BNUMBER:  B-277213; B-277213.2 
DATE:  September 16, 1997
TITLE: Dynamic Resources, Inc., B-277213; B-277213.2, September 16,
1997
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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:Dynamic Resources, Inc.

File:     B-277213; B-277213.2

Date:September 16, 1997

Richard J. Conway, Esq., James Andrew Jackson, Esq., and Edward W. 
Kirsch, Esq., Dickstein Shapiro Morin & Oshinsky, for the protester.
Daniel B. Abrahams, Esq., and Raymond Fioravanti, Esq., Epstein Becker 
& Green, P.C., an intervenor.
Elaine A. Eder, Esq., Isaac Johnson, Jr., Esq., and Robert E. Korroch, 
Esq., U.S. Coast Guard, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Pre-award survey conducted by contracting agency of successful 
offeror's prospective responsibility did not constitute improper 
discussions with only that offeror, even though agency subsequently 
decided to request best and final offers, where agency held 
discussions with the protester as well as other offerors prior to the 
request for best and final offers, the information obtained during the 
pre-award survey did not change the results of the selection decision 
in any way and, in any case, protester does not identify any specific 
areas of its proposal it should have been given an opportunity to 
improve.

2.  An awardee did not materially misrepresent the availability of its 
proposed personnel where it obtained resumes from such personnel and 
had a reasonable basis to expect that the employees would be available 
for contract performance.

DECISION

Dynamic Resources, Inc. (DRI) protests the award of a contract to FC 
Business Systems under request for proposals (RFP) No. 
DTCG23-96-R-EA7001, a section 8(a) competitive set-aside, issued by 
the United States Coast Guard for professional services to operate and 
maintain computerized management information systems.  DRI principally 
alleges that the agency conducted a comprehensive and detailed 
pre-award survey of FC prior to receipt of best and final offers 
(BAFO) which constituted improper discussions with only that firm; 
that the agency misevaluated FC's proposed key personnel and DRI's 
past performance; and that FC engaged in "bait and switch" tactics 
with respect to certain proposed personnel.

We deny the protest.

BACKGROUND

The RFP was issued on September 19, 1996, and contemplated the award 
of an indefinite delivery/indefinite quantity contract to maintain and 
operate the agency's aviation maintenance database systems--the 
Aviation Computerized Maintenance System (ACMS) and the Aviation 
Maintenance Management Information System (AMMIS)--including operation 
of computer hardware and telecommunications equipment, design and 
update of application software and other technical services.  
Additionally, the RFP potentially required the contractor to integrate 
the two large transactional databases, ACMS with AMMIS, into the 
Aviation Logistics Management Information System (ALMIS), which will 
support mission critical aviation logistic business processes such as 
aircraft maintenance, reliability, repair, overhaul, supply, flight 
operations and management analysis for the agency's Aircraft Repair 
and Supply Center and 26 Coast Guard air stations.  The RFP requested 
prices for a base period and 4 option years, which were to be 
evaluated.

The RFP contained 33 separate and specific labor categories of 
personnel who were required to perform maintenance-related services, 
and identified specific education and experience requirements for 
each.  The RFP also identified certain of these labor categories as 
"key personnel," which were defined as "those persons, whether 
employed by the offeror or by one of the offeror's [prospective] 
subcontractors and teaming contractors who will occupy the following 
positions or perform" any of the following duties:  program manager; 
technical manager; senior reliability engineer; computer programmers; 
aircraft maintenance analysts; programmer/analyst; and software 
engineer (emphasis in original).  The RFP required a personnel data 
form (PDF) to be completed for each key person, but did not require 
letters of commitment.

The RFP stated that the agency intended to award without discussions, 
unless  discussions were later determined to be necessary, and would 
award the contract to the offeror whose proposal represented the best 
overall value to the government "on the basis of its offer and its 
capability to perform the work."  The RFP contained the following 
evaluation factors, listed in descending order of importance:  (1) 
offer acceptability (an initial determination of the acceptability of 
an offer on a pass/fail basis to ascertain that the offer assents to 
all terms and conditions of solicitation requirements); (2) cost and 
price, fee and profit reasonableness and realism (use of cost and 
price analysis for cost/price reasonableness/realism); and (3) 
capability of competing offerors, including the subfactors of past 
performance,[1] qualifications of key personnel, experience, and 
understanding of the government's requirements and the nature of the 
work.  The RFP required each offeror to submit written capability 
information, a cost proposal, and oral presentation slides.  The oral 
presentation slides were required because the RFP stated that the 
agency would employ an oral presentation medium, among other things, 
to evaluate and select the successful offeror.  The RFP stated that 
the oral presentation and the question and answer session were tests 
of the offeror's capability and would not become a part of the 
proposal.

Six offers were received by the initial closing date, including those 
of DRI and FC.  The agency convened a technical evaluation team (TET), 
which was responsible for evaluating technical information,[2] and 
which also sent out past performance questionnaires.  The TET 
determined that all offers were acceptable and that all offerors were 
eligible to participate in oral presentations, which were conducted 
from December 5 through December 12.  The agency's cost/price report, 
completed on January 24, 1997, stated that all offers were reasonably 
and realistically priced.  However, the contracting officer was 
advised that negative past performance ratings had been received on 
proposed subcontractors of two offerors, DRI and another offeror not 
involved in this protest.  DRI's proposed subcontractor, [deleted], 
had been given a negative rating by the Coast Guard program office for 
its performance of a contract concerning [deleted].  The agency 
requested a rebuttal from [deleted] (DRI was sent a copy of the 
request), and the rebuttal was received on March 3.

[Deleted] rebuttal, which disputed the poor negative rating, was 
referred to the Chief, Office of Aeronautical Engineering, who 
determined that the rebuttal did not alter the original past 
performance rating and so advised the contracting officer.  The 
rebuttal was not shown to the TET, which was informed of the Office of 
Aeronautical Engineering Chief's decision.  The TET submitted its 
final report on March 14 with the following results, including 
price/cost (which had been evaluated earlier as reflected in the 
agency's cost report):

     OfferorTechnical RatingMost Probable Cost Risk

     FC           Green         [deleted]    [deleted]

     DRI          Green         [deleted]    [deleted]
The TET's ratings were based on its finding that both proposals were 
comprehensive and met or exceeded all requirements.  For example, with 
respect to FC, the TET found that the "corporate teaming partners have 
successfully performed on several projects similar to ALMIS [and that 
its talent] pool is deep and matrix arrangements are strong."  The TET 
also noted that FC's project manager handled the key personnel 
quality/availability problem presented to the firm during the oral 
presentation session "most adroitly."  Further, the TET noted that FC 
and its team have a "track record" with each other and experience with 
the company.  The TET ultimately assigned a low technical risk to FC 
because its proposed team was "solid" and its past performance 
"indicates a pursuit of excellence." 

Concerning DRI, the TET noted that its team [deleted].

                         [deleted].

Based on these considerations, the TET recommended award to FC as the 
best value offeror.  The source selection official (SSO--the 
contracting officer) accepted the recommendation and made a formal 
determination to award the contract to FC.  The agency's program 
officer then requested a pre-award survey to "validate the information 
presented by [FC] and [its] primary subcontractor during the oral 
presentation."  The pre-award survey was conducted on April 1 and 2, 
with two quality assurance personnel, the contracting officer, and the 
TET Coordinator, among others, present.  The agency continued to 
proceed to process the award without discussions.  However, upon 
review of the acquisition files, the agency attorney recommended to 
the contracting officer that discussions be conducted to allow DRI 
(and the third offeror) to address the negative past performance 
ratings of their subcontractors in view of past correspondence with 
these subcontractors, which the agency attorney believed may have 
constituted partial discussions, necessitating the affording of an 
opportunity to submit a best and final offer (the FC proposal was not 
in issue in this determination).  On April 17, the agency conducted 
discussions with each offeror, including discussions with DRI about 
the past performance of its subcontractor, [deleted].  Cost was the 
only topic of discussion with FC.

Subsequently, all offerors were requested to submit their BAFOs.  
After receipt of BAFOs, the agency evaluated FC's most probable cost 
at [deleted], and DRI's most probable cost was evaluated at [deleted].  
Additionally, the TET reconvened on April 30 to review the BAFO past 
performance information submitted by DRI and the third offeror.  In an 
"augmented" report (dated May 2) provided to the contracting officer, 
the TET continued to "maintain its original recommendation" that FC 
still be selected for award.  The SSO, after reviewing the 
recommendation, maintained her selection decision of FC because she 
"determine[d] that the offer proposed by [FC] still represents the 
best overall value to satisfy the Coast Guard's requirements."  She 
also stated that her "original determination to award to this firm, 
therefore, stands."  This protest followed a debriefing afforded to 
DRI.

DRI raises numerous arguments concerning the evaluation and the award 
decision.  We have reviewed the record and find all to be without 
merit.  We discuss the principal arguments below.

ALLEGED IMPROPER DISCUSSIONS

DRI argues that the agency improperly employed the pre-award survey to 
supplement, modify, and improve FC's technical proposal and oral 
presentation.  According to DRI, the TET Coordinator was involved in 
developing a list of documents and proposed pre-award questions that 
corresponded to the topics which were the subject of the oral 
presentation.  DRI concludes that, had it been afforded an equally 
comprehensive opportunity to discuss its proposal with the agency, the 
evaluation results may have been different.

We find nothing improper in the agency's actions.  The agency 
conducted a routine pre-award survey of FC, not to provide FC a 
competitive advantage, but because the agency had decided at that 
juncture to make award to FC based on the results of the evaluation.  
When the agency then determined, prior to the award, that 
circumstances required discussions with all offerors, it accomplished 
this by the only means available--by opening discussions with all 
offerors.  The agency then provided all an opportunity to submit a 
BAFO, again, not to allow FC an unfair opportunity to revise its 
proposal, but because the regulations require it.  See Federal 
Acquisition Regulation  sec.  15.611(a).  While the agency did not conduct 
a "pre--award survey" of DRI, the discussions with the firm addressed 
the agency's concerns with its proposal, and the call for BAFOs 
provided DRI the opportunity to revise its proposal in response; DRI 
was unable to allay the agency's concerns in its revised proposal.  
While DRI asserts generally that a "pre-award survey" would have 
provided it an opportunity to address more fully "technical issues" 
and deficiencies, DRI's protest and written comments do not identify 
even a single, specific "technical issue" or deficiency that the 
agency should have--but failed to--discuss with the firm during the 
procurement.  Further, both offerors' technical proposals were rated 
"green" (satisfactory), and FC's offered price was lower than DRI's  
before and after receipt of BAFOs.  There thus is no basis to conclude 
that FC "improved" its competitive standing as a result of the 
pre-award survey, or that DRI improperly was deprived of an 
opportunity to improve its own standing.

KEY PERSONNEL

DRI maintains that the agency misapplied the RFP's Key Personnel 
provision in evaluating FC's proposal.  According to the protester, 
the agency improperly gave FC credit for proposing 29 key personnel, 
when, in fact, the firm had only designated 7 of the individuals it 
proposed as key personnel.  DRI concludes that FC's proposal "should 
have been rejected as non-responsive" because it failed to propose 
enough key personnel.

This argument is without merit.  The only significant difference 
between key and nonkey personnel in the RFP was that a PDF had to be 
included for key personnel.  While FC may have labeled only seven 
individuals as key personnel, it included PDFs for all personnel it 
proposed, and the agency reasonably treated the mislabeling as a 
clerical error and therefore evaluated as key personnel those 
individuals proposed for positions whose occupants the RFP indicated 
were key personnel.  In any event, it is not apparent why any 
significance should be attached to the mislabeling of the individuals 
in FC's proposal, since there is no indication that the mislabeling 
could have given FC any advantage in the evaluation.  We conclude that 
the agency's evaluation in this regard is reasonable, particularly in 
light of the fact that the protester does not question the 
qualifications, credentials, education, or experience of the personnel 
FC proposed.

PAST PERFORMANCE

Past performance was the most important of the technical merit 
subfactors.  Past performance information for both the prime 
contractors and their proposed subcontractors was obtained by the TET 
through the use of past performance questionnaires.  DRI's proposal 
identified [deleted] work on the [deleted], and that program office 
responded to the past performance questionnaire with an unfavorable 
rating.  For example, [deleted] received the following comments 
concerning the [deleted]:

     [deleted]

     [deleted]

     [deleted]

     [deleted]
The questionnaire concluded with the following statement:

                         [deleted].

However, despite the [deleted] rating received, the TET recognized 
[deleted] and awarded DRI a [deleted] for this evaluation factor.

DRI complains that [deleted].  DRI states that [deleted].

DRI's focus on the allegedly faulty past performance ratings of its 
subcontractor is misplaced.  As stated above, the agency's primary 
concerns were not with [deleted], but with DRI's own past performance 
record.  As part of the evaluation, DRI's past performance on eight 
contracts was reviewed (one additional contract report from the 
Federal Prison Industries was disregarded).  The questionnaire 
responses on [deleted] of the eight contracts received by the agency 
[deleted].  In the questionnaire, each respondent was asked, among 
other things, to provide summary ratings of 0 (unsatisfactory), 1 
(poor), 2 (fair), 3 (good), or 4 (excellent) for quality, cost 
control, timeliness, business excellence, and customer satisfaction.  
DRI's average score for these factors on these five contracts were 
[deleted].  Its overall average score for all [deleted].  While the 
remaining questionnaires showed that DRI's performance was [deleted].  
Consequently, even if we assume, arguendo, that the Coast Guard 
misconstrued one reference involving its subcontractor, there is no 
basis for questioning the rating of DRI's proposal as 
[deleted]--rather than [deleted]--for this subfactor.

ALLEGED BAIT AND SWITCH

In its initial protest, DRI alleged "on information and belief" that 
FC proposed a   [deleted] as a key employee, knowing that he would be 
unavailable to be employed under the contract.  When the agency and 
the intervenor presented evidence that [deleted] had entered into a 
consulting agreement with FC and had authorized the execution of an 
offer letter with FC, DRI abandoned this allegation.  Instead, in its 
written comments, DRI alleged that FC proposed [deleted] and [deleted] 
without first obtaining their permission to use their resumes in the 
FC proposal.

Generally, an offeror's misrepresentation concerning personnel that 
materially influences an agency's consideration of its proposal 
provides a basis for proposal rejection or termination of a contract 
issued based upon the proposal.  ManTech Advanced Sys. Int'l, Inc., 
B-255719.2, May 11, 1994, 94-1 CPD  para.  326 at 5.  A misrepresentation is 
material where an agency has relied upon the misrepresentation and 
that misrepresentation likely had a significant impact upon the 
evaluation.  Id. at 5.  We conclude from the record here that FC did 
not make any material misrepresentations concerning its proposed 
personnel.

FC has shown that it obtained [deleted] resume for use in its 
proposal, and [deleted] was present at an FC "open house for 
employment" shortly after the contract was awarded.  There is nothing 
in the record suggesting that FC could not reasonably believe that 
[deleted] would be available for employment.  DRI's allegation 
regarding [deleted] is based solely on a hearsay telephone 
conversation between another [deleted] manager and [deleted].  This 
conversation, by itself, is not sufficient to establish that FC did 
not expect [deleted] to be available, at least in light of the fact 
that FC has shown that it obtained [deleted] resume prior to 
submitting its proposal.
 
The protest is denied.

Comptroller General 
of the United States

1. The RFP contained a past performance questionnaire which would be 
sent to past and present clients identified by each offeror.  Past 
performance qualifications were evaluated for the prime and each 
subcontractor.

2. The TET used a color coded rating system consisting of blue 
(superior), green (satisfactory), yellow (marginal), and red 
(unsatisfactory).