BNUMBER: B-277658
DATE: November 7, 1997
TITLE: UNICCO Government Services, Inc., B-277658, November 7, 1997
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Matter of:UNICCO Government Services, Inc.
File: B-277658
Date:November 7, 1997
Michael P. Morizio, Esq., Friedman & Atherton, for the protester.
Michael A. Gordon, Esq., Holmes, Schwartz & Gordon, for Meridian
Management Corporation, an intervenor.
Seth Binstock, Esq., U.S. Social Security Administration, for the
agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. In a negotiated procurement for facility management services, the
awardee's good performance reports for facility management at an
"extremely similar" federal building reasonably led the agency to
assign it a high rating in the level of confidence assessment; the
protester's mere disagreement with an agency's evaluation of the
awardee's experience and past performance does not demonstrate that
the agency's evaluation was unreasonable.
2. An agency's site visit to a facility/building identified by the
awardee as an experience/past performance reference does not
constitute discussions where no information was obtained from the
awardee that was essential for determining the acceptability of the
awardee's offer or that modified or revised the awardee's proposal;
information received by the agency from other government personnel
during the site visit does not constitute discussions.
DECISION
UNICCO Government Services, Inc. protests the award of a contract to
Meridian Management Corporation under request for proposals (RFP) No.
SSA-RFP-97-2660, issued by the U.S. Social Security Administration
(SSA) for consolidated facility management services at the Harold
Washington Social Security Center (HWSSC) in Chicago, Illinois.
UNICCO challenges the SSA's evaluation of Meridian's and UNICCO's
proposals and failure to conduct discussions with UNICCO.
We deny the protest.
The RFP provided for the award of a fixed-price, requirements contract
for consolidated facilities management services at the HWSSC building
for a base with 4 option years. These services include mechanical
equipment operation and maintenance, elevator maintenance, sustaining
maintenance, custodial services, security (armed guard services), and
utilities.
Proposals were to be submitted in two volumes: an experience/past
performance information volume and a price proposal volume. Offerors
were to include in the experience/past performance information volume
an "Experience Reference Matrix," on which they were to identify
contracts that had either been awarded or completed within the last 3
years. Offerors were admonished to include a sufficient number of
"citations/references" to demonstrate their relevant experience and
past performance. The RFP requested 19 items of information that
offerors were to provide for each citation; for example, offerors were
to identify, among other things, the client name and address, provide
the name and location of the contracting officer and contracting
officer's technical representative, describe the services rendered,
including information on the building/facility size and population.
In addition, offerors were required to indicate and describe the
extent to which the work required under the listed citation was
applicable to the work sought by the RFP and to "[i]nclude any
additional information which will further describe the
activities/functions performed and demonstrate the relationship of
such experience to the requirements of this solicitation." Offerors
were cautioned that they should demonstrate that the contracts
identified were similar in size, scope, and/or complexity to the RFP
work.
The RFP provided for a best value basis for award and stated that
price was less important than the agency's evaluated level of
confidence in an offeror. Level of confidence was to be ascertained
by first evaluating each offeror's experience and past performance.
In judging experience, the RFP stated that the agency would
numerically rate how similar in size, scope, and complexity the
offeror's experience was to the solicitation's requirements: a score
of 1.00 reflected extremely similar experience; .75, very similar;
.50, somewhat similar; .25, slightly similar; and .00, not similar.
Experience of similar size, scope, and complexity was defined by the
RFP to be:
a building/facility near or approximately 750,000 square feet in
size with a population near or approximately 2,300; and where
facility management included, but is/was not necessarily limited
to, Operations and Maintenance of Mechanical Equipment, Elevator
Maintenance, Custodial and Related Services, Sustaining
Maintenance, Utilities, and Armed Guard Services.
In assessing past performance, offerors were informed that the agency
would subjectively judge how well the offeror had satisfied its
customers, obeyed applicable federal, state and local laws and
regulations, and conducted its business in an ethical manner. The RFP
stated that past performance would be numerically scored as follows:
1.00, entirely favorable past performance; .75, more favorable than
unfavorable past performance; .50, neutral, inconclusive, or no past
performance; .25, more unfavorable than favorable past performance;
.00, entirely unfavorable past performance. In assessing past
performance, the agency would evaluate the quality of service, cost
control, timeliness of performance, business relations, management,
and subcontract management. The RFP provided that in determining the
offeror's overall past performance rating the agency would evaluate
the narrative information provided by the offerors as well as
information obtained by the agency from other sources. In addition,
the RFP informed offerors that the agency reserved the right to
conduct site visits at any or all referenced buildings.
The RFP provided that, taking into account the offeror's experience
and past performance ratings, the agency would determine a "level of
confidence assessment rating" (LOCAR) on the basis of the following
scale:
1.00 Completely confident -- The offeror received the highest
possible rating for both experience and past performance (entirely
favorable reports of past performance were received). Offeror has
also been found to be in the best possible financial condition.
.50 None or neutral -- The offeror's experience is somewhat
similar to the requirement; the offeror's past performance is neither
predominately favorable or unfavorable; and the offeror's financial
condition while presently stable, does not demonstrate that offeror
will have financial resources to meet all contract requirements.
.00 Completely not confident -- The offeror received an
extremely low rating for both experience and past performance (almost
entirely unfavorable reports of past performance were received).
Offeror is on the brink of bankruptcy.
The RFP provided that:
[t]he process of determining a LOCAR for any offeror is an
inherently subjective one. The purpose of the LOCAR is to
facilitate the Government's comparison of offerors' experience
and past performance. Thus, in comparing offerors' LOCARs, the
Government is seeking the optimal combination of experience
(similar, relevant, timely, and of sufficient depth and
[breadth]) and past performance[;]
and that:
[t]he Government intends to evaluate offers, and reserves the
right to award a contract, without discussions. Therefore, the
offeror's initial offeror should contain the offeror's best terms
in assenting/agreeing to comply with the terms and conditions of
the solicitation, and reflecting the offeror's best price for
performance in accordance with [the] same. The Government
reserves the right to conduct discussions if later determined . .
. necessary. The Government may reject any or all offers if such
action is in the public interest; and waive informalities and
minor irregularities in offers received.
SSA received offers from eight firms, including Meridian and UNICCO
(the incumbent contractor at the HWSSC building), by the April 11,
1997, closing date for receipt of proposals. Meridian's proposed
price of $13.5 million was the second lowest-priced offer received,
while UNICCO's offer of $14.5 million was sixth lowest priced.
A technical evaluation review panel (ERP), consisting of four
evaluators, who were involved with the operation and management of the
HWSSC building, reviewed the experience/past performance information
proposals. Hearing Transcript (Tr.) at 10, 177.[1] Between April 15
and May 8, the proposals were individually assessed by the evaluators,
who then met as a group to agree on a consensus score for the
experience and past performance factors. The experience scores were
based upon the information provided in the proposals, including the
experience reference matrix. After arriving at the consensus
experience score, the ERP met as a group to conduct telephone
reference calls to the government points of contact identified for
offerors' contracts. Tr. at 14. Based upon information learned in
these telephone calls, information obtained from the proposals, and
the evaluators' own personal knowledge, the ERP agreed upon a
consensus past performance score for each offeror. Tr. at 21. The
ERP multiplied each offeror's experience score against its past
performance score to obtain a total experience/past performance score;
the ERP then calculated what percentage of the maximum possible points
the offerors had attained for experience/past performance. Tr. at 25.
After the ERP's initial calculations, as described above, the ERP
conducted site visits of some offerors' facilities. Tr. at 27, 29-30.
Specifically, the ERP visited the Peachtree Summit Federal Building in
Atlanta, Georgia, for which Meridian was providing facility management
services, and another building at which the lowest-priced offeror was
providing such services. Tr. at 161. The ERP did not conduct a site
visit of any of the buildings UNICCO identified because the ERP was
familiar with UNICCO's performance at the HWSSC building.
After the site visits, the ERP met as a group to arrive at a consensus
LOCAR for each offeror. Tr. at 29-30. On May 9, the ERP informed the
contracting officer that all offers were found to be technically
acceptable and identified four offerors, including Meridian and
UNICCO, whose proposals demonstrated experience similar in nature,
size, and complexity to the HWSSC building and should be included in
the competitive range. The ERP also identified additional information
regarding staffing and mobilization that the ERP wanted to review. On
May 12, letters were sent to Meridian, UNICCO, and two other offerors
requesting additional information. Prior to receiving any information
from the four offerors, the contracting officer decided not to conduct
discussions and rescinded the May 12 request for additional
information. A May 19 evaluation report was provided to the
contracting officer, providing the ERP's final evaluation findings for
Meridian and UNICCO, as follows:
Experience Past Perf. Total Pts. Percentage of Max.
Pts.LOCAR
Meridian 5.25 6.25 32.8 67 .85
UNICCO 6.50 5.0 32.5 66 .65
The contracting officer rejected this evaluation report because the
mathematical formula applied by the ERP to arrive at its evaluation
determination was inconsistent with the stated RFP scoring scheme.
Tr. at 42-43. In addition, the contracting officer was concerned that
the ERP had been too "tough" on offerors in its subjective LOCAR
scoring. Tr. at 158. The ERP reconvened to rescore offerors'
proposals, based on the information it had reviewed, in accordance
with the RFP scoring scheme and to reconsider their LOCAR score for
each offeror. The ERP's June 20 report rescored Meridian's and
UNICCO's proposals, as follows:[2]
Experience Past PerformanceLOCAR
Meridian 1.0 1.0 .95
UNICCO 1.0 .75 .75
Meridian's evaluation scores reflected the evaluators' determination
that Meridian's experience was extremely similar to the services
required at the HWSSC building and that all of Meridian's past
performance reports were entirely favorable, which was confirmed by
the site visit to the Peachtree Summit Federal Building. UNICCO's
scores reflected the evaluators' determination that UNICCO, as the
incumbent contractor, had specific and extensive knowledge of the
HWSSC building but that UNICCO's past performance at the HWSSC
building had not been entirely favorable. Specific complaints
regarding UNICCO's performance at the HWSSC building included concerns
with UNICCO's management at the building, which was viewed as not
proactive with problems regarding the failure to train engineers and
subcontract management. Tr. at 35, 37-38, 175, 186.
A price analysis was performed of the offers received, and a financial
audit of the two lowest-priced offeror's (Meridian and another
offeror) capability to perform was also conducted. The lowest-priced
offeror's offer was found to be unreasonably low; Meridian's proposed
price was determined to be fair and reasonable. In addition, SSA
found that Meridian was in "good financial condition" and fully
capable of performing the contract work.
A best value analysis was documented, which compared Meridian's offer
with that of the lowest-priced offeror, the sixth lowest-priced
UNICCO, and all the remaining offerors. Regarding the lowest-priced
offeror, Meridian's superior LOCAR score was found to reflect superior
value that outweighed the other offeror's lower price, particularly
since the SSA was concerned that the lowest price might not be
realistic. Regarding UNICCO's offer, Meridian's offer was also found
to be a better value than UNICCO's offer, given Meridian's
significantly lower price (approximately $1 million lower) and higher
LOCAR score (.95 compared to .75). Award was made to Meridian, and
this protest followed.
UNICCO challenges the SSA's evaluation of Meridian's experience and
past performance, complaining that Meridian did not identify a
sufficient number of contracts of similar size, scope, and complexity
to the RFP work to justify Meridian's high evaluation ratings.[3]
In considering protests of an agency's evaluation of proposals, we
examine the record to determine whether the agency's judgment was
rational and consistent with stated evaluation criteria and applicable
statutes and regulations. Abt Assocs., Inc., B-237060.2, Feb. 26,
1990, 90-1 CPD para. 223 at 4. Such judgments are by their nature often
subjective; nevertheless, the exercise of these judgments in the
evaluation of proposals must be reasonable and bear a rational
relationship to their announced criteria upon which competing offers
are to be selected. Southwest Marine, Inc.; Am. Sys. Eng'g Corp.,
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10. A
protester's mere disagreement with the agency's evaluation
determination does not demonstrate that the evaluation was
unreasonable. Brunswick Defense, B-255764, Mar. 30, 1994, 94-1 CPD para.
225 at 9. From our review of the record, including the hearing
testimony and the parties' protest arguments, we conclude that the
agency's evaluation of Meridian's proposal was reasonable.
The RFP required offerors to identify a "sufficient number" of
contracts to allow the agency to evaluate the similarity of the
offerors' experience to the RFP work. In judging the similarity of
offerors' identified references to the RFP work, the solicitation
provided a standard for determining comparability; that is, a building
of approximately 750,000 square feet, with a population of
approximately 2,300, at which the offeror provided the same services
sought by the RFP. Contrary to the protester's belief, the RFP did
not require that offerors identify any minimum number of contracts
that exactly met or exceeded the size and population identified for a
comparable building. Rather, as confirmed by the testimony of the ERP
chief, this solicitation language provided a guide by which the
evaluators could judge how similar or dissimilar an offeror's
reference was to the work to be performed at the HWSSC building. Tr.
at 97-98. Although size of the building was important in determining
the similarity of an offeror's experience to the RFP work, the types
of services were also important. Tr. at 167.
Here, Meridian listed seven different buildings/facilities on its
Experience Reference Matrix that ranged in size from 850,000 square
feet (the Peachtree Summit Federal Building) to 247,000 square feet.
Only the Peachtree Summit Federal Building and
the services performed there by Meridian was viewed by the ERP as
being experience "extremely similar" to the RFP work, although other
referenced buildings/facilities were judged as being "very similar"
experience. Tr. at 167-68. Nevertheless, the ERP found that based
upon Meridian's two contracts, dating back to 1989, to provide
facilities management services at the Peachtree Summit Federal
Building that Meridian's offer had demonstrated extremely similar
experience that justified its experience score of 1.0.[4] Tr. at 180.
We find no basis on this record to question the SSA's judgment in this
regard. The Peachtree Summit Federal Building meets or exceeds the
comparability standards stated in the RFP; that is, the Peachtree
Summit Federal Building is a federal office building, larger than
750,000 square feet and has a population of at least 2,300,[5] and is
a building at which Meridian has performed the services that will be
required under the RFP. In our view, the evaluators reasonably found
that Meridian's provision of facility management services at the
Peachtree Summit Federal Building for more than 8 years was extremely
similar experience that justified a score of 1.0.[6] UNICCO's
disagreement with this determination does not demonstrate that the
agency's evaluation conclusion was unreasonable in this regard.
Brunswick Defense, supra, at 9.
UNICCO also challenged Meridian's 1.0 past performance score because
Meridian assertedly had not listed a sufficient number of contracts
that satisfied the RFP comparability standard. The RFP's evaluation
scheme, however, provided for the use of this comparability standard
only in judging the similarity of offerors' experience to the RFP work
and not in assessing each offeror's past performance. Tr. at 117.
Moreover, the record supports the reasonableness of the agency's
judgment regarding Meridian's past performance. The ERP received
entirely favorable past performance reports from Meridian's
references. Tr. at 31. The site visit to the Peachtree Summit
Federal Building, which was chosen because of its relevance and
outstanding past performance report, and discussions with government
personnel at that building confirmed the favorable performance report
the evaluators had received regarding Meridian's performance at the
Peachtree Summit Federal Building. Tr. at 106-109. Again, UNICCO's
mere disagreement with the SSA's evaluation of Meridian's past
performance does not demonstrate that the agency's judgment was
unreasonable. Brunswick Defense, supra, at 9.
UNICCO also complains that the agency did not evaluate the offerors'
financial condition, as required by the RFP, in determining each
offerors' LOCAR score. Specifically, UNICCO asserts that if the
agency had considered financial capability in determining Meridian's
and UNICCO's LOCAR scores, Meridian's score would have been lower and
UNICCO's score would have been higher.
The record shows that the offerors' financial condition was not
considered by the ERP, which was not provided with access to the
offerors' financial information. Rather, the contracting officer
requested and received an audit of the financial condition of the two
lowest-priced offerors, which included Meridian. The contracting
officer considered this audit information in conjunction with the
offerors' LOCAR scores and proposed prices to determine which offeror
represented the best value to the government. While Meridian's
financial condition was not specifically considered in determining the
LOCAR score, the score and financial condition were considered
together by the contracting officer in making her award selection.
Given Meridian's evaluated good financial condition and ability to
perform the contract, we find nothing in the contemporaneous record to
support UNICCO's allegation that Meridian's financial condition would
or should have any negative impact in the contracting officer's
consideration of Meridian's proposal for award.
Similarly, we find nothing in the record to suggest that UNICCO's
financial condition could have resulted in such positive consideration
in the contracting officer's source selection decision that it would
have resulted in UNICCO's higher- priced, but lower-rated, proposal
being selected for award. Rather, the record shows that the evaluated
discriminator between Meridian's and UNICCO's proposals was UNICCO's
comparatively poorer past performance, which would not be affected by
UNICCO's financial strength. The ERP was comprised of evaluators who
were all involved in the operation and management of the HWSSC
building and who were all personally aware of UNICCO's performance as
the incumbent contractor. Tr. at 10, 177. The ERP identified a
number of problems in UNICCO's performance at the HWSSC building that
caused the ERP to assess UNICCO's past performance as not entirely
favorable. In fact, UNICCO's past performance reasonably received an
evaluated score of .75, which the RFP indicated was appropriate for
offerors that had past performance that was more favorable than
unfavorable, but that was less than entirely favorable.
UNICCO also protests that the SSA improperly failed to conduct
discussions with UNICCO prior to selecting Meridian for award.
Specifically, UNICCO argues that the RFP did not reasonably inform
offerors that the agency intended to make award on the basis of
initial proposals and therefore the agency was required to conduct
discussions here. UNICCO also complains that the agency's site visit
to the Peachtree Summit Federal Building constituted discussions with
Meridian, requiring the agency to conduct discussions with UNICCO and
request best and final offers.[7]
We disagree with UNICCO that the RFP did not adequately inform
offerors of the agency's intent to make award on the basis of initial
proposals. The Federal Acquisition Regulation (FAR) sec. 15.610(a)(3)
provides that the requirement for discussions need not be applied in
acquisitions in which the solicitation notified offerors that the
government intends to evaluate proposals and make award without
discussions, unless the contracting officer determines that
discussions are considered necessary. As noted above, the RFP stated
that the agency intended to evaluate offers without conducting
discussions, that offerors should submit their best terms and
conditions and best price for performance, and that the government
reserved the right to conduct discussions if later determined to be
necessary. This adequately informed offerors that the agency intended
to make award without discussions.
We also disagree with the protester's contention that the ERP's site
visit to the Peachtree Summit Federal Building constituted discussions
with Meridian that required the agency to conduct discussions with
competitive range offerors and to obtain best and final offers.[8]
Discussions occur when information requested from and provided by an
offeror is essential for determining the acceptability of the
offeror's proposal, or where the offeror is given an opportunity to
revise or modify its proposal. FAR sec. 15.601 (FAC 90-45); The Hotel
San Diego, B-260971, July 7, 1995, 95-2 CPD para. 4 at 3-4 (discussions
conducted during site visit).
Here, the record establishes that the SSA did not obtain any
information from Meridian during the site visit that was essential for
determining the acceptability of its proposal or that revised or
modified its proposal. The ERP visited the Peachtree Summit Federal
Building for the purpose of reviewing the building and discussing
Meridian's past performance with government personnel. The ERP chief
testified that there were no discussions between the ERP and Meridian
personnel regarding Meridian's proposal under this RFP. Tr. at 30.
Rather, the ERP chief testified that the only conversations between
the ERP and Meridian personnel were confined to ERP requests to be
shown various parts of the Peachtree Summit Federal Building,
identifying equipment contained within the building (e.g., elevators),
and seeing maintenance records.[9] Tr. at 28, 109. None of the
information provided by Meridian to the agency modified or revised
Meridian's proposal; that is, the information provided by Meridian was
not considered by the agency in its evaluation of experience/past
performance. Rather, the condition of the building, as viewed by the
evaluators, and information obtained from government personnel at the
building merely confirmed the agency's experience/past performance
scores and entered into the ERP's LOCAR score assessment. In any
case, the discussions between government personnel at the Peachtree
Summit Federal Building and the ERP (and not between Meridian and the
ERP) regarding Meridian's past performance at the building do not
constitute discussions. See Contrack Int'l, Inc., B-270102,
B-270102.2, Feb. 8, 1996, 96-1 CPD para. 53 at 5.
UNICCO also complains that the agency's Peachtree Summit Federal
Building site visit provided Meridian with an unfair competitive
advantage. We disagree. The RFP informed offerors that the agency
might conduct a site visit to a building referenced by an offeror.
The ERP decided to conduct site visits at what appeared to be the most
comparable buildings of the offerors that were determined to have a
reasonable chance of being selected for award. None of UNICCO's
referenced buildings were visited because UNICCO's most comparable
building at which it was providing similar facility management
services was the HWSSC building, with which the ERP was intimately
familiar. Because the ERP was already familiar with UNICCO's past
performance at the very building for which the contract was to be let,
the evaluators had no need to visit another of UNICCO's buildings to
ascertain or confirm UNICCO's past performance.
The protest is denied.
Comptroller General
of the United States
1. A hearing was conducted to obtain testimony from the chief of the
ERP regarding the calculation of Meridian's and UNICCO's LOCAR scores
and the site visit at a building where Meridian was providing facility
management services.
2. All of the offerors' LOCAR scores went up in the ERP's rescoring.
Tr. at 158.
3. UNICCO also complained in its post-hearing comments that Meridian
had not provided information in response to each of the 19 items for
which the RFP had requested information. Our Bid Protest Regulations
require protests of other than apparent solicitation improprieties to
be filed within 10 days after the basis of protest is known or should
have been known. 4 C.F.R. sec. 21.2(a)(2) (1997). The basis of UNICCO's
protest was apparent from the documents provided in the agency's
report. Its post-hearing challenge, which is more than 10 days from
its receipt of the report, is untimely and is dismissed. In any
event, the record shows that the information provided by Meridian in
response to the RFP was sufficient to allow the SSA to evaluate
Meridian's experience and past performance.
4. The evaluators recognized that Meridian was not presently providing
armed guard services at the Peachtree Summit Federal Building, but
these services had been provided during Meridian's performance under
the prior contract. Tr. at 73-74.
5. It is true, as alleged by the protester, that the ERP did not
attempt to determine the population of any of Meridian's referenced
buildings/facilities. Nevertheless, the chair of the ERP testified
that given the size of the Peachtree Summit Federal Building the ERP
assumed that the building would exceed the population identified in
the RFP. Tr. at 190-94. Documents provided with Meridian's
post-hearing comments evidence a population of 4,000 at the Peachtree
Summit Federal Building. We do not find that the ERP's failure to
ascertain the population of any of the offerors' referenced
buildings/facilities provides any basis to object to the SSA's
determination that Meridian's experience was extremely similar.
6. Although UNICCO complains that Meridian received credit for two
contracts at the same building, the RFP does not limit consideration
to contracts at different buildings.
7. UNICCO asserted for the first time in its post-hearing comments
that the agency's requests for financial information from Meridian and
the lowest-priced offeror to support its financial capability review
constituted discussions. This allegation, based upon documents
provided in the agency's report, was not timely protested within 10
days of the date that UNICCO learned the basis of the allegations as
required by our Regulations, 4 C.F.R. sec. 21.2(a)(2), and is dismissed.
8. UNICCO also argued that the SSA's May 12 letter to offerors
requesting various information constituted discussions. This
contention is without merit, given that the contracting officer
rescinded the letter prior to obtaining any information from offerors
in response to the letter.
9. This testimony is consistent with the ERP chief's contemporaneous,
handwritten notes of the ERP's visit to the Peachtree Summit Federal
Building.