BNUMBER:  B-258537.8
DATE:  October 31, 1995
TITLE:  ASI Personnel Services,  Inc.--Reconsideration

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Matter of:ASI Personnel Services,  Inc.--Reconsideration

File:     B-258537.8

Date:     October 31, 1995

Howard Stanislawski, Esq., and Gary Quigley, Esq., Sidley & Austin, 
for the protester.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for reconsideration is denied where requesting party 
reiterates arguments raised during the initial protest, raises 
arguments that could have been, but were not, raised during the 
initial protest, and otherwise does not demonstrate that the decision 
contains errors of fact or law.

DECISION

ASI Personnel Services, Inc. requests reconsideration of our decision, 
ASI Personnel Servs., Inc., B-258537.7, June 14, 1995, 95-2 CPD  44.  
In that decision we denied in part and dismissed in part ASI's protest 
against the award of a contract to Pentad Corporation under request 
for proposals (RFP) No. DAAG60-94-R-0017, issued by the United States 
Military Academy (USMA) at West Point for mess attendant services.

We deny the request.

The solicitation provided for award to the offeror whose proposal 
represented the best value to the government, based on an integrated 
assessment of the following evaluation factors that were listed in 
descending order of importance:  management and staffing; quality 
control; and cost.  After best and final offers were submitted and 
evaluated by the source selection evaluation team (SSET), the source 
selection authority (SSA) chose Pentad for award based on a proposal 
that was acceptable under each evaluation factor and was priced 
$800,000 lower than the most highly rated proposal.  ASI protested 
that the agency misevaluated ASI's and Pentad's proposals and was 
biased against ASI.

EVALUATION OF ASI'S PRICE PROPOSAL

In its request for reconsideration, ASI argues that our decision 
ignored ASI's argument that the SSET improperly rated its price 
proposal as marginal.  We did not ignore this issue.  Rather, the 
record showed that, in reviewing the evaluation results, the SSA 
changed this rating to acceptable.  Accordingly, we saw no need to 
discuss ASI's argument.

MANAGEMENT/STAFFING EVALUATION

In its protest, ASI argued that its proposal should have been rated 
good rather than acceptable under the management/staffing factor.  ASI 
based this assertion on its status as the incumbent, and the fact that 
its project manager had 12 years of experience performing the USMA 
mess attendant contract.  The agency rated ASI acceptable for this 
factor based on ASI's performance as the incumbent--which was 
adequate, but during which ASI did not always respond to the agency's 
requests for information--and ASI's satisfactory performance on 
smaller mess attendant contracts.  We found that the agency's decision 
was reasonable.

On reconsideration, ASI again argues that its performance should have 
been rated higher than acceptable based on its status as the incumbent 
and the experience of its project manager.  ASI also argues that the 
deficiency in its performance under the incumbent contract was minor 
and easily correctable.

ASI's argument regarding its experience as the incumbent was 
specifically addressed in our prior decision.  ASI's argument 
regarding the impact of the deficiency in its performance under the 
incumbent contract could have been raised during the initial protest 
but was not.  Accordingly, neither argument provides a basis for 
reconsideration.  See Pilkington Aerospace, Inc.--Recon., B-259173.2,     
May 15, 1995, 95-1 CPD  242.[1]

ABANDONED ISSUES

In its protest, ASI argued that (1) under the management/staffing 
factor USMA improperly rated proposals based on the number of years of 
experience an offeror had, and (2) the agency misapplied the rating 
standards in evaluating its proposal as only acceptable under the 
quality control factor.  In our decision, we found that ASI had 
abandoned these two issues because in its comments in response to the 
agency's protest report ASI did not reply to the agency's position on 
these issues.

ASI argues that we improperly concluded that it abandoned these 
issues.  ASI points to page 6 of its March 16, 1995, comments (the 
comments submitted in response to the first of two agency reports) to 
demonstrate that it did not abandon the first (experience) argument.  
Page 6, as relevant, reads as follows:  

     "In its December 29, 1993 protest, ASI reviewed the comments of 
     the USMA's officials at the debriefing held on December 23, 1994, 
     including the irrational and arbitrary standard articulated at 
     that debriefing by USMA officials regarding past performance, in 
     which they asserted that five years of experience established a 
     presumptive rating of Acceptable and that an offeror would only 
     be given a higher rating if it offered some additional, 
     innovative or significant advantage to the USMA."

We concluded that ASI abandoned the years of experience argument 
because, while ASI referenced this argument, it did not substantively 
respond to the agency's assertion that it did not base the experience 
rating on years of experience.   In any case, as discussed above, and 
in our decision, the agency properly determined that ASI's proposal 
should be rated only acceptable under the management/staffing factor 
based on factors other than the number of years of experience ASI had.

As for the second (quality control) argument, in its initial protest 
ASI argued that the agency misapplied the evaluation standards in 
rating its proposal acceptable rather than good under the quality 
control factor.  ASI complained that the agency would rate a proposal 
higher than acceptable under the quality control factor only if it 
offered significant advantages to the agency beyond the requirements 
of the solicitation.  ASI also submitted a supplemental protest in 
which ASI reiterated its protest that the agency misapplied the rating 
standards in evaluating ASI's proposal under the management/staffing 
and quality control factors.  We considered the quality control issue 
abandoned because, in its comments in response to the agency's 
supplemental report, ASI did not address the issue of the rating of 
its proposal under the quality control factor.

In any case, in questioning the quality control evaluation, ASI simply 
argued that the agency did not fairly evaluate ASI's proposal under 
the quality control factor because it did not properly apply the 
rating standards; it did not explain why its proposal merited a higher 
rating, or otherwise challenge the evaluation under this factor, even 
though it had access to the evaluation documents which explained the 
basis of the agency's rating.  Under these circumstances, we would 
have no basis to question the agency's evaluation of ASI's proposal as 
acceptable under the quality control factor.

HISTORICAL DATA

The solicitation provided technical exhibits with historical 
information regarding the number of meals for each type of service 
that had been provided for an entire fiscal year for offerors to use 
in preparing their price proposals.  In its protest, ASI alleged that, 
as the incumbent, it recognized that the historical information in the 
solicitation was inaccurate.  When ASI informed the agency of this, 
the agency urged ASI to base its proposal on its own information; ASI 
did so, to its alleged competitive prejudice.  We dismissed this issue 
as untimely, since it essentially was based on the inclusion of 
allegedly inaccurate information in the RFP, but was not protested 
until after the closing time for the receipt of initial proposals.  4 
C.F.R.  21.2(a)(1).

On reconsideration, ASI argues that we misread its argument; it was 
protesting not the inaccurate estimates in the solicitation, but the 
fact that the agency's evaluation criticized ASI, but not Pentad, for 
using data other than that provided in the solicitation, indicating 
that the agency was biased against ASI.

This argument is without merit.  ASI's initial protest stated that: 

     "The USMA urged ASI to develop its pricing based on its use of 
     ASI's historical data on average numbers of meals served during 
     ASI's period of contract performance, because the historical data 
     provided by USMA in the RFP was inaccurate and unusable.  At the 
     same time, the USMA officials knew that this would give rise to 
     pricing decisions by ASI which would be based on different 
     assumptions regarding historical data from that used by the other 
     offerors."

ASI also argued that the agency should have provided the accurate 
information to all offerors.  Thus, ASI clearly protested that the 
solicitation contained inaccurate data, and that offerors would 
possibly be basing their prices on different information.  This basis 
of protest was properly dismissed as untimely for the reason stated in 
our prior decision.

ASI did also argue in its supplemental protest that the agency's 
inconsistent treatment of ASI and Pentad with respect to the use of 
data other than that provided in the solicitation demonstrated bias.  
That argument was addressed (even though not separately identified) in 
the portion of our decision devoted to the bias ASI alleged.  (This 
issue is discussed further below.)

BIAS

In its protest, ASI argued that the agency was biased against it.  To 
support this position ASI pointed to the tone of the current 
contracting officer's statement provided with the protest report; a 
statement by the contracting officer on ASI's incumbent contract that 
ASI understated its costs; the fact that at the debriefing ASI was 
told that its cost proposal was rated marginal instead of acceptable; 
and inconsistent treatment by USMA of ASI's and Pentad's failure to 
use the historical information provided in the solicitation in 
preparing their price proposals.  We found no basis for the allegation 
of bias because neither the contracting officer's tone nor the report 
of understated costs demonstrates that the procurement officials 
involved intended to harm ASI.  Further, since neither of the 
allegedly biased contracting officers took part in the evaluation of 
proposals or the award decision, and we found that the evaluation of 
ASI's proposal was otherwise reasonable, any alleged bias did not harm 
ASI.

On reconsideration, ASI asserts that the contracting officer on the 
current contract led the discussions, and thus was in fact in a 
position to affect the evaluation and award decision.  This argument 
ignores the most significant basis for our prior conclusion--whether 
or not the contracting officer was in a position to affect the outcome 
of the procurement, there was no evidence that the contracting officer 
was biased, or that she in any way improperly influenced the 
evaluation or award.  Further, we specifically found that even if 
there was some showing of bias, the evaluation of ASI's proposal was 
not shown to be unreasonable; absent some harm, the existence of bias 
would not be a basis for sustaining a protest. 
 
ASI also cites additional examples of bias not discussed in our 
decision, including the agency's failure to reject Pentad's offer for 
not providing the required period of time; the agency's failure to 
reject Pentad's offer because it was improperly conditioned on 
receiving progress payments, and the agency's alleged misevaluation of 
Pentad's past performance.  These arguments were not raised until 
April 12 when Pentad submitted its comments on the supplemental agency 
report.  Since the record demonstrated that ASI was aware of the 
arguments in February, they were untimely then, and certainly do not 
support a request for reconsideration now.  Dial Page, Inc., B-256210, 
May 16, 1994, 94-1 CPD  311; See Earle Palmer Brown Cos., 
Inc.--Recon., B-243544.3, Mar. 2, 1992, 92-1 CPD  246.  In any case, 
as with ASI's original arguments, there is nothing in the record 
showing that the manner in which the agency treated Pentad's proposal 
was motivated by bias against ASI.

Interested Party Status

In our decision, we found that ASI was not an interested party to 
raise issues regarding the evaluation of the awardee's proposal and 
the award decision because the proposal of another offeror (identified 
as Offeror E) was the highest rated technically, and was $1.5 million 
lower in cost than ASI's; Offeror E thus would have been in line for 
award if ASI's protest on these issues were sustained.  ASI argues 
that our decision is erroneous because the agency did not rank the 
offerors, and it thus is not clear that Offeror E would have been next 
in line for award.  While the agency did not formally rank the 
offerors, the evaluation documents showed that the SSA rated Offeror 
E's proposal the highest, and chose Pentad for award only because its 
proposal was $800,000 lower priced than Offeror E's.  Therefore, had 
Pentad not been chosen as the awardee, it was clear that the SSA would 
have made award to Offeror E, whose proposal was higher rated and 
lower in cost than ASI's.  Accordingly, we correctly found that ASI 
was not an interested party to raise these issues.

The request for reconsideration is denied.

Comptroller General
of the United States

1. ASI also argues that we ignored its argument that its performance 
on the smaller contracts on which the agency relied should have been 
rated higher than satisfactory.  As explained in our prior decision, 
we did not consider this challenge to the evaluation of ASI's past 
performance because it was raised more than        10 working days 
after ASI learned the basis of protest, and thus was untimely.    See 
4 C.F.R.  21.2(a)(2) (1995).