TITLE:  S. C. Myers & Associates, Inc., B-286297, December 20, 2000
BNUMBER:  B-286297
DATE:  December 20, 2000
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S. C. Myers & Associates, Inc., B-286297, December 20, 2000

Decision

Matter of: S. C. Myers & Associates, Inc.

File: B-286297

Date: December 20, 2000

Stephen M. Seeger, Esq., Quagliano & Seeger, for the protester.

Stephen R. Jones, Esq., Department of Labor, for the agency.

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where an offeror proposes a particular individual for a key position with
the intention of removing that individual from the position after an
unspecified transition period under the contract, and the agency relies on
the offeror's representation that the individual will be performing the work
in evaluating its proposal, the agency reasonably rejected the proposal once
the agency learned of the offeror's actual intent.

DECISION

S. C. Myers & Associates, Inc. (SCMA) protests the rejection of its proposal
and the award of a contract to McKissack & McKissack under request for
proposals (RFP) No. RFP-DCS-00-08, issued by the Department of Labor for
program management services in support of the Job Corps design and
construction program. The protester contends that the agency erred in
finding its proposal technically unacceptable.

We deny the protest.

The RFP, which was issued on December 28, 1999 as a total small business
8(a)

set-aside, contemplated the award of a cost-plus-fixed-fee contract for a
base and

4 option years. Services to be performed included project management and
contract administration of design and construction contracts issued by the
Department of Labor in support of the Job Corps program; on-site
construction management and inspection; assistance in the procurement of
furnishings and equipment for new Job Corps facilities; assistance in
negotiations for site acquisition and continuing management and disposal of
real property used by the Job Corps program; and ADP/LAN support.

The RFP provided for a two-step evaluation of proposals. Under the first
step, proposals were to be evaluated under three technical evaluation
factors--individual staff experience and qualifications (worth 35 percent of
the technical evaluation points), past performance (worth 20 percent of the
technical evaluation points), and corporate experience with related work
(worth 15 percent of the technical evaluation points)--and cost/price. RFP
amend. 2, attach. II, sect.sect. M.2, M.3. Under the second step, offerors were to
make an oral presentation, to be followed by a question and answer session,
which would be used to evaluate their proposals under the fourth technical
evaluation factor, technical approach (worth 30 percent of the technical
evaluation points). Id. sect. M.3. The RFP advised offerors that the oral
presentation and the question and answer session were not part of the offer
and that they would not constitute discussions or obligate the agency to
solicit revised offers. RFP sect. L.8. The solicitation provided for award to
the offeror whose offer represented the best value to the government, with
technical factors of significantly greater importance than cost/price. RFP sect.
M.2. Although the RFP, as initially issued, stated that the agency intended
to award without discussions, RFP sect. L.9, offerors were advised at the
preproposal conference, a transcript of which was included in amendment No.
1 to the RFP, that on the same day that an offeror came in to make its oral
presentation, the agency would conduct discussions with it regarding its
business (i.e., cost) proposal, and that the offeror would then have 1 week
to submit a revised business proposal. RFP amend. 1, at 29.

To permit evaluation of their proposals under the staff experience and
qualifications criterion, offerors were instructed to furnish resumes for
their proposed project director and other professional personnel. In
addition, offerors were instructed to furnish information regarding the time
commitment of all professional personnel assigned to the project. The RFP
required, in the latter regard, that all professional staff devote 100
percent of their time to the project. RFP amend. 2, attach. II, sect. M.3.

SCMA and McKissack, among others, submitted proposals prior to the March 15,
2000 closing date. In its proposal, SCMA identified the president of its
proposed subcontractor, Contract Management Solutions, Inc. (CMSI), for the
position of project director and another CMSI employee for the position of
Director of Contract Operations; we refer to the two individuals in this
decision as Ms. A and Ms. B, respectively. SCMA's proposal represented that
each of the women would be devoting 100 percent of her time to the project.
In late June, the agency notified SCMA that its oral presentation and the
meeting to discuss its business proposal would be held on July 7.

On July 7, SCMA and CMSI representatives, including Ms. A and Ms. B, made
the protester's oral presentation. During the question and answer period
that followed, Ms. A was asked: "As president of CMSI and the proposed
project director committing 100 percent of your time, how would your role be
impacted in the event that CMSI was awarded another contract?" Transcript of
SCMA's Oral Presentation and Q&A Session, at 63. Ms. A responded:

I really care about this program and I really want to be involved in it. . .
. But, at the same time, since starting CMSI, I have gotten really excited,
too, about owning a business and the opportunities that are involved in
running a business and going after more work. Our present plan right now is
that I am going to stay onboard 100 percent of my time through the
transition, through all the initial partnering stuff [1] until everything is
running really smoothly on the project. At that time I would leave the
project full time and [Ms. B] would take over as project director. And what
I would do is I would serve in like a partnering facilitator [role]. My plan
would be to come into the office once a week . . . .

Id.

At the conclusion of the oral presentation and question and answer period,
the protester's representatives met with agency personnel to discuss SCMA's
business proposal. Again, one of the questions raised concerned Ms. A's
ability to commit herself full-time to the Job Corps project while running
her company. [2] On July 14, SCMA submitted a revised business proposal,
which included a response to this question. The response noted, in relevant
part, that:

CMSI's plans are as clarified during the question and answer session for the
Oral Presentation. [Ms. A] plans to serve full-time as Project Director on
the Program Management Support Contract (PMC) for the Department of Labor
(DOL) through the transition period, and for as many months as it takes
thereafter to ensure that everything is running smoothly on the PMC, as well
as between the PMC and Engineering Support Contractor (ESC). During that
time, in addition to managing the PMC, [Ms. A] plans to train her
replacement, [Ms. B] (who will be currently serving in the capacity of
Director of Contracts Operations). [Ms. A] will not leave the project on a
full-time basis, until both the status of the relationships between the
contractors and [Ms. B's] training, are complete.

SCMA's Final Revised Cost Proposal, CMSI Package tab, at 1.

By letter dated August 30, the contracting officer notified SCMA that its
proposal had been determined technically unacceptable based on Ms. A's
representations during the question and answer period and in SCMA's revised
cost proposal that she planned to serve full-time as project director only
through the transition period and for as many months thereafter as necessary
to ensure that the contract was running smoothly. Letter from Contracting
Officer to SCMA (Aug. 30, 2000) at 1. The letter further noted that SCMA had
failed to include estimated costs for materials and supplies and for
communications in its revised cost proposal, which constituted a material
deficiency further rendering the proposal technically unacceptable. Id. at
2.

On August 31, SCMA requested a debriefing, which the agency furnished on
September 7. Following the debriefing, SCMA filed its protest with our
Office. On October 11, the head of the contracting activity determined, in
accordance with Federal Acquisition Regulation (FAR) sect. 33.104(b), that
urgent and compelling circumstances necessitated that the agency proceed
with award notwithstanding the protest, and on October 18, DOL awarded a
contract to McKissack.

SCMA takes issue with the agency's determination that its proposal was
technically unacceptable. As explained below, we find that the agency
reasonably found SCMA's proposal unacceptable once the agency learned from
the protester about Ms. A's limited availability; accordingly, we need not
determine whether deficiencies in the protester's cost proposal furnished a
separate basis for determining the proposal unacceptable.

In a negotiated procurement, a proposal that fails to conform to the
material terms and conditions of the solicitation should be considered
unacceptable. For Your Information, Inc., B-278352, Dec. 15, 1997, 97-2 CPD
para.164 at 3, recon. den. RGII Technologies, Inc.--Recon. and Protest ,
B-278352.2, B-278352.3, Apr. 14, 1998, 98-1 CPD para.130. Here, one of the
solicitation's material requirements was that the offeror identify a
qualified individual for the position of project director. In its proposal,
SCMA named Ms. A for the position. SCMA revealed during the question and
answer portion of its oral presentation that Ms. A did not intend to serve
as project director for the duration of the project, however; she in fact
intended to serve through the initial few months of performance only. We
think that the agency reasonably viewed SCMA as having engaged in a kind of
"bait and switch," offering Ms. A as project director, but actually
intending to replace her relatively early in performance, without
identifying in the proposal who the replacement project director would be.
From the agency's point of view, SCMA's proposal thus failed to propose a
project director for most of the period of performance. We therefore find
that the agency reasonably concluded that SCMA's proposal failed to conform
to a material term of the solicitation and that it was thus technically
unacceptable.

The protester argues that the limitation on Ms. A's commitment to the
contract did not give rise to a deficiency in its proposal because the RFP
did not require key personnel to commit themselves for the full life of the
contract, as evidenced by RFP sect. H.9, allowing post-award substitution of
personnel with the agency's permission. SCMA's argument is without merit.
The RFP provided that one of the factors that would be considered in
evaluating proposals under the staff experience and qualifications criterion
was "[t]he time commitment of all personnel assigned to the project (the
number of hours per month that each individual will devote to the project
over its life)." RFP amend. 2, attach. II, sect. M.3.A. (emphasis added). We
think that it is clear from the foregoing language that the agency
anticipated that offerors would propose only personnel who intended to
remain for the life of the project. Inclusion of the substitution of
personnel clause does not suggest otherwise; that clause is intended to deal
with unforeseen circumstances requiring replacement of personnel. See CBIS
Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1 CPD para. 308 at 5. We view it as
implicit in solicitation language seeking names of personnel for particular
positions that (unless the solicitation indicates otherwise) offerors are
expected to propose personnel for the life of the contract, absent
unforeseen circumstances that may justify their replacement.

SCMA asserts that the agency should not have relied on the statements SCMA
made during the oral presentation regarding Ms. A to contravene its written
proposal. On the contrary, we think that the agency properly considered
SCMA's clear expression of intent regarding the limited length of the
project director's commitment to the contract. See Department of the
Navy--Recon., B-244918.3, July 6, 1992, 92-2 CPD para. 199 at 4. To the extent
that the protester argues alternatively that the agency should have
considered the information furnished in SCMA's oral presentation and revised
cost proposal regarding replacement of Ms. A with Ms. B as a revision to its
technical proposal, the RFP advised that the oral presentation would not be
considered part of the offer and did not provide for the submission of
revised technical proposals. While SCMA disclosed in its oral presentation
and its revised cost proposal that it intended to replace Ms. A with Ms. B,
an employee of CMSI whose qualifications were documented in the proposal,
the agency by that time had completed its evaluation of personnel and,
because SCMA had not proposed Ms. B for the position of project director in
its technical proposal, the agency had not evaluated her qualifications.
While the procedures used by the Department of Labor in this procurement may
be problematic (and our decision should not be read as an endorsement of
them), SCMA did not timely object to the RFP, which clearly indicated that
the evaluation of the experience and qualifications of proposed staff would
be completed prior to the oral presentations. Particularly in light of
SCMA's failure to disclose its actual intent for the project director
position in its proposal, we do not believe that the agency was required,
once it learned of that intent, to deviate from the solicitation's source
selection process in order to reopen the technical evaluation.

The protester raised several additional arguments in its initial protest.
For example, the protester complained that the agency had failed to notify
it promptly that its proposal had been eliminated from consideration; in
addition, it complained that the agency had failed to permit it to modify
its "otherwise successful proposal," as permitted by FAR sect. 15.208(b)(2). The
agency responded to these arguments in its report, contending that it had
not delayed unduly in notifying the protester of the elimination of its
proposal from further consideration and that, in any event, the protester
had not demonstrated any prejudice arising from the delay. With regard to
the protester's second argument, the agency noted that SCMA's proposal was
not "otherwise successful," and thus FAR sect. 15.208(b)(2) was inapplicable.
The protester has not attempted to rebut the agency position in its comments
on the agency report; accordingly, we consider it to have abandoned these
arguments. AdvanChip Corp., B-282571, July 29, 1999, 99-2 CPD para. 35 at 2 n.1.

The protester also complains that the agency failed to allow it to submit a
revised technical proposal in response to amendment No. 4, dated July 5,
2000, which revised the solicitation provision regarding level of effort.
[3] We will not consider this complaint because it was not raised in a
timely manner. In arguing that the agency should have permitted the
submission of revised technical proposals, the protester is in essence
arguing that the RFP improperly provided for the submission of revised
business proposals only. The complaint is thus based upon an alleged
solicitation impropriety, which to be timely would have needed to be raised
prior to the time set on the closing date for receipt of revised proposals,
i.e., July 14. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a) (2000);
Oregon Iron Works, Inc., B-284088.2, June 15, 2000, 2000 CPD para.119 at 6.
Because the protester instead waited until September 18 to raise the issue,
this ground of protest is untimely. For the same reason, to the extent the
protester objects elsewhere in its protest to the agency's failure to
conduct discussions with it regarding its technical proposal and to solicit
a revised technical proposal from it, these complaints are untimely.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Concurrent with issuance of this solicitation, the agency issued an
unrestricted solicitation for architect and engineering services for the Job
Corps program. The RFP at issue here indicated that a partnership between
the two successful offerors was expected and would be essential. RFP sect.sect. C.2,
C.4.

2. Specifically, Ms. A. was asked:

Please explain role as Project Director/owner with 100% of your time
allocated to the project. How do you propose to manage the business aspects
of your company?

Memorandum of Negotiations summarizing cost discussions between SCMA and
DOL, at 4.

3. The original RFP provided at sect. F.3:

The level of effort for this solicitation is between 21 and 23 professional
person years. The level of effort for each option period is equal to the
base year plus inflation. The inflation rate will be determined by the
Bureau of Labor Statistics.

Amendment No. 4, which was furnished to offerors on July 7, replaced the
above provision with the following language:

The level of effort for the base year of this project is between 3 and
3.5 million dollars. The level of effort for each option period is equal to
the base year plus a 3.5% increase for inflation.