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.