BNUMBER:  B-278129.4 
DATE:  May 12, 1998
TITLE: Proteccion Total/Magnum Security, S.A., B-278129.4, May 12,
1998
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Matter of:Proteccion Total/Magnum Security, S.A.

File:     B-278129.4

Date:May 12, 1998

Romulo A. Roux, Esq., Morgan & Morgan, for the protester.
Donald E. Barnhill, Esq., Douglas & Barnhill, for Prosegur/Universal 
Security, S.A., an intervenor.
Capt. John C. Lavorato, and C. B. Efthimiadis, Esq., Department of the 
Army, for the agency.
Mary G. Curcio, Esq., David A. Ashen, Esq., and John M. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Protest of agency's decision to reopen discussions after initial 
award and request an additional round of best and final offers (BAFO) 
is untimely where not filed prior to the closing time for receipt of 
BAFOs.  

2.  Protest that awardee's employment of former government employee 
afforded it an unfair competitive advantage is denied where the former 
employee had left the government during the preliminary stages of 
developing the solicitation for the prior procurement for the services 
and he had no involvement in developing the current solicitation or 
evaluating proposals for the current procurement.

3.  Protest that agency failed to take into consideration deficiencies 
in the awardee's performance of prior contract for guard services is 
denied where agency was aware of and considered the performance 
deficiencies, but reasonably rated the awardee's overall past 
performance as good with a medium performance risk on the basis of the 
prompt corrective action taken by the awardee in response to a cure 
notice and the favorable evaluations received by the agency with 
respect to the awardee's performance on other contracts.

4.  Agency evaluation of protester's past performance for risk rating 
purposes properly took into consideration fact that protester had not 
performed contracts that were similar in size to the contract 
contemplated by the solicitation.

DECISION

Proteccion Total/Magnum Security, S.A. protests the Department of the 
Army's award of a contract to Prosegur/Universal Security, S.A., under 
request for proposals (RFP) No. DAJN21-97-R-0026, for security guard 
services for United States military installations and facilities in 
the Republic of Panama.

We deny the protest.

The solicitation, issued on July 21, 1997, provided for award to be 
made to the offeror whose proposal offered the best value under the 
following four factors (listed in descending order of importance):  
(1) management, including subfactors for past performance, general 
management techniques, and phase-in and phase-out; (2) technical 
adequacy, including subfactors for technical approach and schedule 
compliance; (3) quality control, including subfactors for specific 
inspection techniques and corrective action; and (4) price.  The 
solicitation also provided for a performance risk evaluation to assess 
the offeror's current and past records of performance as they relate 
to the possibility of successful accomplishment of the required 
effort.

The Army initially awarded the contract to Proteccion on September 15.  
Prosegur protested the award and, on October 28, the agency advised 
offerors by facsimile transmission that it would take corrective 
action with respect to Prosegur's protest, by reopening discussions 
and requesting new best and final offers (BAFO).  The agency reopened 
negotiations on November 26, and on December 11 requested BAFOs to be 
submitted by December 19.  After evaluating the BAFOs, the agency 
selected Prosegur for award.  This protest followed.

REOPENED DISCUSSIONS

Proteccion asserts that the Army's decision to reopen discussions and 
request new BAFOs was inconsistent with the requirement in the Federal 
Acquisition Regulation (FAR) that an agency not reopen negotiations 
after receipt of BAFOs unless it is clearly in the government's 
interest, FAR  sec.  15.611(c) (June 1997), and was also improper because 
it resulted in prohibited technical leveling.  See FAR  sec.  15.610(d) 
(June 1997).  

Under our Bid Protest Regulations, protests based upon alleged 
improprieties which do not exist in the initial solicitation, but 
which are subsequently incorporated into the solicitation, must be 
filed not later than the next closing time for receipt of proposals 
following the incorporation.  4 C.F.R.  sec.  21.2(a)(1) (1998).  As a 
general matter, an objection to an agency's decision to reopen 
discussions constitutes such a protest, and thus must be filed no 
later than the next closing time for receipt of proposals.  Minact, 
Inc., B-237128.2, Nov. 9, 1989, 89-2 CPD  para.  450 at 2-3.  Proteccion did 
not challenge the Army's decision to reopen discussions and request an 
additional round of BAFOs until after award had been made to Prosegur, 
at the conclusion of the reopened negotiations.  These allegations 
therefore are untimely.

Proteccion also argues that the agency improperly failed to provide it 
with information that was provided to Prosegur during a debriefing on 
the original award as required by FAR  sec.  15.1007(c) (June 1997).  That 
section provides that where, within 1 year of contract award, a 
protest causes the agency to issue a new request for BAFOs, the agency 
shall make available to the original offerors that are requested to 
submit new BAFOs, information provided in any debriefings conducted on 
the original award about the successful offeror's proposal, and other 
nonproprietary information provided to the original offerors.  Neither 
the  November 26 letter reopening discussions, nor the December 11 
letter requesting new BAFOs--which was signed by the contracting 
officer and sent to all offerors and therefore constituted a 
solicitation amendment, see Scientific Research Corp., B-260478.2, 
July 10, 1995, 95-2 CPD  para.  8 at 6--included the information Proteccion 
alleges was required under the FAR.  As discussed above, our 
Regulations require that protests based on alleged improprieties 
incorporated into a solicitation be filed no later than the next 
closing time for receipt of proposals following the incorporation.  4 
C.F.R.  sec.  21.2(a)(1).  The alleged failure to disclose the debriefing 
information in a timely manner--so Proteccion could use the 
information in preparing its new BAFO--should have been apparent at 
least upon its receipt of the December 11 letter.  Since the protest 
was filed after award to Prosegur, not prior to the December 19 BAFO 
closing time, this allegation also is untimely and will not be 
considered.  See DGS Contract Servs., Inc., B-249845.3, Feb. 9, 1993, 
93-1 CPD  para.  115 at 2; Simpson Contracting Corp., B-238279, Feb. 8, 
1990, 90-1 CPD  para.  165 at 2.   
UNFAIR COMPETITIVE ADVANTAGE

Proteccion asserts that Mr. Kenneth Nix, a former employee of the 
contracting activity in Panama who had been responsible for the 
procurement of guard services in Panama for the Army, was responsible 
for preparing Prosegur's proposal for this solicitation.  Proteccion 
argues that, given Mr. Nix's prior employment by the Army, his role in 
preparing Prosegur's proposal violated post-employment restrictions on 
former government employees and afforded Prosegur an unfair 
competitive advantage.

The interpretation and enforcement of post-employment restrictions are 
primarily within the ambit of the Department of Justice and the 
procuring agency.  Our general interest within the confines of a bid 
protest is to determine whether any action of the former government 
employee may have resulted in prejudice for, or on behalf of, the 
awardee.  FHC Options, Inc., B-246793.3, Apr. 14, 1992, 92-1 CPD  para.  366 
at 4-5; see Guardian Techs. Int'l, B-270213 et al., Feb. 20, 1996, 
96-1 CPD         para.  104 at 6.  Specifically, we review whether an 
offeror may have prepared its proposal with knowledge of insider 
information sufficient to establish a strong likelihood that the 
offeror gained an unfair competitive advantage in the procurement.  
PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997, 97-1 CPD  para.  115 at 
17.  In our review, we consider whether the former government employee 
had access to competitively useful information, as well as whether the 
employee's activities with the firm likely resulted in a disclosure of 
such information.  Guardian Techs. Int'l, supra.

There is no evidence here of an unfair competitive advantage as a 
result of Mr. Nix's prior employment with the Army.  The current 
solicitation, issued on July 21, 1997, was developed in the period May 
through July 1997, well after Mr. Nix had left government service, in 
March 1996.  Further, the record indicates that he had no involvement 
in preparing the current solicitation or in the current source 
selection process.  Agency Legal Statement of March 4, 1998 at 10; 
Agency Contracting Officer Statement of March 4, 1998 at 8.  
Therefore, there is no basis to find that Mr. Nix had access to any 
inside information regarding this procurement that would benefit 
Prosegur.  See Creative Management Tech., Inc., B-266299, Feb. 9, 
1996, 96-1 CPD  para.  61 at 7; General Elec. Gov't Servs., Inc., 
B-245797.3, Sept. 23, 1992, 92-2 CPD  para.  196 at 10-11.

Proteccion asserts that Mr. Nix would have learned competitively 
useful information by virtue of his substantial involvement in the 
prior procurement for guard services.  The Army explains, however, and 
our review confirms, that there is little likelihood that this would 
be the case, in light of the substantial differences between the prior 
and current solicitations.  Specifically, the current solicitation 
almost tripled the services required, and provided for evaluation on a 
best value, rather than a low price, technically acceptable, basis.  
Agency Legal Statement of March 4, 1998 at 10; Agency Contracting 
Officer Statement of March 4, 1998 at 8-9; Agency Supplemental 
Contracting Officer's Statement of April 1, 1998 at 2-4.  Moreover, 
the Army has explained that Mr. Nix's involvement in the prior 
procurement before he left government service was limited to the 
preliminary stages of that procurement; he did not become involved in 
the development of the final statement of work and solicitation, or in 
the source selection process.  Declaration of Director of Contracting; 
Agency Contracting Officer Statement of March 4, 1998 at 9.  
Proteccion has provided no evidence that refutes the Army's position 
in this regard.  Given Mr. Nix's limited involvement in the prior 
solicitation, and the substantial differences between the prior and 
current solicitations, there is no basis to conclude that Mr. Nix 
learned any information during that procurement that would provide an 
unfair competitive advantage to Prosegur during this procurement.  We 
note that the mere employment of a former government official who is 
familiar with the type of work required, but not privy to the contents 
of proposals or to other inside agency information, does not confer an 
unfair competitive advantage.  FHC Options, Inc., supra, at 6.  

Proteccion also argues that the awardee had an unfair competitive 
advantage because Mr. Nix's spouse worked for the procuring activity 
in its Office of the Principal Assistant Responsible for Contracting.  
According to Proteccion, Mr. Nix's spouse, and through her Mr. Nix, 
had inside knowledge of the source selection process.  The record does 
not support this conclusion.  Mr. Nix's spouse has submitted a 
declaration in which she states that she had no involvement with the 
solicitation under protest.  In addition, her supervisor has submitted 
a statement in which he explains that his office, although generally 
responsible for solicitation reviews, did not review this 
solicitation.  He further states that, while he subsequently 
personally reviewed the evaluation of the revised BAFOs, Mr. Nix's 
spouse had no involvement in the review.  Given these declarations, 
and the absence of any contrary information in the record, there is no 
basis to conclude that Mr. Nix, through his spouse, had access to any 
inside information related to the procurement, or otherwise gained an 
unfair advantage as a result of his spouse's employment with the Army. 

EVALUATION

Proteccion maintains that the agency improperly failed to consider 
Prosegur's past performance in evaluating the three non-price criteria 
(management, quality control, and technical) and, specifically, did 
not consider the contracting officer reports (COR) that had been 
issued to Prosegur regarding deficiencies in its performance as the 
current contractor. 

We will review an agency's evaluation of proposals only to determine 
whether it was reasonable and consistent with the terms of the 
solicitation.  Ogden Support Servs., Inc., B-270354.2, Oct. 29, 1996, 
97-1 CPD  para.  135 at 3.   

The evaluation here was reasonable.  First, as noted above, the 
solicitation provided for the evaluation of past performance only 
under the management factor, not the quality control and technical 
factors; thus, the agency was not required to evaluate past 
performance under these latter factors.  

With regard to the evaluation of past performance under the management 
factor, the record shows that while the evaluators did not review the 
actual CORs, they did review the cure notice that had been sent to 
Prosegur regarding the performance deficiencies; as a result, the 
evaluators were aware of the incidents reported in the CORs, including 
instances where Prosegur's guards had been charged with the theft of 
government property and sleeping on the job.  Source Selection 
Memorandum of January 21, 1998 at 5; Agency Supplemental Contracting 
Officer's Statement of April 1, 1998 at 1.  Indeed, the agency 
requested Prosegur during discussions to address the performance 
deficiencies cited in the cure notice.  In response, Prosegur provided 
a detailed explanation of each instance and the corrective action that 
it had taken or proposed.  For example, with respect to its guards' 
alleged theft of property from the Gorgas Hospital, Prosegur explained 
that (1) its guards had been given permission to remove the property 
because it was being discarded by the hospital, which was to be turned 
over to Panamanian control, and (2) the charges of theft therefore had 
been dismissed by a Panamanian court, but Prosegur nevertheless had 
terminated the employment of the guards involved and reemphasized to 
its remaining guards that they were not permitted to accept anything 
from Prosegur's customers.  Although the performance problems led to a 
reduction in Prosegur's risk rating from low to medium, Prosegur's 
prompt attention to the cure notice and the fact that the evaluations 
of Prosegur's performance on the three commercial security guard 
contracts was rated as good led the evaluators to assign Prosegur's 
proposal a good rating for past performance.  Given the above 
considerations, we find nothing unreasonable in this rating.

Noting that its own proposal was rated good with medium risk for past 
performance, Proteccion asserts that its rating should have been 
higher than Prosegur's because it has a superior past performance 
record.  However, the agency found that, while Proteccion's contract 
references indicated good past performance, a medium proposal risk 
assessment was warranted because none of the references were for 
contracts equal in size to the contract being awarded.  Agency 
Supplemental Contracting Officer's Statement of April 1, 1998 at 5.  
In this regard, the solicitation provided that "[a]bsent any past or 
current performance history within the past three years on the same or 
similar efforts, the offeror's proposal will be considered moderate 
risk for performance."  Solicitation Section M.3, "Evaluation 
Methodology," at M-5.  Proteccion does not assert that it has 
performed contracts similar in size to the current solicitation and, 
in any case, the largest contract apparent from its proposal was less 
than 10 percent the size of the contract contemplated here.  
Proteccion does assert that size should not be considered in 
determining whether its prior contracts are the same as or similar to 
the current procurement.  However, size is a proper consideration in 
determining whether an offeror has experience performing similar 
contracts.  See NavCom Defense Elec., Inc., B-276163, May 19, 1997, 
97-1 CPD  para.  189 at 4-5.  

The protest is denied.

Comptroller General
of the United States