United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: CeReTechs Ltd.

File: B-406873.3

Date: September 25, 2012

Gerald H. Werfel, Esq., Pompan, Murray & Werfel, PLC, for the protester.

Brian Bentley, Esq., Department of the Army, for the agency.

Gary R. Allen, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest of the exclusion of the protester’s proposal from the competitive range is 

denied where protester’s proposal was reasonably found to be unacceptable.

DECISION

CeReTechs LTD, of Kabul, Afghanistan, protests the exclusion of its proposal from 

the competitive range under request for proposals (RFP) No. W91B4M-12-R-4002, 

issued by the Department of the Army, Kabul Regional Contracting Center, for 

expansion of information technology networks supporting the Afghan Ministries of 

Interior and Defense.

We deny the protest.

BACKGROUND

The RFP provided for the award, on a lowest-priced, technically-acceptable basis, 

of two indefinite-delivery/indefinite-quantity contracts for a base year and 3 option 

years. A detailed performance work statement (PWS) was provided that described 

the required work for particular regions in Afghanistan. PWS ¶ 8.2. Offerors were 

informed that the agency would issue fixed-price task orders for work under the 

contract, and that each performance period had an estimated value of $60 million. 

RFP amend. 2, at 17.

The RFP also provided instructions for the preparation of proposals. Offerors were 

instructed to submit their proposals in three volumes for technical support, past 

performance and price, and were informed that “[c]omprehensive responses to the 

requirements” were required. RFP amend. 2, at 21. With respect to their price 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-406873.3 

proposals, offerors were required to submit proposed prices for three tables. Table 

1 requested offerors’ pricing for providing design and network installation and for 

providing various amounts of bandwith across different networks in specified 

regional areas and the capitol. RFP, amend. 2, Table 1, at 2-3. For example, with 

respect to bandwidth pricing, Table 1 requested offerors’ bandwidth pricing for the 

Afghan National Optional Ring (ANORN) and Kabul City Fiber Ring areas, and for 

microwave communication as follows:

Engineering Solution

Bandwidth

Unit of 

Measure CLIN 0003 CLIN 1003 CLIN 2003 CLIN 3003

ANORN 2 Mbps

North

East

South

Southwest

West

Capitol

Kabul City

Fiber Ring 2 Mbps

North

East

South

Southwest

West

Capitol

Microwave 2 Mbps

North

East

South

Southwest

West

Capitol

Id. Table 2 requested offerors’ pricing for equipment and material, including 

installation. Id. at 3-16. Table 3 requested pricing differences per region. 

Id. at 16-17. Offerors were advised that the tables should be “fully completed and 

error free,” and were “cautioned to complete all blanks to identify any [Contract Line 

Item] CLIN or table not priced as ‘Not Separately Priced’ or ‘N/A.’” Id. at 26.
Page 3 B-406873.3 

The agency answered a number of vendor questions related to pricing. For 

example, the Army was asked, with respect to bandwidth pricing for the Afghan 

National Optical Ring (ANORN) and Kabul City Fiber Ring, how pricing should be 

provided or “is there a specific distance we should assume?” The Army responded 

that the offerors should “[p]lease use kilometer per month pricing.” See Agency 

Report (AR), Tab 8, Questions/Answers, Set 2, No. 6 (a), (c). The agency was also 

asked “[w]ith regard to Point to Point and Microwave pricing] [w]e do not understand 

how you expect the vendors to price this without site specifics or additional [United 

States Government] assumptions.” The Army responded that “[s]ervice provider 

should provide cost breakdown for BW [bandwidth] and distance calculations.” AR, 

Tab 14, Questions/Answers, Set 6 (revised), No. 1a.

The agency received 10 proposals, including the protester’s. Contracting Officer’s 

Statement at 4. In its price proposal, CeReTechs modified Table 1 to provide 

multiple bandwidth prices based on distances, rather than, as sought by the RFP, a 

single price per kilometer per month for each region under each CLIN. AR, Tab 15, 

CeReTechs' Price Proposal, app. A. For example, CeReTechs provided [deleted] 

different prices for microwave communication based upon distances, and not 

regions, as follows:

Bandwidth

Unit of 

Measure CLIN 0003 CLIN 1003 CLIN 2003 CLIN 3003

Microwave 2 Mbps

For All Regions

0-5 kilometers (km) [prices 

deleted]

0-10 km

0-15 km

0-20 km

0-25 km

0-30 km

31-200 km

201-300 km

301-400 km

401-600 km

AR, Tab 15, CeReTechs Price Proposal, app. A, at 1. For the ANORN area, 

CeReTechs also provided pricing based upon distance (0-200 km and 201-600 km), 

and conditioned its offer as follows: “FOR ALL REGIONS WHERE AVAILABLE.” 

Id. With respect to the Kabul City Filter Ring, CeReTechs entered “N/A” and 

provided no price for the north, east, south, southwestern, and western regions and 

provided a distance-based price (“up to 50 km”) for the capitol region. Id.

Following the evaluation of proposals, the contracting officer determined that six 

proposals, including the protester’s, would not be included in the competitive range. 

Contracting Officer’s Statement at 4. In this regard, the agency determined that 

CeReTechs’ proposal was unacceptable because CeReTech failed to provide fixed 
Page 4 B-406873.3 

prices in accordance with the RFP, conditioned some of its pricing, and failed to 

provide prices for all regions for the Kabul City Fiber Ring area. Id.; see also

AR, Tab 14, Pre-Negotiation Objective Memorandum, at 3. 

This protest followed a debriefing.

DISCUSSION

CeReTechs objects to the exclusion of its proposal from the competitive range, 

arguing that it prepared its price proposal in accordance with the instructions 

provided by the agency. Specifically, CeReTechs contends that the agency’s 

answers to vendors’ questions conflicted with the RFP, providing for distance-based 

pricing, and indicating that the bandwidth may not be available in some of the 

ANORN regions. Protest at 9-11.

Our Office will review an agency’s evaluation and exclusion of a proposal from the 

competitive range for reasonableness and consistency with the solicitation criteria 

and applicable statutes and regulations. Outreach Process Partners, LLC, 

B-405529, Nov. 21, 2011, 2011 CPD ¶ 255 at 3. In this regard, contracting 

agencies are not required to retain in the competitive range proposals that are not 

among the most highly rated or that the agency otherwise reasonably concludes 

have no realistic prospect of being selected for award. Federal Acquisition 

Regulation (FAR) § 15.306(c); Wahkontah Servs., Inc., B-292768, Nov. 18, 2003, 

2003 CPD ¶ 214 at 4. Proposals with significant informational deficiencies may be 

excluded, whether the deficiencies are attributable to omitted or merely inadequate 

information addressing fundamental factors. American Med. Depot, B-285060 et

al., July 12, 2000, 2002 CPD ¶ 7 at 6-7. The determination of whether a proposal is 

in the competitive range is principally a matter within the judgment of the procuring 

agency. Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD ¶ 84 at 3. A 

protester’s mere disagreement with the agency’s evaluation does not show that it 

lacked a reasonable basis. Government Telecomms., Inc., B-299542.2, June 21, 

2007, 2007 CPD ¶ 136 at 4.

Here, the record shows that CeReTechs’ proposal deviated materially from the 

pricing requirements set forth in the RFP and was therefore unacceptable. 

Specifically, CeReTechs’ provision of multiple, overlapping prices for microwave 

communications made it impossible for the agency to calculate a fixed-price for 

CereTechs or compare CeReTechs’ prices with those of other offerors. 

Furthermore, CeReTechs proposed conditional prices for the ANORN bandwidth, 

while the RFP called for award of fixed-price task orders for all of the listed regions. 

Where a solicitation requests offers on a fixed-price basis, an offer that is 

conditional, and not firm, cannot be considered for award. Omega World Travel, 

Inc.; Sato/Travel, Inc., B–288861.5 et al., Aug. 21, 2002, 2002 CPD ¶ 149 at 6.
Page 5 B-406873.3 

Because the agency reasonably found CereTechs’ proposal unacceptable, the 

proposal was properly excluded from the competitive range. See NSR Solutions, 

Inc., B-406337, B-406337.2, Apr. 18, 2012, 2012 CPD ¶ 154 at 2 (“It is well settled 

that a technically unacceptable proposal cannot be considered for award, and thus 

properly may be excluded from the competitive range.”)

We deny the protest.1

Lynn H. Gibson

General Counsel

 1 To the extent that CeReTechs contends that the RFP, or the agency’s answers to 

vendors’ questions, were ambiguous with respect to the preparation of pricing 

proposals, this concern is untimely. Our Bid Protest Regulations require challenges 

to apparent alleged solicitation improprieties to be filed prior to the closing date for 

receipt of proposals. 4 C.F.R. § 21.2(a)(1) (2012). Offerors may not make unilateral 

assumptions regarding the meaning of patently ambiguous aspects of a solicitation 

and then expect relief when the agency does not act in a manner the offeror

assumed. Rather, where a solicitation contains a patent ambiguity, an offeror must 

seek to resolve it--and must protest if it is unable to obtain clarification--prior to the 

time for submission of offers. See NCS Technologies, Inc.-Recon., B-404047.3, 

May 16, 2011, 2011 CPD ¶ 110 at 4.