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.