BNUMBER:  B-260948.3
DATE:  August 21, 1996
TITLE:  Star Detective & Security Agency, Inc. and E.L.A.
Security, Inc., a Joint Venture--Reconsideration

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Matter of:Star Detective & Security Agency, Inc. and E.L.A.
          Security, Inc., a Joint Venture--Reconsideration

File:     B-260948.3

Date:August 21, 1996

Daniel C. Overton for the protester.
Paul A. Gervas, Esq., Department of Energy, for the agency.
Wm. David Hasfurther, Esq., John Van Schaik, Esq., and Michael R. 
Golden, Esq., Office of the General Counsel, GAO, participated in the 
preparation of the decision.

DIGEST

Request for reconsideration is denied where protester does not show 
that prior decision denying its protest contained errors of fact or 
law or present information not previously considered that warrants 
reversal or modification of the decision.

DECISION

Star Detective & Security Agency, Inc. and E.L.A. Security, Inc., a 
Joint Venture (Star/E.L.A.) requests that we reconsider our decision, 
Star Detective & Sec. Agency, Inc. and E.L.A. Sec., Inc., a Joint 
Venture, B-260948.2, Aug. 28, 1995, 95-2 CPD  para.  90.  In that decision, 
we denied Star/E.L.A.'s protest of the award of a subcontract to 
Jenkins Security & Investigations, Inc. by Fermi National Accelerator 
Laboratory (Fermilab), a prime contractor with the Department of 
Energy (DOE).  The subcontract was for unarmed security guard services 
under a request for proposals (RFP) issued as a small disadvantaged 
business (SDB) set-aside.  Star/E.L.A. contends that our decision was 
based upon erroneous facts and law and should be reversed.

We deny the request for reconsideration.

In its protest, Star/E.L.A. argued that Jenkins's non-SDB 
subcontractor, Dynamic Security, Inc., was going to perform more than 
50 percent of the contract work, which Star/E.L.A. argued would have 
precluded award to Jenkins had Jenkins honestly represented its 
intentions in its proposal.  In response to this allegation, we 
stated, "under the RFP, in order for an offeror to be considered an 
SDB, it has to be at least 51 percent unconditionally owned by one or 
more individuals who are socially and economically disadvantaged and 
its management and daily business has to be controlled by one or more 
such individuals."  Concerning whether Jenkins met this standard, we 
stated that the protester did not argue that Jenkins itself did not 
qualify as an SDB; rather, the protester alleged that Jenkins was 
going to allow Dynamic, a non-SDB subcontractor, to perform a 
significant portion of the work.  We also stated that the protester 
did not point to anything in the RFP or other authority applicable to 
this contract which prohibited subcontracting by the SDB.  Further, 
while we acknowledged that there was evidence in the record which 
supported the protester's view that Dynamic would contribute to the 
performance of the contract, we concluded that Fermilab reasonably 
found Jenkins eligible for award.

In its reconsideration request, among other contentions, Star/E.L.A. 
argues that we erroneously concluded in our initial decision that the 
"RFP does not prohibit subcontracting."  Star/E.L.A. notes that our 
decision stated "[t]he protester does not point to anything in the RFP 
or other authority applicable to this contract which prohibits 
subcontracting by the SDB."  According to Star/E.L.A., this was 
erroneous because the solicitation included the following provision:

      "Limitations On Subcontracting

     1.  This clause applies if this subcontract was awarded as
      a result of a partial or total set aside for small business.

     2.  By submission of an offer and execution of a subcontract,
      the Offeror/Subcontractor agrees that in performance of the
      subcontract in the case of a subcontract for:

                (a) Services (except construction).  At least 50 
percent
                of the cost of subcontract performance incurred for
                personnel shall be expended for employees of the 
concern."

According to Star/E.L.A., contrary to our initial decision, this 
provision "was a strict limitation on subcontracting in the 
solicitation."  

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must show that our prior decision may contain either 
errors of fact or law or present information not previously considered 
that warrants reversal or modification of our decision.  4 C.F.R.  sec.  
21.12(a) (1995).  The repetition of arguments made during our 
consideration of the original protest and mere disagreement with our 
decision do not meet this standard.  R.E. Scherrer, Inc.--Recon., 
B-231101.3, Sept. 21, 1988, 88-2 CPD  para.  274.

There was no error in our decision concerning the limitation on 
subcontracting clause.  Contrary to Star/E.L.A.'s contention, the 
clause in question does not prohibit subcontracting work under the 
contract.  Rather, it simply states that an SDB awardee agrees that, 
if it subcontracts part of the work, at least 50 percent of the cost 
of performance incurred for personnel will be expended for employees 
of the SDB.[1]  

Star/E.L.A. argues that the award to Jenkins was inconsistent with 
another provision of the solicitation which we did not specifically 
address in our decision.  Star/E.L.A. notes that in response to the 
protest, Jenkins and Dynamic confirmed that the award had to be based 
upon Dynamic's capabilities when they admitted Jenkins "does not have 
the resources to perform a job the scope of Fermilab . . . ."  
According to Star/E.L.A., these circumstances indicate that Fermilab's 
selection of Jenkins was unreasonable and inconsistent with the 
following solicitation provision:

     "No prospective Subcontractor will be regarded as responsible by 
     Fermilab where the pre-award inspection discloses that the 
     prospective Subcontractor proposes to furnish the services under 
     this subcontract through subcontracting the entire or a 
     substantial portion of the Subcontract to another company . . . 
     ."

As we stated in our prior decision, the Jenkins proposal contained a 
cover letter in which Jenkins advised that Dynamic would be a 
subcontractor to Jenkins for performance of certain key 
responsibilities, but that Jenkins would not subcontract  more than 49 
percent of the contract value.  Despite this certification, Fermilab 
had concerns regarding Dynamic's role under the contract and during 
discussions  requested Jenkins to clarify its relationship with 
Dynamic.  Jenkins confirmed that it would subcontract no more than 49 
percent of the work to Dynamic and that Dynamic had agreed to provide 
support to assist in the day-to-day execution of the contract in areas 
where Jenkins, due to its size and resource limitations, needed 
support to ensure the highest quality of service.  Further, Jenkins's 
proposal contained an organizational chart which showed that Jenkins 
controlled contract performance.  Fermilab was satisfied that this 
explanation and information satisfied the RFP requirements including 
the restriction on subcontracting the entire or a substantial portion 
of the work.  We had no basis to conclude that Fermilab's 
determination that Jenkins met the above solicitation requirement was 
unreasonable.[2]  

Star/E.L.A. also argues that it requested copies of technical 
evaluation documents which were not provided to the firm.  According 
to Star/E.L.A., the lack of documentation was a violation of 
contracting regulations.  The initial protest record included 
evaluation documents to which Star/E.L.A. was not provided access 
since these documents included source selection sensitive information.  
Although these evaluation documents might have been available under a 
protective order, since Star/E.L.A. was not represented by counsel, a 
protective order was not issued.

Star/E.L.A. states that it argued in its protest that there were 
ambiguities in the solicitation.  We addressed this contention in our 
original decision.  As we stated:

     "Star/E.L.A. also contends that the RFP contained deficiencies 
     that required correction before a proper award determination 
     could be made.  This contention is untimely.  Our Bid Protest 
     Regulations require that protests based upon apparent alleged 
     improprieties in an RFP must be filed prior to the time set for 
     receipt of initials proposals.  4 C.F.R. Sec. 21.2(a)(1).  Since 
     Star/E.L.A. did not file a protest on this matter until after 
     contract award, this allegation will not be considered."

Since we concluded in our original decision that this contention was 
untimely and Star/E.L.A. has provided no reason to suggest that 
conclusion was in error, there is no basis for reconsidering this 
issue.

Finally, Star/E.L.A. argues that it should have received the award 
because it proposed the lowest price for the contract.  There is no 
merit to this contention; as we explained in our initial decision, 
Jenkins submitted the lowest-priced proposal.  Although Star/E.L.A. 
argued in its protest that its proposal would have been the lowest 
priced had the agency conducted meaningful discussion with the firm, 
we addressed this contention in our initial decision and found it to 
be without merit.  Star/E.L.A. has not challenged our discussion of 
this issue, and we see no reason to repeat that discussion here.

The request for reconsideration is denied. 

Comptroller General
of the United States
            
1. DOE informs us that while Jenkins's initial performance did not 
meet the subcontracting requirement, Fermilab requested that Jenkins 
take corrective action in order to assure compliance.  As part of that 
corrective action, Jenkins represented that it would place all of the 
security officers and supervisors performing the contract on Jenkins's 
payroll.  Fermilab reports that its review of Jenkins's payroll shows 
that all personnel are being paid by Jenkins and concludes that the 
appropriate corrective action has been taken and that Jenkins is in 
compliance with the contract.

2. Star/E.L.A. also argues that we erroneously concluded that the 
protester did not challenge Jenkins's SDB status.  Star/E.L.A. notes 
that our decision stated:  "[T]he protester does not argue that 
Jenkins does not qualify as an SDB; rather, the protester alleges that 
Jenkins is allowing a non-SDB subcontractor to perform a significant 
portion of the work."  In challenging this statement, Star/E.L.A. 
notes it argued in its protest that there was cause to challenge 
Jenkins's SDB status "as it relates to Jenkins's relationship with 
[Dynamic] for the purposes of this solicitation."  Thus, according to 
Star/E.L.A., we erroneously concluded that the protester did not 
challenge Jenkins's SDB status. We see no error in our 
characterization of Star/E.L.A.'s position.  Our only point in the 
quoted language was that Star/E.L.A. never argued that Jenkins itself, 
as opposed to Jenkins and Dynamic together, was not an SDB.  In other 
words, the focus of the protester's challenge was on the entity that 
would perform the contract and the way in which the contract was to be 
performed.  Star/E.L.A. did not argue in its protest, and does not 
argue in its reconsideration request, that the Jenkins firm is not an 
SDB.