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).