BNUMBER: B-280388; B-280388.2
DATE: September 25, 1998
TITLE: General Security Services Corporation, B-280388; B-280388.2,
September 25, 1998
**********************************************************************
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:General Security Services Corporation
File: B-280388; B-280388.2
Date:September 25, 1998
Robert A. Boonin, Esq., Butzel Long; and James A. Hughes, Esq., Robert
S. Brams, Christy G. Slade, Esq., and William E. Slade, Esq., Patton
Boggs, for the protester.
Gerald L. Elston, Esq., and Charles E. Coburn, Esq., U.S. Marshals
Service, Department of Justice, for the agency.
Valinda J. Astoria, Esq., Edgar Garcia, Esq., Joan K. Fiorino, Esq.,
and Donald E. Barnhill, Esq., for Akal, Inc., an intervenor.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest challenging areas of technical evaluation of protester's
proposal is denied where protester either failed to rebut agency's
explanation of why downgrading was appropriate, or failed to show that
downgrading based on omission of information from proposal was
unreasonable.
2. Protest against adequacy of documentation for revised scoring of
protester's proposal is denied where, although individual evaluator
scoring sheets contain little or no explanation for scoring changes,
basis for downgrading proposal is documented elsewhere in record and
establishes reasonableness of downgrading.
3. Protest that awardee's final proposed price should have been found
unacceptable because it improperly failed to add fringe benefit rate
to holiday pay, is denied where there was no requirement for payment
of fringe benefit rate for holiday pay.
DECISION
General Security Services Corporation (GSSC) protests the evaluation
of offers,
and the award of a contract to Akal, Inc., under request for proposals
(RFP)
No. MS-CSC-97-R-0005, issued by the United States Marshals Service
(USMS), Department of Justice, for court security services in the
fifth federal circuit.
We deny the protest.
The RFP, as issued on March 17, 1997 and as amended, contemplated the
award of a fixed-price indefinite-quantity, indefinite-delivery
contract for a base year, with four 1-year options. It requested
offerors to provide individual court security officer (CSO) services,
as well as managerial and supervisory personnel, and any materials,
supplies, and equipment required in the performance of the contract.
The solicitation provided for award to the offeror whose proposal,
conforming to the terms of the RFP, was determined to be the most
advantageous to the government, cost/price and technical factors
considered. The solicitation listed in descending order of importance
the following technical evaluation factors--corporate management, past
related performance, and qualifications of key personnel. Offerors
were to propose prices for five categories of services[1] and submit a
wage compensation plan indicating employee wages and fringe benefits
over the life of the contract. The technical factors were assigned 60
percent of the evaluation weight, and total price 40 percent.
Twelve offers were received and evaluated by a nine-member technical
evaluation board (TEB) during the week of June 20, 1997. At the
request of the contracting officer, four members of the TEB reconvened
during the week of July 26, 1997 to review the original TEB analysis.
The reconvened TEB concurred with the original evaluation scores and
generated additional documentation to support the original assigned
scores. Six proposals were determined to be in the competitive range,
including the awardee's and protester's. After two rounds of
discussions, three rounds of best and final offers (BAFO), and further
evaluation, Akal's lowest-evaluated-price offer--at
$60,683,060.82--was rated the highest with a total score of 95.50
points (55.5 technical and 40.0 price). GSSC's fourth-low offer--at
$64,511,132.11--was rated third overall with a total score of 86.43
points (48.8 technical and 37.63 price).[2] Award was made to Akal on
March 30, based on a determination that no other offer presented
technical advantages that warranted paying a premium above Akal's low
price.
GSSC raises numerous arguments challenging the evaluation and other
aspects of the award process. We have reviewed the record and find
these arguments to be without merit. We discuss several of the most
significant arguments below.
EVALUATION OF GSSC'S PROPOSAL
GSSC challenges the evaluated deficiencies of its proposal under the
management and past performance factors.
In reviewing a protest against an agency's evaluation of proposals, we
will examine the record to determine whether the agency's judgment was
reasonable and consistent with the stated evaluation criteria. ESCO,
Inc., B-225565, Apr. 29, 1987, 87-1 CPD para. 450 at 7. We find that this
aspect of the technical evaluation was proper.
Management
Under this factor, the RFP instructed offerors to address 11 listed
elements, including the following:
Offeror shall detail its procedure on how it will correct
personnel
problems, i.e., misuse of weapons, intra personnel skills, etc.
Explain how suspension and removal will be implemented. Include
the length of time for each suspension and how many times an
employee will be suspended before removed. Provide examples
of what type of incidents on the job and/or off duty would
warrant suspension and/or removal of a CSO.
RFP Amendment (Amend.) No. A002 sec. L-2(d)(1)(vi) at L-5 (Emphasis
added.).
GSSC's proposal was downgraded for failure to "detail the length of
time for each suspension of an employee for misconduct, or the number
of suspensions before the dismissal of an employee." Letter of
Debriefing, June 12, 1998, at 3; Final TEB Report, November 25, 1997,
at 1.
The protester argues that downgrading for failure to detail the length
of time for each suspension was unreasonable. According to the
protester, its proposal, as initially submitted, clearly met the
requirement by stating the following: "[i]f an employee is to be
suspended, the amount of suspension will be based on the severity of
the violation and may range from one day to two weeks without pay."
GSSC Initial Proposal at 33.
The agency responds that, even if GSSC's proposal can be construed as
specifying the length of time for each suspension (in fact, the agency
apparently expected offerors to provide specific examples), it still
did not indicate how many times an employee would be suspended prior
to removal, as required by the RFP; the agency asserts that this by
itself warranted the downgrading in this area. GSSC did not address
the agency's response in its comments on the agency report. Under
these
circumstances, we consider the protester to have abandoned the issue.
Mitchell Constr. Co., Inc., B-245884, B-245884.2, Jan. 17, 1992, 92-1
CPD para. 92 at 2; see also, Hampton Roads Leasing, Inc.--Recon.,
B-244887.2, Apr. 1, 1992, 92-1 CPD para. 330 at 3-4.[3]
Past Related Performance
Under past related performance, the RFP instructed offerors to
"identify all current and past federal, state, local or private
contracts performed during the last ten years for the types of
services called for in this solicitation." RFP Amend. No. A002
sec. L-2 (d)(2), at L-6. In this area, as relevant to the protest, the
RFP instructed offerors to "assess [their] performance under contracts
listed . . . [to i]nclude[] the . . . offeror's experience in
start-up, replacement of or addition of personnel, any problems in
performance and any observations on how to avoid those problems in the
future." Id., at L-7. GSSC's proposal was downgraded in this area
for "not provid[ing] a detailed assessment of its past performance"
for its listed contracts. Letter of Debriefing, June 12, 1998, at 2.
The protester challenges the downgrading of its proposal, contending
that it "provided at least 34 pages [i.e., pages 47-81] of detailed
information about its past performance," which "met all of the
requirements." Comments (B-280388), at 10. The agency responds that,
although GSSC's first BAFO contained some general statements about the
firm's performance under its listed contracts--such as that the firm's
past performance had been exemplary and that contract start-up had
always been accomplished with minimal burdens on GSSC's clients--the
firm did not provide any details about its experience with start-up
and problems encountered in the performance of the firm's listed
contracts, or make any observations about how to avoid problems in the
future. Additionally, the agency asserts, GSSC's proposal provided no
assessment of the firm's replacement or addition of personnel.
GSSC neither rebuts the specific deficient areas cited by the agency,
where required information was omitted from its proposal, nor disputes
that the deficiencies are material. Instead, the protester relies on
(1) its past performance history which, it contends, the agency
"already knew . . . because [the firm] performed the same services for
USMS in every other judicial circuit and in some of those circuits for
over ten years," and (2) its Price and Technical Proposal Response
(post-discussions) which, it contends, "provided additional detailed
information about GSSC's past performance including the high scores
and accolades that USMS gave GSSC for its performance on past
contracts" (in the form of a poll of its USMS customers conducted at
an unspecified time in the past). Id.
The protester's arguments are without merit. GSSC's reliance on its
past performance, without regard to the specific information required
by the RFP, is misplaced. A procuring agency's technical evaluation
is dependent upon the information furnished in the offeror's proposal.
Computerized Project Management Plus, B-247063, Apr. 28, 1992, 92-1
CPD 401 para. at 3. An agency is not required to overlook a flawed
proposal on the basis of the offeror's prior performance; on the
contrary, all offerors are expected to demonstrate their capabilities
and submit required information in their proposals. See McAllister &
Assocs., Inc., B-277029.3, Feb. 18, 1998, 98-1 CPD para. 85 at 4, 6.
Our review confirms the agency's finding that GSSC's proposal omitted
the required information. Since GSSC has not shown that the evaluated
deficiencies are unfounded based on the information contained in its
proposal, there is no basis to object to this aspect of the
evaluation.
GENERAL EVALUATION DEFICIENCIES
Inconsistent Evaluator Scoring
GSSC argues that the evaluation of its initial proposal under the
corporate management factor--which required that offerors "propose 100
[percent] staffing for the CSO positions . . ."--was unreasonable due
to inconsistent scoring among evaluators, which was not explained or
documented. RFP Amend. No. A003 sec. L-2(d)(1)(xi), at L-6.
Specifically, the protester complains that two original TEB members
assigned its proposal three points, the maximum possible score, while,
without explanation from the original or reconvened TEB, two others
assigned it zero points.
This argument is without merit. First, disparate scoring among
evaluators by itself does not suffice to establish an improper
evaluation. Unisys Corp., B-232634, Jan. 25, 1989, 89-1 CPD para. 75
at 6. Moreover, any disparity in the scoring of GSSC's initial
proposal had no effect on the final evaluation, since the record shows
that the deficiency noted in the initial evaluation subsequently was
eliminated, and GSSC's proposal apparently received a perfect score in
this area. Preliminary TEB Report-Reconvened TEB, at 21 (undated, but
conducted during week of July 26, 1997).[4]
Documentation for Revised Scoring
The protester argues that there is a lack of documentation in the
evaluation record for scoring changes in its proposal under the
assessment of past performance subfactor and, in particular, that the
record fails to include separate evaluation forms to explain the
changed scoring, as required by internal agency instructions, entitled
"Instructions for Technical Evaluation Factors." In support of its
position, the protester cites one evaluator's score sheet in this area
which shows "what appears to be a scoring change from 4 points to 0
points on a subfactor worth 5 points." Comments (B-280388.2), at 10.
Alleged deficiencies in the application of an agency evaluation plan
do not provide a basis for questioning the validity of the award
selection; these plans are internal agency instructions and as such do
not give outside parties any rights. Management Plus, Inc., B-265852,
Dec. 29, 1995, 95-2 CPD para. 290 at 2 n.2. Consequently, the fact that
the agency may not have followed its internal evaluation instructions
is not a valid basis for protest.
Nevertheless, agency evaluation judgments must be documented in
sufficient detail to allow review of the merits of a protest, to show
that they are not arbitrary, and to show that they are in accord with
the evaluation criteria listed in the RFP. Southwest Marine, Inc.;
Am. Sys. Eng'g Corp., B-265865, B-265865.4, Jan. 23, 1996, 96-1 CPD para.
56 at 10. While it is not clear from the record why GSSC's proposal
score in this area initially was higher, the record does support the
lower final score. As discussed to some extent above, the initial
evaluation record described the deficiency in this area as, "[t]he
offeror did not provide any assessment of its performance under
contracts listed." Preliminary TEB Report-Reconvened TEB, at 21. The
discussion questions subsequently posed to the protester included, as
relevant, the statement that the "[o]fferor did not provide an
assessment of its past performance under previous contracts." Request
for BAFOs and Discussion Questions, September 2, 1997, at 2, Question
No. 11. Then, in the final evaluation record, the deficiency is
described as follows:
Rather than conducting a rigorous assessment of its past
performance under previous contracts GSSC provided only a limited
assessment which relies largely on a poll it said it conducted at
some unspecified time in the past [; t]here are no
indications that this is a scientific poll[; r]esponses to this
type of non-scientific survey are of limited use[;] GSSC does
provide a limited assessment that is distinguished largely by its
limitations and lack of specificity, insight or rigor.
Final TEB Report, November 25, 1998, at 1. Thus, the documentation in
the record is sufficient to indicate precisely why the agency
ultimately downgraded GSSC's proposal substantially in this area. The
protester provides no basis to question the agency's conclusion.[5]
Weighting of Technical Subfactors
GSSC argues that the evaluation was improper based on the unequal
weighting of undisclosed technical subfactors. The protester contends
that, because the solicitation listed the subfactors without
indicating the relative weights to be applied to them, offerors were
entitled to assume that they would be considered of equal, or
approximately equal, importance, which did not occur in the actual
evaluation. As an example, the protester cites the first two past
performance subfactors--identification of past similar contracts and
assessment of past performance--which were weighted 5 points each, in
contrast to the remaining two subfactors--turnover-related information
and other past performance information offerors wish to provide--which
were weighted 5 points combined.
The protester is correct that, where the relative weights of
subfactors are not disclosed in the RFP, the subfactors are understood
to be of equal importance to each other. North-East Imaging, Inc.,
B-256281, June 1, 1994, 94-1 CPD para. 332 at 2. However, competitive
prejudice is an essential element of every viable protest. Geonex
Corp., B-274390.2, June 13, 1997, 97-1 CPD para. 225 at 4. Our Office
will not sustain a protest unless the protester demonstrates a
reasonable possibility that it was prejudiced by the agency's actions,
that is, unless the protester demonstrates that, but for the agency'
actions, it would have had a substantial chance of receiving the
award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3;
see Statistica, Inc. v. Christopher, 102 F.3d. 1577, 1581 (Fed. Cir.
1996).
GSSC has not asserted that it suffered competitive prejudice as a
result of the agency's unequal weighting of the subfactors and, given
the informational nature of the subfactors--i.e., concerning past
performance matters--it is not apparent how different weights would
have affected the manner in which GSSC prepared its proposal; that is,
there is no reason to believe that GSSC would have provided any more
or different information had it been aware of the actual weights of
the subfactors. Moreover, the 1.25-point difference between the
actual evaluation weighting (5 points) and the equal weighting assumed
by the protester (3.75 points), in the assessment of past performance,
the area of downgrading of its proposal, is so minimal, that this
consideration alone renders the potential for prejudice virtually
nonexistent.
Calculation of Total Technical Scores
GSSC complains that its initial technical score was improperly
calculated. According to the protester, while the TEB report
indicates that the firm's proposal received a technical score of 44.8
points, the actual average of the individual scores from the initial
nine-member TEB was 45 points. The protester complains that, based on
this erroneous calculation, its initial proposal was rated only
conditionally acceptable, when it should have been rated as
acceptable. Protest (B-280388.2), at 5. GSSC also maintains that
a similar error may have left Akal's proposal score too low by a
fractional amount. The agency acknowledges the error in GSSC's score,
but maintains that it had no bearing on the overall and final rank of
the firm's proposal, because after the firm was included in the
competitive range and participated in several rounds of discussions,
the firm's technical score was correctly revised by the TEB to account
for this error. Contracting Officer's Statement of Fact (B-280388.2),
at 3.
It is not apparent from the record whether the error in GSSC's score
was carried through to the final evaluation, and whether a similar
error affected Akal's proposal. However, we fail to see how rounding
GSSC's score up to 49 and Akal's up to 56 could have affected the
award decision, and GSSC does not assert that it would have.
Consequently, this argument presents no basis to question the award.
PRICE EVALUATION
Compliance with Wage Rate Requirements
GSSC argues that Akal's final price failed to comply with mandatory
RFP wage rate requirements regarding the payment of fringe benefits.
The RFP made the Service Contract Act of 1965 (SCA) applicable here,
so that the successful offeror would be obligated to pay employees in
accordance with wage rate determinations (WRD) issued by the
Department of Labor (DOL). RFP Amend. No. A006, sec. L-4 at L-10. The
applicable WRDs incorporated by the RFP required offerors to (1) pay
minimum prevailing wage rates in the locality where the services were
performed, and (2) establish a minimum fringe benefit package
consisting of specified periods of time for holidays and vacation and
specified health/welfare and uniform allowances. RFP sec. J, Attachment
1, as amended.
In evaluating wage rates, the contracting officer specifically
determined that "[i]n all cases Akal . . . proposed wage rate[s] above
the wage determinations, and equal to each of the wage rates as
provided under Amendment A-006," and that "[t]his [wa]s considered to
be acceptable." Cost/Price Analysis, at 1.
GSSC argues that Akal's final price proposal did not comply with the
WRDs, notwithstanding the contracting officer's determination to the
contrary, because Akal generally failed to add a fringe benefit rate
to holiday pay. The protester concludes that Akal's proposal should
have been rejected for failure to comply with a mandatory RFP
requirement.
We have reviewed the RFP and wage determination and, as the agency
states, find no requirement that a fringe benefit rate be added to
holiday pay. GSSC has neither rebutted the agency's assertion in this
regard, nor cited the area of the RFP, wage WRD, or applicable
regulations where such a requirement is established. We conclude that
this argument is without merit.[6]
Adjustments to Akal's Proposal
GSSC asserts that, although its own and Akal's offered final prices
were approximately equal ($62,243,593 and $62,114,638, respectively),
the agency improperly created an approximate $4 million advantage for
Akal by adjusting GSSC's price upward by $2,267,540, for a total of
$64,511,133, and adjusting Akal's price downward by $1,431,577, for a
total of $60,683,061.
As an initial matter, we note that GSSC's protest regarding the
adjustment of its own proposed price is untimely. Under our
Regulations, protests such as this must be filed with our Office no
later than 10 days after the protest basis was or should have been
known. 4 C.F.R. sec. 21.2(a)(2) (1998). GSSC challenged the evaluation
of its proposed price for the first time on July 27, 1998, more than 3
months after GSSC received the notice of award letter from USMS (on
April 2, 1998), which listed the total evaluated price of GSSC's
proposal. We thus will consider GSSC's argument only with regard to
the adjustment of Akal's proposal; we find this argument to be without
merit.
The agency reports that the difference between Akal's proposed and
evaluated total prices is attributable to calculation errors in both
the contracting officer's price analysis and Akal's final price
proposal. The agency has explained these errors in detail, which we
will not repeat here. Contracting Officer's Statement (B-280388.2),
at 6-7. After correcting these errors, Akal's final evaluated price
was $61,652,300. Thus, even assuming that GSSC is correct that its
final proposed price of $62,243,593 should not have been adjusted
upward, the agency maintains that GSSC would not have received award
because its proposed price still was higher than Akal's correct
evaluated price. Id., at 8. GSSC has not rebutted the agency's
explanation of the errors and the recalculation of Akal's price. This
argument thus provides no basis to question the award.[7]
The protest is denied.
Comptroller General of
the United States
1. These categories are (1) CSO services between 6:00 a.m. and 6:00
p.m., Sunday through Saturday; (2) CSO services between 6:00 p.m. and
6:00 a.m. Sunday through Saturday; (3) CSO services on any of the 10
recognized federal holidays; (4) start-up services for new CSOs and
yearly contractor expenditures for uniforms, weapons, proficiency
testing, and medical examinations; and (5) overtime services.
2. The prices given here are those calculated by the agency which, as
will be discussed, differed from those offered.
3. In any case, the downgrading for failure to detail the length of
time of each suspension was reasonable. Essentially, the protester is
arguing that the RFP requirement for the length of time for each
suspension could be satisfied with the firm's general statement of its
intended range of suspensions--1 to 2 weeks. However, this
interpretation of the requirement was clearly at odds with the
agency's, as exhibited by the written technical discussion questions
submitted to the protester. Those questions cited the failure to
"detail the length of time for each suspension and the number of
suspensions allowed before dismissal." Discussion Questions No. 6,
September 2, 1997, at 2. This question put the protester on notice
that the general statement it initially submitted had been evaluated
as insufficient to meet the requirement and, therefore, that more
specific information, such as the length of time of suspension for
specific examples of misconduct, was necessary. The protester did not
provide more specific information, stating only that "[o]ur
disciplinary procedures purposefully avoids the '3 strikes you're out'
concept of discipline[; w]e take a disciplinary approach that reviews
each infraction by a CSO on an individual basis while also weighing
the disciplinary and work history of the person." GSSC Pricing and
Technical Proposal Response at 18 and 19. It is an offeror's
responsibility to submit an adequately written proposal in order to
establish that what it proposes will meet the government's needs.
Herndon Science and Software, Inc., B-245505, Jan. 9, 1992, 92-1 CPD para.
46 at 4. Here, the protester did not satisfy the request for more
specific information, and thus took the risk of an unfavorable
evaluation.
4. The record indicates that GSSC's technical score was increased by 4
points, to a total of 48.8 points, based on, as relevant here, the
following TEB observation: "GSSC did state that it would provide 100%
staffing on day one of the contract which had been a key omission in
its original proposal netting it 0 points [in this area] in its
original proposal." Final TEB Report, November 25, 1997, at 1. The
protester does not challenge this indication in the record that the
original scoring deficiency was corrected.
5. We have no basis to consider the protester's further complaint that
other scoring was revised without adequate documentation, since the
protester has not identified any specific areas in this regard.
6. Among other changes, amendment No. A006 required offerors to
maintain the incumbent contractor's unburdened wage rates. RFP Amend.
No. A006 sec. M-9, at M-5, and sec. J1(b). The protester contends that
issuance of this amendment and reopening discussions improperly
afforded Akal an opportunity to raise its wage rates to the level of
the incumbent contractor's unburdened wage rates, so as to make its
proposal minimally acceptable. This argument is without merit. There
was nothing improper in the agency's decision to require offerors to
meet the incumbent's wage rates, and there certainly was nothing
improper in reopening discussions to provide offerors an opportunity
to meet the requirement.
7. GSSC further argues that "Akal's technical score should have
reflected the negative impact on stability and turnover rate implied
by slashed wages and benefits that were unreasonably low" (on category
4 services--start-up, uniforms, weapons, and testing). Request for
Additional Documents (B-280388.2), August 24, 1998, at 3. This
argument is without merit. First, the RFP provided that no cost
information would be considered in the technical evaluation. RFP
Amend. No. A002 sec. L-2(b), at L-1. In any case, in the face of the
agency's finding that Akal's wages were acceptable, there is no basis
for finding that Akal's wage rates were unreasonably low such that
reducing Akal's technical score would have been warranted.