TITLE:   OMNIPLEX World Services Corporation, B-282630.2, September 22, 1999
BNUMBER:  B-282630.2
DATE:  September 22, 1999
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OMNIPLEX World Services Corporation, B-282630.2, September 22, 1999

Decision

Matter of: OMNIPLEX World Services Corporation

File: B-282630.2

Date: September 22, 1999

Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Adduci, Mastriani &
Schaumberg, for the protester.

Scott Godes, Esq., Sheila C. Stark, Esq., and David B. Dempsey, Esq., Piper
& Marbury, for Securiguard, Inc., an intervenor.

R. David Gale, Esq., Kathy B. Cowley, Esq., and Marleen J. Phillips, Esq.,
Department of the Navy, for the agency.

C. Douglas McArthur, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Offeror has the obligation to submit an adequately written proposal, and
where proposal was at best ambiguous regarding offeror's understanding of
and compliance with solicitation's prohibition against using a uniformed
security guard as project manager, determination that protester's proposal
was unacceptable without discussions was reasonable and consistent with
solicitation.

2. Where, even if General Accounting Office sustained protest against
evaluation of awardee's proposal, another offeror whose proposal the agency
rated more highly and who proposed a lower price would be in line for award,
protester is not an interested party to raise issues concerning evaluation
of the awardee.

DECISION

OMNIPLEX World Services Corporation protests the award of a contract to
Securiguard, Inc. under request for proposals (RFP) No. N00600-98-R-1489,
issued by the Fleet and Industrial Supply Center (FISC), Department of the
Navy, for armed security guard services. OMNIPLEX asserts that the
evaluation of its proposal was

unreasonable or inconsistent with the criteria set forth in the RFP and
protests the agency's decision to make an award based on initial offers.

We deny the protest.

BACKGROUND

On May 4, 1998, the Navy issued the RFP for services at National Archives
and Records Administration (NARA) buildings in Washington, D.C.
(Archives I), and Adelphi, Maryland (Archives II), for a 1-year base period
with four 12-month option periods. [1] The RFP, paragraph M.3(b), Contract
Award-Best Value, provided for an award to the offeror whose proposal was
"most advantageous to the Government," considering price and other factors;
these factors included three management factors, of which M-2 (personnel)
was most significant and M-1 (management plan) was second in importance. The
agency would also consider past performance, technical understanding and
approach (factor T-1) and quality control (factor M-3), in that order of
importance.

The RFP also listed several subfactors and elements of those subfactors.
Factor M-2 contained three equally weighted subfactors; the first two
subfactors, key personnel (M-2.1) and staffing and recruiting (M-2.2)
consisted of three equally weighted elements. The third subfactor,
additional security services (M-2.3), consisted of two equally weighted
elements. Factor M-1 contained five subfactors, M-1.1 to M-1.5, in
descending order of importance; one of these subfactors, M-1.1 (organization
and management) contained six elements, M-1.1.1 to M-1.1.6, in descending
order of importance. Subfactors M-1.2 through M-1.5--corporate resources,
training and certification, subcontractor management, and
transition--contained no elements.

The schedule, at the second page of the solicitation, advised offerors that
a project manager was "essential" to performance, and the RFP contained a
separate line item for project management. RFP at B-2, B-4. Section C of the
RFP contained the statement of work (SOW), which addressed project
management in the third section, RFP para. C.3, Management and Administration,
after the overview of services (RFP para. C.1) and the general requirements (RFP
para. C.2). The RFP advised offerors as follows:

CONTRACT MANAGEMENT AND SUPERVISION IS CONSIDERED CRITICAL TO THE
PERFORMANCE OF THIS CONTRACT. Failure on the part of the Contractor to
furnish, at all times, a competent and knowledgeable project manager, and
such supervision as required herein, may render the Contractor subject to
default.

RFP para. C.3.a.

Paragraph C.3b required a contractor to assign "another individual of equal
or greater qualifications" when the project manager was unavailable for any
reason. Paragraph C.3.2 of the RFP set forth the duties of the project
manager, who would be "the single point of contact through which all
Contractor/Government communications, work, and technical direction shall
flow" and prohibited a contractor from appointing any of the uniformed
security guards to perform the duties of the project manager.

Paragraph L.8 of the RFP provided instructions for proposal preparation; in
pertinent part, para. L.8.2(c) of the RFP directed offerors to submit completed
past performance questionnaires (Attachment 17, section J of the RFP) with
their proposals, for the evaluation of past performance. Paragraph L.9 of
the RFP provided for an oral presentation by "[o]fferors in the competitive
range."

As noted above, RFP para. M.3 provided for an award on the basis of best value.
The clause is a FISC version of the Federal Acquisition Regulation (FAR)
clause providing for award without discussions, but here contained a
typographical error, as follows (emphasis supplied):

The Government intends to evaluate proposals and award a contract with
discussions with offerors. However, the Government reserves the right to
conduct discussions if later determined by the Contracting Officer to be
necessary. Therefore, each initial offer should contain the offeror's best
terms from a cost or price and technical standpoint. [2]

The clause provided for ratings of "outstanding," "better," "acceptable,"
"marginal," or "unacceptable," and warned, "A finding of Unacceptable in one
technical factor

may result in the entire technical proposal being found to be unacceptable."
RFP at M-7. Page M-5 of the RFP defined "marginal" as a proposal with
deficiencies but which, given the opportunity for discussions, had a
reasonable chance of becoming at least "acceptable."

The Navy received 12 proposals by the initial due date of July 16. During
the evaluation of proposals, the agency discovered the typographical error
in paragraph M.3; on February 11, 1999, it issued amendment No. 5 to the
RFP, advising offerors that it considered this language ambiguous and
substituting "without" for "with." The amendment also deleted that portion
of the RFP that dealt with oral presentations, advising offerors that the
Navy would evaluate offerors based on their written proposals alone. RFP
amend. No. 5 at 2.

A technical evaluation panel (TEP) reviewed the proposals. That panel
assigned the protester's proposal an "unacceptable" rating for the two most
significant evaluation factors, M-2 (personnel) and M-1 (management plan).
Evaluators concluded that OMNIPLEX had proposed [deleted]. On this basis,
they rated the proposal as [deleted] for subfactors M-2.1 and M-1.1 and for
factors M-2 and M-1. The agency's Business Clearance Memorandum (BCM),
pages 24-25, described the use of [deleted] as back-up to the project
manager as the "major flaw" in the proposal under factors M-1 and M-2,
although OMNIPLEX also received [deleted] ratings for element M-2.2.1,
element M-2.2.3, and subfactor M-2.2. Evaluators rated the proposal as
"unacceptable" overall. Technical Evaluation Summary Report for OMNIPLEX
at 1.

The TEP found three proposals--from [deleted] and Securiguard,
Inc.--"acceptable" overall; the [deleted]. Although the [deleted] proposal
received a [deleted] rating under factor M-1, the source selection
evaluation team determined that the superiority of the proposal did not
merit the additional price and recommended selection of the Securiguard
proposal--the lowest-priced of the [deleted] acceptable proposals--as the
best value. The Source Selection Authority accepted this recommendation, and
a Contract Review Board approved the selection of Securiguard. Source
Selection Plan at 3; BCM at 2; Letter from FISC to OMNIPLEX proposal manager
(Apr. 9, 1999); Contracting Officer's Statement at 7-8. Accordingly, the
agency notified offerors that it had selected Securiguard for award, and
this protest followed.

EVALUATION ISSUES

Omniplex contends that the Navy's evaluation of its proposal was
unreasonable and inconsistent with the RFP requirements. The protester
contends that it was not offering [deleted] as an alternate project manager.
Rather, the protester explains, the proposal offered the [deleted] serve at
Archives I because the [deleted] would be at Archives II. The protester
contends that, if the agency had held discussions and allowed oral
presentations, it could have clarified its intentions. OMNIPLEX also
contends that since its proposal received no rating for any element or
subfactor below "marginal," it was unreasonable to rate the proposal as
"unacceptable" overall.

Our Office examines an agency's evaluation of technical proposals for
reasonableness and consistency with the solicitation. Pacifica Servs., Inc.,
B-280921, Dec. 7, 1998, 98-2 CPD para. 137 at 3. Since the agency's evaluation
must rely upon the information in the proposal, the offeror has the
obligation to submit an adequately written proposal, and its failure to
fulfill that obligation does not render the evaluation unreasonable. Id.
Considering the solicitation's emphasis on the importance of the project
manager position and the uncertainty of OMNIPLEX's proposal concerning
[deleted] as alternate project manager we cannot conclude that the
evaluation here was either unreasonable or inconsistent with the
solicitation.

Paragraph L.8.1 of the RFP, advising offerors what information to provide in
their proposals, also provided evaluation standards for the stated
evaluation factors, subfactors, and elements. For element M-1.1.1
(management approach), it required offerors to provide evidence of their
understanding of the SOW and required them to tell how many supervisors or
managers that would be assigned to the contract "to provide timely and
effective . . . supervisory control and response." For subfactor M-2.1,
offerors had to describe the number of key personnel assigned to the
contract (element M-2.1.1, managers and supervisors) and demonstrate their
approach to providing backup for key personnel during absences (element
M-2.1.2, key personnel back-up). They had to demonstrate that all proposed
key personnel met or exceeded the SOW (element M-2.1.3, key personnel
qualifications). Under the RFP, an offeror was thus required to demonstrate
its understanding of the SOW's emphasis on the project manager position,
including its plans for providing a back-up project manager when the project
manager was absent.

The protester's proposal was at best ambiguous in this regard, [deleted].
Table of Contents at 4; Management Plan at 4, 20. Further, page 5 of the
management plan expressly states that [deleted]; the SOW, page C-12 of the
RFP, states that the project manager "shall provide the single point of
contact." As noted above, the RFP contained a clear warning against
proposing a uniformed security officer to serve in the project manager
position. The schedule and SOW emphasized the project manager's role,
terming it "essential" and "critical"; it expressly forbade the use of a
uniformed security officer as project manager. The agency's apparent
concern, under the RFP, that an offeror might not understand or might try to
evade RFP restrictions on the appointment of unqualified personnel to the
project manager position, and its evaluation of the protester's proposal in
this regard, were both reasonable and consistent with the solicitation.

Further, even though evaluators assigned a rating of "marginal" to
element M-1.1.1, as well as elements M-2.1.1 and M-2.1.2, the RFP provided
for applying the "marginal" rating to proposals that required discussions to
become "acceptable." RFP at M-5. The agency here advised offerors of its
intention not to hold discussions, removing any ambiguity in the matter
through amendment No. 5. There generally is no obligation for an agency to
hold discussions where the RFP advises offerors that the agency intends to
make award without discussions. Rohmann Servs., Inc., B-280154.2, Nov. 16,
1998, 98-2 CPD para. 134 at 8. Given, therefore, that the agency did not intend
to hold discussions, its treatment of "marginal" ratings as "unacceptable"
ratings was consistent with the definition of "marginal." Further, the RFP
warned that the agency could find a proposal "unacceptable" overall if it
received an "unacceptable" rating for any factor. The agency's conclusion
that the proposal was "unacceptable" because it was "marginal" for certain
elements was therefore consistent with the RFP.

Subsequent to receiving the agency report filed in response to its protest,
OMNIPLEX filed a supplemental protest against the evaluation of
Securiguard's proposal. Under the bid protest provisions of the Competition
in Contracting Act of 1984, 31 U.S.C. sect.sect. 3551-56 and our Bid Protest
Regulations, 4 C.F.R. sect. 21.0(a) (1999), only an "interested party" may
protest a federal procurement. Here, the agency argued, even if our Office
were to sustain a protest against the Navy's evaluation of Securiguard's
proposal, there are [deleted] other technically acceptable, lower-priced
proposals in line for award-- [deleted] and the protester is therefore not
an interested party for the purpose of challenging the evaluation of
Securiguard's proposal. OMV Med., Inc.; Saratoga Med. Ctr., Inc., B-281388
et al., Feb. 3, 1999, 99-1 CPD para. 53 at 10. Protester's counsel was provided
an opportunity to review copies of the [deleted] proposals so that it could
defend against the agency's contention that it was not an interested party
to challenge Securiguard's evaluation. [3] We conclude that [deleted] would
be in line for award if the protest were sustained and that, therefore,
OMNIPLEX is not an interested party to challenge the evaluation of the
awardee's proposal.

OMNIPLEX contends that [deleted] proposed, [deleted] that RFP para. C.5.2.3.b
required for shift supervisors, and, as candidates for the security guard
positions, individuals who lacked the 3 years experience that RFP
para. C.5.2.3.c required for those positions. RFP at C-21. The protester notes
that it received a [deleted] rating for element M-2.2.1, staffing, because
[deleted] to rate [deleted] as [deleted] for staffing. The record shows
that, in fact, [deleted]. RFP para. C.5.2.3.b specifically allows consideration
of experience in military law enforcement.

Regarding the security guard positions, [deleted]. Of critical importance,
the RFP did not identify the security guard positions as key positions; the
offeror was thus not required to identify the candidates it would ultimately
hire. Under these circumstances, we cannot conclude that the agency
unreasonably evaluated [deleted] in this regard, as understanding the
requirement.

The protester also asserts that [deleted]. RFP at C-15 to C-18. Except for
annual firearms training, RFP para. 4.3, and refresher training, RFP para. 4.2.2(d)
(2 hours per quarter), there is no specific requirement that the contractor
furnish training during performance. Rather, the RFP requires a contractor
to provide a training plan after award, RFP para. C.4.1, and it requires that
employees receive basic and advanced training in certain areas. [deleted]
Protester's August 4, 1999 Letter to GAO at 7, we find no requirement that
it be so, so long as the plan submitted after award meets RFP requirements.
The agency reasonably found [deleted] proposal acceptable in this regard.

The protester raises a challenge to [deleted] proposal related to wage
determination rates. [deleted] The protester's proposal met the new, higher
rate. The protester contends that the agency unreasonably ignored the risk
created by [deleted] since any offeror would presumably receive a contract
price adjustment to match a rate increase incorporated after award, as
apparently happened with Securiguard here after award. In any event, since
Securiguard and [deleted] offered prices more than [deleted] lower than
OMNIPLEX did, [deleted] was insignificant in terms of the selection
decision, and there is otherwise no basis for concluding that the issue
would have any significant price impact. [4] We therefore find that the
agency reasonably found the [deleted] proposal acceptable and that OMNIPLEX
is thus not an interested party to challenge the evaluation of the awardee's
proposal, given the availability of [deleted] acceptable proposal with its
lower price.

The protester also argues that the agency lost its past performance
questionnaires. Considering our conclusion that the agency properly
determined the protester's technical proposal to be unacceptable, review of
OMNIPLEX's past performance

questionnaires would have made no difference to the selection decision. See
Encore Management, Inc., B-278903.2, Feb. 12, 1999, 99-1 CPD para. 33 at 1 (our
Office will not review matters that are academic).

The protest is denied.

Comptroller General
of the United States

Notes

1. By subsequent amendment, the agency advised offerors that the contract
type would be "Indefinite Delivery Indefinite Quantity, Labor hour, and
Firm-Fixed-Price contract." RFP amend. No. 6.

2. The standard version of FAR sect. 52.215-1(f)(4), where an agency intends
award without discussions, is as follows:

The Government intends to evaluate proposals and award a contract without
discussions with offerors (except clarifications as described in FAR
15.306(a)). Therefore, the offeror's initial proposal should contain the
offeror's best terms from a cost or price and technical standpoint. The
Government reserves the right to conduct discussions if the Contracting
Officer later determines them to be necessary.

3. OMNIPLEX raised several issues regarding the Securiguard proposal, among
them the failure of the awardee to provide a phase-out plan in accordance
with the RFP instructions. The agency's response to this issue is that the
failure to furnish such a plan would not prevent the proposal from being
acceptable, even if evaluators had rated the proposal "marginal" for
element M-1.5, transition. Lacking any indication in the record that the
Navy considered this issue during its evaluation, we accord little weight to
such a response. See Boeing Sikorsky Aircraft Support, B-277263.2,
B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. However, in view of our
conclusion that at least [deleted] offeror, [deleted], submitted an
acceptable offer at a lower price, we need not resolve this issue. We note,
however, that subfactor M-1.5, transition, was the least important of five
subfactors under factor M-1, and therefore, as the agency suggests, a
marginal rating there may not have dictated an unacceptable rating for
factor M-1 overall.

4. Similarly, to the extent that [deleted], contrary to Department of Labor
rulings, as OMNIPLEX contends, a contractor would have to comply with
Department of Labor regulations regardless of the language of its proposal.
(Guard mount/dismount time is the period from which the guard signs out a
firearm until he assumes his assigned post and the similar period from when
he leaves his post until he turns in his firearm.)