TITLE:	Franz Rubenbauer Raumausstatter; Malerbetrieb Anastassios
BNUMBER:	   B-290317.3;B-290317.4; B-290317.5; B-290317.6
DATE:		    July 16, 2002
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Franz Rubenbauer Raumausstatter; Malerbetrieb Anastassios, B-290317.3;
B-290317.4; B-290317.5; B-290317.6, July 16, 2002

Decision


Matter of:   Franz Rubenbauer Raumausstatter; Malerbetrieb Anastassios
Georgiadis

File:            B-290317.3; B-290317.4; B-290317.5; B-290317.6

Date:           July 16, 2002

Reed L. von Maur, Esq., for the protesters.
Raymond M. Saunders, Esq., and Richard L. Hatfield, Esq., Department of the
Army, 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.  Protest that agency improperly evaluated proposal under business
management and past performance factors is denied where record shows
proposal was downgraded because it did not include information required by
the solicitation.

2.  Fact that agency found protester's quality control plan acceptable under
prior solicitation does not establish that downgrading of same plan under
current solicitation was unreasonable, since each solicitation stands on its
own, and protester does not challenge agency's conclusion that plan was
lacking in detail.

3.  Supplemental protest based on information obtained from agency report is
dismissed as untimely where the information would have been provided during
debriefing held with protester, but protester terminated the debriefing
without allowing the agency to fully discuss the inadequacies in its
proposal.

DECISION

Franz Rubenbauer Raumausstatter and Malerbetrieb Anastassios Georgiadis
protest the award of a contract to Frank GmbH, Suebersdorf, under request
for proposals (RFP) No. DAJA16-02-R-0004, issued by the Department of the
Army for cleaning, painting and repairs to flooring in employee housing in
Vilseck, Germany.  Rubenbauer and Anastassios protest the evaluations of
their respective proposals.

We deny the protests.

The solicitation provided for a "best value" evaluation, with paramount
consideration given to technical/management capability factors--(in
descending order of importance) past performance, business
management/organizational structure (with several subfactors) and quality
control--and performance risk, rather than price.  RFP ï¿½ï¿½ GFN-215-4000
(a)(b), GFN-215-4006.  The agency intended to make award without holding
discussions.  RFP ï¿½ GFN-215-4005.

Five proposals, including the protesters' and the awardee's, were received
and evaluated by a source selection evaluation board (SSEB).  Georgiadis's
proposal was rated marginal for past performance, unsatisfactory for
business/management, and marginal-minus for quality control--resulting in an
overall unsatisfactory rating for the technical/management capability
factors--and also was rated very high performance risk.  SSEB Evaluation at
2.  Rubenbauer's proposal was rated marginal for past performance,
satisfactory-marginal for business/management, and satisfactory?marginal for
quality control--for an overall marginal rating for the technical/management
capability factors--and was rated very high performance risk.  Id.  The
protesters' low ratings were based on the agency's finding that their
proposals lacked sufficient detail.  Rubenbauer's and Georgiadis's prices
were the lowest and second lowest, respectively.

The contracting officer made an assessment of the evaluations based on the
information from the SSEB, as well as an independent evaluation, and
determined that the findings and ratings of the SSEB were accurate.
Contracting Officer's Statement (COS) at 7.  The contracting officer
performed an award analysis and determined that Frank provided the "best
value"; it thus made award to Frank.  Following notice of the award, both
Georgiadis and Rubenbauer requested and received debriefings, which they
each terminated before the Army finished with its review of their
proposals.  COS at 11.  These protests followed the aborted debriefings.

Georgiadis and Rubenbauer challenge the evaluations of their proposals on
several grounds.  In reviewing an agency's evaluation of proposals, we will
consider whether the agency acted reasonably and consistent with the stated
evaluation factors and applicable statutes and regulations.  Metropolitan
Interpreters & Translators, B?285394.2 et al., Dec. 1, 2000, 2001 CPD ï¿½ 97
at 5.  We find that the evaluations here were unobjectionable.

GEORGIADIS PROTEST

Business Management/Organizational Structure

Georgiadis maintains that its proposal improperly was downgraded under the
business management/organizational structure factor for failing to indicate
how all of its listed subcontractors would be used, and for failing to
specify which of its managers would be responsible for quality control, and
which would be responsible for project management.[1]  Georgiadis asserts
that the solicitation did not require offerors to explain how subcontractors
would be used, and that, in any event, its proposal did in fact indicate the
type of work (cleaning, flooring, painting) for which the subcontractors
would be used.  With respect to the managers, Georgiadis asserts that its
proposal clearly indicated that the named technical managers would be
responsible for contract performance, and that the named supervisors would
be responsible for quality control.  Georgiadis further asserts that its
proposal improperly was downgraded for failing to identify all employees
allocated to project management and quality control.

The solicitation provided as follows with respect to the business
management/organizational structure factor:

The Government will consider the degree to which the proposed organization
can effectively provide management supervision and control to meet the
requirements under this contract.  The Government will be evaluating the
proposed organization, the type of management structure (centralized,
decentralized), decision processes, relationship between the contract
organization and the offeror's organization and the extent to which offeror
presented a clear, detailed and functional organizational structure that
will ensure effective and efficient contract performance.  The proposal
should show, at a minimum:

Key positions are identified, their technical qualifications and ability of
the English language described and the extent of their authorities stated.

List of all subcontractors needed to perform the services, if any, to
include technical support and advice by experts or suppliers.

The evaluation in this area was reasonable.  In response to this provision,
Georgiadis listed eight subcontractors, and the area in which each would
perform.  The record shows that the agency downgraded the proposal, not
because it could not determine in which areas the subcontractors would
perform, but because the proposal did not indicate, for example, how
Georgiadis planned to select among the multiple subcontractors.
COS?Georgiadis at 9, 12.  Georgiadis's proposal received credit for
identifying subcontractors--the minimum required by the RFP, but since it
did not include any information regarding how Georgiadis would select among
the subcontractors, or how it would manage the subcontractors during
performance of the contract, the agency found no basis for rating the
proposal any higher.[2]  Similarly, with respect to key personnel,
Georgiadis's proposal was not downgraded because it did not identify all
employees allocated to project management and quality control, but because
it did not designate any manager as a quality control or project manager.
In this regard, there is nothing in the proposal supporting Georgiadis's
assertion that it indicated that the technical manager would be responsible
for contract performance, and the supervisor for quality control.  Rather,
the proposal identifies individuals for the management office, technical
management, an employee supervisor and an assistant manager, without
explaining the job designations or the roles the listed individuals would
play in contract performance.  We conclude that the agency reasonably
downgraded the proposal under this factor.

Quality Control

The agency downgraded Georgiadis's quality control plan based on its finding
that the plan was overall very general and did not provide, for example, any
details regarding methods for identifying defective materials or services,
who would be responsible for quality control, or feedback procedures.
COS-Georgiadis at 9.  Georgiadis does not challenge the substance of the
agency's evaluation; rather, it points out that its quality control plan
here was the same one submitted by Rubenbauer, and found acceptable by the
Army, under a prior solicitation, and concludes that there thus was no basis
for the Army's not finding the plan acceptable here.  This argument is
without merit.  Each procurement action is a separate transaction, and an
agency's actions under one procurement are not relevant to the propriety of
its actions under another for purposes of a bid protest.  Patriot Contract
Servs., LLC; Keystone Shipping Servs., Inc.; MTL Ship Mgmt.; V-Ships Marine,
Ltd., B?278276.11 et al., Sept. 22, 1998, 98-2 CPD ï¿½ 77 at 7 n.6.  Since
Georgiadis has not disputed the substance of the Army's conclusions under
the current evaluation, there is no basis for questioning this aspect of the
evaluation.


Past Performance

Georgiadis argues that its proposal improperly was downgraded for failing to
provide contract numbers for the contracts it listed to demonstrate its past
performance; Georgiadis asserts that the solicitation did not require
offerors to provide contract numbers.

This argument is without merit.  As the agency points out, the solicitation
did in fact require offerors to provide contract numbers, as well as a
description of the services provided under the listed contract, the period
of performance, the name and address of the client, the contracting office,
and a brief description of the quality of performance, including problems
encountered and corrective actions taken to resolve those problems.  RFP ï¿½
GFN-215-4003 (4)(3).  Despite these specific instructions, Georgiadis's
proposal included only a list of contracts with the years of performance.
The agency found that the omission of the other required information made it
almost impossible to evaluate the firm's past performance, except to the
extent that the agency was aware of Georgiadis's performance as a
subcontractor under Rubenbauer's current contract for the services being
procured.  OS?Georgiadis at 8.

Given the almost total lack of detail in Georgiadis's proposal with respect
to past performance, we have no basis to question the evaluation.  In this
regard, it is the responsibility of the offeror to provide sufficient
information in its proposal regarding the quality and relevance of its past
performance so that the agency will be able to conduct a meaningful review
of that past performance.  Infrared Tech. Corp., B-282912, Sept. 2, 1999,
99-2 CPD ï¿½ 41 at 5.

RUBENBAUER PROTEST

Rubenbauer asserts that its proposal improperly was downgraded under the
business management/organizational structure factor for failing to identify
a project manager.  Rubenbauer notes that its proposal identified the key
positions in all three principal disciplines listed in the solicitation
(painting, floor repair and cleaning), and maintains that its listing of Mr.
Franz Rubenbauer as the manager on the first line of the staffing and
organization plan for all three areas was sufficient to indicate that he
would be the project manager.  Rubenbauer also argues that the Army should
have been aware that Mr. Rubenbauer would be the project manager because he
is the project manager on the incumbent contract.

This argument is without merit.  While Mr. Rubenbauer was the first name on
the list of key personnel, he is not identified as a project manager;
rather, he is identified as a "Raumausstattermeister," which, according to
the agency (and Rubenbauer does not dispute this), is an interior decorator,
COS-Rubenbauer at 8, and there is no discussion of his duties or authority.
We thus agree with the agency that there was nothing on the face of the
proposal identifying the project manager; the fact that Mr. Rubenbauer was
the project manager on the prior contract was not sufficient to establish
that he would be the project manager for this contract.  In any case, the
record shows that the Army did not downgrade Rubenbauer's proposal under the
business management/organizational structure factor simply because
Rubenbauer did not name a project manager.  Rather, the Army downgraded the
proposal because it was generally lacking in detail--the failure to name a
contract manager was only one of the missing details.  COS-Rubenbauer at 8.

SUPPLEMENTAL PROTESTS

Both Rubenbauer and Georgiadis have raised supplemental protest grounds
based on the information contained in the agency reports on their protests.
Rubenbauer complains that the agency improperly evaluated its offer of
alternate products, its quality control plan, and its past performance.
Georgiadis protests the evaluation of its past performance.

Our Bid Protest Regulations provide that protests other than those based on
alleged solicitation improprieties must be filed not later than 10 days
after the basis of the protest is known or should have been known.  4 C.F.R.
ï¿½ 21.2(a)(2) (2002).  However, even where a protester files a protest within
10 days after it learns the basis of protest, the protest will be judged
timely only if the protester diligently pursued the information on which the
protest was based.  United Int'l Investigative Servs., Inc., B?286327, Oct.
25, 2000, 2000 CPD ï¿½ 173 at 3.  Thus, a protester cannot passively await
information providing a basis for protest; rather, a protester has an
affirmative obligation to diligently pursue such information, and a
protester's failure to utilize the most expeditious information gathering
approach may constitute a failure to meet its obligation in this regard.
Id.

Here, the protesters were provided debriefings on April 23, 2002, and they
filed their initial protests within 10 days thereafter.  Although the
protesters subsequently obtained the information underlying their
supplemental protests from the agency reports, it is apparent from the
record that this same information was available at the time of their
debriefings.  In this regard, the agency has provided outlines prepared by
the contracting officer in preparation for the debriefings.  COS-Rubenbauer
at 10, COS-Georgiadis at 11.  These outlines show that the contracting
officer planned to discuss with Rubenbauer, among other things, its
inadequate quality control plan, past performance, and the lack of
information with respect to alternate products it offered, and with
Georgiadis, among other things, its past performance.  In other words, the
agency was prepared to discuss with the protesters all of the areas of their
evaluations that they now challenge in their supplemental protests.  As
indicated above, the Army reports, and neither protester denies, that the
contracting officer was unable to discuss these matters during the
debriefings because both protesters terminated their debriefings
prematurely.  COS-Rubenbauer at 10-11; COS?Georgiadis at 11.  It is our view
that the protesters, by failing to avail themselves of readily available
information at the debriefings, failed to diligently pursue the information
on which their supplemental protests are based.  Under these circumstances,
we consider the supplemental protests untimely, and will not consider them.
See United Int'l Investigative Servs., Inc., supra (protester did not
diligently pursue protest where it could have received a pre-award
debriefing, but instead choose a post-award debriefing, and protester would
have learned the basis of its protest from the pre-award debriefing);
Automated Med. Prods. Corp., B?275835, Feb. 3, 1997, 97-1 CPD ï¿½ 52 at 3-4
(no diligent pursuit where protester sought information under Freedom of
Information Act instead of requesting a debriefing upon notice of award).

The protests are denied.

Anthony H. Gamboa
General Counsel

                          -------------------------

[1] Georgiadis also asserts that the agency told it during the debriefing
that it proposed too many subcontractors.  The agency denies this and
asserts that it told Georgiadis that it did not indicate how the
subcontractors would be used.  Our review of the record does not show that
Georgiadis was downgraded for proposing too many subcontractors.
[2] Georgiadis argues that the agency improperly based its evaluation of
Georgiadis's proposed subcontractors, in part, on information provided by
Frank to the effect that Georgiadis listed Frank as a proposed subcontractor
without first asking Frank whether it would agree to perform as a
subcontractor.  Georgiadis asserts that it was improper for the agency to
discuss this issue with Frank prior to making the award decision and that,
in any case, it did in fact contact Frank.  However, the record shows that
Frank provided this information to the agency by letter dated May 2002, that
is, after award was made to Frank on April 12.  Since the information
provided by Frank was not considered in evaluating Georgiadis's proposal,
this argument does not provide a basis for questioning the evaluation or
award.