BNUMBER:  B-271040; B-271040.2
DATE:  June 10, 1996
TITLE:  Advanced Communication Systems, Inc.

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Matter of:Advanced Communication Systems, Inc.

File:     B-271040; B-271040.2

Date:June 10, 1996

William L. Walsh, Jr., Esq., J. Scott Hommer III, Esq., Wm. Craig 
Dubishar, Esq., and Paul N. Wengert, Esq., Venable, Baetjer and 
Howard, for the protester.
J. Andrew Jackson, Esq., and Robert J. Moss, Esq., Dickstein, Shapiro 
& Morin, for Technical and Management Services Company, an intervenor.
Anthony E. Marrone, Esq., Department of the Navy, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  An awardee did not materially misrepresent the availability of its 
proposed 12 personnel, of whom 11 were current awardee employees, 
where the awardee confirmed their availability prior to award.

2.  The contracting agency reasonably found the awardee's proposed 
personnel to be acceptable, where the awardee's and protester's 
personnel were similarly found to be in substantial compliance with 
the solicitation requirements, such that the agency's needs were met 
and no offeror was prejudiced.

3.  The contracting agency's consideration of offerors' prices, 
resumes, and responsibility in determining to make award to the lowest 
priced, technically acceptable offeror was reasonable and consistent 
with the solicitation's evaluation scheme.

4.  The allegation that the awardee obtained an unfair competitive 
advantage by employing a former employee of the protester, who had 
access to the protester's proprietary pricing and performance 
strategies, concerns a dispute between private parties which the 
General Accounting Office will not entertain in the absence of 
evidence of government involvement.

DECISION

Advanced Communication Systems, Inc. (ACS) protests the award of a 
contract to Technical and Management Services Company (TAMSCO) under 
request for proposals (RFP) No. N00383-95-R-0389, issued by the 
Department of the Navy for services in support of the agency's 
Streamlined Automated Logistics Transmission System (SALTS) in 
Philadelphia, Pennsylvania.  ACS contends that TAMSCO made material 
misrepresentations concerning the personnel it would provide under the 
contract, that TAMSCO's proposed personnel do not satisfy the RFP 
requirements, that the Navy evaluated proposals using unstated 
evaluation factors, and that TAMSCO's hiring of an ACS employee 
provided TAMSCO with an unfair competitive advantage that the agency 
improperly failed to mitigate.

We deny the protest.

SALTS is a communications system employed by the Navy to transmit 
logistics and other administrative data worldwide among more than 
2,100 ship and shore sites.  The RFP provided for the award of a 
fixed-price, level-of-effort contract to provide support services for 
SALTS for a base year with 1 option year.  Among other things, the 
contractor will assist agency personnel in enhancing and streamlining 
current SALTS information processing systems and will provide an 
analysis of existing automated data processing (ADP) and 
telecommunication processes, and their use.

The RFP provided for award to the lowest-priced, technically 
acceptable, responsible offeror.  No evaluation factors, other than 
price, were identified for the evaluation of proposals.  Offerors were 
required to provide fixed prices for 12 full-time personnel (1 program 
manager, 3 systems operators, 5 programmers, and 3 customer service 
field representatives) to fill 12 discrete labor categories.  For each 
labor category, the RFP identified specific minimum technical 
requirements and offerors were required to submit a resume for each 
person proposed.  The RFP provided in clause H07, 
"Personnel/Substitution of Key Personnel," that "no personnel 
substitutions will be permitted unless such substitutions are 
necessitated by an individual's sudden illness, death, or termination 
of employment. . . .  All proposed substitutes must have 
qualifications equal to, or higher than, the qualifications of the 
person to be replaced."

The Navy received proposals from three offerors, including TAMSCO and 
ACS (the incumbent SALTS contractor) as follows:

                     BASE YEAR            OPTION YEAR

TAMSCO                $976,356            $1,013,664

ACS                  $1,102,716           $1,135,829

Offeror A            $1,204,187           $1,230,473
The Navy evaluated the resumes submitted by TAMSCO and ACS and 
determined that each firm's proposed personnel satisfied the RFP 
requirements.  Discussions were determined not to be necessary, and 
award was made to TAMSCO, as the responsible offeror submitting the 
lowest-priced, technically acceptable offer.  This protest followed.

ACS first argues that TAMSCO engaged in "bait and switch" practices by 
misrepresenting the availability of its proposed personnel and its 
intent to use the personnel proposed for this contract, as evidenced 
by the fact that only 3 of the 12 personnel proposed by TAMSCO are 
actually performing under the contract.  TAMSCO responds that it did 
not misrepresent the availability of the proposed personnel in its 
proposal, which consisted of 11 current employees and 1 anticipated 
hire, and that, following its standard business practices, it verified 
the availability of its proposed personnel prior to the submission of 
resumes.  TAMSCO and the Navy also state that each of the substituted 
personnel was approved by the Navy under RFP clause H07 and are 
actually better qualified than the acceptable personnel originally 
proposed.[1]

Generally, an offeror's misrepresentation concerning personnel that 
materially influences an agency's consideration of its proposal 
provides a basis for proposal rejection or termination of a contract 
issued based upon the proposal.  ManTech Advanced Sys. Int'l, Inc., 
B-255719.2, May 11, 1994, 94-1 CPD  para.  326; Anjon Corp., B-249115; 
B-249115.3, Oct. 20, 1992, 92-2 CPD  para.  261.  A misrepresentation is 
material where an agency has relied upon the misrepresentation and 
that misrepresentation likely had a significant impact upon the 
evaluation.  ManTech Advanced Sys. Int'l, Inc., supra.  We conclude 
from the record here that TAMSCO did not make material 
misrepresentations concerning its proposed personnel.  

The RFP did not require separate letters of commitment for proposed 
personnel; rather, it asked for no more than resumes for proposed 
personnel.  In such circumstances, an offeror's responsibility is to 
propose personnel that the offeror reasonably may expect will be 
available to perform the contract.  See CBIS Fed., Inc., 71 Comp. Gen. 
319 (1992), 92-1 CPD  para.  308.  

For the 11 current employees it proposed, TAMSCO, in accordance with 
its usual business practices, confirmed with the employee or the 
employee's immediate supervisor the employee's availability to perform 
under the contract.  We have held that, as a general rule, an offeror 
proposing a current employee has a reasonable basis to expect that the 
employee will be available for contract performance.  See ManTech 
Advanced Sys. Int'l., Inc., supra; Laser Power Technologies, Inc., 
B-233369; B-233369.2, Mar. 13, 1989, 89-1 CPD  para.  267.  While ACS argues 
that TAMSCO's verification of availability was insufficient because a 
number of the proposed personnel were employed on a contract at Fort 
Monmouth, New Jersey--2 hours from where this contract will be 
performed--ACS has not shown why this distance is so great in these 
circumstances as to preclude TAMSCO's reasonable expectation that its 
employees whose availability it has confirmed would be willing and 
able to perform under the contract.  Moreover, there is no indication 
that any of the TAMSCO employees, employed at Fort Monmouth and 
proposed under this RFP, were unwilling or unable to perform the 
contract because of the 2-hour distance between their current duty 
stations and where this contract will be performed.  Given TAMSCO's 
verification of its employees' availability, the record evidences that 
TAMSCO had a reasonable expectation that the employees proposed would 
be available for contract performance.  

Regarding the one individual proposed by TAMSCO that was not a current 
employee, TAMSCO verified that individual's interest and availability 
to perform under the contract and received that individual's 
permission to include his resume in TAMSCO's proposal;[2] this 
provided TAMSCO with a reasonable expectation that this individual 
would be available to perform under the contract.  

In sum, we find no basis to conclude that TAMSCO materially 
misrepresented the availability of its proposed personnel.

ACS next argues that TAMSCO's resumes for one of its proposed system 
operators and for its customer service field representatives do not 
satisfy the solicitation's requirements and that TAMSCO's proposal was 
therefore unacceptable.  As noted above, the RFP stated specific 
requirements for each of the 12 identified labor categories.  For the 
systems operator, the RFP required, among other things, that the 
proposed operator have:

     "[e]xtensive knowledge of various application programming 
     languages including Clipper 5X, CA Visual Objects, and Borland 
     C++ to support data management and end user applications for the 
     SALTS project."

ACS argues that TAMSCO's proposed systems operator's resume does not 
show experience with or knowledge of the identified application 
programming languages.  The Navy responds that it evaluated offerors' 
resumes for the systems operator position to ensure that proposed 
personnel would satisfy the RFP requirements, but did not require that 
each resume specifically state knowledge of, or experience with, each 
application programming language.  Thus, regarding TAMSCO's proposed 
systems operator, the agency determined that the systems operator's 
stated experience with Dbase 3+ and UNIX languages was comparable to 
experience with the identified application programming languages and 
satisfied the RFP requirements.  The Navy and TAMSCO also note that a 
number of ACS' resumes do not demonstrate specific compliance with all 
the stated personnel qualifications; for example, the resume for ACS' 
proposed systems operator also does not show specific knowledge of the 
Clipper 5X, CA Visual Objects, and Borland C++ programming languages.

In reviewing an agency's technical evaluation, our Office will not 
evaluate proposals anew, but will examine the record to ensure that 
the evaluation was reasonable and consistent with the stated 
evaluation criteria.  Allenhurst Indus., Inc., B-256836; B-256836.2, 
July 8, 1994, 94-2 CPD  para.  14.  Generally, to be determined technically 
acceptable, a proposal must satisfy all the material solicitation 
requirements.  Peckham Vocational Indus., Inc., B-257100, Aug. 26, 
1994, 94-2 CPD  para.  81.  However, a contracting agency may properly find 
acceptable a proposal that is in substantial, although not total, 
compliance with a solicitation requirement where such a determination 
does not prejudice any other offeror and the proposal meets the 
agency's needs.  GPS Technologies, Inc., B-256174 et al., May 16, 
1994, 94-1 CPD  para.  309.

We agree that the resume of TAMSCO's proposed systems operator does 
not demonstrate experience with the identified programming languages, 
as required by the RFP.  Nevertheless, we conclude from this record[3] 
that the Navy reasonably determined that the resumes of TAMSCO's 
proposed systems operator substantially complied with the RFP 
requirements and satisfied the agency's needs, and that ACS was not 
thereby prejudiced.  As noted above, the Navy determined that TAMSCO's 
proposed systems operator's experience with other application 
programming languages was comparable to experience with the languages 
identified in the solicitation.  ACS does not contend that the 
application programming languages identified in TAMSCO's proposed 
systems operator's resume are not comparable to those identified in 
the RFP; therefore, we have no basis on this record to find 
unreasonable the agency's conclusion that the experience reflected on 
the resume was comparable to experience with the identified languages 
and that TAMSCO's proposal substantially complied with the RFP 
requirements.

We also see no basis for concluding that ACS was prejudiced by the 
agency's determination.  Like TAMSCO, ACS submitted a number of 
resumes that did not specifically demonstrate compliance with every 
personnel qualification mentioned in the RFP.  (For example, the 
resume for ACS' proposed systems operator does not mention the 
application programming languages identified by the RFP.)  ACS' 
proposal also was found to satisfy the RFP requirements.  Accordingly, 
given the offerors' equal treatment by the Navy, we conclude that ACS 
was not prejudiced by the agency's evaluation and acceptance of 
TAMSCO's proposal.

ACS further argues that the resumes provided for TAMSCO's three 
proposed field service representatives also do not satisfy the RFP 
requirements.  The RFP required, among other things, that the field 
representatives have:

     "[a]n in-depth knowledge of MS-DOS, Windows, and Novell network 
     operating systems, hands-on experience with both on-line and 
     batch systems, and an in-depth familiarity with all SALTS 
     applications and databases."

ACS contends that the resumes provided for TAMSCO's proposed field 
representatives do not show "any familiarity with all SALTS 
applications and databases."  The Navy responds that the applications, 
programs, and databases used by SALTS are common Department of Defense 
(DOD) applications, programs, and databases, and that the resumes 
submitted for TAMSCO's proposed field representatives demonstrated 
that these personnel were familiar with DOD databases and systems, as 
well as with data transmission processes and personal and mainframe 
computers.  The Navy determined that the computer experience and 
knowledge of DOD databases and systems, shown in TAMSCO's proposed 
field representatives' resumes, satisfied the RFP requirement for 
familiarity with SALTS applications and databases, which are the same 
as the DOD databases and systems.  ACS does not contend that SALTS 
applications and databases are not the same as the DOD databases and 
systems, represented in TAMSCO's resumes, but argues that the RFP 
required specific SALTS experience and knowledge.  We disagree.  The 
plain language of the RFP, as quoted above, establishes that the Navy 
required knowledge of, or experience with, databases and systems that 
are used by SALTS but may also be common to other computer systems.  

ACS also argues that the Navy, in assessing the offerors' proposed 
prices, resumes, and responsibility, used unstated evaluation factors 
in selecting TAMSCO's proposal for award.  The RFP incorporated by 
reference the standard "Contract Award" clause, set forth in FAR  sec.  
52.215-16, which informed offerors that:

     "(a)  The Government will award a contract resulting from this 
     solicitation to the responsible offeror whose offer conforming to 
     the solicitation will be most advantageous to the Government, 
     cost or price and other factors, specified elsewhere in this 
     solicitation, considered."

No other evaluation factors were specified in the RFP.  Thus, offerors 
were on notice that in selecting an offer for award the agency would 
assess the acceptability of the offer (that is, the offer's 
conformance with the solicitation requirements), the offeror's 
proposed price, and the offeror's responsibility.  The record 
demonstrates that this is exactly what the Navy did; it reviewed the 
offerors' proposals, including the required resumes, to determine the 
conformance of the offers with the RFP requirements, evaluated the 
firms' responsibility, and selected for award the responsible firm 
offering the lowest-priced, technically acceptable offer.

ACS finally complains that TAMSCO obtained an unfair competitive 
advantage by employing, after the issuance of the RFP but prior to the 
submission of proposals, an employee of ACS, who ACS alleges had 
access to ACS' pricing and performance strategies.  There is no 
allegation that the agency was involved in any way with TAMSCO's 
hiring of the former ACS employee or was even aware of this matter 
prior to award.  To the extent that ACS alleges that its former 
employee improperly provided ACS' confidential business information to 
TAMSCO (an allegation that TAMSCO denies), this concerns a dispute 
between private parties, which we will not entertain in the absence of 
government involvement.[4]  Republic Maintenance of Ky., Inc., 
B-226991, June 2, 1987, 87-1 CPD  para.  564; Radio TV Reports, Inc., 
B-224173, Sept. 24, 1986, 86-2 CPD  para.  344.

The protest is denied.

Comptroller General
of the United States

1. ACS argues that the substituted personnel are not equal or better 
than those proposed and that the substitutions were not made in 
accordance with contract requirements; these are matters of contract 
administration, which are not for consideration by our Office.  4 
C.F.R.  sec.  21.5(a) (1996); RGI, Inc., B-243387.2; B-243387.3, Dec. 23, 
1991, 91-2 CPD  para.  572.

2. The record shows that TAMSCO first learned after the award of the 
contract that the proposed non-employee had accepted a full-time 
position with another company and was no longer interested in 
employment with TAMSCO.

3. ACS complains that the Navy did not sufficiently document its 
technical evaluation as required by Federal Acquisition Regulation 
(FAR)  sec.  15.608(a)(3), 15.612(d)(2).  In determining the rationality 
of an agency's evaluation and award decision, we do not limit our 
review to contemporaneous evidence, but consider all the information 
provided, including the parties' arguments, explanations, and/or 
hearing testimony.  Southwest Marine, Inc.; American Sys. Eng'g Corp., 
B-265865.3; B-265865.4, Jan. 23, 1996, 96-1 CPD  para.  56.  Here, the 
record is sufficient to allow our review to determine the 
reasonableness of the agency's evaluation.

4. We disagree with ACS that in Eldyne, Inc., B-250158 et al., Jan. 
14, 1993, 93-1 CPD  para.  430, we directed an agency to ensure that an 
awardee did not have an unfair competitive advantage where the 
awardee's proposal appeared to contain the protester's confidential 
business information.  In Eldyne, we found that the agency had not 
conducted meaningful discussions with the protester and recommended 
that the agency reopen negotiations.  Because it was not clear that 
the awardee could provide the services it offered in its 
proposal--given the awardee's parroting of the protester's proposal 
for the prior procurement--we also recommended that the agency confirm 
during discussions that the awardee's technical approach was its own, 
such that the awardee could successfully perform the contract.