TITLE:  NCLN20, Inc., B-287692, July 25, 2001
BNUMBER:  B-287692
DATE:  July 25, 2001
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NCLN20, Inc., B-287692, July 25, 2001

Decision

Matter of: NCLN20, Inc.

File: B-287692

Date: July 25, 2001

Nancy M. Camardo, Esq., Law Office of Joseph A. Camardo, Jr., for the
protester.

Robert J. McCall, Esq., General Services Administration, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably downgraded protester's proposal for failing to address
organizational structure and transition plan since, although not identified
in solicitation as discrete evaluation factors, they were logically
encompassed by the staffing plan.

2. Agency reasonably downgraded protester's proposal under key personnel
factor where, although protester offered to staff contract with incumbent
employees, it neither provided evidence that the incumbent's employees would
work for the protester, nor offered alternative employees to cover the
eventuality that they would not.

DECISION

NCLN20, Inc. protests the exclusion of its proposal from the competitive
range under request for proposals (RFP) No. GS-03P-01-CDC-0051, issued by
the General Services Administration (GSA) for central alarm monitoring and
radio dispatching services at the GSA MegaCenter in Philadelphia,
Pennsylvania.

We deny the protest.

The solicitation provided for a "best value" evaluation based on four
technical factors--key personnel, staffing plan, corporate experience and
employee incentive plan--and price, with the technical factors considered
more important than price. A source selection evaluation board (SSEB)
evaluated the technical proposals and determined that NCLN20's proposal was
only marginally acceptable, and should be excluded from the competitive
range. NCLN20 challenges several aspects of the evaluation of its proposal,
and concludes that it improperly was eliminated from the competitive range.

The competitive range generally consists of the most highly rated proposals,
based on evaluation of the information submitted in each proposal against
the stated evaluation criteria. United Housing Servs., Inc., B-281352.14,
May 7, 1999, 99-1 CPD para. 80 at 3. In reviewing protests of competitive range
determinations, we will not reevaluate proposals; rather, we will review the
record to ensure that the evaluation and competitive range determination
were reasonable and consistent with the terms of the solicitation. SDS
Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 4. The
evaluation here, and the agency's decision to exclude NCLN20's proposal from
the competitive range, were reasonable.

UNSTATED EVALUATION FACTORS

NCLN20 asserts that organizational structure and transition/start-up plan
were not stated elements of the evaluation, and that the agency therefore
improperly downgraded its proposal under the staffing plan factor based on
the firm's failure to address these items. The protester maintains that, if
GSA wanted offerors to specifically address these items, it should have
specified them in the RFP.

This argument is without merit. While procuring agencies are required to
identify the significant evaluation factors and subfactors in a
solicitation, they are not required to identify the various aspects of each
factor which might be taken into account, provided that such aspects are
reasonably related to or encompassed by the RFP's stated evaluation
criteria. Farnham Security, Inc., B-280959.5, Feb. 9, 1999, 99-1 CPD para. 100
at 3. GSA asserts that organizational structure and transition/start-up plan
are logically related to the staffing plan factor, and therefore were
properly considered under that factor. Agency Report (AR) at 4.
Specifically, GSA explains, an offeror's organizational structure relates to
staffing because it demonstrates the levels of control and the role of the
project manager; the transition/start-up plan is related because it
demonstrates how the offeror will ensure adequate staffing immediately
following contract award. Id. NCLN20 does not dispute that these items are
logically related to the staffing plan factor, and we think the agency
reasonably could expect offerors to recognize the need to address these
areas, even without an express RFP requirement for the information. We
therefore find no basis for questioning the agency's position. [1]

NCLN20 maintains that the agency also improperly downgraded its proposal
under the employee incentive plan factor based on its failure to discuss
premium pay, since the RFP did not require offerors to address this area
and, in any case, described premium pay as a program administered by GSA
that is separate from the employee incentive program. GSA maintains that
premium pay was logically related to the employee incentive plan factor.

We agree with GSA. The solicitation required offerors to propose an employee
incentive program, RFP sect. M.4; amend. 1, Technical Qualifications, and also
authorized offerors to request premium pay for employees who worked a
specified minimum number of hours in a highly satisfactory manner. RFP sect. C,
part 11. While the solicitation gave GSA ultimate authority to approve a
contractor's request for premium pay for a particular employee, it will be
the contractor's responsibility to decide under what circumstances it will
request premium pay and, more generally, how it will use the program as an
incentive. Premium pay therefore clearly constituted an employee incentive,
and was properly considered under the employee incentive plan factor. This
being the case, we think the agency reasonably could expect offerors to
address the details surrounding how they planned to use the program. Since
NCLN20's proposal did not do so, GSA reasonably downgraded it.

KEY PERSONNEL

The solicitation required offerors to designate a project manager with at
least 5 years of experience in dispatch and/or alarm monitoring work. RFP sect.
M.1. GSA downgraded NCLN20's proposal because it showed that its offered
project manager had only 4-1/2 years experience. NCLN20 argues that the
agency should have measured its project manager's experience from the time
of NCLN20's debriefing instead of the time of proposal submission--which
would increase his experience to 4 years and 11 months--and then should have
found that NCLN20 was in substantial compliance with the 5-year requirement.
The protester also questions whether GSA considered the significant and
long-term communications experience the project manager gained during his
military service. [2]

NCLN20's allegation derives from an ambiguity in the solicitation; that is,
since the solicitation did not establish the date by which the required
experience must be accrued, it was ambiguous as to which date the agency
would use in the evaluation. Such an allegation involves a solicitation
defect apparent on the face of the solicitation which, under our Bid Protest
Regulations, 4 C.F.R. sect. 21.2(a)(1) (2001), must be raised prior to the time
set for the receipt of initial proposals. Thus, if NCLN20 believed the
agency should measure experience from a particular time, it was required to
so argue prior to the closing time. Since it did not raise the issue until
after the award was made, it is untimely and will not be considered. See,
e.g., Federal Computer Int'l, Corp., July 29, 1997, 97-2 CPD para. 35 at 3;
Continental Technical Servs. of Georgia, Inc., B-259681, B-259681.2, Apr.
19, 1995, 95-1 CPD para. 204 at 7.

With respect to the project manager's military experience, the solicitation
specifically required a project manager "who possesses at least five years
of experience in dispatch and or alarm monitoring work . . . ." The agency
found, and the protester does not dispute, that while the project manager's
military experience involved communications, it did not involve dispatch or
alarm monitoring. Accordingly, the agency properly disregarded this military
experience in determining whether the project manager met the experience
requirement.

The agency also downgraded NCLN20's proposal under key personnel because
NCLN20 did not provide resumes for remote access programmers or alternate
dispatchers. NCLN20 maintains that this was unreasonable because its
proposal stated that it intended to use acceptable incumbent employees for
these positions, and the solicitation did not require resumes for incumbent
employees.

This argument is without merit. NCLN20 is correct that the solicitation
permitted offerors to propose incumbent employees under the key personnel
factor, and that no resumes were required for such proposed employees. RFP,
amend. 2 at 1; amend. 3 at 1. However, offerors were permitted to propose,
and were required to include resumes for, additional employees they intended
to hire. RFP amend. 2 at 1. GSA downgraded the protester for its lead
dispatchers because, while it proposed incumbents, it did not propose (and
provide resumes for) alternate dispatchers, who would be necessary in the
event that the incumbents did not accept employment with the protester. The
evaluation in this regard was reasonable. While NCLN20 planned to use
incumbent staff, there was nothing in the proposal to demonstrate that the
incumbent staff would accept employment with the protester. For example, the
protester did not submit letters of interest or intent from the employees,
or even indicate that it had contacted them. Since there was no guarantee
that the incumbent lead dispatchers would work for the protester, it was not
unreasonable for the agency to consider the fact that NCLN20 had not made
alternative arrangements to perform the contract in the event that they did
not. See Comprehensive Health Servs., Inc., B-285048.3 et al., Jan. 22,
2001, 2001 CPD para. 9 at 3.

With respect to the remote access programmers, the agency reports that this
position did not exist under the current contract; since there thus were no
incumbent employees, by offering incumbents NCLN20 essentially failed to
offer employees for these positions. It thus was reasonable for the agency
to downgrade its proposal.

While NCLN20 claims that it was not aware that the remote access programmer
position did not exist under the current contract, this did not shift the
risk of its staffing approach to the agency. [3]

The protest is denied. [4]

Anthony H. Gamboa

General Counsel

Notes

1. NCLN20 also argues that, since the solicitation contained a detailed list
of the position requirements and job descriptions for key personnel, an
organizational structure was unnecessary. In response, GSA explains that the
purpose of describing organizational structure is not simply to list the
position descriptions, but also to describe such things as hiring and firing
authority and to demonstrate how the offeror would support the solicitation
requirements for adequate staffing, management and supervision. Supplemental
AR at 1. We agree with the agency that these considerations are not
addressed by the RFP's position requirements and job descriptions.

2. The protester also maintains that the agency's questioning whether its
price proposal {DELETED] indicated a misunderstanding of the statement of
work was unwarranted. Even if the protester's position is correct, however,
the record shows that NCLN20's proposal was excluded from the competitive
range based primarily on the weaknesses in its technical proposal, not
because of questions about its proposed price. Accordingly, NCLN20 was not
prejudiced by the price evaluation. See Dube Travel Agency & Tours, Inc.;
Garber Travel, B-270438, B-270438.2, Mar. 6, 1996, 96-1 CPD para. 141 at 9.

3. NCLN20 also protests that the awardee did not meet the past performance
requirements of the solicitation. Since we have concluded that NCLN20 was
properly excluded from the competitive range, however, and there are other
offerors in the competitive range, NCLN20 is not an interested party to
raise this issue. 4 C.F.R. sect. 21.0(a); A Travel Passport, Inc.; Global
Express Travel Servs., Inc., B-255383.2 et al., 94-1 CPD para. 171 at 7.

4. NCLN20 argues that there was unequal treatment of offerors because one or
more of the proposals included in the competitive range had a deficiency
similar to those in its proposal. For example, the protester asserts that
the awardee proposed a project manager who did not meet the experience
requirement. Since inclusion in or exclusion from the competitive range is
based an evaluation of the overall proposal and not on a single deficiency,
the fact that other offerors' proposals had deficiencies similar to the
protester's, but were not excluded from the competitive range, does not
demonstrate unequal treatment. See Information Spectrum, Inc., B-256609.3,
B-256609.5, Sept. 1, 1994, 94-2 CPD para. 251 at 15-17.