BNUMBER:  B-271557; B-271557.2; B-271557.3
DATE:  July 29, 1996
TITLE:  Meridian Management Corporation; Consolidated Engineering
Services, Inc.

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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Meridian Management Corporation; Consolidated Engineering 
          Services, Inc.

File:     B-271557; B-271557.2; B-271557.3

Date:July 29, 1996

Michael A. Gordon, Esq., and Fran Baskin, Esq., Holmes, Schwartz & 
Gordon, for Meridian Management Corporation; and David M. Nadler, 
Esq., C. Ernst Edgar IV, Esq., and Robert J. Moss, Esq., Dickstein, 
Shapiro & Morin, for Consolidated Engineering Services, Inc., the 
protesters.
Gregory S. Hill, Esq., Tate Facilities Service, Inc., an intervenor.
Charles A. Walden, Esq., Department of Justice, 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

In a negotiated procurement for facility management, the contracting 
agency improperly waived mandatory solicitation requirements regarding 
the on-site status and qualifications of personnel in selecting a 
nonconforming offer for award and without notifying other offerors of 
the agency's actual requirements and providing offerors the 
opportunity to fairly compete.

DECISION

Meridian Management Corporation and Consolidated Engineering Services, 
Inc. protest the award of a contract to Tate Facilities Services, Inc. 
under request for proposals (RFP) No. DEA-95-R-0010, issued by the 
Drug Enforcement Administration (DEA), Department of Justice, for 
facility management of the DEA's Lincoln Place Buildings in Arlington, 
Virginia.  Meridian and Consolidated argue that DEA waived the RFP's 
minimum personnel requirements in making award to Tate.  

We sustain the protests.

The RFP provided for the award of a fixed-price contract for facility 
management, including operation, maintenance, repair, and janitorial 
services, for two DEA buildings, comprising more than 900,000 square 
feet of space, for a base year with 4 option years.  The minimum level 
of work and services to be provided was set forth in the statement of 
work (SOW), which included the requirement that the contractor "shall 
provide" personnel in nine "essential labor categories":  facility 
manager, on-site supervisor(s), stationary engineer, general 
maintenance worker(s), general maintenance helper(s), 
heating/refrigeration and air conditioning mechanic(s), maintenance 
plumber(s), maintenance electrician(s), and energy management systems 
personnel.  For each of these labor categories, the RFP stated 
specific qualification requirements; for example, the RFP provided 
that:

     "[t]he facility manager position requires a minimum of three (3) 
     years of continuous experience within the past five (5) years in 
     the management, operation, maintenance, and repair of equipment 
     and systems of a facility the approximate size of the Lincoln 
     Place facility and support requirements stated herein."

While the RFP did not specifically identify the number of personnel 
required for each of the nine labor categories, the following question 
and response was published by the agency concerning mandatory 
personnel:

     "QUESTION:  Reference:  RFP Section C, para. C.11.7-C.11.9.  
     Please provide a list of mandatory staff positions, indicating 
     which positions are to be on-site personnel.

     "RESPONSE:  The following personnel must be on-site personnel 
     from the contractor's own staff or from a sub-contractor:  
     facility manager, on-site supervisor(s), engineer, 
     heating/refrigeration and air conditioning mechanic, maintenance 
     plumber(s), maintenance electrician(s), and energy management 
     systems personnel."

In response to another question, the DEA informed offerors that the 
same person could not be proposed for more than one of the following 
positions:  facility manager, stationary engineer, general maintenance 
worker, heating/refrigeration and air conditioning mechanic, 
maintenance plumber, maintenance electrician, and energy management 
systems operator.  Offerors were informed that the questions and 
answers were not a part of the solicitation and did not qualify terms 
and conditions of the solicitation.

As amended, the RFP required that contractors' proposed key personnel 
include the facility manager, on-site supervisors, and energy 
management system operator, and that offerors provide resumes for 
their proposed key personnel.

The RFP provided for award on a best value basis and identified the 
following technical evaluation factors:  Management and Plan of 
Operation (65 points), Experience and Past Performance (20 points), 
and Key Personnel (15 points).[1]  Offerors were informed that the 
technical evaluation factors were more important than price, for which 
no specific weighting was identified.

DEA received proposals from eight offerors, including Tate, 
Consolidated, and Meridian (the incumbent contractor).  Four 
proposals, including Tate's, Consolidated's, and Meridian's, were 
included in the competitive range.  Discussions were conducted, and 
best and final offers (BAFO) received and evaluated, as follows:

                         Technical       Price
        Tate            [DELETED]       $[DELETED]
        Offeror A       [DELETED]       $[DELETED]
        Meridian        [DELETED]       $[DELETED]
        Consolidated    [DELETED]       $[DELETED]

The contracting officer determined that the four BAFOs were 
technically equal and selected Tate's BAFO for award based on Tate's 
lowest proposed price.  Award was made to Tate, and these protests 
followed.  Performance of Tate's contract has been suspended pending 
our decision in this matter.  

Both protesters contend that the DEA waived mandatory minimum 
personnel requirements in making award to Tate.  

DEA initially argues that neither protester is an interested party 
under our Bid Protest Regulations, 4 C.F.R.  sec.  21.0(a) (1996), because 
award was based on the lowest priced of the technically equal offers, 
and there is an intervening offer between the protesters' and the 
awardee's proposal.  Under the bid protest provisions of the 
Competition in Contracting Act of 1984, 31 U.S.C.  sec.  3551-3556 (1994), 
only an "interested party" may protest a federal procurement.  That 
is, a protester must be an actual or prospective offeror whose direct 
economic interest would be affected by the award of a contract or the 
failure to award a contract.  4 C.F.R.  sec.  21.0(a).  Determining whether 
a party is interested involves consideration of a variety of factors, 
including the nature of issues raised, the benefit of relief sought by 
the protester, and the party's status in relation to the procurement.  
Black Hills Refuse Serv., 67 Comp. Gen. 261 (1988), 88-1 CPD  para.  151.  A 
protester is not an interested party where it would not be in line for 
contract award were its protest to be sustained.  ECS Composites, 
Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD  para.  7.

Consolidated responds that none of the lower-priced offers met the 
mandatory personnel requirements and that it had not been apprised 
during discussions that the requirements had been relaxed.  Meridian 
argues (and DEA does not rebut) that the intervening offer could not 
be accepted because the offeror lacked the required license to perform 
the contract. 

As noted, the protests raise the question of whether the agency 
improperly waived RFP requirements without notifying the protesters 
and giving them an opportunity to offer on the allegedly relaxed 
requirements at a revised price.  Inasmuch as the appropriate relief, 
if such an impropriety were found by our Office, would be for the 
protesters and other offerors to be given an opportunity to compete on 
the revised specifications, we consider the protesters raising this 
issue to have a sufficiently direct economic interest in the outcome 
to be deemed interested parties notwithstanding the existence of the 
intervening offeror.  Eklund Infrared, 69 Comp. Gen. 354 (1990), 90-1 
CPD  para.  328; Tri-Tool Inc., B-229932, Mar. 25, 1988, 88-1 CPD  para.  310; see 
Panhandle Venture V; Sterling Inv. Properties, Inc.--Recon., 
B-252982.3; B-252982.4, Sept. 1, 1993, 93-2 CPD  para.  142.

Turning to the merits of the protests, Consolidated contends that the 
agency relaxed the RFP requirements, as clarified by its written 
responses to the potential offerors' questions in making award based 
on Tate's proposal.  Specifically, while the responses required seven 
of the nine "essential" labor categories to be filled with on-site, 
full-time personnel and advised offerors that they could not propose 
the same person to perform more than one position for six of the 
categories, Tate's proposal only offered on-site, full-time personnel 
for [DELETED] labor categories.[2]  Consolidated complains that its 
proposed price was much higher than all other offerors because it was 
the only offeror to propose on-site personnel for every mandatory 
labor category required by the RFP.  

It is a fundamental principle of government procurement that 
competition must be conducted on an equal basis; that is, offerors 
must be treated equally and be provided with a common basis for the 
preparation of their proposals.  W.D.C. Realty Corp., 66 Comp. Gen. 
302 (1987), 87-1 CPD  para.  248; Cylink Corp., B-242304, Apr. 18, 1991, 
91-1 CPD  para.  384.  Thus, award must be based on the requirements stated 
in the solicitation, and offerors notified of the government's changed 
or relaxed requirements.  Cylink Corp., supra.  Moreover, where, as 
here, an agency disseminates written responses to offerors' questions 
during the course of a procurement, even where the questions and 
answers are not expressly incorporated into the RFP, the agency is 
bound by its responses, where they are not inconsistent with the RFP 
and one or more of the offerors would be prejudiced if the agency does 
not adhere to its statements.  Colonial Storage Co.; Paxton Van Lines, 
Inc., B-253501.5 et al., Oct. 19, 1993, 93-2 CPD  para.  234.  

We first note that the DEA's written responses, stating that the staff 
in seven of the nine labor categories were required to be on-site and 
from the offeror's or a subcontractor's own staff, and that one 
individual could not be proposed to fulfill the requirements of more 
than one of certain designated labor categories, are not inconsistent 
with the RFP; the RFP is silent as to how offerors were required to 
staff the identified nine "essential" labor categories, only stating 
that the contractor "shall provide" personnel in these labor 
categories. 

The record also evidences that the agency waived the requirements 
established by the foregoing question responses in making the award to 
Tate and that there is a reasonable possibility that Consolidated was 
prejudiced by DEA's failure to adhere to its written answers.  

Specifically, while Consolidated proposed full-time, on-site personnel 
in each of the identified mandatory labor categories consistent with 
DEA's written responses, the record shows that Tate's offered 
full-time, on-site personnel for only [DELETED] of the mandatory labor 
categories--Tate's proposal offered on-site personnel in the following 
labor categories:  [DELETED]; Tate's staffing plan does not 
specifically identify on-site, full-time staff for the categories or 
staff for the [DELETED] category.  Furthermore, Tate's offer of the 
same person for a number of labor categories (e.g., Tate's offer of an 
[DELETED]) is not consistent with the agency's instructions that the 
same individual could not perform in more than one of six designated 
positions (facility manager, stationary engineer, general maintenance 
worker, heating/refrigeration and air conditioning mechanic, 
maintenance plumber, maintenance electrician, and energy management 
systems operator).  Thus, Tate failed to propose full-time, on-site 
staff for each of the mandatory labor categories specified by the 
agency as clarified by DEA's written question responses supplied the 
offerors.  While the DEA argues that Tate's "proposal included 
appropriate information for all mandatory positions within the RFP," 
it does not identify the labor categories the agency believes to be 
mandatory under the solicitation or explain how Tate's proposal 
satisfied the stated personnel requirements.  

Consolidated states that had it known of the agency's actual personnel 
requirements, its proposed technical approach and staffing, and 
consequent fixed price, would have been substantially lower.  
Specifically, [DELETED].[3]  Thus, on this record, we find a 
reasonable possibility that Consolidated was prejudiced by the 
agency's failure to identify its actual needs.  

In sum, the DEA waived its stated requirements that the contractor 
provide full-time on-site staff for identified mandatory labor 
categories in making the award to Tate, without apprising the offerors 
of the government's changed requirements and providing them an 
opportunity to submit a revised proposal, and we sustain 
Consolidated's protest on this basis.  W.D.C. Realty Corp., supra; 
Cylink Corp., supra.

Meridian asserts that the DEA waived RFP personnel requirements in 
finding that Tate's proposed facility manager satisfied the 
requirement that the proposed facility manager have at least 3 years 
of continuous experience within the past 5 years in the management, 
operation, maintenance, and repair of equipment and systems in a 
facility of the approximate size of the Lincoln Place facility.  The 
resume of Tate's proposed facility manager shows that he served as a 
project manager of the [DELETED] building for the last 2 years and 
served as a chief engineer at two other sites for the previous 3 
years.  Meridian argues that the [DELETED] building (120,000 square 
feet) is substantially smaller than the DEA's buildings and thus does 
not satisfy the RFP requirements for a facility of the approximate 
size of the DEA's Lincoln Place facility.  Meridian also complains, 
among other things, that Tate's facility manager's experience as a 
chief engineer does not satisfy the requirements for facility 
management experience.  

DEA responds, without explanation, that the resume for Tate's proposed 
facility manager provided sufficient information for the agency to 
determine that the proposed candidate satisfied the RFP qualification 
requirements.  However, there is no documentation in the record 
evidencing that the agency considered the qualifications of Tate's 
proposed facility manager prior to making award or found that the 
proposed facility manager's past experience satisfied the RFP's stated 
requirements.   

We find no reasonable basis for the agency's conclusion that the 
resume for Tate's facility manager demonstrated compliance with the 
RFP requirements and conclude that on this record the agency 
essentially waived this requirement as well, without so advising the 
other offerors.  It is unrebutted that the [DELETED] building, at 
which the proposed facility manager served as a project manager, is 
not of the approximate size of the Lincoln Place facility, as required 
by the RFP; thus, the record provides no basis for this experience to 
be used to satisfy the mandatory qualification requirement.  Regarding 
the facility manager's other stated experience as a chief engineer on 
two other projects, neither the resume, nor Tate's proposal, explains 
what duties were performed by this individual as chief engineer or why 
they are comparable to the experience/duties that would be required by 
the facility manager here.  While the intervenor now claims that its 
proposed facility manager performed, as chief engineer, the duties of 
a facility manager, there is no evidence (such as an affidavit or 
declaration from the proposed facility manager detailing his duties 
and responsibilities as a chief engineer) that this is the case.  
Accordingly, we also sustain Meridian's protest.[4]  

We recommend that the DEA amend the RFP to inform the competitive 
range offerors of the agency's actual minimum requirements, obtain 
revised proposals, and make a new source selection decision.  If the 
DEA selects an offeror other than Tate for award, it should terminate 
Tate's contract and make award to that other offeror.  We also 
recommend that Meridian and Consolidated be reimbursed their costs of 
filing and pursuing the protests, including reasonable attorneys' 
fees.  4 C.F.R.  sec.  21.8(d)(1).  The protesters should submit their 
certified claims for costs to the contracting agency within 90 days of 
receiving this decision.  4 C.F.R.  sec.  21.8(f)(1).

The protests are sustained.

Comptroller General
of the United States                                                                                         

1. Subfactors were also identified for each of the technical 
evaluation factors.

2. Consolidated asserts in the affidavit of its vice president that, 
prior to the submission of initial proposals, the vice president 
inquired of the contracting officer whether the nine labor categories 
identified as "essential" in the SOW were required to be full-time, 
on-site positions, as indicated in the answers to the questions sent 
to the offerors; the vice president attests that the contracting 
officer informed him that all of the SOW "essential" labor categories 
were mandatory and that offerors were required to propose full-time, 
on-site personnel for each of the labor categories.  The contracting 
officer denies having such a conversation with Consolidated's vice 
president and states that she consistently responded to such questions 
from offerors in any procurement by referring the questioner to the 
solicitation.  We need not resolve this factual dispute because our 
decision is based upon the agency's stated requirements in the RFP and 
its responses to offerors' questions.

3.[DELETED].

4. Meridian also protested that the award to Tate was improper because 
Tate did not possess required state business licenses and had been 
purchased by another firm before award.  These protest allegations 
have no merit.  Because the RFP did not state specific licensing 
requirements, the allegation concerning Tate's possession of necessary 
business licenses concerns the agency's affirmative determination of 
responsibility, which we will not review under the circumstances 
presented here.  See Shel-Ken Properties, Inc.; McSwain and Assocs., 
Inc., B-261443; B-261443.2, Sept. 18, 1995, 95-2 CPD  para.  139.  Regarding 
the purchase of Tate prior to award, the record shows that while 
Tate's stock was purchased by another firm, Tate, as an entity, 
continues to exist for the performance of the contract; such 
circumstances, provide no basis to object to the award.  See Sunrise 
Int'l Group, Inc., B-266357, Feb. 12, 1996, 96-1 CPD  para.  64.