TITLE:  SWR, Inc., B-284710.2; B-284710.3, November 15, 2000
BNUMBER:  B-284710.2; B-284710.3
DATE:  November 15, 2000
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SWR, Inc., B-284710.2; B-284710.3, November 15, 2000

Decision

Matter of: SWR, Inc.

File: B-284710.2; B-284710.3

Date: November 15, 2000

Benjamin M. Bowden, Esq., Albrittons, Clifton, Alverson & Moody, for the
protester.

Julius Rothlein, Esq., Theresa M. Young, Esq., and Rachel B. Thompson, Esq.,
United States Marine Corps, for the agency.

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

DIGEST

Protest that the agency unreasonably concluded that the protester's proposal
was unacceptable under the management oversight factor and would not receive
further consideration is denied where the record shows that the decision to
eliminate the protester's proposal was reasonably based on the protester's
failure to meet an explicit solicitation management requirement.

DECISION

SWR, Inc. protests the award of a contract to Starlight Corporation under
request for proposals (RFP) No. M00681-99-R-0010, issued by the Marine Corps
Base at Camp Pendleton for aircraft washing. SWR principally contends that
the agency unreasonably excluded its proposal from the competition.

We deny the protest.

The RFP, issued on August 12, 1999 as a total small business set-aside,
contemplated the award of a fixed-price contract to provide commercial wash
services for aircraft and mobile facilities at Marine Corps Air Stations in
California and Arizona. RFP
sect. A.2.1.0. The RFP was subsequently amended three times. Amendment No. 3
replaced the original statement of work (SOW) with a revised SOW that
reflected performance-based standards. Agency Report (AR) at 1. As relevant
here, the revised RFP SOW under "Management Responsibilities" required that
"[t]he contractor shall provide a Project Manager who shall be responsible
for the performance of the work. The Project Manager . . . shall . . . have
full authority to act for the contractor on all contract matters relating to
the daily operation of this contract." RFP sect. A.2.13.1. The RFP called for
the evaluation of the proposals under the criteria of past performance,
price, management oversight, and technical ability. RFP sect. A.6.2; RFP amend.
No. 1. All evaluation factors were of equal importance. RFP sect. A.6.2. The RFP
provided for award to be made without discussions. RFP sect. A.6.g.

Five proposals were received by the closing date. The proposals were
evaluated by one individual who had written the performance-based standards
for the RFP. This technical evaluator rated SWR's proposal "excellent" under
the past performance factor and "good" under the technical ability factor.
SWR Technical Evaluation. The evaluator assigned SWR's proposal a "marginal"
rating in the area of management oversight because he concluded that SWR's
approach to management oversight was inadequate. The evaluator found that
SWR had not proposed "‘one person' to talk to" for daily operations as
required by the RFP; that "[the] number of personnel . . . [were] not
adequate at [the air station in] Miramar [California] . . . to provide
number of washes proposed"; and that SWR's proposed tool inventory approach
would slow the wash schedule at Miramar. The evaluator concluded that SWR
did not "understand the scope of management requirement in order to sustain
the contract wash schedule." Starlight received an overall technical rating
of "excellent." Starlight's price for the base year was $1,258,080, and
SWR's price was [DELETED].

After reviewing the evaluation results and all evaluation factors, the
contracting officer eliminated the proposals of SWR and another offeror from
further consideration because their proposals received "marginal" ratings,
indicating the agency's belief that these offerors could not meet the
agency's needs. AR exh. 3, Source Selection Decision. Consequently, SWR was
not assigned an overall technical rating and its proposal was eliminated as
"unacceptable" based on its receipt of a "marginal" rating in the management
oversight evaluation factor. Id. The contracting officer determined that
Starlight's proposal was the best value based on Starlight's overall
"excellent" rating. The contracting officer recognized that Starlight had
submitted the second lowest priced proposal, but that the proposal of the
low priced offeror, SWR, was not acceptable because of its "marginal" rating
in the management oversight factor. On August 25, award was made to
Starlight.

SWR challenges the agency's decision to rate its proposal "marginal" under
the management oversight factor and to eliminate the firm from the
competition. SWR specifically disagrees with the evaluator's view that its
proposal did not satisfy the project manager requirement, that its proposal
did not provide adequate staffing, and that its inventory approach was
flawed.

The evaluation of technical proposals is primarily the responsibility of the
contracting agency, since the agency is responsible for defining its needs
and the best method of accommodating them, and it must bear the burden of
any difficulties resulting from a defective evaluation. Federal Envtl.
Servs., Inc., B-260289, B-260490, May 24, 1995, 95-1 CPD para. 261 at 3. In
reviewing protests challenging an agency's evaluation of proposals, we will
not substitute our judgment for that of the agency regarding the merits of
proposals; rather, we will examine the agency's evaluation to ensure that it
was reasonable and consistent with the solicitation's evaluation criteria
and the applicable procurement statutes and regulations. Honolulu Marine,
Inc., B-245329, Dec. 27, 1991, 91-2 CPD para. 586 at 3. A protester's mere
disagreement with the agency's evaluation does not render it unreasonable.
CORVAC, Inc.,
B-244766, Nov. 13, 1991, 91-2 CPD para. 454 at 5.

As stated above, the RFP required that the project manager have full
authority to act for the contractor on all contract matters relating to the
daily operation of this contract. The agency basically expected the project
manager to be the single point of contact for daily operation issues. SWR
proposed a project/site manager and [DELETED] site managers. AR exh. 6a, SWR
Proposal, at 10-12. In describing their responsibilities, SWR explicitly
stated that the [DELETED] site managers "shall be vested the authority to
act for SWR on all contract matters relating to the daily operation of the
resulting contracts." Id. Although the project manager was to assist site
managers in the coordination and direction of daily work schedules and was
available to meet with government personnel as required, the project/site
manager did not have the authority to act for SWR as required by the RFP.
Id.

Moreover, as the agency correctly points out, SWR's management proposal is
confusing. SWR's organizational chart shows a project manager and [DELETED]
site managers. AR exh. 6a, SWR Proposal, at 8. However, this organizational
structure is not consistent with the narrative that follows the chart,
which, as described above, proposes [DELETED] site managers and [DELETED]
project/site manager. SWR's proposal also included a Vice
President/Administrative Project Manager. SWR states that "[i]f the Marine
Corps had a problem that could not be resolved with a site manager or the
project manager, it is clear that the ‘Administrative Project
Manager,' as the Vice-President of the Company, had the authority to resolve
any problems." Protester's Comments at 5. The administrative project manager
is clearly not involved in daily operations, but has "[DELETED]," and the
administrative project manager description does not include the authority
required by the RFP. AR exh. 6a, SWR Proposal, at 9. Thus, this position
does not meet the RFP requirement at issue.

On this record, we think the agency was reasonably justified in deciding
that SWR's proposal was unacceptable because of SWR's failure to satisfy the
project manager requirement.

The protest is denied. [1]

Anthony H. Gamboa

Acting General Counsel

Notes

1. Since we conclude that the agency's decision to eliminate SWR's proposal
from the competition is justified on the one basis discussed above, we do
not address the other agency bases for its decision to find SWR's proposal
unacceptable. We note, however, that the agency has provided a reasonable
explanation for its view that SWR's staffing and inventory control approach
raised legitimate concerns about the acceptability of the firm's proposed
approach. SWR's disagreement with the agency's position does not establish
that the agency's performance concerns were misplaced.

Further, to the extent SWR challenges the award to Starflight, SWR is not an
interested party to challenge this award. Under our Bid Protest Regulations,
4 C.F.R. sect. 21.0(a) (2000), an interested party may protest a federal
procurement. That is, a protester must be an actual or prospective offeror
whose direct economic interest would be affected by the award of a contract
or by the failure to award a contract. A protester is not an interested
party where it would not be in line for award were its protest sustained.
See Green Shop, Inc., B-278125, Dec. 1, 1997, 97-2 CPD para. 154 at 2. Here, the
record shows that there were two other offerors, besides Starflight, with
acceptable proposals eligible for award. Accordingly, SWR, whose proposal
was reasonably determined unacceptable, is not an interested party to
challenge the award to Starflight.