TITLE:  DWMS-Ameriko, B-287680, August 9, 2001
BNUMBER:  B-287680
DATE:  August 9, 2001
**********************************************************************
DWMS-Ameriko, B-287680, August 9, 2001

Decision

Matter of: DWMS-Ameriko

File: B-287680

Date: August 9, 2001

John Lukjanowicz, Esq., and James F. Nagle, Esq., Oles Morrison Rinker &
Baker, for the protester.

Vern Crosby for Aztec Facility Services, Inc., an intervenor.

Major Ralph J. Tremaglio, III, Department of the Army, 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

Protester's allegation that awardee's price is so low as to indicate an
inadequate level of staffing for hospital cleaning services is denied where
the record shows that the agency properly concluded that awardee's price was
reasonable through comparison with the government estimate and other
offerors' prices, and awardee's proposed level of staffing in fact is
virtually identical to protester's.

DECISION

DWMS-Ameriko, a joint venture between Dan White's Maintenance Service and
Ameriko, Inc., protests the award of a contract to any other offeror under
request for proposals (RFP) No. DADA13-00-R-0004, issued by the Department
of the Army for hospital housecleaning services at Madigan Army Medical
Center, Tacoma, Washington.

We deny the protest.

The RFP contemplated the award of a fixed-price requirements contract for a
base period of 1 year and 4 option years. The solicitation provided for
award to the offeror submitting the most advantageous proposal. Factors to
be considered in the selection process, listed in descending order of
importance, were technical/oral presentation, [1] past performance, and
price. [2] The RFP notified offerors that the agency intended to evaluate
proposals and make award without discussions. RFP sect. M.1.1.

Six offerors submitted proposals by the November 21, 2000 closing date. The
evaluators rated the proposals as follows:

 Offeror       Technical   Proposal   Performance   Past          Evaluated
               Merit       Risk       Risk          Performance   Price
               (Point
               Score)

 Aztec         Excellent   Low        Low           Very Good     $20,875,106
 Facility      (946.22)
 Services

 Offeror A     Excellent   Medium     Medium Low    Exceptional   $17,384,816
               (918)       Low to     to Low
                           Low

 DWMS-Ameriko  Excellent   Low        Low           Satisfactory  $24,952,121
               (915)

 Offeror B     Excellent   Low        Medium Low    Exceptional   $20,205,611
               (914)                  to Low

 Offeror C     Good        Medium     High          Very Good     $16,557,236
               (809)

 Offeror D     Marginal    High       High          Satisfactory  $15,776,543
               (675)

The Source Selection Authority (SSA) determined that Aztec's proposal
represented the best value to the government. In comparing Aztec's proposal
with DWMS-Ameriko's, the SSA noted that Aztec's technical rating was higher
than the protester's, while its price was 16 percent lower. Source Selection
Decision Document, Apr. 9, 2001, at 6. On April 23, the contracting officer
awarded a contract to Aztec.

In its initial protest, DWMS-Ameriko argued that Aztec's price was so low
that it was apparent that Aztec had not proposed a level of staffing
adequate to meet the requirements of the solicitation. The protester
subsequently extended the arguments that it had raised with regard to Aztec
to Offeror B, the offeror identified by the agency as next in line for award
after Aztec.

The agency responded to the protester's argument by noting that Aztec had
proposed a level of housekeeper staffing ([deleted] full-time equivalents
(FTE)) virtually identical to the level proposed by the protester ([deleted]
FTEs), and that Offeror B had proposed a higher level of housekeeper
staffing ([deleted] FTEs) than the protester. Agency report at 8. The agency
further noted that based on a comparison of offerors' prices with one
another and with the government estimate, two of the price analysis
techniques provided for in Federal Acquisition Regulation sect. 15.404-1(b)(2),
it had determined that Aztec's and Offeror B's prices were reasonable,
DWMS-Ameriko's price was too high, and Offeror A's price was too low.

In commenting on the agency report, the protester did not take issue with or
attempt to rebut the agency position that both Aztec and Offeror B had
proposed adequate levels of staffing; accordingly, we consider it to have
abandoned this argument. O. Ames Co., B-283943, Jan. 27, 2000, 2000 CPD para. 20
at 7. The protester did take issue with the agency's contention that it
properly had established the reasonableness of Aztec's and Offeror B's
prices through comparison with the government estimate, however, maintaining
that the government estimate was outdated. The protester also argued that
Aztec's general and administrative (G&A) and profit rates [3] were
extraordinarily low and posed a risk to successful performance.

The agency responded to the protester's argument regarding the currency of
its estimate by noting that although its initial estimate had been developed
in February 1998, approximately 2 years prior to issuance of the
solicitation, the estimate had been updated twice during the procurement
process. The agency explains that in January 2000, shortly before release of
the solicitation, it recalculated the estimate to reflect the wage rates set
forth in the applicable collective bargaining agreement entered into in
1999, and that in April 2001, it again recalculated the estimate to reflect
the deletion of certain positions from the RFP and to update the wages,
fringe benefits, and tax information to the current year. Agency Comments,
July 3, 2001, at 1-2; Contract Specialist's Memorandum for the Record, June
29, 2001, at 1. Thus, the record does not support the protester's contention
that the agency estimate was outdated.

Regarding DWMS-Ameriko's contention that Aztec's G&A and profit rates are so
low as to pose a risk to successful performance, the agency notes that it
considers the [deleted] G&A rate used by Aztec reasonable considering that
the awardee will receive office space, furniture, break room facilities, and
a large storage area at no cost, and similarly saw no reason to question the
profit rate, which simply reflects a business judgment by the offeror.
Agency Comments, July 3, 2001, at 3; Contract Specialist's Memorandum for
the Record, June 29, 2001, at 2. Moreover, the agency determined Aztec's
overall price to be reasonable. The protester did not attempt to rebut the
agency's conclusions, and we see no basis to question their reasonableness.

In commenting on the agency report, DWMS-Ameriko also took issue with the
agency's evaluation of its technical proposal, complaining that several of
the evaluators' criticisms were unfounded. Specifically, the protester
asserts that one of the evaluators unjustly criticized its oral presentation
for not making clear what reports other than quality assurance reports would
be used to track work and performance, and that another unfairly criticized
it for not furnishing an equipment listing.

While the protester takes issue with these individual criticisms of its
proposal, it has not argued that the evaluators who made the criticisms
scored its proposal unfairly low under the pertinent subfactor elements--and
indeed the record shows that the point scores that the evaluators in
question assigned under these subfactor elements were in the excellent range
and consistent with the scores assigned by the other evaluators. [4]
Moreover, it is apparent from the record that DWMS-Ameriko's overall
technical score would have remained lower than Aztec's even if the
protester's proposal had received perfect scores from the evaluation panel
under the subfactor elements with regard to which the protester contends it
was unfairly criticized; [5] accordingly, the record fails to demonstrate
that the protester was prejudiced by these scores. See Lithos Restoration,
Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5 (competitive prejudice
is an essential element of every viable protest).

The protester also complains that a technical advisor was added to the
evaluation panel prior to its evaluation of final technical proposals and
that this individual considered matters not pertaining to on-site work
execution in her evaluation under that subfactor. We have reviewed the
documents pertaining to the evaluation of final technical proposals and find
no evidence that the technical advisor's comments had any impact on the
scoring of DWMS-Ameriko's proposal under the on-site work execution
subfactor. In this regard, the evaluators rescored final technical proposals
under only one element of that subfactor (i.e., work execution management),
and all three evaluators gave the proposal identical scores of 920 for that
element, which score also was adopted as the consensus score.

Finally, DWMS-Ameriko takes issue with the rating assigned it for past
performance. The protester contends that since one of the joint venturers,
Ameriko, received a past performance rating of exceptional, while the other,
DWMS, received a rating of satisfactory, the joint venture as a whole should
have received a rating higher than satisfactory.

While the protester has asserted that it should have received a past
performance rating better than satisfactory, it has not asserted that it
should have received a rating better than Aztec's rating of very good. In
other words, the protester has not asserted that it should have received a
past performance rating favorable enough to have had an impact on the best
value determination. In this regard, since best value was to be determined
based on technical/oral presentation, past performance, and price, and
Aztec's technical score was higher and its price lower than the protester's,
DWMS-Ameriko's proposal could have been determined a better value than
Aztec's

only if the protester had received a better past performance rating than
Aztec. Accordingly, even assuming that we concluded that the protester's
contention had merit, the protester would not be in line for award. [6]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The following three subfactors, of equal importance, were to be
considered under the technical/oral presentation evaluation factor: on-site
work execution, quality control, and management. RFP sect. M.3.1.

2. With regard to the relative weights of the three factors, the RFP
provided that technical/oral presentation was slightly more important than
past performance and somewhat more important than price, and that
technical/oral presentation and past performance, when combined, were
significantly more important than price. RFP sect. M.3.

3. Offerors were not required to submit cost or pricing data since the RFP
contemplated award of a fixed-price contract; nonetheless, Aztec did so.

4. The evaluator who criticized DWMS for not furnishing sufficient detail
regarding its quality control reports gave the protester a score of 850
under the subfactor element with regard to which he made the comment (i.e.,
quality control/documentation and reports), while the evaluator who
criticized the joint venture for not furnishing an equipment listing gave
the protester a score of 900 under the relevant subfactor element (i.e.,
on-site work management/consumable supply estimating/provisioning).
According to the instructions furnished to the evaluators, a score in the
range of 801-900 (of a maximum possible of 1,000) equated to a rating of
excellent. Instructions for Technical Evaluation Board at 2. The other
evaluators gave the protester's proposal scores of 850 and 900 under the
first subfactor element and scores of 920 and 950 under the second.

5. The final technical scores were calculated by adjusting the raw point
scores assigned by the evaluators to reflect the relative weights of the
various subfactor elements. After the weighting was applied, the maximum
possible scores for the two subfactor elements at issue were 83 and 111. The
protester's proposal received scores of 72 and 102. Final
Consensus--Technical Evaluation of Oral Presentation--DWMS-Ameriko, at 7.
Accordingly, if the protester's proposal had received perfect scores under
these subfactor elements, its overall technical score would have improved by
20 points to 935, which is still below Aztec's technical score of 946.

6. We note, in any event, that the record does not support the protester's
contention. Specifically, the agency recognized that both the protester and
the awardee are joint ventures, with one member (Ameriko for the protester,
and Crothall Healthcare, Inc. for the awardee) whose experience was directly
relevant and whose past performance was considered exceptional. With regard
to the other member of each joint venture, the agency concluded that, while
neither had experience in cleaning large hospitals, Aztec, for the awardee,
had experience cleaning large buildings as well as large medical facilities,
while DWMS, the other member of the protester joint venture, had no such
experience. Given these facts, which the protester does not refute, we
cannot conclude that the overall past performance ratings--satisfactory for
the protester and very good for the awardee--were unreasonable.