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