BNUMBER:  B-270849; B-270849.2
DATE:  May 6, 1996
TITLE:  Oklahoma County Newspapers, Inc.

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Matter of:Oklahoma County Newspapers, Inc.

File:     B-270849; B-270849.2

Date:May 6, 1996

Randy L. Goodman, Esq., and Debby Walden, Esq., for the protester.
V. Burns Hargis, Esq., McAfee & Taft, for the Journal Record 
Publishing Company, an intervenor.
Richard P. Castiglia, Jr., Esq., Department of the Air Force, for the 
agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Offer submitted in trade name properly was accepted for award 
where evidence of use of trade name was existing and available to 
agency at time of award and adequately identified corporation that 
would be bound by offer.

2.  Protest that agency improperly credited experience of predecessor 
firm to successor awardee is denied where awardee retained a 
significant number of key personnel and some assets of predecessor 
firm, thus evidencing continuity of   operations between the two firms 
such that predecessor firm's experience was relevant to predicting 
successor firm's successful performance of contract. 

DECISION

Oklahoma County Newspapers, Inc. (OCN) protests the award of a 
contract to the Journal Record Publishing Company (JRPC) under request 
for proposals (RFP)
No. F34650-96-R-0008, issued by the Department of the Air Force for 
publication of the base newspaper at Tinker Air Force Base, Oklahoma.  
The protester contends that (1) the award improperly was made to a 
nonexistent entity, and (2) the agency improperly evaluated proposals.

We deny the protest.

BACKGROUND

The Air Force issued the RFP on November 13, 1995, for publication of 
the Tinker Take Off, a weekly civilian enterprise (CE) newspaper.[1]  
The RFP contemplated award of a 1-year contract, with four 1-year 
options, to the responsible offeror whose proposal, conforming to the 
solicitation, would be most advantageous to the government.  In this 
regard, the RFP listed five evaluation criteria--(1) capability 
concerning various printing aspects, such as type fonts and screens; 
(2) ability to meet contract requirements, including staff; (3) 
experience and past performance, including experience in publishing 
similar publications; (4) convenience of communication between the 
base public affairs office and the publisher in terms of distance and 
use of computer equipment; and (5) proposed services in addition to 
those required.  

Two offers--JRPC's and OCN's--were received.  Based on the evaluation, 
the agency determined JRPC's proposal to be superior to OCN's, and 
thus made award to that firm on December 21, 1995.

NONEXISTENT ENTITY

The protester argues that award was invalid because JRPC was not a 
legal entity until after the December 21 award; JRPC was incorporated 
in the state of Delaware (on January 5, 1996) and authorized to do 
business in the state of Oklahoma (on January 11, 1996).

A contract cannot be awarded to a nonexistent entity, since no firm 
would be bound to perform the work.  National Found. Co., 72 Comp. 
Gen. 307 (1993), 93-2 CPD  para.  143.  However, this rule does not 
automatically prohibit award in the name of such an entity, so long as 
there is evidence establishing an identity between the nominal offeror 
and a legitimate entity; for example, where the nominal offeror is a 
trade name used by an established business entity, and available 
evidence makes it possible to identify the actual offeror with 
sufficient certainty so that the offeror would not be able to avoid 
the obligations resulting from acceptance of its offer, acceptance of 
the offer is proper.  Coonrod & Assocs., 67 Comp. Gen. 117 (1987), 
87-2 CPD  para.  549; Sunrise Int'l Group, Inc., B-251956, Feb. 8, 1993, 
93-1 CPD  para.  114; Jack B. Imperiale Fence Co., Inc., B-203261, Oct. 26, 
1981, 81-2 CPD  para.  339.[2]

The record sufficiently establishes an identity between JRPC and Dolan 
Publishing Company (DPC) so that the offer submitted in the trade name 
of JRPC would legally bind DPC under the contract.  Specifically, on 
May 8, 1995, during the final option year of JRPC's incumbent contract 
to publish the Tinker Take Off, JRPC was acquired by DPC, a Minnesota 
corporation.  In connection with this purchase, DPC created a business 
entity--the Journal Record Acquisition Company (JRAC)--into which the 
JRPC assets were to be transferred.  A bill of sale dated May 8, 1995, 
filed with the agency to evidence the transfer, provided for sale of 
(1) JRPC's existing inventory of publications and certain of its 
tangible assets (such as computers, furniture and equipment) to 
JRAC,[3] and (2) its intangible assets to DPC, including, 
specifically, the name "Journal Record Publishing Co."  JRAC and DPC 
were designated collectively as the purchasers.  In connection with 
the sale, a novation agreement was entered into (on May 9) by the 
agency and JRPC to indicate that JRAC was the successor in interest to 
JRPC, and JRPC's contract was modified accordingly on July 20.  The 
parties to the sale agreed to delay incorporating a new business 
entity under the name JRPC to allow time to liquidate the old JRPC's 
few remaining assets and officially close its books.  The old JRPC's 
name was changed to Hogan Publishing Company on August 30.  JRAC's 
name thereafter was changed to JRPC, which was incorporated in 
Delaware on January 5, 1996 and authorized to do business in Oklahoma 
on January 11, 1996.   

The agency argues, and we agree, that the bill of sale, which was in 
existence and known to the agency at the time of award, shows that, at 
the time of award, JRPC was a trade name belonging to DPC; it was 
specifically transferred to DPC under the sale agreement as an 
intangible asset.  Further, the Tinker Take Off actually had been 
published by DPC in the name of JRPC for 7 months prior to the award  
(i.e., from the time of the sale and novation agreement in May 1995 to 
award in December 1995).[4]  It thus was reasonably evident to the 
agency that DPC would be bound by the terms of the contract awarded in 
the name of JRPC.  We therefore conclude that the fact that the new 
JRPC was not incorporated and registered to do business (in Oklahoma) 
until 3 weeks after award is irrelevant; JRPC's offer was properly 
accepted for award.[5]  

EVALUATION OF  JRPC'S PROPOSAL

OCN alleges that JRPC's proposal improperly was evaluated under the 
experience/past performance criterion based on the predecessor firm's 
(and its subcontractor's) experience (JRPC's proposal received a 
perfect score under this criterion).

An agency properly may evaluate the corporate experience of a new 
business by considering the experience of a predecessor firm, see J.D. 
Miles & Sons, Inc.,
B-251533, Apr. 7, 1993, 93-1 CPD  para.  300; R. J. Crowley, Inc., B-229559, 
Mar. 2, 1988, 88-1 CPD  para.  220, or a subcontractor, Cleveland 
Telecommunications Corp., B-257294, Sept. 19, 1994, 94-2 CPD  para.  105, 
including experience gained by employees while working for the 
predecessor firm.  J.D. Miles & Sons, Inc., supra.  The key 
consideration is whether the experience evaluated reasonably can be 
considered predictive of the offeror's performance under the contract.  
Id.
  
The evaluation of JRPC's experience was proper.  The record shows that 
the new JRPC retained 16 of 18 of the predecessor firm's publishing 
employees, comprised of editorial, production, clerical/business, 
electronic maintenance, and sales/marketing personnel, and thus would 
remain under the guidance of virtually the same personnel.  (The 
remaining two publishing employees that did not make the transition 
were in the sales/marketing department.)  Also, JRPC's printing 
subcontractor, Printing, Inc., retained all 25 of the old JRPC's 
printing and delivery personnel.  Finally, some printing assets of the 
old JRPC were sold to either the new JRPC and its subcontractor, 
Printing, Inc.--i.e., computers and related equipment were transferred 
to the new JRPC and some undamaged presses were transferred to 
Printing, Inc.  These circumstances--retention of a significant number 
of key publishing employees, retention of the printing/delivery 
employees by the JRPC's subcontract printer, and retention of some 
printing assets by JRPC and its subcontractor--evidenced significant 
continuity between the old and new firms' operations, such that the 
old firm's experience, as well as that of its subcontractor, was 
relevant in assessing JRPC's experience.  Thus, the experience of the 
predecessor firm properly could be attributed to the successor firm 
for evaluation purposes.[6]        

In comments on the agency's March 19 supplemental report, OCN argues 
for the first time that the agency failed to reject or downgrade the 
awardee's proposal for failing to submit supporting documents for 
technical capability, and examples of technical capability, as 
required by the solicitation.  According to the protester, these 
allegations are based on a redacted copy of the awardee's proposal 
received in response to a Freedom of Information Act (FOIA) 
request.[7] 

Under our Bid Protest Regulations, protests not based upon apparent 
solicitation improprieties must be filed not later than 14 calendar 
days after the basis of protest is known or should have been known, 
whichever is earlier.  4 C.F.R.  sec.  21.2(a)(2) (1996).  Each new protest 
allegation must independently satisfy the timeliness requirements.  GE 
Gov't Servs., B-235101, Aug. 11, 1989, 89-2 CPD  para.  128.  

OCN was provided a copy of the awardee's redacted proposal--which OCN 
itself states formed the basis of its additional arguments--under 
agency cover letter dated February 28, 1996.  For purposes of 
calculating timeliness, absent evidence to the contrary, we assume 
that mail is received within 1 calendar week from the date it is sent.  
See Jack Faucett Assocs.--Recon., B-253329.2, Apr. 12, 1994, 94-1 CPD  para.  
250.  We thus assume that the protester received the redacted proposal 
no later than March 6.  As OCN's comments, including these arguments, 
were not filed until  April 5, more than 14 calendar days later, these 
arguments are untimely and will not be considered.  

EVALUATION OF OCN'S PROPOSAL   

OCN argues that the agency improperly downgraded its proposal under 
the second, third, and fourth evaluation criteria based on the 
following deficiencies:              (1) inadequate staff to meet 
solicitation requirements and current workload,        (2) computer 
equipment not the most technologically advanced and therefore not the 
most advantageous to the government, and (3) inexperience with 
publications the size and circulation of the Tinker Take Off.  
However, even if we found these arguments meritorious, they would not 
affect the outcome.  This is because OCN's proposal was only 
downgraded 32 points under these criteria, JRPC's proposal was 
higher-scored by 41 points (347 points for OCN and 388 for JRPC), and 
the award decision was based on the point scores.  Thus, even if OCN's 
proposal score were raised by the 32 available points, its score would 
remain lower than JRPC's, and thus it would not be in line for award.  
It follows that OCN was not competitively prejudiced by the alleged 
misevaluation of its proposal; we thus will not consider these 
arguments.  Lithos Restoration, Ltd., 71 Comp. Gen. 367 (1992), 92-1 
CPD  para.  379; MVM, Inc.; Burns Int'l Sec. Servs., 73 Comp. Gen. 124 
(1994), 94-1 CPD  para.  279 (competitive prejudice is an essential element 
of any viable protest).

The protest is denied.

Comptroller General
of the United States

1. Under the contract, the commercial publisher for the newspaper is 
not paid by the government; instead, it receives the right to sell 
advertising in the newspaper as contractual consideration in exchange 
for its services as publisher.  See 32 C.F.R. Part 247 (1995); 
Department of Defense Instruction 5120.41 (June 21, 1995); Air Force 
Instruction 35-301 (Apr. 15, 1994).

2. Since the procurement of goods and services for publishing CE 
newspapers does not involve the payment of appropriated funds to the 
contractor, the basic acquisition statutes and regulations generally 
do not apply, see The Winkler Co., B-252162, June 8, 1993, 93-1 CPD  para.  
444.  We review the agency's actions in these procurements to 
determine whether those actions were reasonable and consistent with 
other laws and regulations that may be applicable.  Gino Morena 
Enters., 66 Comp. Gen. 231 (1987), 87-1 CPD  para.  121; The Winkler Co., 
supra.

3. Most of JRPC's printing presses were damaged or destroyed in the 
April 19, 1995, bombing of the Alfred P. Murrah Federal Building in 
Oklahoma City and were not  sold to JRAC or DPC.  JRPC's undamaged 
presses were sold to Printing Inc., JRPC's subcontract printer for the 
Tinker Take Off.

4. Additionally, JRPC's offer cover letter stated that Dolan Media 
Corporation (DMC) of Minneapolis is the parent of JRPC.  In this 
regard, an organizational chart submitted during the course of the 
protest indicates that both DPC and JRPC now operate as wholly-owned 
subsidiaries of DMC and also that DPC holds intangible property used 
by the operating company JRPC (and its predecessor in name, JRAC). 

5. OCN argues that if JRPC is in fact a trade name for DPC, then JRPC 
and DPC would have to be the same legal entity.  The protester 
maintains that this is contradicted by execution of the bill of sale, 
which shows that JRPC and DPC are different legal entities (i.e., if 
the transferor and the transferee were the same legal entity, the sale 
would not have been accomplished).  This argument fails to distinguish 
between the old and new JRPC entities.  It is clear from the record 
that although the new JRPC and DPC can be considered the same entity 
based on DPC's use of JRPC as a trade name at the time of award, the 
sale was executed between the old JRPC and DPC, which clearly were 
different entities. 

6. The protester complains that the old firm's experience should not 
be attributed to JRPC because not all of the assets of the old firm 
were transferred to JRPC.  However, there is no requirement that all 
assets be transferred in order to establish the existence of a 
continuity of operations, at least where, as here, there are other 
persuasive indications of a continuity of operations and on this basis 
the experience of the predecessor firm can be attributed to the 
successor firm.

7. The awardee's entire proposal, contained in the agency report, and 
received by the protester's counsel on February 15, 1996, was under 
the protective order issued in the protest.  Because only the 
protester's counsel was admitted to the protective order, the 
awardee's unredacted proposal was not available to the protester.