TITLE:  Johnson Controls World Services, Inc., B-285144, July 6, 2000
BNUMBER:  B-285144
DATE:  July 6, 2000
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Johnson Controls World Services, Inc., B-285144, July 6, 2000

Decision

Matter of: Johnson Controls World Services, Inc.

File: B-285144

Date: July 6, 2000

Kathleen Little, Esq., David R. Johnson, Esq., James R. Farnsworth, Esq.,
and Suzanne D. Reifman, Esq., Vinson & Elkins, for the protester.

John A. Ordway, Esq., Berliner, Corcoran & Rowe, and Jacqueline B. Gayner,
Esq., Ross, Suchoff, Hankin, Maidenbaum, Handwerker & Mazel, for Citywide
Office Management Services of Port Washington, Inc., the intervenor.

Col. Nicholas P. Retson and Raymond M. Saunders, Esq., Department of the
Army, for the agency.

Henry J. Gorczycki, Esq., and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging terms of solicitation for base operations and
maintenance services is denied where the protest grounds are factually
unsupported or the protester has failed to establish that the challenged
provisions prejudice the firm.

DECISION

Johnson Controls World Services, Inc. protests request for quotations (RFQ)
No. DADW35-00-T-0142, issued by the Department of the Army, Military
District of Washington Acquisition Center (MDWAC), Fort Belvoir, Virginia,
for base operations and maintenance services for Fort Hamilton, Brooklyn,
New York.

We deny the protest.

In March 1998, the U.S. Army Corps of Engineers, New York District, issued
request for proposals (RFP) No. DACA51-98-R-0007, for the services for 1
year with 4 option years. Under the RFP, the Corps awarded a contract to
Citywide Office Management Services. This award and other aspects of this
procurement were the subject of a number of successive protests by all three
offerors under that RFP, i.e., Johnson Controls, Citywide and Meridian
Management Corporation. Our Office twice sustained protests against the
Citywide award. See Johnson Controls World Servs., Inc.; Meridian Management
Corp., B-281287.5 et al., June 21, 1999, 2000 CPD para.  ; Meridian Management
Corp.; Johnson Controls World Servs., Inc., B-281287.10, B-281287.11, Feb.
8, 2000, 2000 CPD para.  __.

Although the Corps awarded the contract to Citywide, it has stayed
performance of that contract because of the various protests. Since April
1999, MDWAC has been obtaining interim services for Fort Hamilton under the
protester's incumbent contract and, after that contract expired, under a
series of month-long, sole-source purchase orders, each in excess of
$500,000, issued, pursuant to commercial item procedures, to the protester.
Following our February 8, 2000 decision, the Army transferred adminstration
of the RFP source selection process from the Corps's New York District to
its Philadelphia District. Subsequently, the MDWAC contracting officer
determined that acquisition of interim services on a month-to-month basis by
sole-source purchase order was inefficient and did not provide for
competition, and, on March 31, 2000, issued the RFQ protested here. Agency
Report at 2.

The RFQ, issued pursuant to Federal Acquisition Regulation (FAR) part 12
commercial item procedures to the three offerors that have been competing
under the Corps's RFP, contemplates the award of a fixed-price contract for
a base period of 4ï¿½ months with 8 option months. [1] RFQ at 1-2, sect. L.23, at
L-13. The RFQ contains detailed specifications covering all aspects of the
service requirements. The RFQ, as initially issued, requested technical and
price proposals, and stated that award would be made based on the most
advantageous offer, considering technical and price factors. RFQ sect.sect. L.34,
M.4, M.7. Quotations were due by April 15. RFQ at 1.

After the RFQ was issued, MDWAC met with the three solicited firms, and
stated that technical proposals and cost information would not be required,
and that quotes need only include a completed schedule of prices, as
required by section B of the RFQ, and representations and certifications
included in the RFQ. The agency stated that the firms would be considered
"technically qualified" and that award would be made "to the lowest bidder."
Agency Report at 2-3; Protest, Tab 1, Declaration of Johnson Controls'
General Manager, at 2-3. On April 7, the agency amended the RFQ by deleting
all sections that made reference to technical or cost proposals, and
extending the submission due date to April 17. RFQ amend. 0001, at 3. The
bottom-line quote prices on the RFQ are to be disclosed at a public bid
opening. Contracting Officer's Statement at 4.

Johnson Controls protested the RFQ on April 14. The protester alleges that
the solicited services are not a commercial item, so that the RFQ was
improperly issued under commercial item procedures. Protest at 7-8;
Protester's Comments at 3-7.
The protester also alleges that a source selection scheme based on lowest
price unfairly favors Citywide, that the participation in the preparation of
the RFQ by the senior quality assurance evaluator for Fort Hamilton creates
the appearance of an impropriety that taints the procurement, that public
disclosure of RFQ prices for this bridge contract competition will prejudice
the competition under the Corps's RFP for the long-term contract for these
services, and that the agency had no basis to determine that all three
bidders were technically qualified. [2] Protest at 5-9; Protester's Comments
at 7-12. Based on our review, none of the protester's contentions provides a
basis for sustaining its protest.

As noted, the protester alleges that commercial item procedures could not be
properly employed here because the solicited services do not constitute a
"commercial item." Even assuming that this is the case, Johnson Controls has
not presented any basis on which we can conclude that the agency's actions
would have prejudiced the protester. Prejudice is an essential element of
every viable protest and even where the record establishes a procurement
deficiency, we will sustain a protest on this basis only where it resulted
in competitive prejudice. See Hughes Missile Sys. Co., B-272418 et al., Oct.
30, 1996, 96-2 CPD para. 221 at 14; A-1 Postage Meters and Shipping Sys.,
B-266219, Feb. 7, 1996, 96-1 CPD para. 47 at 4. We do not find the protester
will be competitively prejudiced here, inasmuch as it does not claim that
any of the provisions or procedures unique to commercial item procurements
put it at a competitive disadvantage, nor has it shown that the use of
commercial item procedures otherwise prejudices the protester's competitive
position.

For example, although the protester claims that the agency improperly
invoked expedited procedures (i.e., a response time of less than 30 days
from issuance of the solicitation) permissible under commercial item
procedures, Protester's Comments at 2, the protester does not contend that
it did not have adequate time to prepare and submit a quotation. Indeed,
Johnson Controls timely submitted a quotation and, given that Johnson
Controls was the incumbent contractor and more recently has been performing
these services under monthly commercial item purchase orders, there does not
appear to be a potential competitor in a better position to timely prepare a
price quotation for these services.

Johnson Controls also alleges that it suffered prejudice from the agency's
use of commercial item procedures in that the RFQ stated a price-only
selection scheme. Protester's Comments at 7. However, a price-only, sealed
bid selection scheme is not unique to commercial item procurements; indeed,
it is required where sealed bidding procedures are employed. FAR
sect.sect. 14.103-2(d), 14.408-1(a). Where, as here, an agency does not require
technical proposals (e.g., because the solicitation contains detailed
specifications and the offeror's understanding and past performance do not
need to be evaluated) or discussions, it may employ a price-only sealed
bidding evaluation scheme. See FAR subpart 6.4; Racal Corp., B-240579,
Dec. 4, 1990, 90-2 CPD para. 453 at 3-5. Since a price-only basis for award is
not unique to commercial item procedures and may be used even if those
procedures cannot, any alleged prejudice from the price-only selection
scheme is not attributable to commercial item procedures.

Since the protester has not demonstrated, and it is not otherwise apparent
from the record, that Johnson Controls was prejudiced by the agency's use of
commercial item procedures, we will not decide the issue of whether the
services are properly designated as commercial items or whether the
solicitation was properly issued under commercial item procedures. See CW
Gov't Travel, Inc. d/b/a Carlson Wagonlit Travel; American Express Travel
Related Servs. Co., Inc., B-283408, B-283408.2, Nov. 17, 1999, 99-2 CPD para. 89
at 5 (need not decide protest of agency's determination that services are
not commercial items where protester is not prejudiced by that
determination); cf. Smelkinson Sysco Food Servs., B-281631, Mar. 15, 1999,
99-1 CPD para. 57 at 3 (our Office sustained a protest that price-related
disclosure requirements in a commercial item solicitation are not consistent
with commercial practice and are unfairly burdensome to the protester and
other potential offerors); Aalco Forwarding, Inc., et al., B-277241.8,
B-277241.9, Oct. 21, 1997, 97-2 CPD para. 110 at 5-22 (our Office considered a
protest that a commercial item solicitation was not properly issued, that
the use of commercial item procedures harmed the protesters' competitive
positions, and that burdensome non-commercial practices were imposed by the
solicitation).

Johnson Controls also alleges that the RFQ's price-only selection scheme
unfairly favors Citywide and disfavors the protester. In this regard, the
protester points to the participation in the preparation of the RFQ by Fort
Hamilton's senior quality assurance evaluator, who has an alleged conflict
of interest favoring Citywide and bias against Johnson Controls. Protest at
6; Protester's Comments at 12.

However, it does not appear that the price-only selection scheme places
Johnson Controls at an unfair competitive disadvantage. It had a fair
opportunity to prepare and submit a quote with full knowledge of the
price-only selection scheme, and the protester has presented no legal basis
why the agency must construct a selection scheme to compensate if the
protester cannot be competitive on price. Moreover, we think the agency
reasonably elected to conduct a simple, price-only competition, given the
agency's judgment that no technical proposals or discussions were necessary,
the history of the Corps's continuing difficulties with the source selection
process under the pending RFP, and the Army's need for performance of
interim services until those difficulties can be resolved. Furthermore,
procurement regulations allow for such a selection scheme, either under
commercial item procedures incorporating sealed bidding procedures, FAR
sect. 12.203, or directly through sealed bidding procedures. FAR sect.sect. 14.103-2(d),
14.408-1(a). Since this type of procurement is permitted by regulation and
appears reasonable under the present circumstances, the protest does not
present a sufficient basis to sustain the protest.

In any case, the record shows that the MDWAC contracting officer decided on
the procurement approach, not Fort Hamilton officials. While the agency
concedes that the Fort Hamilton employee in question did participate in
preparing the statement of work, Agency Report at 3-4, Tab 10, Statement of
Fort Hamilton Official, the protester does not challenge any terms of the
statement of work or allege that the statement of work provides the other
competitors with an unfair competitive advantage. Moreover, even if we
assume, arguendo, that the agency's actions intentionally disfavored Johnson
Controls, the protester must still demonstrate that the agency's actions
were not reasonable, which Johnson Controls has not done here. See Dr.
Robert J. Telepak, B-247681, June 29, 1992, 92-2 CPD para. 4 at 4 (evidence that
agency action was based on animus toward protester is not sufficient basis
to sustain protest where the agency's action also had a reasonable basis).

On a related point, the protester challenges the agency's intent to conduct
a public bid opening and announce bid prices while the RFP for long-term
services is being competed. [3] However, as stated above, the procedures for
sealed bidding can be employed by the agency under this procurement.
Accordingly, the agency may properly conduct a public opening with only
limited restrictions not applicable here. FAR Subpart 14.4. The fact that
these same services will be the subject of a long-term negotiated
acquisition provides no basis to object to the public disclosure of the
bottom line prices for the short-term bridge contract.

Finally, the protester challenges the contracting officer's statement that
all three firms would be considered "technically qualified," essentially
alleging that such a determination has no reasonable basis considering that
Citywide's prior proposal under the Corps's RFP should have been determined
technically unacceptable in accordance with our prior decision sustaining
the protests against the Citywide award. Protest at 8; Protester's Comments
at 8-9. Each procurement stands on its own; the acceptability of Citywide's
proposal under a different solicitation is irrelevant to the determination
of whether its submission in response to this RFQ can properly be accepted,
particularly given that the offerors' proposal will not form the basis for
the contract award under this RFQ. See Copy Graphics, B-273028, Nov. 13,
1996, 96-2 CPD para. 185 at 4 n.3. Since the RFQ is being conducted as a sealed
bidding procurement, the award is to be made to the responsible bidder whose
bid, conforming to the terms of the solicitation, will be most advantageous
considering only price, as stated in the RFQ. See FAR sect. 14.408-1(a). The
contracting officer's statement clearly refers to the apparent ability of
all three firms in the field of potential competitors to perform under the
contemplated contract, and thus relates to the responsibility determination
that the contracting officer will have to make prior to awarding a contract
after bid opening. [4] FAR sect. 9.103; see FAR
sect. 14.408-2. Since a determination that a bidder or offeror is capable of
performing a contract is based, in large measure, on subjective judgments
that generally are not susceptible to reasoned review, our Office will not
review an agency's affirmative determination of responsibility absent a
showing of possible bad faith on the part of procurement officials, or that
definitive responsibility criteria have been misapplied. 4 C.F.R. sect. 21.5(c)
(2000); King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD para. 177 at 2. To
the extent the contracting officer's statement contemplates an affirmative
determination of responsibility for Citywide, there has been no showing here
that the contracting officer acted in bad faith in making the statement, or
misapplied definitive responsibility criteria. We thus have no basis to
review this protest issue.

The protest is denied.

Comptroller General
of the United States

Notes

1. FAR part 12 prescribes streamlined policies and procedures for the
acquisition of commercial items. These procedures may be used only where
commercial items are the subject of the procurement. FAR sect. 12.102.

2. The agency suspended the public opening of the bottom-line quote prices
pending resolution of this protest.

3. The time for submission of proposals under the RFP was several hours
prior to the time for submission of quotes under the RFQ. Contracting
Officer's Statement at 4.

4. The fact that aspects of Citywide's proposal on the RFP were technically
unacceptable does not necessarily mean that Citywide cannot successfully
perform in accordance with the RFQ.