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.