BNUMBER:  B-278851 
DATE:  March 23, 1998
TITLE: McShade Enterprises, B-278851, March 23, 1998
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Matter of:McShade Enterprises

File:     B-278851

Date:March 23, 1998

William McAndrew for the protester.
Kacie A. Haberly, Esq., General Services Administration, for the 
agency.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest alleging that agency misevaluated protester's proposal is 
denied where it is based solely on protester's disagreement with the 
evaluators' conclusions.

DECISION

McShade Enterprises protests the rejection of its offer under request 
for proposals (RFP) No. FCXA-SG-970005-N, issued by the General 
Services Administration (GSA) as a multiple-award Federal Supply 
Schedule (FSS) contract solicitation to obtain various designated 
temporary professional support services to be ordered by government 
agencies.   McShade principally alleges that its proposal was 
misevaluated and that the agency should have conducted discussions 
with, or sought clarification from, the protester with regard to 
shortcomings in its proposal.[1]

We deny the protest.

The RFP, issued on August 11, 1997, with a September 26 closing date, 
contemplated the award of multiple-award FSS contracts for 18 
different support services to be ordered by individual agencies.  
(McShade offered contract specialist services.)  Section E.3 of the 
RFP provided that proposals were to be evaluated on technical merit 
and price with technical quality being more important than price.  
That section cautioned offerors that proposals would be rejected if 
they were determined to be unrealistic in terms of technical 
commitment, if they exhibited a lack of technical competence, or if 
they indicated a failure to comprehend the complexities and risks of 
the solicitation requirements.  The section also indicated that all 
technical factors were of equal importance. 

Section E.2.5 of the RFP listed five technical factors:  (1) Executive 
Summary; (2) Program Management; (3) Training; (4) Quality; and (5) 
Past Performance.  That section required offerors to submit a brief 
but detailed response to topics listed under each factor and stated 
that "[p]roposals which merely offer to perform the work in accordance 
with the Statement of Work [SOW] will be rejected." 

Finally, section E.1(g) of the RFP provided:

     The Government intends to evaluate offers and award a contract 
     without discussions with offerors.  Therefore, the offeror's 
     initial offer should contain the offeror's best terms from a 
     price and technical standpoint.  However, the Government reserves 
     the right to conduct discussions if later determined by the 
     Contracting Officer to be necessary.

By letter dated October 23, the protester was notified that its 
proposal had been rejected because of technical deficiencies 
identified under two factors, Program Management and Quality.  
Following a debriefing and an unsuccessful agency-level protest, 
McShade filed this protest challenging GSA's determinations.

It is not the function of this Office to evaluate technical proposals 
de novo; rather, in reviewing a protest against an allegedly improper 
evaluation, we will examine the record only to determine whether the 
agency's judgment was reasonable and consistent with the stated 
evaluation factors.  J&E Assocs., Inc., B-278187, Jan. 5, 1998, 98-1 
CPD  para.  42 at 2-3.  The protester's disagreement with the agency does 
not render the evaluation unreasonable.  Id. at 3.  Here, the agency 
report establishes that the evaluation of McShade's proposal was 
reasonable and consistent with the RFP's evaluation scheme.

The Program Management factor required a detailed response to the 
following: "Describe your process for performing the work required in 
the Statement of Work.  This should include the time from receipt of a 
quote through the completion of a work order."  RFP  sec.  E.2.5.2.  
Initially noting that the nature of the services to be provided will 
vary and be dependent on the particular needs of an ordering agency, 
the substance of McShade's response to the factor was as follows:

     At the time of receipt of any contractual authorization, a 
     program plan will be accomplished.  This program plan will define 
     the major milestones of the project and the scheduled dates for 
     their completion.  Manpower allocations will be based upon this 
     program plan.  This plan will be constantly monitored to insure 
     successful accomplishment of the assigned tasks within the 
     schedules required.

McShade Enters. Proposal  sec.  2.0.

The agency points out that the SOW requires the contractor to be able 
to receive quotes between specific hours and be capable of responding 
"within 2 hours of receipt, and fill orders by the following business 
day."  RFP  sec.  C.2.1.5.2.  The evaluators determined that McShade's 
response does not show that the protester can receive quotes within 
the stated time frames and fill an order on the next business day.  
McShade contends that the numerous possible contract specialist 
services that could be ordered preclude any contractor from performing 
within 1 day and submits that, given the variety of tasks possible, 
its generic description of a program plan approach was "more than 
responsive to the stated Program Management requirement."  McShade 
Enters. Agency Protest at 10.

The factor required a demonstration of how an offeror could meet the 
SOW requirements including specified time frames.  The agency 
reasonably expected an offeror to address those time frames and, since 
McShade did not, GSA reasonably found the firm's proposal to be 
technically unacceptable in this regard.  McShade's mere disagreement 
with the agency's judgment does not render that judgment unreasonable.  
As noted above, to the extent that McShade is objecting to the RFP 
requirements, its protest is untimely and not for consideration on the 
merits.

The Quality factor required, inter alia, a detailed response to the 
following: "Describe how you will handle a high number of orders and 
still ensure prompt service, and the quality of temporary employees 
provided [and] [d]escribe your procedures to ensure customer 
satisfaction when a temporary employee is rejected by the ordering 
office."  McShade's response was as follows:

     4.1. General: Mr. McAndrew's [a McShade principal] successful 30 
     year career in the U.S. Government contracting environment could 
     only have been achieved by his highest commitment to the quality 
     of the services performed and the documents published.  By the 
     careful recruitment and selection of highly qualified and 
     motivated contracting professionals, the high level of quality 
     will be retained.

     4.2 Customer Satisfaction: If the customer is dissatisfied with 
     the performance accomplished, acceptable personnel changes will 
     be made and the customer will not have to pay for those 
     contracting services that were provided.

McShade Enters. Proposal  sec.  4.0.

The agency found that the generalized statement regarding recruitment 
did not address the issue of how a large volume of orders would be 
handled while still ensuring prompt service and quality.  In addition, 
the agency noted that the lack of any definition of the term 
"acceptable personnel changes" rendered the response to the issue of 
customer satisfaction insufficient.

McShade disagrees with the evaluators' concerns alleging that staffing 
is of preeminent importance in a service contract and that the 
"'handling of orders' relates to simple administrative action."  
McShade Enters. Agency Protest at 11.  In addition, while not directly 
addressing the issue of defining "acceptable personnel changes," 
McShade asserts that its "no fault" billing policy is unique in the 
industry.  Id.

Again, the agency's concerns are reasonable and reflect the stated 
evaluation criteria.  At best, McShade has expressed disagreement with 
these conclusions offering only what it considers to be preferable 
quality approaches.  This disagreement does not render the agency's 
judgment unreasonable.

Finally, McShade asserts that discussions should have been held to 
correct any deficiencies in its proposal and suggests that only mere 
"clarifications" were necessary to ensure the acceptability of its 
proposal.  The agency maintains that the RFP placed McShade on notice 
of the likelihood of an award without discussions, and that McShade's 
unacceptable technical proposal was properly eliminated from 
consideration for an award.

There is generally no obligation that a contracting agency conduct 
discussions where, as here, the RFP specifically instructs offerors of 
the agency's intent to award a contract on the basis of initial 
proposals.  Robotic Sys. Tech., B-278195.2, Jan. 7, 1998, 98-1 CPD  para.  
20 at 11.  While the contracting officer's discretion in deciding not 
to hold discussions is not unfettered, it is quite broad and has been 
expanded in recent years.  Id.  Our Office will review the exercise of 
such discretion to ensure that it was reasonably based on the 
particular circumstances of the procurement.  Id.

Here, the record provides no indication that the contracting officer 
abused his discretion in deciding not to conduct discussions with 
McShade.  While McShade contends otherwise, as discussed above, there 
is ample evidence that the agency reasonably evaluated McShade's 
proposal as unacceptable.  The protester apparently prepared its 
proposal under the (mistaken) belief that the agency would necessarily 
conduct discussions despite the RFP's advice to the contrary.  
However, since the RFP advised that the agency intended to make awards 
without discussions, McShade could not reasonably presume that it 
would have a later opportunity to improve its proposal.  On this 
record, there is no basis to object to the agency's determination not 
to conduct discussions.  Id.[2] 

The protest is denied.

Comptroller General 
of the United States

1. McShade also questions the adequacy of the debriefing conducted by 
GSA.  Such challenges are procedural matters which do not affect the 
validity of an award decision and we generally will not review them.  
Thermolten Tech., Inc., B-278408, B-278408.2, Jan. 26, 1998, 98-1 CPD  para.  
35 at 5.  Likewise, we will not review McShade's complaints about the 
manner in which GSA handled its agency-level protest since it did not 
affect the validity of the procurement.  In addition, we dismiss as 
untimely McShade's allegations that the solicitation's description of 
work required was so broad that offerors could not reasonably provide 
a detailed description of their capabilities to perform and the manner 
in which they planned to perform.  Protests based on alleged 
improprieties in a solicitation which are apparent prior to the time 
set for receipt of initial proposals must be filed prior to that time.  
Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1997).  McShade's 
initial agency-level protest was not filed until after its proposal 
had been eliminated from consideration.

2. As to McShade's argument that GSA could have communicated with the 
firm without conducting discussions since such communications would 
have simply been clarifications, we find no merit in this position.  
McShade's proposal was unacceptable.  Since discussions occur when 
information provided by an offeror is essential for determining the 
acceptability of a proposal, any communications with McShade in order 
to give the firm an opportunity to make its proposal acceptable would 
have constituted discussions.  Id. at 5.