BNUMBER: B-270438; B-270438.2
DATE: March 6, 1996
TITLE: Dube Travel Agency & Tours, Inc.; Garber Travel
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Matter of:Dube Travel Agency & Tours, Inc.; Garber Travel
File: B-270438; B-270438.2
Date:March 6, 1996
Paul P. Murphy, Esq., Murphy & Coyne, for Dube Travel Agency & Tours,
Inc.; Peter R. Chiesa, Esq., Wadleigh, Starr, Peters, Dunn and Chiesa,
for Garber Travel.
Judith A. Bonner, Esq., General Services Administration, for the
agency.
Katherine I. Riback, Esq., and Glenn G. Wolcott, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision
DIGEST
1. Agency properly awarded contract to out-of-state firm where it was
clearly stated that offerors would not be required to maintain an
office in each state serviced and the awardee's proposal provided that
it would establish an office in one of the states to be serviced.
2. Agency reasonably decided to reopen discussions and request a
second round of best and final offers where it failed to advise a
competitive range offeror during the first round of discussions of a
deficiency in its proposal that rendered it unacceptable.
3. Agency's mathematical errors in the evaluation of the prior
service evaluation factor do not provide a basis to sustain protests
where, upon correction of the errors, it is clear that the protesters
were not prejudiced.
DECISION
Dube Travel Agency & Tours, Inc. and Garber Travel protest the General
Services Administration's (GSA) award of a contract to Travel Centre
for the establishment and operation of a travel management center for
the states of Maine and New Hampshire under request for proposals
(RFP) No. 3FBG-W-AO-N-5199. Dube and Garber assert that Travel
Centre's proposal should have been rejected because Travel Centre is
an out-of-state firm, that the agency failed to engage in meaningful
discussions, that the agency improperly conducted a second round of
discussions and request for best and final offers (BAFOs), that Travel
Centre will be unable to comply with the solicitation requirements,
and that the agency erred in evaluating the offerors' prior service.
We deny the protests.
BACKGROUND
On March 30, 1995, GSA announced its intention to conduct this
procurement by publishing a notice in the Commerce Business Daily
(CBD), stating:
"This procurement is for Travel Management Center (travel agency)
services for three States: Maine, Vermont and New Hampshire. . .
. Responsible offerors will be located in and service the
Federal agencies from one of these States. One, two or three
contracts may result from the award of this solicitation. In
other words, an offeror in Maine may receive a contract to
service New Hampshire and Vermont, and an offeror in Vermont may
receive a contract to service Maine (in this scenario, two
contracts are awarded)."
On April 21, the agency issued the RFP as a total small business
set-aside. Consistent with the CBD notice, the RFP provided that the
agency was seeking proposals for the establishment and operation of a
travel management center for the states of Maine, New Hampshire, and
Vermont, and advised offerors that "this solicitation may result in
one (1), two (2), or three (3) award(s)."[1] The solicitation further
stated that "the offeror must be located in, or be willing to
physically relocate to, a servicing office in the geographic area to
be serviced."
Regarding evaluation of proposals, section M of the RFP established
three evaluation factors: basic requirements,[2] prior service,[3]
and
enhancements. The RFP provided that basic requirements would be
evaluated on a pass/fail basis, that prior service and enhancements
would be weighted equally, and that award(s) would be made on the
basis of the proposal that met all the basic requirements and received
the highest combined rating for prior service and enhancements.
Regarding the evaluation of prior service, section M provided that the
offerors' customers would be queried with regard to the offerors'
"telephone response time, timeliness of ticket delivery, knowledge and
courtesy of personnel, responsiveness in resolving problems, and
overall quality of service." Sections C and L of the RFP established
three categories of possible enhancements: (1) those which provide a
cost savings to the government (for example free or reduced fee
surface transportation to or from ports of debarkation/embarkation,
free or reduced fee parking at ports of debarkation/embarkation, and
free passport photos); (2) those which provide additional benefits or
services to travelers and/or the government (for example, free flight
insurance, free passport/visa service, or free baggage tracking
service); and (3) additional rebate beyond that required. The RFP
stated that proposed enhancements would be scored on the basis of
perceived value to the government, and that enhancements providing a
cost savings to the government would constitute 60 percent of the
weight accorded enhancements, that service enhancements would
constitute 30 percent, and additional rebates beyond that required
would constitute 10 percent.
Four proposals were received by the May 24 closing date. Garber, a
New Hampshire firm, proposed to establish a travel management center
only for New Hampshire. Dube, a Maine firm, proposed to establish a
travel management center only for Maine. Travel Centre, a
Massachusetts firm, proposed to establish a travel management center
for New Hampshire, Maine and Vermont, stating in its proposal that it
intended to establish an office in Portsmouth, New Hampshire, to
provide this service. Travel Centre's initial proposal also stated
that its offer was contingent on receiving an award for all three
states.
Following evaluation of initial proposals, the agency established a
competitive range for the state of New Hampshire, which included only
the proposals of Garber and Travel Centre, and a competitive range for
the state of Maine which included only the proposals of Dube and
Travel Centre. By letters dated August 10, the agency conducted
discussions with each offeror and requested the submission of BAFOs by
August 23.
Upon submission and review of BAFOs, the agency realized that it had
failed to discuss a deficiency in Travel Centre's
proposal--specifically, the provision making its offer contingent upon
receipt of an award for all three states. As noted above, the
solicitation precluded such contingencies. Additionally, the agency
was concerned that during the first round of discussions it had not
identified with sufficient specificity the enhancements proposed by
each offeror which the agency considered to be of little or no value.
Accordingly, by letters dated October 10, the agency reopened
discussions with all offerors. In those letters, each offeror was
advised of specific enhancements it had proposed which the agency
considered to be of little or no value. Travel Centre was also
advised of the unacceptable contingency contained in its proposal.
The agency requested submission of second BAFOs by October 11.
In its second BAFO, Travel Centre removed the unacceptable
contingency. Following review and evaluation of the proposals, the
agency determined that Travel Centre had offered the best value to the
government with regard to the States of Maine and New Hampshire.[4]
These protests followed.
DISCUSSION
Physical Location in the Area to be Serviced
Dube and Garber first protest that the agency should have awarded
individual contracts for Maine and New Hampshire, respectively, and
that award to Travel Centre was improper because at the time proposals
were submitted it did not maintain an office in either Maine or New
Hampshire.
To the extent the protesters are challenging the solicitation
provisions which permitted consideration of proposals from firms not
physically located within each state or the provisions permitting an
award for one or more states, the protests are not timely filed. Our
Bid Protest Regulations require that protests based on alleged
solicitation improprieties which are apparent prior to the closing
time for receipt of initial proposals must be filed prior to that
time. Section 21.1(a)(1), 60 Fed. Reg. 40,737, 40,740 (Aug. 10 1995)
(to be codified at 4 C.F.R. sec. 21.2(a)(1)); Engelhard Corp., B-237824,
Mar. 23, 1990, 90-1 CPD para. 324.
Here, the agency clearly advised offerors of its intention to award
one or more contracts covering the three states and specifically
stated that offerors need not maintain offices in each state. As
discussed above, the agency's CBD notice specifically stated:
"This procurement is for Travel Management (travel agency)
services for three states: Maine, Vermont and New Hampshire. . .
. Responsible offerors will be located in and service the
Federal agencies from one of these States. . . . In other words,
an offeror in Maine may receive a contract to service New
Hampshire and Vermont. . . ." (Emphasis added.)
Consistent with this notice, the solicitation clearly stated, "the
offeror must be located in, or be willing to physically relocate to .
. . the geographic area to be serviced."[5] Accordingly, to the
extent the protesters are challenging the provisions of the
solicitation, the protests are untimely.
To the extent the protesters are asserting that Travel Centre's
proposal failed to comply with the solicitation requirement that "the
offeror must be located in, or be willing to physically relocate to .
. . the geographic are to be serviced," the record is to the contrary.
In its proposal, Travel Centre specifically proposed to establish an
office in Portsmouth, New Hampshire--that is, within the geographic
area contemplated by the solicitation and for which the contract was
awarded. On this record, we find no merit in the protesters'
assertions that Travel Centre's proposal failed to comply with the
solicitation requirements regarding physical location.
Delivery Requirements
Dube and Garber next protest that Travel Centre will be unable to
comply with various delivery requirements contained in the
solicitation, including requirements that an offeror provide ticket
delivery at least twice daily to all ticket delivery points and
provide a 2-hour emergency service to appropriate airports in Maine
and New Hampshire.
Whether Travel Centre will successfully perform its obligations under
the contract involve matters of contract administration and/or the
agency's affirmative determination of Travel Centre's responsibility,
neither of which is properly for our consideration. See, e,g., TRS
Design & Consulting Servs., B-218668, Aug. 14, 1985, 85-2 CPD para. 168;
GTE Customer Networks, Inc., B-254692.2, Feb. 24, 1994, 94-1 CPD para.
143. To the extent the protesters are asserting that Travel Centre's
proposal failed to offer to comply with the solicitation requirements,
the record is again to the contrary.
Travel Centre's proposal specifically stated that it would provide
delivery to all local delivery points and, for non-local points
requiring ticket delivery, stated that Travel Centre would utilize
electronic ticketing through machines located throughout the service
area, along with courier pick-up and delivery. Travel Centre further
proposed that it would provide ticket delivery for emergency pre-paid
tickets at an appropriate airport within two hours notice by
hand-writing a prepaid ticket advice, calling the airline directly,
and providing it with the necessary information for it to issue the
ticket at the airport of departure. On this record, Travel Centre
clearly proposed to comply with the solicitation requirements.[6]
Second Request for BAFOs
Dube and Garber next protest that it was improper for the agency to
reopen discussions and request a second round of BAFOs. As discussed
above, the agency explains that the second round of discussions and
BAFOs was necessitated by its failure to identify a deficiency in
Travel Centre's proposal during the earlier discussions and to ensure
that the agency had adequately identified various enhancements
proposed by each offeror which the agency considered to be of limited
value.
In order for discussions to be meaningful, an agency must lead
offerors into areas of their proposals which require correction or
amplification. Federal Acquisition Regulation (FAR) sec. 15.610; Stone &
Webster Eng'g Corp., B-255286.2, Apr. 12, 1994, 94-1 CPD para. 306.
Pursuant to that requirement, the agency concluded it had an
obligation to identify the deficiency existing in Travel Centre's
proposal, and that its failure to do so would render either its
subsequent award to Travel Centre or its subsequent rejection of
Travel Centre's proposal vulnerable to a legal challenge. We see
nothing unreasonable in the agency's ultimate decision to remedy its
earlier oversight through a second round of discussions and request
for BAFOs. See Systems & Defense Servs. Int'l., B-254254.2, Feb. 9,
1994, 94-1 CPD para. 91; HLJ Management Group, Inc., B-225843.3, Oct. 20,
1988, 88-2 CPD para. 375, aff'd, B-254254.2, Feb. 9, 1994, 94-1 CPD para.
91.[7]
Meaningful Discussions
Garber challenges the nature of discussions conducted with it by the
agency. Specifically, Garber asserts that the discussions were not
meaningful in that the agency failed to advise Garber that its
"enhancements were somehow deficient in either of the BAFO requests."
The record belies Garber's assertion.
In the agency's letter to Garber dated October 10, the agency
specifically identified seven particular enhancements Garber had
proposed which the agency had evaluated as having little or no value
to the government.[8] In that letter, the agency specifically noted
that one of the bases for the agency's low evaluation of the proposed
enhancements could be that Garber had failed to fully describe the
enhancements or had presented them in a manner that was too vague to
be understood.
Here, the agency's identification of Garber's specific enhancements
which the agency considered to be of limited value adequately advised
Garber of the areas within its proposal which required amplification.
Given that GSA may not have even been required to advise Garber of
which enhancements were of limited value, see Holmes & Narver, Inc.,
B-266246, Jan. 10, 1996, 96-1 CPD para. , we find that Garber's
assertion that the agency failed to conduct meaningful discussions in
this area is without merit.
Evaluation of Prior Service
Finally, Dube and Garber assert that the agency failed to properly
evaluate proposals with regard to the offerors' prior service. As
discussed above, the RFP instructed offerors to provide the agency
with contacts for all current GSA accounts nationwide, and current
corporate accounts that were similar in size and scope to the subject
contract. The RFP stated that the agency would contact up to a
maximum of five of the customers listed and evaluate the offerors'
prior performance based on the input received from the identified
customers.[9]
The record shows that the agency's evaluation of prior service
contained certain mathematical errors. However, correction of the
agency's mathematical errors clearly demonstrates that there was no
prejudice to either protester.
As discussed above, the solicitation provided that award would be made
based on the proposal that met all the basic requirements and received
the highest combined rating for prior service and enhancements.
Following the final BAFO submission, each of the offerors was
evaluated as meeting the basic requirements. Travel Centre's total
evaluated score was 85.5 points (49 for prior service and 36.5 for
enhancements). Dube's total evaluated score was 67.5 points (36.5 for
prior service and 31 for enhancements). Garber's total evaluated
score was 67 points (39 for prior service and 28 for enhancements).
In evaluating the offerors' prior service, the agency received
responses from five Travel Centre references, four Garber references,
and four Dube references. The evaluators intended to total the raw
scores applicable to each offeror and divide the total by the number
of references received. Consistent with that approach, the agency
totaled Travel Centre's total raw point scores for prior service (246
points from five references) and divided by 5, to obtain a prior
service rating of 49. The agency similarly divided Garber's and
Dube's total raw point scores for prior service (170 and 195
respectively) by 5--even though only four references for each were
received. Thus, the agency erroneously calculated Dube's prior
service rating to be 36.5 and Garber's prior service rating to be
39.[10]
The agency has reviewed the record and recalculated the scores,
dividing Dube's and Garber's scores by four rather than five. After
correcting the mathematical errors, the record shows that Dube's prior
service rating should have been 42.5 and Garber's prior service rating
should have been 49. Adding these corrected scores to the applicable
enhancement ratings, changes Dube's total evaluated score to 73.5 and
Garber's to 77. Both scores are still significantly lower than Travel
Centre's total evaluated score of 85.5 points.[11]
Prejudice is an essential element of a viable protest; consequently,
we will not sustain protests against alleged evaluation errors unless
the protesters are somehow prejudiced. See Square 537 Assocs. Ltd.
Partnership, B-249403.2, Apr. 21, 1994, 94-1 CPD para. 272. Here, even
after the evaluation errors are corrected, the record shows that
Travel Centre would still have received the contract for Maine and New
Hampshire since it submitted the highest-ranked proposal for each
state. Accordingly, we see no basis to conclude that Dube or Garber
was prejudiced by the agency's evaluation errors.
The protests are denied.
Comptroller General
of the United States
1. Section H of the RFP listed each of the federal agencies within the
three states to be serviced, identifying each of the states as "items"
for which proposals were to be submitted. Although the RFP
contemplated that award could be made for more than one item/state,
the solicitation also provided," award of one item may not be
qualified by award of another item."
2. The basic requirements identified were project management,
personnel, quality control plan, implementation, outgoing transition
requirement, commercial accounts, rebate/concession fee, and product
line mix.
3. Section L required offerors to list all current GSA accounts
nationwide, as well as current corporate or government accounts that
were similar in size and scope to the pending contract.
4. Another firm received a contract to establish and operate a travel
management center in Vermont. That contract is not at issue here.
5. The definitions section of the solicitation defined "geographic
area to be served" as "the geographic area(s) as outlined in Section
H." Section H listed each of the federal agency locations for which
travel services was to be provided in all three states.
6. Garber and Dube also complain that the format of Travel Centre's
proposal failed to comply with the solicitation requirement that
proposals address each item/state separately. The agency responds
that RFP amendment No. 1 specifically instructed offerors to address
in one section information which would otherwise be duplicated in
response to each item and then, to the extent that there was unique or
item-specific information, to address this information separately.
Thus, the solicitation did not prohibit one response that encompassed
various items.
7. Both Dube and Garber also object to the short period of time
allowed by the agency for the second submission of BAFOs. Generally,
to be timely under our Bid Protest Regulations, a protest of a
solicitation impropriety which is incorporated into a solicitation by
amendment must be protested not later than the next closing time for
receipt of proposals following the incorporation. Section 21.2(a)(1),
60 Fed. Reg. supra (to be codified at 4 C.F.R. sec. 21.2(a)(1)). In
cases where a solicitation amendment was not received until 1 day
before proposals were due, we have held that the protester did not
have a reasonable opportunity to file its protest before the due date,
and have applied the timeliness rule which provides that protests
based on matters other than solicitation improprieties must be filed
within 14 days after the protester knew or should have known of the
basis for protest. Section 21.2(a)(2), 60 Fed. Reg. supra (to be
codified at 4 C.F.R. sec. 21.2(a)(2)); The Big Picture Co., B-210535,
Feb. 17, 1983, 83-1 CPD para. 166. Here, Dube failed to raise this issue
until November 2; Garber failed to raise the issue until November 3.
That is, neither protester challenged the period for submitting second
BAFOs until more than 14 days after the agency's October 10 request.
Accordingly, the issue is not for consideration.
8. In light of the proprietary nature of this information, our
decision does not disclose the specific enhancements identified.
9. Dube challenges the RFP's stated method for evaluating prior
service, asserting that it amounts to a "popularity contest" and lacks
objective standards. Again, this aspect of the protest is not timely
raised in that it challenges a solicitation provision which was
apparent prior to submission of proposals. Our Bid Protest
Regulations require that protests based upon alleged improprieties in
a solicitation which are apparent prior to the closing time for
receipt of initial proposals must be filed prior to that closing time.
Section 21.1(a)(1), 60 Fed. Reg. supra (to be codified at 4 C.F.R. sec.
21.2(a)(1)); Engelhard Corp., supra.
10. With regard to Dube's rating, the record also indicates the agency
erroneously concluded that 170 divided by 5 equals 36.5, rather than
34.
11. Dube and Garber also complain that two of the five Travel Centre
references were customers that were not current at the time proposals
were submitted. However, if these two references are eliminated from
the calculation, Travel Centre's prior service score does not
decrease.