TITLE:  Omniplex World Services Corporation, B-290996.2, January 27, 2003
BNUMBER:  B-290996.2
DATE:  January 27, 2003
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Omniplex World Services Corporation, B-290996.2, January 27, 2003

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:    Omniplex World Services Corporation
    
File:             B-290996.2
    
Date:              January 27, 2003
    
Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Thompson Coburn, for
the protester.
Elizabeth Gaffin, Esq., Department of Justice, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency's determination to eliminate a proposal for a custody officer
services contract from the competitive range, based solely on a minimum
requirement for direct corporate experience that was neither stated in the
solicitation nor disclosed to offerors prior to proposal submission, was
improper.
DECISION
    
Omniplex World Services Corporation protests the elimination of its
proposal from the competitive range under request for proposals (RFP) No.
ACB-2-R-0029, issued by the Immigration & Naturalization Service (INS),
Department of Justice, for custody officer services at the Krome Service
Processing Center and the Miami International Airport, in Miami, Florida. 
Omniplex protests the evaluation of its experience as technically
unacceptable.
    
We sustain the protest.
    
The RFP, issued May 17, 2002, contemplated the award of a fixed-price
requirements contract for 1 year with 4 option years.  The RFP stated that
the technical factors, when combined, were slightly more important than
price.  RFP S: M.2(a).  The technical factors and their corresponding
weights were as follows:
    
1.     Experience/Past Performance
a.     Experience                      (30 points)
b.     Past Performance           (Adjectival Rating)[1]
2.     Key Personnel/Staffing              (30 points)
3.     Financial Capability                   (20 points)
4.     Quality Control Plan                  (10 points)
5.     Training                                       (5 points)
6.     Records & Reports                     (5 points).
    
RFP S: M.2(c).
    
With regard to the experience subfactor, the RFP's proposal instructions
requested offerors to describe their experience providing *similar or
related* services to those stated in the RFP, and *the extent to which the
experience was/is similar to the requirements identified by this RFP.* 
The RFP also requested offerors to demonstrate their *ability to manage
custody officers in a medium to large-scale facility,* and requested
information about the number of persons guarded or secured under prior
contracts.  RFP S: L.13(a.1). 
    
The RFP stated that the evaluation under the experience/past performance
factor would be subjective and based on consideration of all relevant
facts and circumstances, in order to determine whether an offeror *has
experience that will enhance its technical and managerial capability to
perform.*  The experience subfactor was stated as follows:
    
The Offeror's guard/custody officer experience that is similar in size,
scope, and complexity will be evaluated to determine the capability to
perform the work under this contract.
RFP S: M.3(a)(1).  The RFP did not define the term *guard*; it did,
however, define
*custody officer* in the performance work statement (PWS) as follows:
    
Contractor's uniformed unarmed employees responsible for the security,
care, and supervision of detainees being detained or under INS
proceedings.  The officer is also responsible for the safety and security
of the facility.
RFP S: C.1.D.  The PWS also stated minimum personnel qualification
standards, including that all contract employees shall have a minimum of
either 1 year of experience as a law enforcement officer or military
policeman, or 6 months experience as a security officer engaged in
functions related to detaining civil or administrative detainees.  RFP
S: C.2.2.C.2.
    
The agency received 16 proposals by the June 20 closing date, which were
evaluated by a technical evaluation panel (TEP).  Following a competitive
range determination on July 17 that eliminated Omniplex's *acceptable*
proposal from the competitive range, Omniplex protested to our Office. 
Agency Report, Exh. G, Tab F, First Competitive Range Determination.  In
response to the protest, the agency took corrective action that included
establishing a new TEP and re-evaluating proposals.  Agency Report at 5. 
On August 19, our Office dismissed that protest as academic.
    
On September 10, an entirely new TEP evaluated the proposals.[2]  Prior to
this evaluation, the TEP devised scoring criteria under each evaluation
factor/subfactor.  These criteria were not shared with the offerors.  With
regard to experience, the TEP stated:
    
Points were allotted to offerors who demonstrated experience in providing
custody officers to oversee the detention/custody of detainees.  Custody
Officers were defined as those having responsibility for the security,
care, and supervision of detainees in a custody setting.  Custody Officers
differ from Guards in that they must have training and experience in
dealing with a detained population.  Custody Officers must have the
knowledge and ability to deal with conflicts between detainees and
potential violent behavior; and must have the capability to utilize verbal
or physical means to control a potentially dangerous situation.  Guards
are defined as having the responsibility of ensuring the security of
administrative buildings.  Guards are not used for areas with detainee
contact.[[3]]  For purposes of this solicitation, guards are not
acceptable substitutes for custody officers.
POINTS 
0 points -- No experience:  Offeror has no experience in the
detention/custody of detainees.  Experience in physical security (i.e.,
administrative buildings) does not constitute experience for this
solicitation.  Offerors with no experience will be deemed unacceptable.
Agency Report, Exh. G, Tab B, TEP Evaluation Documents, at 4-5.  Under
past performance, the TEP gave neutral ratings to all offerors found to
have no detention/custody experience.  Id. at 7.
    
Based on this scheme, the TEP determined that eight proposals, including
Omniplex's, were unacceptable for lack of detention/custody experience. 
Id. at 1, 21, 27-39.  That is, although Omniplex's proposal provided
detailed information on numerous INS and other federal and corporate
contracts for the past 12 years covering armed and unarmed guard and
security services at medium to large-scale facilities,[4] Agency Report,
Exh. B, Omniplex Proposal, Vol. II, Section 1, Experience, Omniplex's
proposal received zero points for experience, and was determined
unacceptable overall because of its lack of corporate experience in
providing detention/custody services.[5]  
    
The TEP gave Omniplex [DELETED] factor.  Agency Report, Exh. G, Tab B, TEP
Evaluation Documents, at 1, 21-22.  Most notably, the TEP determined that,
under the key personnel/staffing factor, Omniplex's proposal set forth a
[DELETED] that covered all of the requirements, and proposed key personnel
with *[DELETED].*  Id. at 21, 274-75. 
    
On October 10, the contracting officer established a competitive range
comprised of three proposals.[6]  Agency Report, Exh. G, Tab F, Second
Competitive Range Determination.  On October 17, Omniplex filed this
protest.
    
The protester essentially alleges that the agency improperly evaluated
Omniplex's proposal as unacceptable by applying an unstated minimum
requirement for experience in providing detention/custody services.  We
agree.
    
It is fundamental that offerors must be advised of the bases upon which
their proposals will be evaluated.  H.J. Group Ventures, Inc., B-246139,
Feb. 19, 1992, 92‑1 CPD P: 203 at 4.  Therefore, an evaluation based
on unstated minimum requirements is improper.  RJO Enters., Inc.,
B-260126.2, July 20, 1995, 95-2 CPD P: 93 at 11; Sci-Tec Gauging, Inc.;
Sarasota Measurements & Controls, Inc., B-252406, B‑252406.2,
June 25, 1993, 93-1 CPD P: 494 at 7-8.
    
Here, the agency eliminated the proposals of Omniplex and other offerors
on the sole basis that they did not have direct corporate experience in
performing detention/custody services.  By doing so, the agency
essentially determined that direct corporate experience in
detention/custody services was a minimum agency requirement.  However, the
RFP did not state this requirement.  Nor did the agency otherwise advise
potential offerors of such a requirement.  Rather, the evaluation plan in
the RFP stated that the agency would evaluate *guard/custody officer*
experience similar in size, scope and complexity to the RFP work
requirements.  RFP S: M.3(a)(1).  That is, the RFP indicated that *guard*
experience, as well as *custody officer* experience, would be considered
in evaluating experience[7] (although it did not define the term
*guard*).[8]  Also, *custody officers* under this RFP were said to be
*also responsible for the safety and security of the facility,* which
indicates such experience is relevant.  RFP S: C.1.D.  Thus, we think that
an offeror's building security guard experience, such as that evidenced in
Omniplex's proposal, should have been considered in the evaluation, and
that it was improper to simply eliminate Omniplex from the competition
because it did not have custody officer experience. 
    
The agency's action here effectively restricted the competition to firms
with direct corporate detention/custody experience and represents the
application of an unstated minimum requirement in the evaluation.  If this
represented the agency's actual minimum needs, the agency was required to
amend the RFP to reflect those needs.[9]  FAR S: 15.206(a); Canberra
Indus., Inc., B-271016, June 5, 1996, 96-1 CPD P: 269 at 4. 
    
Absent amendment of the RFP, the agency must reasonably evaluate offerors'
experience in accordance with the terms of the RFP.[10]  On this record,
we find no reasonable basis for Omniplex's zero point score and
unacceptable rating under the experience criterion, and thus find the
competitive range determination not reasonably supported by the record.
    
We recommend that the agency re-evaluate the proposals consistent with the
terms of the RFP and make a new competitive range determination,
appropriately taking into account the proposed prices and past
performance.  If, however, the terms of the RFP do not reflect the
agency's actual minimum needs, the agency should first amend the RFP
accordingly and request revised proposals.  We also recommend that the
agency reimburse the protester its cost of pursuing this protest,
including reasonable attorney's fees.  4 C.F.R. S: 21.8(d) (2002).  The
protester should submit its certified claim for costs, detailing the time
expended and the costs incurred, directly to the contracting agency within
60 days of receipt of this decision.  4 C.F.R. S: 21.6(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The RFP stated that past performance would receive an adjectival
rating from *Very Low to Very High Performance Risk.*  RFP S: M.2(c).  The
RFP also stated the following:
    
No Past Performance - Offerors with no past performance will receive a
neutral rating.  Such a rating will have no positive or negative
evaluative significance.  However, Offerors are encouraged to provide past
performance information from predecessor companies, subcontracts, key
personnel who have relevant experience or other past performance
information such as relevant state and local government contracts, and
commercial contracts.
RFP S: M.3(a)(3).  The RFP did not state the relative importance of the
past performance subfactor, as required.  Federal Acquisition Regulation
S: 15.304(d); see Stone & Webster Eng'g Corp., B-255286.2, Apr. 12, 1994,
94-1 CPD P: 306 at 5.
[2] One offeror had been debarred from government contracting in the
interim, so the new TEP evaluated only 15 of the 16 proposals submitted. 
Agency Report, Exh. G, Tab F, Second Competitive Range Determination, at
1.
[3] As noted above, no definition of *guard* appears in the RFP.
[4] Omniplex's proposal also stated that it has [DELETED] on some federal
contracts.
[5] Omniplex also received a *neutral* past performance rating because the
agency concluded that none of its experience was relevant.
[6] Price was not considered in making the competitive range
determination.  The RFP stated that the agency would evaluate the prices
only of those proposals that had been *officially placed in* the
competitive range.  RFP S: M.4.  However, cost or price to the government
must be included in every RFP as an evaluation factor, and agencies must
consider cost or price to the government in evaluating competitive
proposals.  41 U.S.C. S: 253a(c)(1)(B) (2000).  It is well established
that this requirement means that an agency cannot eliminate a technically
acceptable proposal from consideration for award without taking into
account the relative cost of the proposal to the government.  Kathpal
Tech., Inc.;  Computer & Hi‑Tech Mgmt., Inc., B-283137.3 et al.,
Dec. 30, 1999, 2000 CPD P: 6 at 9, aff'd, Department of Commerce*Request
for Modification of Recommendation, B-283137.7, Feb. 14, 2000, 2000 CPD
P: 27.
[7] The use of the slash (or *virgule*) between the words *guard* and
*custody officer* reasonably indicated that either guard or custody
officer experience was acceptable.  See Airpro Equip. Inc., B-209612, Jan.
31, 1983, 83-1 CPD P: 105 at 1‑2.
[8] As noted above, the TEP defined *guard* as *having the responsibility
of ensuring the security of administrative buildings.*
[9] Omniplex argues that a minimum requirement for direct corporate
experience in performing detention/custody services would be
unreasonable.  We expect that the agency will carefully consider the
protester's position when reviewing and determining the agency's actual
minimum needs as recommended below.  If the agency determines that it does
require a minimum requirement for corporate custody officer experience and
amends the RFP accordingly, the protester would of course have the
opportunity to protest the amended terms of the RFP.
[10] Although the RFP did not require direct corporate detention/custody
experience, it did indicate a preference, which reasonably would permit
the agency to evaluate such direct corporate experience higher than other
relevant general experience.  In this regard, an agency properly may take
into consideration specific, albeit not expressly identified, experience
in making qualitative distinctions between competing proposals, so long as
the specific experience is logically encompassed by or related to an RFP's
requirements and stated basis for evaluation.  Bulova Techs. LLC,
B-281384, B-281384.2, Feb. 3, 1999, 99-1 CPD P: 99 at 7-8; see, e.g., Sage
Diagnostics, B-222427, July 21, 1986, 86-2 CPD P: 85 at 3 (higher rating
for experience that directly related to the agency's specific law
enforcement needs is reasonable, even though such direct experience was
not a requirement).  We also note that an agency properly may consider the
specific experience of the offeror's proposed personnel in evaluating the
offeror's experience.  Scipar, Inc. B-220645, Feb. 11, 1986, 86-1 CPD
P: 153 at 10; Energy and Res. Consultants, Inc., B‑205636, Sept. 22,
1982, 82‑2 CPD P: 258 at 3.  In this regard, as the agency's
evaluation determined, Omniplex [DELETED].