BNUMBER:  B-271741.3
DATE:  March 10, 1997
TITLE:  Ann Riley & Associaties, Ltd.--Reconsideration

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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:Ann Riley & Associaties, Ltd.--Reconsideration

File:     B-271741.3

Date:March 10, 1997

Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer, 
Fierman, Hays & Handler, LLP, for the protester.
Matthew S. Perlman, Esq., and Tenley A. Carp, Esq., Arent Fox Kintner 
Plotkin & Kahn, for Bayley Reporting, Inc., an intervenor.
George C. Brown, Esq., Ilene F. Citrin, Esq., and Valerie G. Preiss, 
Esq., Securities and Exchange Commission, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protester has not made requisite showing of "bait and switch" by 
awardee where there is no evidence in the record that (1) the awardee 
represented in its proposal that it would rely on certain specified 
personnel in performing the services; (2) the agency relied on this 
representation in evaluating the proposal; and (3) it was foreseeable 
that the individuals named in the proposal would not be able to 
perform the contract work.

2.  Agency was not required to hold discussions regarding every 
weakness identified in the protester's proposal.

DECISION

Ann Riley & Associates, Ltd. requests reconsideration of our decision, 
Ann Riley & Assocs., Ltd., B-271741.2, Aug. 7, 1996, 97-1 CPD  para.  ___, 
in which we denied its protest of the award of a contract to Bayley 
Reporting, Inc. under request for proposals (RFP) No. 
SECHQ1-94-R-0008, issued by the Securities and Exchange Commission 
(SEC) for court reporting and transcription services.  Ann Riley 
argues that our prior decision failed to address whether Bayley had 
engaged in "bait and switch" tactics in its proposal, and failed to 
properly consider Ann Riley's claim that discussions were misleading.

We deny the request for reconsideration.

Our decision reviewed Bayley's size, capacity, and rapid growth, as 
well as its proposal, with an eye towards whether the agency could 
reasonably conclude that Bayley would be able to comply with the 
statutorily-mandated limitations on subcontracting clause--i.e., the 
requirement that at least 50 percent of the cost of personnel incurred 
be for Bayley employees.  Our decision concluded that the agency 
reasonably found both that Bayley's proposal evidenced its intent to 
comply with the requirement and that Bayley would be able to perform 
as proposed.  In so doing, our decision answered the main thrust of 
Ann Riley's argument that "Bayley could not, would not, and did not 
intend to comply" with the limitations on subcontracting clause.  

As its first basis for reconsideration, Ann Riley argues that our 
prior decision failed to resolve whether Bayley's performance of the 
contract following award constituted proof of an impermissible "bait 
and switch" tactic.  While we considered this issue as part of our 
earlier decision, the decision does not specifically address the 
issue; hence, we do so here.[1]  See Minigraph, Inc.--Recon., 
B-237873.3, Dec. 10, 1990, 90-2 CPD  para.  492. 

The SEC correctly points out that the term "bait and switch" generally 
refers to an offeror's misrepresentation in its proposal of the 
personnel that it expects to use during contract performance.  
Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 
1992) (personnel misrepresentation); CBIS Fed. Inc., 71 Comp. Gen. 319 
(1992), 92-1 CPD  para.  308 (misrepresentation of personnel availability); 
Informatics, Inc., 57 Comp. Gen. 217 (1978), 78-1 CPD  para.  53 (awardee 
misrepresented its survey of the availability of incumbent's 
personnel); KPMG Peat Marwick, LLP, B-259479.2, May 9, 1995, 95-2 CPD  para.  
13 (awardee replaced 13 of 18 key personnel immediately after award); 
ManTech Advanced Sys. Int'l, Inc., B-255719.2, May 11, 1994, 94-1 CPD  para.  
326 (awardee misrepresented availability of incumbent's personnel); 
ManTech Field Eng'g Corp., B-245886.4, Mar. 27, 1992, 
92-1 CPD  para.  309, recon. denied, B-245886.5, Aug. 7, 1992, 92-2 CPD  para.  89 
(misrepresentation of personnel availability).  Where such a 
misrepresentation materially influences an agency's evaluation of an 
offeror's proposal, it undermines the integrity of the competitive 
procurement system and generally provides a basis for proposal 
rejection or termination of a contract award based upon the proposal.   
ManTech Advanced Sys. Int'l, Inc., supra.

To demonstrate a "bait and switch," a protester must show not only 
that personnel other than those proposed are performing the 
services--i.e., the "switch"--but also that:  (1) the awardee 
represented in its proposal that it would rely on certain specified 
personnel in performing the services; (2) the agency relied on this 
representation in evaluating the proposal; and (3) it was foreseeable 
that the individuals named in the proposal would not be available to 
perform the contract work.  Combat Sys. Dev. Assocs. Joint Venture, 
B-259920.6, Nov. 28, 1995, 95-2 CPD  para.  244; Free State Reporting, Inc., 
B-259650, Apr. 14, 1995, 95-1 CPD  para.  199.  Each of these three elements 
must be present to establish the "bait" portion of a "bait and switch" 
claim.  Free State Reporting, Inc., supra. 

Ann Riley's claim lacks all three elements required to show that 
Bayley "baited" the SEC in this procurement.  First, there is no 
showing that Bayley misrepresented the personnel it would use during 
performance; switched any of its key personnel; or indicated that any 
specific task would be performed by a person who is now not performing 
that task.  Second, the evaluation factors in this case do not include 
criteria designed to assess specific subcontractors that might be 
switched at some later date; nor do they include an assessment of 
whether the offeror itself, as opposed to a subcontractor, will 
perform some specific task.  Thus, there is no place in the evaluation 
scheme where the agency gave evaluative credit for one method of 
performance versus another. 

Further, there is no evidence of the third element of a "bait" 
claim--that the "switch" must be foreseeable.  Our prior decision 
expressly considered whether the agency reasonably concluded that 
Bayley would be able to perform the contract without violating the 
limitations on subcontracting.  In considering the propriety of the 
SEC's conclusions we found that the agency was not misled by the 
proposal; recognized the embryonic nature of Bayley; adequately 
considered Bayley's lack of current capacity; and reasonably accepted 
Bayley's promises to expand to meet the SEC's reporting requirements.  
Given our conclusion that the agency's decision was reasonable--a 
conclusion which Ann Riley does not challenge--we see no basis for 
concluding at this juncture that it was foreseeable that Bayley would 
violate the subcontracting limitation after award such that we should 
conclude that Bayley improperly "baited" the agency.[2]

The second basis of Ann Riley's request for reconsideration is that 
our Office did not fully consider its contention that the agency 
failed to hold meaningful discussions with the company.  In this 
regard, Ann Riley points out that Bayley prevailed in this competition 
with only a 1.5 point margin, and cites several examples where Ann 
Riley's score might have improved by 1.5 points or more with an 
opportunity to discuss its shortcomings.[3]

Our prior decision considered, and indicated that it considered, the 
discussions that were held here and the evaluation materials listing 
each shortfall noted by the evaluators.  Our decision explained that 
there is no requirement that an agency advise an offeror of a minor 
weakness that is not considered significant, even where the weakness 
subsequently becomes a determinative factor when two closely-ranked 
proposals are compared.  Volmar Constr., Inc., B-270364; B-270364.2, 
Mar. 4, 1996, 96-1 CPD  para.  139.  Applying this principle to the record 
before us, we concluded that the evaluators' comments reflected minor 
concerns that need not have been pointed out during discussions.  

In essence, Ann Riley's complaint in this area is that the point 
differential between its technically superior initial proposal, and 
the technically weaker proposal of Bayley, was narrowed through more 
comprehensive discussions with Bayley than with Ann Riley, such that 
in the final analysis, Bayley's lower price--converted to a point 
score via a scheme set forth in the solicitation--was able to offset 
Ann Riley's higher technical score.  Ann Riley correctly notes that 
during this process a variety of relative weaknesses that caused its 
proposal to receive a less than perfect score were not pointed out to 
the company.  Our conclusion, then and now, however, is that the 
principal concerns about Ann Riley's proposal were brought to the 
protester's attention, and the various other concerns, both 
individually and in total, did not prevent the protester from having a 
reasonable chance for award; the agency's failure to point out those 
other concerns thus did not deprive Ann Riley of meaningful 
discussions.

The request for reconsideration is denied.

Comptroller General
of the United States

1. For the record, we note that Ann Riley's assertion that a "bait and 
switch" occurred was but one minor element of its principal contention 
that the agency evaluation was unreasonable.  

2. We note that Ann Riley has submitted an analysis of Bayley's 
performance since contract award in an attempt to establish the 
alleged "switch."  Ann Riley claims in the analysis that a review of 
Bayley's performance presented by Bayley during the course of the 
earlier protest was flawed, and when corrected for errors and faulty 
assumptions shows that "Bayley's in-house labor costs were, at best, 
only 48.5 percent of the amount expended for personnel under the 
contract."  Whether Bayley complied with the subcontracting limitation 
at some point after award ultimately raises a matter of contract 
administration that we will not review where the record does not 
otherwise support a claim that the awardee misled the agency.  See 
Diversified Computer Consultants, B-230313; B-230313.2, July 5, 1988, 
88-2 CPD  para.  5.  No such showing has been made here.

3. As explained in our prior decision, although Bayley's proposal 
received a lower technical score than Ann Riley's proposal--48 points 
versus 52 (out of 60 possible points)--Bayley's lower price resulted 
in more points for Bayley under the cost factor.  Thus, the overall 
scores were 88.6 for Bayley and 87.1 for Ann Riley.