BNUMBER:  B-276066 
DATE:  May 7, 1997
TITLE: Matter of:B & K Enterprises 

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Matter of:B & K Enterprises

File:     B-276066

Date:May 7, 1997

Timothy H. Power, Esq., for the protester.
Philip K. Kauffman, Esq., Merilee D. Rosenberg, Esq., and Phillipa L. 
Anderson, Esq., Department of Veterans Affairs, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Under solicitation for janitorial services at an outpatient clinic 
which contained no provision for considering hospital-specific 
experience (as opposed to the offeror's general history of compliance 
with specifications and delivery schedules), protest that agency 
should have given extra credit during proposal evaluation for 
hospital-specific experience is without merit.

2.  Under solicitation for janitorial services, protester's contention 
that allowing the awardee to substitute the protester's janitorial 
personnel for the personnel identified in the awardee's proposal 
presents no basis for concluding that the substitution of personnel 
constitutes an improper "bait and switch" where there was no 
limitation on substitution of personnel in the solicitation and there 
is no basis to conclude that the qualifications of the proposed 
personnel influenced the evaluation such that allowing the 
substitution would compromise the validity of the technical 
evaluation.

DECISION

B & K Enterprises protests the award of a contract to P. E. Hoover 
Enterprises, Inc. under solicitation No. 544-001-97, issued by the 
Department of Veterans Affairs (VA) for janitorial services.  The 
protester asserts that the agency did not evaluate proposals in 
accordance with the criteria listed in the solicitation.

We deny the protest.

On September 13, 1996, the agency issued the solicitation for a firm, 
fixed-price contract for a base year, with two 1-year option periods, 
to furnish all personnel and materials necessary to provide janitorial 
service at its outpatient clinic in Greenville, South Carolina.  The 
solicitation incorporated by reference the clause at Federal 
Acquisition Regulation  sec.  52.215-16, providing for award based on the 
offer most advantageous to the government, price, and other factors, 
specified elsewhere in the solicitation, considered.

Section M of the RFP, which contained the selection criteria for 
award, stated that the agency would score proposals, on a scale of 100 
points, and listed the evaluation factors, in descending order of 
importance, as follows:

     "1.  Offeror's previous experience, present expertise and 
     [p]ersonnel that will perform the services under this 
     [j]anitorial [s]ervice contract.

     "a.  Offeror must provide three references with full names and 
     addresses, point of contract and telephone number of others they 
     have performed similar services for.  If [o]fferor has performed 
     similar services for other [g]overnment agencies, please provide 
     this information also.  Offeror will submit resume of individuals 
     to perform the work under this contract.

     "b.  Information should include at a minimum the offeror's record 
     of conforming to the specifications and to standards of good 
     workmanship, adherence to cont[r]act schedules and offeror's 
     history for reasonable and cooperative behavior and commitment to 
     customer satisfaction.

     "2.  Offeror's understanding of the 'Scope of Work.'  Offeror's 
     [a]bility to successfully comply with contract requirements and 
     offeror's proposed *Quality Control Program.

     "3.  [Price]:  The lowest evaluation price in Section B will be 
     given the maximum points available for [price] evaluation 
     purposes.  Each other offeror will receive a percentage of the 
     maximum points allowed for this factor based on the ratio of 
     their [price] to the lowest [price]."

The statement of work (SOW) required a minimum of three employees, 
with a minimum of 1-year experience in housekeeping/janitorial 
service, one of which would be a working supervisor "on duty daily and 
during special cleaning projects."  Work hours encompassed a 40-hour 
work week--8 hours a day, 5 days a week.  The SOW required the 
supervisor to have 2 years experience with housekeeping in a health 
care environment.  The solicitation contained no limitation on 
substitution of personnel, but the SOW required the contractor to 
submit documentation and references of previous employment for all 
personnel.

The agency received nine proposals on October 15 and referred them to 
a technical evaluation panel.  The panel performed an evaluation, and 
the agency conducted discussions.  The evaluation panel reviewed the 
offerors' responses to discussion questions, and the agency then asked 
the offerors to submit their best and final offers (BAFO) by December 
11.  The BAFOs of Hoover and the protester received the maximum 
technical score of 90 out of 90 available points.  However, Hoover's 
slightly lower price received 5 out of 10 available price points, 
versus 4 points for the protester.  On January 16, 1997, the agency 
awarded a contract to Hoover, and this protest followed.

The protester's initial contention is that its specific VA hospital 
experience should have been the basis for a higher evaluation rating.  
This argument is untimely to the extent that B & K contends that the 
solicitation should have specifically provided for the consideration 
of such experience.  4 C.F.R.  sec.  21.2(a)(1) (1997) (protest alleging a 
solicitation impropriety must be filed prior to the time set for 
receipt of initial proposals); Sun Microsystems Fed., Inc., 
B-254497.2; B-254497.3, May 20, 1994, 94-1 CPD  para.  318 at 14 (protest 
that RFP failed to provide for consideration of cost of switching from 
the incumbent to another supplier should have been raised prior to the 
date set for receipt of initial proposals).  In any event, to the 
extent that B & K asserts that it should have received more credit for 
its hospital-specific experience, B & K has no grounds for protest, 
since the record here shows that its proposal received the maximum 
technical score--90 of 90 points available in the technical 
evaluation.

Moreover, to the extent the protest can be read as contending that it 
is implicit in the experience evaluation factor that proposals from 
offerors with hospital-specific experience would receive higher scores 
than proposals from offerors without such experience, the record does 
not support that contention.  The language of the RFP indicates that 
the evaluation's chief emphasis was on the contractor's record of 
following simple, straightforward instructions--its record of 
compliance with specifications and delivery schedules, its standards 
of workmanship, and its reputation for cooperative behavior.  

As a second ground of protest, B & K contends that Hoover did not 
submit true and correct resumes for the persons that it intended to 
perform work under the contract.  The protester asserts that the 
awardee contacted B & K's employees after award about the possibility 
of working for Hoover, an action that showed Hoover's intention of 
substituting for those employees whose resumes it submitted in its 
proposal.

Proposing to employ specific personnel that the offeror does not 
expect to actually use during the contract performance--a "bait and 
switch"--can have an adverse effect on the integrity of the 
competitive procurement system.  By proposing individuals of whom 
evaluators are likely to think highly, with the intention of 
substituting less qualified personnel after award, an offeror 
compromises the validity of the technical evaluation.  CBIS Fed., 
Inc., 71 Comp. Gen. 319, 322-324 (1992), 92-1 CPD  para.  308 at 5-7.  On 
the other hand, where there is no evidence that the agency was misled 
into selecting an offeror it would not otherwise have selected, we 
will not overturn a selection decision merely because the awardee 
employs a different group of employees from those proposed, 
particularly where the substituted employees have the same 
qualifications and skill levels as those proposed.  Ebon Research 
Sys., B-261403.2, Sept. 28, 1995, 95-2 CPD  para.  152 at 5.

Here, the protester is apparently suggesting that by substituting the 
personnel that B & K would have employed for those proposed by Hoover, 
the awardee is somehow degrading contract performance from the level 
proposed in its offer.  Such a suggestion is in direct contradiction 
to B & K's argument, that its personnel are superior to those proposed 
by Hoover because of their specific VA hospital experience.  In any 
event, as noted above, the solicitation contained no limitation on the 
substitution of personnel after award; nor, in the context of this 
janitorial effort, is there any basis for presuming that any 
particular candidate for the position possesses such outstanding 
qualifications for the position that allowing an offeror to substitute 
some other candidate would compromise the validity of the technical 
evaluation.

In commenting on the report filed by the agency in response to the 
protest, B & K argues that the procurement should have been conducted 
by sealed bidding, since price was the ultimate determining factor in 
selecting a contractor.  To the extent B & K is challenging the 
procurement approach chosen by the agency, which was clear from the 
RFP, any such argument is untimely, since allegations of impropriety 
apparent on the face of the solicitation must be raised prior to the 
time set for submission of initial proposals.  4 C.F.R.  sec.  21.2(a)(1).

Finally, to the extent that the protester is contending that the 
evaluation and selection of the lower-priced offeror was inconsistent 
with the solicitation's emphasis on technical factors, B & K points to 
the fact that the agency retained Hoover's proposal in the competitive 
range, despite its failure to submit a full technical proposal, simply 
because of the awardee's attractive price.  The agency's decision to 
include Hoover's proposal in the competitive range, despite the 
omission of certain technical information,[1] does not show that the 
agency abandoned the evaluation scheme in the RFP in favor of making 
award on the basis of price alone.  Rather, the record shows that in 
its BAFO Hoover substantially improved its proposal's initial 
technical score by providing the missing information; that B & K's and 
Hoover's BAFOs received the same technical scores; and that the agency 
then selected Hoover's proposal, the lower priced of the two.  Even 
where the solicitation emphasizes technical considerations over price, 
price properly becomes the determining factor for award where, as 
here, proposals are found technically equal.  PHP Healthcare Corp.; 
Sisters of Charity of the Incarnate Word, B-251799 et al., May 4, 
1993, 93-1 CPD  para.  366 at 9-10.  Thus, we see no basis to conclude that 
the agency's evaluation or selection decision was inconsistent with 
the evaluation scheme set out in the RFP.

The protest is denied. 

Comptroller General
of the United States

1. Specifically, the evaluators found that Hoover's initial proposal 
lacked information regarding the firm's experience, expertise, and 
proposed personnel.