BNUMBER:  B-259920.6
DATE:  November 28, 1995
TITLE:  Combat Systems Development Associates Joint Venture

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Matter of:Combat Systems Development Associates Joint Venture

File:     B-259920.6

Date:     November 28, 1995

William Weisberg, Esq., and William Welch, Esq., Barton, Mountain & 
Tolle, for the protester.
L. Graeme Bell III, Esq., and Christopher M. Farris, Esq., Crowell & 
Moring, for Vitro Corporation, an interested party.
Margaret A. Alfano, Esq., Department of the Navy, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that awardee engaged in "bait and switch" tactics with regard 
to its proposed personnel is denied where the record fails to 
demonstrate that the awardee engaged in a "switch."

DECISION

Combat Systems Development Associates Joint Venture (CSDA) protests 
the award of a contract to Vitro Corporation under request for 
proposals (RFP) No. N00024-94-R-6360, issued by the Department of the 
Navy for technical and engineering support services for the Surface 
Ship Anti-Submarine Warfare Combat System Program Office.  CSDA argues 
that Vitro has engaged in an impermissible "bait and switch" tactic 
with regard to its proposed personnel.

We deny the protest.

After award was made to Vitro, CSDA filed a protest in our Office, 
arguing that the Navy improperly evaluated Vitro's cost proposal by 
failing to consider the overall effect of the cost-cutting efforts in 
Vitro's best and final offer on Vitro's probable costs.  We sustained 
the protest because the Navy failed to consider that Vitro's 
uncompensated overtime certifications were provided by employees 
without knowledge of pending decreases to their pay and benefits, and 
concluded that the cost realism review must consider whether these 
certifications truly provided evidence of a long-term willingness to 
provide the voluntary unpaid effort over the life of the contract.  We 
recommended that the Navy reconsider its evaluation of uncompensated 
overtime and make a finding regarding the likelihood that, under the 
circumstances here, Vitro would deliver the uncompensated overtime 
proposed.  Combat Sys. Dev. Assocs. Joint Venture, B-259920.2, June 
13, 1995, 95-2 CPD  162.

While both the Navy and Vitro requested reconsideration of our 
decision, the Navy implemented our recommendation and adopted a 
"worst-case scenario" wherein it rejected all of the certifications 
from those employees whose pay and benefits were cut.  The Navy 
recalculated Vitro's costs and arrived at a normalized amount which 
was slightly less than CSDA's evaluated cost.  As a result, the Navy 
concluded that Vitro's proposal remained the greatest value to the 
government and affirmed the award.  The Navy lifted the stop-work 
order that had been issued, clearing the way for Vitro to perform this 
contract.[1]
  
CSDA protested the Navy's implementation of our recommendation for 
reasons not at issue here.  In a consolidated decision, we denied this 
protest, as well as the requests for reconsideration filed by the Navy 
and Vitro.  Combat Sys. Dev. Assocs. Joint Venture; Dept. of the 
Navy--Recon.; Vitro Corp.--Recon., B-259920.3 et al., Sept. 8, 1995, 
95-2 CPD  163.  The instant protest was filed prior to the issuance 
of this decision.

CSDA argues that Vitro engaged in "bait and switch" tactics with 
regard to its proposed personnel and that its contract should be 
terminated.  CSDA alleges that recent lay offs of Vitro employees who 
were subject to the unannounced pay cuts provide evidence that Vitro 
proposed personnel it reasonably could not expect to deliver, given 
the "likelihood" that it would need to lay off personnel disgruntled 
by the pay cuts in order to keep the remaining employees "in line."

"Bait and switch," as the term is used here, refers to an offeror's 
misrepresentation in its proposal of the personnel that it expects to 
use during contract performance.  Free State Reporting, Inc., 
B-259650, Apr. 14, 1995, 95-1 CPD  199.  Where such a 
misrepresentation materially influences an agency's evaluation of an 
offeror's proposal, it undermines the integrity of the competitive 
procurement system and generally provides a basis for proposal 
rejection or termination of a contract award based upon the proposal.  
Mantech Advanced Sys. Int'l, Inc., B-255719.2, May 11, 1994, 94-1 CPD  
326.  To demonstrate that a "bait and switch" has occurred, a 
protester must demonstrate not only that personnel other than those 
proposed are performing the services (i.e., that a switch has 
occurred), but also that the awardee represented in its proposal that 
it would rely on certain specified personnel in performing the 
services, that the agency relied on this representation in evaluating 
the proposal, and that it was foreseeable that the individuals named 
in the proposal would not in fact be available to perform the contract 
work.  Free State Reporting, Inc., supra.   

Because the record fails to demonstrate that Vitro engaged in a 
"switch," we deny the protest without addressing CSDA's allegations 
that Vitro engaged in "baiting."

Offerors were required to propose a level of effort consistent with 
the maximum number of man-hours specified for each year, including 
options.  In accordance with this requirement, Vitro proposed 196 
man-years for the first year of the contract, including options.  
However, the RFP also stated that the Navy would issue technical 
instructions during the performance of the contract to define the 
offeror's actual performance of work, which would be dictated by the 
Navy's needs.  Thus, as Vitro points out, while offerors were required 
to propose a work force to meet a maximum level of effort, the Navy's 
technical instructions would define the actual level of effort 
required.

After the stop-work order was lifted, the Navy's financial manager for 
the contract attests that he and Vitro discussed a 170 man-year level 
of effort, based on revised technical instructions, and Vitro asserts 
that it was issued technical instructions calling for 170 man-years of 
effort in the first year.  According to Vitro, this reduction in the 
number of man-years to be provided--from the 196 which it proposed to 
the 170 which the Navy required--necessitated its lay offs.  Vitro 
states that it has laid off 8 percent of the non-key personnel 
proposed, and that it does not intend to replace them.  

CSDA argues that Vitro has "switched" the work to its remaining 
personnel, constituting the requisite demonstration of a "switch."  
However, there is no reason to believe that the work that would have 
been performed by the laid-off personnel will now be performed by the 
remaining personnel; it is far more likely, given the Navy's 
substantially reduced needs, that the services of these laid-off 
personnel will not be required.  CSDA has not demonstrated that 
personnel other than those proposed are performing the services--that 
a "switch" has occurred here.[2]  Id.

The protest is denied.

Comptroller General
of the United States

1. Vitro, the incumbent contractor, had been performing these services 
under its prior contract.

2. That Vitro's proposed turnover rate was 12 percent per year, as 
noted by the Navy in its evaluation more than 1 year ago, indicates 
that the Navy did not rely on the presence of all of these personnel 
in its evaluation.  Further, there is no evidence in the record to 
support CSDA's speculation that Vitro "intended to use this labor 
control device (lay offs) when it first proposed the massive cuts in 
its BAFO."  Sherikon, Inc.; Technology Management & Analysis Corp., 
B-256306 et al., June 7, 1994, 94-1 CPD  358.