BNUMBER:  B-275908.2 
DATE:  July 14, 1997
TITLE: Premier Security, B-275908.2, July 14, 1997
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Matter of:Premier Security

File:     B-275908.2

Date:July 14, 1997

Lawrence J. Sklute, Esq., for the protester.
Alan M. Grayson, Esq., Victor A. Kubil, Esq., and Michael A. Lewis, 
Esq., Alan M. Grayson and Associates, for Lyons Security Service, 
Inc., an intervenor.
Michael Cameron, Esq., Immigration and Naturalization Service, 
Department of Justice, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency improperly awarded contract for security guard services to low 
bidder's successor in interest where, after bid opening and before 
award, the bidder was sold in its entirety, but the evidence in the 
record does not establish that, apart from the low bid, the assets 
transferred pursuant to the sale were of more than negligible value.  
Since the sale of the business thus was tantamount to the improper 
sale of the bid, low bidder's successor in interest may not receive 
award of the contract.
 
DECISION

Premier Security protests the award of a contract to Lyons Security 
Service, Inc. (LSSI) as the successor in interest to Lyons Security 
Service, the low bidder under invitation for bids (IFB) No. 
ACL-6-B-0003, issued by the Immigration and Naturalization Service 
(INS) for unarmed guard services at the San Pedro Service Processing 
Center, California.  Premier contends that INS improperly awarded the 
contract to LSSI, because, apart from its low bid, Lyons's assets were 
negligible, and thus, the sale of the business was tantamount to the 
improper sale of the bid.

We sustain the protest.

BACKGROUND

The IFB, issued May 13, 1996 as a total small business set-aside, 
contemplated the award of a fixed-price requirements contract, for a 
base year and four 1-year option periods.  Sixty firms, including 
Lyons and Premier, responded to the IFB by the time set on July 3 for 
bid opening; bids, including all option periods, ranged from 
$25,598,235 to $50,500,923.  After rejecting several lower-priced bids 
as nonresponsive, the contracting officer informed Lyons that it had 
submitted the apparent low bid ($29,769,313) and requested that the 
Defense Contract Management Command (DCMC) conduct a pre-award survey 
on Lyons.  On October 31, DCMC recommended that Lyons not be awarded 
the contract based primarily on Lyons's weak financial condition.  
DCMC's report further noted that effective October 1, after bid 
opening, Lyons had been sold to Kathleen E. Guidice, the wife of the 
owner of United International Investigative Services (UIIS).  UIIS is 
the incumbent large business firm and was ineligible to compete under 
the IFB.

After learning of the sale of Lyons, in a letter dated November 4, INS 
rejected Lyons's bid, citing Federal Acquisition Regulation (FAR)  sec.  
14.404-2(l), which states as follows:

     "After submitting a bid, if all of a bidder's assets or that part 
     related to the bid are transferred during the period between the 
     bid opening and the award, the transferee may not be able to take 
     over the bid.  Accordingly, the contracting officer shall reject 
     the bid unless the transfer is effected by merger, operation of 
     law, or other means not barred by 41 U.S.C.  sec.  15 or 31 U.S.C.  sec.  
     3727."[1]

On November 25, in response to an agency-level protest challenging the 
rejection, the contracting officer reinstated Lyons as the low bidder.  
By this time, however, Lyons had been incorporated, thus becoming 
LSSI, and had moved its offices to a new location at the same street 
address as UIIS.  As a result of these events, and since the IFB was 
set aside for small businesses, the contracting officer questioned 
whether LSSI remained eligible for award.  In addition, aware that 
Lyons's new owner is the wife of the owner of UIIS, the contracting 
officer questioned whether Mrs. Guidice's relationship to UIIS had any 
impact on LSSI's eligibility for award.  Accordingly, by letter dated 
December 19, INS requested that the Small Business Administration 
(SBA) determine the awardee's business size status and eligibility for 
award.  

On January 24, 1997, the SBA determined that Lyons had properly 
self-certified that it was a small business as of bid opening.[2]  The 
SBA also found that negotiations regarding the sale of Lyons had not 
been entered into prior to bid opening and that Mrs. Guidice was not 
the owner of Lyons as of bid opening.  As such, the SBA concluded that 
any issues arising from Mrs. Guidice's relationship with Mr. Guidice 
or her affiliation with UIIS were not germane to its analysis.[3]  
Accordingly, the SBA found that LSSI was a small business eligible for 
award.

DCMC then conducted a pre-award survey on LSSI at the firm's new 
address.  The Defense Contract Audit Agency (DCAA) also audited LSSI's 
accounting system.  Based primarily on LSSI's financial condition, 
DCMC concluded that the firm did not have the capital required to 
finance the start-up costs of the contract and recommended no award to 
LSSI.  Further, based on perceived weaknesses in LSSI's accounting 
system and related internal control policies and procedures, DCAA 
concluded that LSSI's system was inadequate for the accumulation and 
reporting of costs under government requirements for progress 
payments, and thus questioned LSSI's ability to adequately support 
public vouchers.  The contracting officer then rejected the firm as 
nonresponsible, and referred the matter to the SBA for consideration 
under the certificate of competency (COC) procedures.  On February 28, 
the SBA issued a COC to LSSI, and on March 27, INS awarded the 
contract to LSSI.

Following a debriefing by the agency, Premier filed this protest in 
our Office, arguing that the award was improper because, apart from 
its low bid, Lyons had no assets to transfer to its new owner and, 
thus, the sale of the business was tantamount to the improper sale of 
the bid.[4]

DISCUSSION

The transfer or assignment of rights and obligations arising out of a 
bid or proposal is generally not permitted; exceptions to this general 
rule are allowed only where the transfer is to a legal entity which is 
the complete successor in interest to the bidder or offeror by virtue 
of a merger, corporate reorganization, the sale of an entire business, 
or the sale of an entire portion of a business embraced by the bid or 
proposal.  J.I. Case Co., B-239178, Aug. 6, 1990, 90-2 CPD  para.  108 at 3; 
see FAR  sec.  14.404-2(l).  As with the anti-assignment statutes, 41 
U.S.C.  sec.  15 and 31 U.S.C.  sec.  3727, which restrict the assignment of 
government contracts and claims, the restriction on the transfer of 
bids reflects a policy of ensuring the accountability of vendors to 
the government and of discouraging vendors from acquiring speculative 
interests in government contracts for the purpose of trading in them.  
See Mil-Tech Sys. Inc. v. United States, 6 Cl. Ct. 26, 33-35 (Cl. Ct. 
1984); Ionics Inc., B-211180, Mar. 13, 1984, 84-1 CPD  para.  290 at 5.  
Because of these policy concerns, the exceptions to the general 
prohibition on the transfer of bids have been narrowly interpreted.  
Thus, we have found that a bid transfer could be improper where the 
bid was the primary asset being transferred, even where the transfer 
occurred as the result of a business combination that would arguably 
place the transfer within the scope of one of the exceptions to the 
rule; in those cases, we have examined whether the assets transferred, 
other than the bid, were of negligible value or purchased for nominal 
consideration, in which case the bid transfer would be improper.  J.I. 
Case Co., supra, at 4; Mil-Tech Sys. Inc., and The Dept. of The 
Army--Recon., B-212385.4; B-212385.5, June 18, 1984, 84-1 CPD  para.  632 at 
5-6; Information Servs. Indus., B-187536, June 15, 1977, 77-1 CPD  para.  
425 at 4.

Here, the protester does not dispute that LSSI is the complete 
successor in interest to Lyons.  In this regard, the sale of Lyons was 
memorialized in a sales agreement entered into on September 30, 1996, 
between Mrs. Guidice and Juanita L. Lyons, the sole proprietor of 
Lyons.  Under the terms of that agreement, effective October 1, 1996, 
in addition to assuming specified liabilities, Mrs. Guidice acquired 
all of the seller's rights, title, and interest in Lyons's assets, all 
equipment, licenses, inventory, accounts receivable, goodwill, 
trademarks, trade names, copyrights, and all other tangible and 
intangible assets owned by Ms. Lyons.  Subsequent to the sale, Lyons 
was incorporated under California law, thus becoming LSSI.

Premier contends that the award here was improper because the value of 
the transferred assets, other than the low bid, was negligible.  In 
this regard, Premier argues that the value of Lyons's assets should be 
viewed from the buyer's perspective, which in Premier's opinion is 
UIIS, a large business which had little incentive other than the 
benefit of the low bid to acquire Lyons, whose assets were 
insignificant when compared to UIIS's.

The protester's suggestion that we should compare Mrs. Guidice's 
assets or her financial interests in UIIS with Lyons's assets is 
misplaced.  The test is not whether the transferred assets are 
comparable in value to the buyer's.  Rather, the test is whether the 
negligible value of the assets or their nominal purchase price 
indicates that nothing of real value apart from the winning bid was 
transferred.  Mil-Tech Sys. Inc., and The Dept. of The Army--Recon., 
supra, at 6.   By examining certified financial statements, audited 
balance sheets, and other relevant, reliable evidence documenting the 
financial position of the firm being acquired (and excluding the value 
of the bid or proposal at issue), this test captures those cases 
where, for instance, although a transaction is described as a sale of 
an entire business, in actuality the transaction is tantamount to the 
improper assignment of a low bid or winning proposal.  
 
We have reviewed the documents prepared contemporaneously with the 
sale and other evidence in the record showing Lyons's financial 
position as of the time immediately preceding and leading up to the 
sale.  These documents include an attachment to the sales agreement; 
the pre-award survey report DCMC initially prepared on Lyons 
explaining the firm's financial condition, including its assets, 
liabilities, and net worth; and information Mrs. Guidice submitted to 
DCMC during the pre-award survey of Lyons.  Based on our review, we 
think that these documents fail to establish that, apart from the low 
bid, the assets transferred pursuant to the sale were of more than 
negligible value.

Attachment to the Sales Agreement

This document, "EXHIBIT A, PURCHASE AGREEMENT OF LYONS SECURITY 
SERVICE," lists the assets transferred and liabilities assumed by Mrs. 
Guidice as a result of the sale.  Under the main heading, "ASSETS 
ACQUIRED," the document lists "intangible assets" and "tangible 
assets."  Intangible assets include fictitious business name, 
trademarks, logos and art, customer lists, goodwill, and business 
licenses, valued at $101,585.  Tangible assets listed include accounts 
receivable, office supplies, uniforms, two 1994 Toyota pickup trucks, 
a 1975 Jeep, five radios and a computer, with a total balance sheet 
value of $104,330.  This document also lists "LIABILITIES ASSUMED" by 
Mrs. Guidice totaling $82,485.

The document is not dated or signed and is not accompanied by a 
narrative explanation of the basis or methodology used for assessing 
the value of the assets listed, raising serious questions about the 
values listed for some of the items.  Most importantly, we question 
the basis for valuing the "intangible assets" at $101,585.  While 
intangible assets such as goodwill often can be of considerable value, 
there is no explanation or supporting evidence of any kind for the 
value listed for Lyons here.[5]  In addition to the absence of any 
affirmative support, the valuation is inconsistent with the overall 
condition of the company.  For example, DCMC's pre-award survey found 
that Lyons's current ratios (current assets/liabilities) and quick 
ratios (current assets less inventory/liabilities), which compared 
unfavorably to the industry averages, indicated excessive debt burdens 
and less income flow than desirable.  DCMC's conclusion was further 
buttressed by comparing Lyons's 38.7 debt/net worth ratio to the 
industry average of 8.1, leading DCMC's evaluators to conclude that 
Lyons had very little equity available to discharge its debts in the 
event of a crisis.  DCMC further noted that while by the end of 1995 
Lyons had an equity of $13,946, by August 1996 that figure had slipped 
to $3,362--Lyons's net worth as of September 30, 1996, 1 day before 
the sale became effective.  In short, although Lyons may have been a 
viable concern at one time, its business was clearly failing by the 
time of the sale.  

Similarly with respect to tangible assets, there is nothing in the 
record indicating whether these figures are based on audited balance 
sheets or certified financial statements prepared by an objective 
third party, disinterested in the transaction between Mrs. Guidice and 
Ms. Lyons, raising serious questions as to their reliability and 
accuracy.[6]  Even assuming that the total value of the tangible 
assets listed ($104,330) is accurate, when adjusted by the total of 
liabilities assumed ($82,485), and discounting the value listed for 
the intangible assets, the net result is that except for Lyons's 
winning bid, little of value was transferred to Mrs. Guidice as a 
result of the sale.

In sum, in the absence of a narrative explanation of the basis or 
methodology used to arrive at the values for the assets listed, and 
without the benefit of a current, audited balance sheet or a certified 
financial statement of Lyons, this document cannot reasonably be 
relied upon to conclude that the assets transferred were of more than 
negligible value.

Information Submitted During DCMC's Pre-award Survey, October 31, 
1996.

In response to DCMC's request, Mrs. Guidice provided DCMC with a 
document entitled "COMPILED BALANCE SHEETS and STATEMENTS OF INCOME, 
Juanita L. Lyons [d/b/a] Lyons Security Service, August 31, 1996 and 
December 31, 1995."  For each period, the information contained on 
that document is divided into several categories and subcategories 
similar to the attachment to the purchase agreement discussed above.

A signed cover letter, dated October 7, 1996, written on a certified 
public accountant's letterhead, accompanies this document.  The letter 
explains that while the information was compiled in accordance with 
accepted accounting standards, a "compilation" is limited to 
presenting the information as represented by management.  The signer 
expressly states that he had "not audited or reviewed the accompanying 
financial statements or other financial information and, accordingly, 
do[es] not express an opinion or any other form of assurance on them."  
The letter goes on to explain, that "[m]anagement has elected to omit 
the statements of cash flows and all of the disclosures required by 
generally accepted accounting principles," which, if included in the 
compilation, "might influence the user's conclusions about the 
company's financial position . . . ."

Given these disclaimers and conditions, the document submitted by Mrs. 
Guidice clearly does not constitute the kind of evidence--for example, 
certified financial statements or audited balance sheets--that can 
reasonably be relied on to establish the value of the company's 
assets.  Even assuming that this document accurately reflects Lyons's 
financial position, it clearly supports a conclusion that--except for 
the low bid--nothing of significant value was transferred to Mrs. 
Guidice.  For instance, as of August 31, 1996, the latest reported 
period, the document lists "ASSETS," including current assets and 
property and equipment, valued at $133,333 and total current and 
long-term liabilities as $129,971, leaving a negligible net worth of 
only $3,362--the value of the assets transferred as a result of the 
sale.  

CONCLUSION AND RECOMMENDATION

Based on our review, we think there is no reasonable basis in the 
record to conclude that the assets transferred pursuant to the sale 
were of more than negligible value.  Since the sale of the business 
thus was tantamount to the improper sale of the bid, LSSI, the 
successor in interest, may not receive award of the contract.  
Mil-Tech Sys. Inc. v. United States, 6 Cl. Ct. at 33-35; Mil-Tech Sys. 
Inc., and The Dept. of The Army--Recon., supra.[7] 

We recommend that INS terminate the contract awarded to LSSI and award 
the contract to Premier, the next low bidder, if it is otherwise 
eligible for award.  Additionally, we recommend that the protester be 
reimbursed its costs of filing and pursuing the protest, including 
reasonable attorneys' fees.  4 C.F.R.  sec.  21.8(d)(1) (1997).  The 
protester should submit its certified claim for costs to the 
contracting agency within 60 days of receiving this decision.  4 
C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. 41 U.S.C.  sec.  15(a) (1994) provides in pertinent part:

            "No contract or order, or any interest therein, shall be 
            transferred by the party to whom such contract or order is 
            given to any other party, and any such transfer shall 
            cause the annulment of the contract or order transferred, 
            so far as the United States is concerned.  All rights of 
            action, however, for any breach of such contract by the 
            contracting parties, are reserved to the United States."

31 U.S.C.  sec.  3727 is the companion statute applicable to the assignment 
of claims.

2. 13 C.F.R.  sec.  121.404 (1997) generally provides that SBA determines 
the size status of a concern as of the date of its written 
self-certification as a small business.  See also FAR  sec.  19.301(a) (FAC 
90-32); Vantex Serv. Corp., B-251102, Mar. 10, 1993, 93-1 CPD  para.  221 at 
2.

3. Subsequently, in connection with a different procurement, SBA 
concluded that LSSI was not a small business concern.  On October 30, 
1996, the General Services Administration (GSA) issued solicitation 
No. GS-11P96-MPC-0512 as a small business set-aside for security guard 
services at Crystal Plaza #6, in Arlington, VA. UIIS was the incumbent 
providing those guard services.  On November 27, in response to GSA's 
solicitation, LSSI self-certified that it was a small business concern 
and GSA's contracting officer questioned that certification.  After 
analyzing several factors concerning affiliation, including LSSI's and 
UIIS's common interests, their respective ownership, and office 
location, on March 10, 1997, the SBA determined that LSSI was not a 
small business concern eligible for award under GSA's solicitation.  
This result is consistent with SBA's regulations, since LSSI 
self-certified that it was a small business concern after Mrs. Guidice 
had acquired Lyons.

4. In its protest, Premier also argued that INS had "failed to 
evaluate proposals in accordance with the stated evaluation scheme."  
However, INS conducted the procurement using the sealed bid procedures 
prescribed in FAR part 14, which generally require that award be made 
to the responsible bidder whose responsive bid is deemed to be most 
advantageous to the government, considering only price and 
price-related factors.  FAR  sec.  14.408-1(a).  Consequently, except for 
calculating total price (including options), and determining that 
LSSI's bid was responsive, INS did not "evaluate proposals" as that 
concept is applied in negotiated procurements.  Premier also 
maintained that in issuing a COC to LSSI, the SBA improperly 
disregarded vital information bearing on LSSI's responsibility.  In 
its comments on the agency report, Premier withdrew this allegation.  
Premier further argued that the awardee's bid failed to satisfy 
definitive responsibility criteria in the IFB.  Since we sustain the 
protest and recommend that LSSI's contract be terminated, we need not 
address this contention.

5. We note that the "balance sheets and statements of income" 
submitted to DCMC during the pre-award survey, discussed further 
below, make no reference to any intangible assets, casting further 
doubt on the reliability of the valuation in the attachment to the 
purchase agreement.

6. Interestingly, the bottom margin of all pages of the sales 
agreement contain what appear to be the hand-written initials of the 
seller ("J.L." for Juanita Lyons) and the purchaser ("K.G." for 
Kathleen Guidice), indicating their acknowledgment of the terms and 
conditions contained in the agreement.  This attachment, however, 
which was presumably prepared contemporaneously with the sales 
agreement, contains two spaces at the bottom of the page marked "INT:    
INT:   " for the parties to initial.  However, both of these spaces 
are blank, suggesting that the parties either did not agree as to its 
contents or its accuracy, or that neither party intended for it to be 
part of the transaction. 

7. Our decision in Mil-Tech was issued in response to a request from 
the United States Claims Court.  Mil-Tech had filed suit in the Claims 
Court seeking to bar the contracting agency from making award to 
another bidder, following two decisions by our Office concluding that 
Mil-Tech was eligible for award.  In the cited decision, we concluded 
that Mil-Tech was not eligible for award because the sale of its stock 
to another company essentially constituted a prohibited bid transfer.  
In considering this issue, the Claims Court reached the same 
conclusion.