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.