BNUMBER:  B-276012.2           
DATE:  September 1, 1998
TITLE: Wackenhut Services, Inc., B-276012.2, September 1, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of:Wackenhut Services, Inc.

File:B-276012.2          

Date:September 1, 1998

Richard J. Webber, Esq., Alison J. Micheli, Esq., and David A. Vogel, 
Esq., Arent Fox Kintner Plotkin & Kahn, for the protester. 
Joseph J. Petrillo, Esq., Karen D. Powell, Esq., and William E. 
Connor, Esq., Petrillo & Powell, for Coastal International Security, 
Inc., an intervenor. 
Lydia R. Kupersmith, Esq., General Services Administration, for the 
agency. 
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Agency was not required to consider depth of offerors' relevant 
past experience--i.e., the number of similar past contracts--in 
evaluating quality of past performance where solicitation did not 
provide for evaluation on this basis.

2.  Agency properly attributed to offeror the experience of its 
teaming partner where teaming partner was to perform [Deleted] of the 
contract effort.

3.  Agency properly awarded to a higher-rated, higher-priced offeror 
where solicitation provided for award on a best value basis, and 
agency reasonably determined that technical superiority of proposal 
outweighed its marginally higher price.

DECISION

Wackenhut Services, Inc. protests the award of a contract to Coastal 
International Security, Inc. under request for proposals (RFP) No. 
GS11P-96-MPC-0510, issued by the General Services Administration (GSA) 
for security guard services at the Ronald Reagan and International 
Trade Center Building in Washington, DC.  The protester takes issue 
with the agency's evaluation of proposals.

We deny the protest.

The RFP provided for award on a best value basis, with the combined 
weight of technical factors of greater importance than price.  
Technical proposals were to be evaluated on the basis of three 
factors:  past performance (worth 60 percent of an offeror's technical 
score), management and plan of operation (worth 20 percent), and 
quality control (also worth 20 percent).  Price proposals were to be 
based on prescribed quantities of hours for three labor categories 
(productive staff-hours, supervisory staff-hours, and contract 
manager); offerors were to furnish fixed hourly rates, fully loaded, 
for each category.  The solicitation advised offerors that award might 
be made on the basis of initial offers without discussions, and that 
each initial offer should therefore contain the offeror's best terms 
from a price and technical perspective.

With regard to the past performance evaluation factor, section M.3.B.1 
of the RFP, as modified by Amendment IV, provided as follows:

     Past Performance.  This is the most important factor.  Under this 
     factor, the Government will consider the offeror's past 
     experience within the last five (5) years executing similar work, 
     as well as the quality of the offeror's past performance 
     considering timeliness and technical success.  In accordance with 
     Section L, Paragraph 11.A,[1] each offer must demonstrate 
     performance of at least two (2) contracts of a similar size and 
     nature within the past five (5) years.  Services are considered 
     similar if the functions, responsibilities, and control exercised 
     by the contractor were essentially the same as required by the 
     solicitation.  A contract is comparable in size if the required 
     manhours are equivalent to or greater than 50% of the productive 
     hours required by this solicitation.  This is a minimum 
     requirement.  Failure to meet this requirement will render the 
     offer technically unacceptable.  If the contractor meets this 
     requirement, the Government will evaluate the information to 
     determine the quality of the offeror's past performance.  

Thirteen offerors, including Wackenhut, Coastal, and Areawide 
Services, Ltd., submitted proposals by the February 14, 1997 closing 
date for receipt of proposals.  In September 1997, Wackenhut purchased 
all assets of Areawide, and Areawide was merged into Wackenhut; thus, 
Wackenhut became Areawide's successor in interest with regard to its 
proposal.  See J. I. Case Co., B-239178, Aug. 6, 1990, 90-2 CPD  para.  108 
at 3.  GSA proceeded with evaluation of both the Wackenhut and the 
Wackenhut-Areawide proposals.[2]

Coastal received a score of 9 (of a possible 10) under each technical 
evaluation factor, for an overall score of 9, which was the highest 
technical score awarded; its price of $41,652,939.09 was fifth low.  
Coastal identified eight security guard contracts performed by it and 
its teaming partner, Akal Security, Inc., over the past 5 years; five 
of the eight met the RFP's definition for similarity. Wackenhut 
received a score of 8 under each evaluation factor; its overall 
technical score of 8 was tied for third high, while its price of 
$41,094,665.50 was third low.  Wackenhut identified 14 previously or 
currently-performed security services contracts, 4 of which met the 
RFP's definition of "similar".  Areawide's proposal received a score 
of 7 under the past performance evaluation factor, a score of 7.5 
under the management and plan of operation factor, and a score of 9 
under the quality control factor, for an overall score of 7.5, which 
was sixth high; its price of $40,202,056.93 was lowest.    Areawide 
identified 18 security services contracts in its proposal, 3 of which 
were similar in size and scope to the effort solicited here.

The source selection evaluation board (SSEB) found that Coastal's 
combination of technical merit and price represented the best value to 
the government and recommended award to that firm without discussions.  
The source selection authority concurred in the recommendation, and on 
May 15, 1998 GSA awarded a contract to Coastal.  Wackenhut received a 
debriefing on May 28 and protested to our Office on June 1.

Wackenhut argues that it was unreasonable for the agency not to 
consider the depth of an offeror's relevant past experience (by which 
the protester means the number of large, complex security guard 
service contracts performed by the offeror within the past 5 years) 
when evaluating the quality of its past performance.  The protester 
contends that the purpose of evaluating past performance is to assess 
the probability of successful performance of the effort now solicited, 
and that such an assessment cannot be made without considering the 
number and nature of previously performed contracts.  In the 
alternative, Wackenhut argues that the agency's evaluation of past 
performance was unreasonable because the evaluators considered 
offerors' performance on contracts not meeting the RFP's definition 
for similarity as to size.

The RFP here did not provide for a comparative evaluation based on the 
number of contracts performed by the offerors; rather, it provided 
that the agency would evaluate the past performance of those offerors 
who demonstrated that they had performed at least two contracts of a 
similar size and nature within the past 5 years.  In effect, the RFP 
reflects the agency's judgment that performance of two similar 
contracts during the past 5 years was necessary to demonstrate that an 
offeror had the capability to perform the requirements here, but that 
there was no particular benefit to having performed more than two.  
Having made that judgment, it clearly was proper for the agency not to 
consider the number, per se, of prior contracts beyond the stated 
minimum of two, in the past performance evaluation.  This does not 
mean that an agency may never consider the number of prior contracts 
in evaluating experience and past performance; it does mean, however, 
that, given the terms of the RFP, the agency was not required to do so 
here.

Regarding the protester's second argument, we think that it was 
unclear from the face of the solicitation whether only contracts 
similar in size and nature to the effort here were to be considered in 
the evaluation of an offeror's past performance.  On the one hand, the 
most logical interpretation of the section M paragraph describing the 
evaluation of past performance is that only contracts similar in size 
and nature will be considered.  In this regard, the paragraph sets 
forth the requirement for performance of at least two contracts of a 
similar size and nature within the past 5 years and describes what is 
meant by similar size and nature; it then provides that if the offeror 
meets this requirement, "the Government will evaluate the information 
to determine the quality of the offeror's past performance."  RFP  sec.  
M.3.B.1, as modified by Amendment IV (emphasis added).   In our view, 
the most logical interpretation of this sentence is that the 
information that will be evaluated is the information demonstrating 
compliance with the requirement for two or more similar contracts.  On 
the other hand, however, we think that the most logical interpretation 
of section L, paragraph 11.A, which advises offerors that the 
government will contact entities for which they have performed 
services to evaluate their past performance record and instructs them 
to identify all of their current and recently performed contracts, is 
that the government will consider past performance information 
pertaining to non-similar contracts as well. 

To the extent the sentence was ambiguous, the ambiguity was patent, 
however, and an offeror who chooses to compete under a patently 
ambiguous solicitation does so at its own peril, and cannot later 
complain when the agency proceeds in a way inconsistent with one of 
the possible interpretations.  Federal Computer Int'l Corp., B-276885, 
July 29, 1997, 97-2 CPD  para.  35 at 3.  Moreover, we fail to see how the 
protester was prejudiced by the agency decision to consider references 
for contracts smaller in size than the effort here in evaluating past 
performance.  See Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 
92-1 CPD  para.  379 at 5 (competitive prejudice is an essential element of 
a viable protest).  The record shows that Coastal/Akal received scores 
of 9 or 10 for the four contracts similar in size for which the 
evaluators were able to contact a reference[3] and scores of 8, 9, and 
10 for the three smaller contracts that were rated, Agency Report, 
exhibits 15-18; thus, it is evident from the record that, if anything, 
Coastal would have received a higher score under the past performance 
evaluation factor if the references for the smaller contracts had not 
been considered.  Wackenhut's scores for smaller-scale contracts, on 
the other hand, were, on the average, higher than its scores for 
contracts comparable in size to the effort here (and Areawide's scores 
were roughly equivalent), Agency Report, exhibits 20-23, 25-28; thus, 
it does not appear that either offeror would have received a higher 
score under the past performance factor if the smaller scale contracts 
had not been considered. 

Wackenhut further argues that the evaluators improperly credited 
Coastal with the experience of its teaming partner, Akal Security, 
Inc., without establishing that Akal would be involved in management 
of the contract.

In determining whether one company's performance should be attributed 
to another, an agency must consider the nature and extent of the 
relationship between the two companies--in particular, whether the 
workforce, management, facilities, or other resources of one may 
affect contract performance by the other.  ST Aerospace Engines Pte., 
Ltd., B-275725, Mar. 19, 1997, 97-1 CPD  para.  161 at 3.  In this regard, 
while it would be inappropriate to consider a company's performance 
record where that record does not bear on the likelihood of successful 
performance by the offeror, it would be appropriate to consider a 
company's performance record where it will be involved in the contract 
effort or where it shares management with the offeror.  Id. at 3-5.  
Thus, an agency may properly attribute to an offeror the performance 
of firms that are members of the offeror's proposed team where the 
team members are to be involved in the contract effort.  NAHB Research 
Ctr., Inc., B-278876.2, May 4, 1998, 98-1 CPD  para.  150 at 4-5.

Here, according to an agreement between Coastal and Akal, a copy of 
which was furnished as part of Coastal's proposal, Akal is to perform 
[Deleted] of the total contract price with its own employees.  Thus, 
it is clear that Akal's workforce will be substantially involved in 
the contract effort despite the fact that overall management 
responsibilities will remain with Coastal.  Given the extent of Akal's 
involvement in contract performance, we see nothing inappropriate in 
GSA having attributed Akal's past performance to Coastal.

Wackenhut also argues that the agency has not adequately justified its 
determination that Coastal's higher-priced, higher-rated proposal 
represents the best value to the government. The protester contends 
that the SSA did not find that the superior technical merit of 
Coastal's proposal justified its higher price, but instead relied 
simply on the fact that the percentage difference in technical scores 
between the Coastal proposal and the lower-priced ones was greater 
than the percentage difference in prices.  Wackenhut also argues that 
the agency relied on an unstated evaluation factor--i.e., how 
well-prepared and tailored to the requirements of the solicitation the 
proposal was--in selecting Coastal's proposal for award.

Where, as here, an RFP provides that technical considerations will be 
more important than price in the award process, source selection 
officials have broad discretion in determining the manner in which 
they will make use of the technical and price evaluation results in 
arriving at a source selection decision.  Red River Serv. Corp.; Mark 
Dunning Indus., Inc., B-253671.2 et al., Apr. 22, 1994, 94-1 CPD  para.  385 
at 6.  An agency may award to a higher-rated, higher-priced offeror 
where the decision is consistent with the evaluation scheme set forth 
in the solicitation and the agency reasonably determines that the 
technical superiority of the higher-priced offer outweighs the price 
difference.  Advanced Management, Inc., B-251273.2, Apr. 2, 1993, 93-1 
CPD  para.  288 at 6.

Here, although the source selection decision did not explicitly state 
that the superior technical merit of Coastal's proposal justified its 
higher price, it is clear from the document, which was prepared by the 
SSEB and approved by the SSA, that this is precisely what the agency 
officials had concluded.  In this regard, the report noted that 
Coastal's overall technical score was significantly higher than the 
scores of the three technically-acceptable, lower-priced offerors, 
whereas its price was less than 3.5 percent higher than the 
lowest-priced offeror's.  Moreover, it is apparent from the record, 
which enumerates numerous strengths in Coastal's proposal, that the 
evaluators had a reasonable basis for viewing the proposal as 
technically superior.[4]  The evaluators noted, for example, that 
Coastal had received the highest overall past performance ratings from 
its customers, all of whom had expressed a high degree of satisfaction 
with its quality of service.  In addition, the proposal offered 
significant value-added features, such as the provision of an 
administrative assistant to the contract manager at no additional cost 
to the government; a requirement that all supervisors possess a 
Special Police Officer license, which, according to the agency, is 
considerably more difficult to obtain than the required GSA 
supervisory certification and which ensures that the supervisors are 
highly qualified for their duties; and a drug-testing program for all 
job applicants.  SSEB report, at 11-14, 33-34.

Regarding the protester's second complaint, we see nothing 
objectionable in the evaluators' reference to how well prepared and 
tailored to the requirements of the solicitation Coastal's proposal 
was.  Consideration of how well a proposal addresses the requirements 
of a solicitation is inherent to any technical evaluation.

Finally, Wackenhut raised a number of additional arguments in its 
initial protest that it did not pursue after submission of the agency 
report.  For example, the protester alleged that GSA had deviated from 
the evaluation scheme set forth in the RFP by failing to evaluate 
offerors' past experience.  It also argued that the agency's 
evaluation of past performance was arbitrary in that the agency made 
no effort to interpret the information furnished by contract 
references or to take into account the number of references 
responding, but instead simply averaged the scores furnished by the 
references contacted.  Wackenhut conjectured, in the latter regard, 
that Coastal's rating may have been based on references from a small 
number of agencies that were not "tough graders," while its own rating 
was based on a broader sampling.  The protester also complained that 
the record did not support the scores assigned its proposal under the 
second and third evaluation factors, and that GSA had failed to give 
Wackenhut the opportunity to respond to negative comments made by 
contract references concerning Areawide's performance.

The agency denied the first allegation in its report, noting that it 
had evaluated offerors' past experience to determine whether they met 
the minimum requirement of having performed two contracts of a similar 
size and nature within the past 5 years, which was the only evaluation 
of experience provided for in the RFP.  The agency also denied that 
the evaluators had blindly adopted the scores given by the references; 
rather, GSA explained, the evaluators had conducted interviews with 
the references using a standardized questionnaire to confirm the 
substance and basis for the ratings, and had adjusted the point scores 
furnished by the references where these scores were inconsistent with, 
or unsupported by, the factual assertions of the references. 

GSA also noted that, contrary to the protester's conjecture, the 
evaluators did consider approximately the same number of references 
for each offeror (i.e., 8 for Coastal, 10 for Wackenhut, and 8 for 
Areawide); to the extent that there was minor variation in these 
numbers, the agency explained, it was attributable to the fact that 
the evaluators had contacted an additional reference (or references) 
if one of those originally contacted did not respond, and that in some 
cases, those who had initially not responded did in fact call back 
after additional references had been contacted.

Regarding Wackenhut's third argument, the agency demonstrated in its 
report that the record did support the scoring of Wackenhut's proposal 
under the second and third evaluation factors.

Finally, regarding the protester's allegation that the agency failed 
to furnish it with the opportunity to explain the negative comments 
made by certain of the Areawide references, GSA contends that it was 
not required to furnish such an opportunity because it did not conduct 
discussions.  GSA also notes that the evaluators were aware that the 
negative rating furnished by one Areawide reference was attributable 
to that reference's dissatisfaction with the transfer of guards from 
its site to the Reagan building under an interim contract for the 
services solicited here--which is the information that Wackenhut says 
it would have explained had it been given the chance--and raised 
Areawide's past performance rating for that contract from a 3/4, which 
signifies a fair score, to a 7, which reflects a good score.

Wackenhut has not attempted to rebut the agency position with regard 
to any of these arguments in its comments; accordingly, we consider it 
to have abandoned the foregoing arguments.  Arjay Elecs. Corp., 
B-243080, July 1, 1991, 91-2 CPD  para.  3 at 1 n.1.   

The protest is denied.

Comptroller General
of the United States

1. Section L, paragraph 11 described the information to be included in 
technical proposals.  Subparagraph A (Experience and Past Performance) 
provided:

            The Government will contact individuals and firms for 
            which you have performed services to evaluate your 
            experience and past performance record.  Offerors shall 
            submit an Exhibit 14 (. . .) for ALL current contracts and 
            ALL contracts performed within the past five (5) years to 
            demonstrate that they have successfully performed 
            contracts for similar services.

                           .     .     .     .     .

            A minimum of two (2) contracts listed must be similar in 
            nature and size to the required services in this 
            solicitation, and performed within the past five (5) 
            years, in order for the offer to be considered minimally 
            acceptable.  Any offer containing less than two (2) 
            contracts similar in size and nature will be considered 
            technically unacceptable.

                           .     .     .     .     .
              
2. As a preliminary matter, the agency asks that we dismiss 
Wackenhut's protest against the evaluation of the Wackenhut-Areawide 
proposal on the ground that this  proposal would be ineligible for 
award if the competition were reopened.  GSA argues, in this regard, 
that the RFP permitted each offeror to submit only one technical 
proposal--"[f]or purposes of this solicitation, only one technical 
proposal shall be submitted by each offeror", RFP  para.  10.D, at 
IV-L-4--and that now that Areawide has merged into Wackenhut, the 
proposal constitutes an improper second proposal by that firm.

We decline to dismiss the protest against the evaluation of the 
Wackenhut-Areawide proposal because it is not clear to us that the 
proposal would be ineligible for award if the competition were 
reopened.  First, the language cited limits each offeror to the 
submission of a single technical proposal, but does not expressly 
address the situation here--i.e., where one offeror merges into 
another after the submission of technical proposals.  Second, to the 
extent that any such restriction may have applied, the agency in 
effect waived it by proceeding with evaluation of both proposals.  
Finally, even assuming that in the event the competition were 
reopened, the agency could compel Wackenhut to withdraw one of the 
proposals--so that it would have only one proposal under consideration 
for award--we have no way of knowing which proposal Wackenhut would 
choose to withdraw.

3. Specifically, the references on three of the contracts gave scores 
of 9, "high 9 or 10," and 10; for the fourth contract, the evaluators 
spoke to two references, who gave scores of 9 and "9 or 10."

4. In this regard, we think that this case is distinguishable from SDA 
Inc., B-248528.2, Apr. 14, 1993, 93-1 CPD  para.  320, cited by the 
protester, in which we found that a cost/technical tradeoff grounded 
solely on point scores was unreasonable where the point scores 
themselves did not have a reasonable basis.