BNUMBER: B-274406
DATE: December 9, 1996
TITLE: Speedy Food Service, Inc.
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Matter of:Speedy Food Service, Inc.
File: B-274406
Date:December 9, 1996
Jacqueline Z. Nikodym, Esq., and Theodore M. Bailey, Esq., for the
protester.
William T. Welch, Esq., and John R. Tolle, Esq., Barton, Mountain &
Tolle, for Cantu Services, Inc., an intervenor.
Maj. Robert L. Duecaster and Col. Nicholas P. Retson, Department of
the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency improperly failed to conduct
sufficiently specific discussions with the protester regarding its
staffing is denied where the record shows that the discussion
questions asked conveyed the agency's concerns about staffing which
reasonably could be discerned from the protester's initial proposal,
and the specific area of concern only became evident upon review of
the protester's best and final offer (BAFO) and post-BAFO
clarification of proposed staffing; agencies are not required to
notify offerors of deficiencies remaining in their proposals or to
conduct successive rounds of discussions until such deficiencies are
removed.
DECISION
Speedy Food Service, Inc. protests the award of a contract to Cantu
Services, Inc. under request for proposals (RFP) No. DABT39-95-R-0002,
issued by the Department of the Army to obtain food services at Fort
Sill, Oklahoma. Speedy argues that the Army conducted inadequate
discussions with it and improperly selected the awardee's slightly
higher-priced proposal.
We deny the protest.
The solicitation describes Fort Sill's requirements for food services
as falling into two categories, one of which is at issue here.
Management and food production (M&FP) services include the preparation
and serving of food and associated administrative tasks. The
solicitation accounted for those dining facilities requiring M&FP
services in one contract line item (CLIN), which was divided into
several sub-CLINs to account for a varying range in the average number
of meals served. Offerors were also given estimated work-load data
for the services to be provided, including the headcounts for
breakfast, lunch, and dinner.
Proposals would be evaluated under technical, management, and price
factors, in descending order of importance. The technical factor
contained five subfactors, the first and fourth most important of
which were, respectively, the organization and staffing subfactor and
the property administration subfactor. The nonprice factors and
subfactors would be point-scored and adjectivally rated. Price would
not be scored, but its importance would increase, and could become the
controlling factor, if differences between the offerors'
technical/management scores were small or nonexistent. Award would be
made to the firm whose proposal was most advantageous to the
government.
The Army's source selection evaluation board (SSEB) evaluated the
eight proposals submitted and included five of them in the competitive
range. Discussions were conducted, best and final offers (BAFO) were
submitted, and clarifications were requested and received. The final
evaluation results show that Firm A received a higher overall rating
than either Cantu or Speedy, but offered a higher price. Cantu was
rated 85 overall, to Speedy's 84, both "excellent" ratings--Cantu
received "excellent" ratings under both the technical and management
factors, and Speedy received a "satisfactory" rating under the
technical factor and an "excellent" rating under the management
factor. Cantu's price of $21,841,901 was slightly higher than
Speedy's price of $21,799,561.
In making his source selection decision, the contracting officer
declined to follow the SSEB's recommendation to award the contract to
Firm A, since he believed that the firm's advantages did not justify
its additional cost. He noted Cantu's excellent ratings under both
the technical and management factors and the fact that its price was
lower than Firm A's price. While he recognized the SSEB's concern
with Cantu's low staffing levels during the serving hours, citing an
example, he determined that the levels were only slightly lower than
those currently used by Cantu as the incumbent subcontractor providing
these services. The contracting officer recognized that Speedy
offered a lower price than Cantu, but pointed to its lower technical
rating, which was primarily due to the SSEB's concern with the firm's
inadequate staffing during serving time and problems with the firm's
property control system. The contracting officer focused on staffing
and stated that, for example, Speedy proposed about three fewer
personnel than Cantu during critical meal serving times, which
significantly increased the risk of nonperformance. He did not
believe that the firm's lower price justified this risk. The contract
was awarded to Cantu on August 23, and Speedy filed this protest after
its debriefing.
Under the organization and staffing subfactor,[1] each offeror was
instructed to submit a breakdown and set forth the proposed manpower
requirements for its administrative staff and for each dining
facility, including a recapitulation of the total requirements.
Speedy's proposal complied with this requirement by, among other
things, providing staffing charts for M&FP facilities. One chart
listed the estimated number of employees by meal range, and the other
listed the daily distribution of hours for each labor classification
by meal range. Neither chart was broken down into meal serving times
such as breakfast, lunch, or dinner.
The Army was concerned that Speedy had proposed several M&FP positions
that were not required by the RFP. During discussions, Speedy was
asked to explain the duties planned for these specifically identified
positions, since the RFP did not require them. Speedy was also
cautioned that without these positions, its M&FP staffing would be
inadequate to meet the RFP's requirements.
In its BAFO, Speedy stated that it had deleted the requirements for
the positions of concern to the agency and had redistributed some of
them into other labor categories. The manning charts show a slight
increase in overall staffing for some meal ranges. The SSEB concluded
that Speedy's staffing was in line with the government estimate except
for the most critical meal serving period (i.e. the period when the
most meals would be served); staffing in this category was considered
very low and, since this was the predominant category, it could
degrade Speedy's ability to meet the RFP's requirements. In weighing
the offers to arrive at his source selection decision, the contracting
officer asked some offerors, including Speedy, to clarify their
proposals by providing staffing levels for all hours of operation.
After considering Speedy's response, the SSEB concluded that Speedy
planned to use very low staffing during both high and low meal service
periods, posing significant risk that the proposed approach would not
meet the RFP's requirements. As noted above, the contracting officer
concurred.
Speedy contends that the Army improperly failed to conduct
sufficiently specific discussions with the firm. The protester argues
that the Army should have specifically directed the firm to its
concerns that its mealtime staffing was too low.
Agencies are required to conduct meaningful discussions with all
competitive range offerors. Health Management Resources, Inc.,
B-270185; B-270185.2, Jan. 25, 1996, 96-1 CPD para. 23. Offerors are not
entitled to all-encompassing discussions, but must be led into areas
of their proposals which require amplification or correction. Son's
Quality Food Co., B-244528.2, Nov. 4, 1991, 91-2 CPD para. 424.
Discussions should be as specific as practicable considerations will
permit, Data Preparation, Inc., B-233569, Mar. 24, 1989, 89-1 CPD para.
300, but the degree of specificity required in conducting discussions
is not constant and is primarily a matter for the procuring agency to
determine. JCI Envtl. Servs., B-250752.3, Apr. 7, 1993, 93-1 CPD para.
299.
Speedy's charts did not break out its staffing levels by meal time,
but only provided overall staffing levels by labor classification. As
a result, the Army could not have formulated specific discussion
questions regarding Speedy's mealtime staffing. Speedy's initial
proposal raised more basic concerns to the evaluators, which were
conveyed almost verbatim to the firm in the form of discussion
questions.[2] Further, despite the specific question indicating the
agency's concern that Speedy would be understaffed if it eliminated
the identified positions, Speedy's BAFO only shifted a few positions
and deleted the rest, resulting in a minimal staffing increase in some
meal ranges. The Army's concerns regarding Speedy's staffing were not
alleviated, and those concerns became more sharply focused when Speedy
submitted its clarification response breaking down its staffing by the
hour. The Army was not obligated to raise its concerns about Speedy's
proposed mealtime staffing at this point; agencies are not required to
notify offerors of deficiencies remaining in their proposals or to
conduct successive rounds of discussions until such deficiencies are
removed. Rockwell Int'l Corp., supra.
Speedy's argument that the consideration of mealtime staffing levels
was improper because mealtime staffing is not an RFP evaluation
criterion is untimely, since it learned that the agency considered
such levels when it received its debriefing, but did not raise this
issue until it filed its comments on the agency report more than 10
calendar days later. Bid Protest Regulations, sec. 21.2(a)(2), 61 Fed.
Reg. 39039, 39043 (1996) (to be codified at 4 C.F.R. sec. 21.2(a)(2)).
Moreover, in performing an evaluation, an agency may take into account
specific, albeit not expressly identified, matters that are logically
encompassed by the stated evaluation criteria. See Cobra
Technologies, Inc., B-272041; B-272041.2, Aug. 20, 1996, 96-2 CPD para.
73. In our view, the consideration of an offeror's staffing levels at
meal times is logically encompassed under the organization and
staffing subfactor.
An award to an offeror with a higher technically scored proposal and
a higher price is unobjectionable, so long as the result is consistent
with the evaluation criteria and the agency has determined that the
technical difference is sufficiently significant to outweigh the price
difference. Calspan Corp., B-258441, Jan. 19, 1995, 95-1 CPD para. 28.
Here, the decision to select Cantu for award despite its slightly
higher price turned on the fact that its staffing levels during meal
times were more advantageous than Speedy's levels. The protester's
view that the differences in the staffing levels are minimal is
fundamentally a disagreement with the agency's view, but does not
render that view unreasonable. Accordingly, we see no basis to object
to the agency's selection of Cantu's slightly higher-priced but
technically superior proposal.
The protest is denied.
Comptroller General
of the United States
1. We need not address Speedy's challenges associated with the
property administration subfactor since, as Speedy acknowledges, the
record is clear that the firm's weaknesses there were not decisive in
the contracting officer's source selection decision. Hence, even if
Speedy's allegations were true, the firm was not prejudiced by any
impropriety on the part of the agency. See Litton Sys., Inc., Data
Sys. Div., B-262099, Nov. 17, 1995, 95-2 CPD para. 261. Prejudice is an
essential element of a viable protest. See Lithos Restoration, Ltd.,
71 Comp. Gen. 367 (1992), 92-1 CPD para. 379.
2. Speedy's focus on the allegedly more specific questions asked of
Cantu is misplaced. Because the degree of deficiencies in proposals
will vary, the amount of specificity or detail of discussions also
will vary among offerors, Pope Maintenance Corp., B-206143.3, Sept. 9,
1982, 82-2 CPD para. 218, and there is no requirement that all offerors
receive the same number or type of discussion questions. Rockwell
Int'l Corp., B-261953.2; B-261953.6, Nov. 22, 1995, 96-1 CPD para. 34.
The record shows that Cantu's proposal did break its staffing down by
meal times, providing the Army with a basis to ask the questions it
raised.