CCH) P77,026
STATISTICA, INC., Appellant, v. Warren G. Christopher, SECRETARY OF STATE, Appellee, and THE ORKAND CORPORATION, Intervenor.
Prior History: [**1] Appealed from: General Services Administration Board of Contract Appeals.
protest, exempt, contracting, substantial chance, offerors, rates, solicitation, proposals, service contract, recommendation, procurement, positions, pricing, mandatory, professional employee, clarification, ambiguous, overhead, Appeals
Administrative Law, Judicial Review, Standards of Review, General Overview, Civil Procedure, Appeals, De Novo Review, Public Contracts Law, Dispute Resolution, Contract Disputes Act, Bid Protests