TITLE: Main Building Maintenance, Inc., B-291950; B-291950.2, May 15, 2003
BNUMBER: B-291950; B-291950.2
DATE: May 15, 2003
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Main Building Maintenance, Inc., B-291950; B-291950.2, May 15, 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: Main Building Maintenance, Inc.
File: B-291950; B-291950.2
Date: May 15, 2003
Garreth E. Shaw, Esq., for the protester.
Janice Davis, Esq., Davis & Steele, for American K-9 Interdiction, LLC, an
intervenor.
Clarence D. Long, III, Esq., Department of the Air Force, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency properly found awardee's technical proposal acceptable while
finding protester's unacceptable, where record shows agency reasonably
found material differences in the firms' proposed staffing.
2. Agency's alleged unduly favorable evaluation of awardee's proposal
under past performance factor did not prejudice protester, and thus does
not provide a basis for sustaining its protest, where record shows that
protester's proposal was found technically unacceptable, making protester
ineligible for award.
3. Protest allegation that awardee enjoyed unfair competitive advantage
by having made a contingent offer of employment to a government employee
performing some of the services being solicited is denied where record
contains no evidence that the government employee either participated in
preparing the solicitation or had access to procurement sensitive
information.
DECISION
Main Building Maintenance, Inc. (MBM) protests the award of a contract to
American K-9 Interdiction, LLC (AK-9) under request for proposals (RFP)
No. F41636-02-R-0008, issued by the Department of the Air Force for animal
caretaker and kennel management services at Lackland Air Force Base
(AFB). MBM asserts that the agency misevaluated proposals in arriving at
its award decision and that AK-9 had an improper competitive advantage.
We deny the protest.
The solicitation contemplated the award of a requirements-type contract
for a base period, with four 1-year options, to perform animal caretaker
services (including feeding, grooming, exercising, bathing, tracking and
processing of military working dogs (MWD), and veterinarian clinic
caretaker services), as well as kennel care and operations at Lackland
AFB.
The RFP divided the requirement into six contract line items (CLINS) for
each performance period. The first two CLINS, for kennel care management
and veterinary processing, were to be priced on a monthly lump-sum basis,
while the remaining four CLINS were to be priced on the basis of graduated
monthly levels of service. In this latter regard, for example, the
grooming and exercising CLIN included four subCLINS for different levels
of service; the first subCLIN for 1-3,000 grooming and exercising sessions
per month, the second for 3,001-4,200 sessions, the third for 4,201-5,400
sessions, and the fourth for 5,401-8,520 sessions. The solicitation also
stated a midpoint for each of the levels of service, as well the
probability that the services would be required at the various stated
levels. The grooming and exercise CLIN may be summarized as follows:
+------------------------------------------------------------------------+
|CLIN |Probability |Range |Midpoint |
|------------------+-----------------+------------------+----------------|
|SubCLIN 01 |3% |1-3,000 |1,500 |
|------------------+-----------------+------------------+----------------|
|SubCLIN 02 |70% |3,001-4,200 |3,601 |
|------------------+-----------------+------------------+----------------|
|SubCLIN 03 |25% |4,201-5,400 |4,801 |
|------------------+-----------------+------------------+----------------|
|SubCLIN 04 |3% |5,401-8,520 |6,961 |
+------------------------------------------------------------------------+
Offerors were required to enter a unit price for the service in question,
which would be multiplied by both the midpoint quantity and the
probability of each service level to arrive at an extended price for each
of the subCLINs; these extended prices then were totaled to arrive at an
estimated monthly price for each CLIN for each performance period. In
this manner, the agency was conveying its best estimate of the level of
effort that would be required during contract performance.
For evaluation purposes, the RFP contemplated a two-step process. First,
proposals were to be evaluated for technical acceptability under a single
criterion, mission capability, which was further divided into two
subelements, organization/personnel and quality control. RFP at 35.
Proposals were rated either technically acceptable, reasonably susceptible
of being made technically acceptable or technically unacceptable under
each of the subelements. In order for a proposal to be considered
technically acceptable, it had to be rated acceptable under both
subelements. Second, proposals deemed technically acceptable were to be
evaluated and assigned a performance confidence rating--exceptional/high
confidence, very good/significant confidence, satisfactory/confidence,
neutral/unknown confidence, or unsatisfactory/no confidence--based on past
performance. RFP at 37-38. The agency would make a *best value* source
selection decision considering past performance and price, with past
performance significantly more important than price. RFP at 36.
The agency received three proposals, including MBM's and AK-9's (the third
proposal is not relevant here). After an initial evaluation, the agency
rated the protester's proposal technically unacceptable under both the
organization/personnel and quality control subelements. Agency Report
(AR), exh. 18, MBM Initial Evaluation Materials. AK-9's proposal was
rated reasonably susceptible of being made acceptable under the
organization and personnel subelement and acceptable under the quality
control subelement, resulting in an overall rating of reasonably
susceptible of being made acceptable. AR, exh. 18, AK-9 Initial
Evaluation Materials. The agency was concerned about the adequacy of both
firms' proposed staffing, and also was concerned about the adequacy of the
protester's quality control plan. The agency also was concerned that
AK-9's proposed price appeared excessive and possibly indicative of a
miscalculation by the firm. Accordingly, the agency engaged in
discussions with both firms and reevaluated proposals after receiving
proposal revisions.
In its reevaluation, the agency rated the awardee's proposal technically
acceptable under both subelements, and the protester's unacceptable under
both subelements. AR, exh. 18, Final Evaluation Materials. Thereafter,
the agency evaluated the past performance information for AK-9 and
assigned it a performance confidence rating of very good/significant
confidence. The agency did not rate MBM's past performance because its
proposal had been found technically unacceptable and thus was not eligible
to be considered further. The record also shows that AK-9 significantly
reduced its price in its final proposal revision (the firm had apparently
made calculation errors in its initial proposal and its revised proposal
corrected those errors, which had been drawn to the firm's attention
during discussions); the agency found its final price reasonable and
realistic for the requirement. On the basis of these evaluation results,
the agency made award to AK-9, concluding that its proposal offered the
best overall value to the government.
TECHNICAL AND PRICE EVALUATION
MBM raises several assertions relating to the propriety of the agency's
evaluation. Our review is limited to determining whether the agency's
judgment in evaluating proposals was reasonable and consistent with the
stated evaluation criteria and applicable statutes and regulations.
Ostrom Painting and Sandblasting, Inc.,
B-285244, July 18, 2000, 2000 CPD P: 132 at 4. A protester's mere
disagreement with the agency's judgment in its determination of the
relative merit of competing proposals does not establish that the
evaluation was unreasonable. C. Lawrence Constr. Co., Inc., B-287066,
Mar. 30, 2001, 2001 CPD P: 70 at 4. Based on our review of the record, we
find that the agency's evaluation of proposals was reasonable. We discuss
our conclusions in detail below.
Adequacy of Proposed Staffing
MBM asserts that the agency misevaluated AK-9's proposal in the area of
its proposed staffing. In this regard, the record shows that, after
performing its initial evaluation, the agency had some reservation
relating to the adequacy of AK-9's proposed staffing level for purposes of
performing the solicitation's grooming and exercise requirements.
Consequently, it asked AK-9 during discussions to demonstrate how its
proposed staffing was adequate to meet those requirements. AR, exh. 18,
AK-9 Evaluation Materials at 3. (The record shows that the agency had the
same concern with respect to the MBM proposal. Consequently, it asked MBM
an identical discussion question.) In response, AK-9 provided detailed
calculations and narrative materials explaining why its proposed staffing
of [deleted] full-time equivalents (FTE) was adequate to meet the
requirements of the solicitation. Using the grooming and exercising CLIN
to illustrate the adequacy of its staffing, AK-9 explained how it
calculated the number of grooming and exercise sessions required per week
based on the number of dogs to be groomed. AK-9 then calculated the
approximate amount of time each session would take, and showed how it
determined its proposed staffing based on these calculations. AR, exh.
21, Letter of Dec. 23, 2002, at 2-5. (In contrast, MBM did not provide
any details relating to how it arrived at its staffing estimate. The
protester proposed to accomplish the requirement using 42 FTEs, which the
agency ultimately found technically unacceptable.)
The protester seems to argue that AK-9's proposed staffing is inadequate
because it is based on calculations that focus on the midpoint of the most
likely service level (3,601 grooming sessions per month) without taking
into consideration the solicitation's higher service level ranges; in
effect, MBM appears to assert that AK-9's calculations are based on
performing fewer grooming and exercise sessions than contemplated by the
RFP.
This argument is without merit. First, the agency reasonably found that
MBM's proposed staffing was inadequate to perform the requirement. As
noted, MBM proposed to perform the requirement using only 42 FTEs,
compared to the [deleted] proposed by AK-9. Despite being given an
identical discussion question relating to the adequacy of its proposed
staffing, MBM did not present any calculations or explanation in support
of its proposal, stating instead only that, *[b]ased on the current data
available and the current bid schedule estimated quantities, MBM is
proposing 42.08 FTEs.* AR, exh. 22, MBM Technical Proposal, at 5. In
evaluating MBM's response, one of the agency's evaluators independently
performed calculations similar to those presented in the AK-9 proposal
(discussed below), arriving at the conclusion that a minimum of 51 FTEs
would be required for MBM to accomplish the requirements as estimated in
the RFP. AR, exh. 18, MBM Revised Evaluation Materials, at 27-28. In the
final analysis, the agency evaluators were not persuaded that MBM
understood the requirements of the contract or had proposed sufficient
staffing to meet all of the solicitation's tasks, and therefore assigned
the proposal a final rating of unacceptable in this area. AR, exh. 18,
MBM Revised Evaluation Materials, at 2, 8-9, 15, 19-20, 24‑28. MBM
does not assert that the agency's evaluation conclusion is either
incorrect or unreasonable, and we see nothing unreasonable in the agency's
methodology or conclusion.
We are at a loss to understand MBM's position that AK-9's proposed
staffing was inadequate in light of the fact that MBM proposed [deleted]
fewer FTEs than AK-9. In any event, we conclude that the agency
reasonably found AK-9's proposed staffing adequate. As discussed above,
in response to the agency's discussion question, AK-9 presented detailed
calculations based on performing 3,601 grooming and exercise sessions per
month (900 per week). As noted, AK-9 based its staffing calculations on
performing 3,601 sessions because this was the midpoint for the
3,001-4,200 service range, which the RFP indicates was the most likely
range of performance. AK-9's proposal states: *We based the number of
manhours/personnel required for grooming and exercising on CLIN 5AB--which
indicated the highest probability factor [70 percent probability of
performance in this range] pertaining to grooming and exercising.* AR,
exh. 21, Letter of Dec. 23, 2002, at 2.[1] The firm explained how it
could perform the 900 grooming and exercise sessions per week with its
proposed staffing.
The agency accepted AK-9's explanation, and concluded that its proposed
staffing would be adequate. AK-9's methodology appears logical on its
face, and is similar to the method used by the agency to evaluate the
adequacy of MBM's staffing. In particular, we see nothing unreasonable in
AK-9's reliance on the most likely service level in calculating its
staffing; MBM has presented no information establishing that AK-9's
proposed staffing in fact is not adequate, and has not shown that it
calculated its own staffing in a different manner, to its competitive
prejudice (again, it is not clear how MBM could have been prejudiced in
this regard, since its staffing level was substantially lower than
AK-9's). See McDonald-Bradley, B‑270126, Feb. 8, 1996,
96-1 CPD P:54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581
(Fed. Cir. 1996). Under these circumstances, there is no basis for
questioning the agency's determination.
Price Evaluation
In a related argument, MBM maintains that the agency improperly failed to
evaluate the realism of AK-9's proposed price and asserts that, had the
agency done so, it would have discovered that the firm's proposed price
was dramatically understated because it was based on an inadequate level
of effort. According to the protester, the agency will reimburse AK-9 for
all feeding and grooming and exercise sessions, and since its proposal was
based on a lower level of effort (as noted, the protester asserts, for
example, that AK-9 based its pricing on performing only 3,601 grooming and
exercise sessions per month rather than the maximum possible number of
grooming and exercise sessions), the agency's evaluation failed to take
into consideration the true cost of contract performance.
The protester's argument is based on a flawed premise, namely, that the
offerors' estimated pricing was determined through calculations based on
some--but not all--of the units for each requirements-type CLIN. In fact,
the agency's price evaluation methodology took into account, in a weighted
manner, all possible levels of service. This is precisely what the RFP
required it to do. To the extent that the protester is challenging the
method of evaluation outlined in the RFP or the accuracy of the agency's
estimates of the levels of service to be acquired, it is an untimely
challenge to the terms of the RFP. See Bid Protest Regulations, 4 C.F.R.
S: 21.2 (a)(1) (2003).
Quality Control Plan
MBM asserts that the agency improperly found AK-9's proposal acceptable
under the quality control subelement. The primary focus of MBM's
allegation is its assertion that the AK-9 quality control plan did not
specifically list all of the service delivery items to be provided under
the contract, and therefore was incomplete. MBM further asserts that the
AK-9 quality control plan provides that [deleted] percent of the quality
control inspectors' time will be left as *time available* to perform
monthly (as opposed to daily) quality inspections; MBM asserts that this
is unacceptable because, if AK-9 claims during contract performance that
no time is available, these monthly inspections will not be performed.
MBM misinterprets the AK-9 proposal. First, the proposal specifically
offers to implement policies and procedures to cover all performance
aspects of the contract. The proposal states in this regard as follows:
American K-9 and it's subcontractors (where appropriate) will provide the
following personnel and implement the following policies and procedures
regarding the implementation and execution of Quality Control (QC) over
all aspects concerning the Statement of Work and Service Delivery Summary
as outlined in the . . . solicitation.
AK-9 Proposal, Quality Control Plan, at 1 (emphasis supplied). The
quality control plan then goes on to provide details relating to the
[deleted] employees designated as quality control inspectors, their hiring
and training, and eventual deployment on the contract. Id. at 2.
Thereafter, the plan sets forth a regimen of routine random inspections
that will be conducted by the quality control inspectors in order to
ensure quality control for each of the solicitation's service delivery
items. (For example, the proposal provides that [deleted] percent of all
grooming and exercise sessions will be inspected on a daily basis.) Id.
at 2-3. Thus, contrary to the protester's assertion, the agency
reasonably determined that AK-9's quality control plan adequately
addressed the service items.
The plan also goes on to describe the firm's inspection methodology, as
well as its performance monitoring and inspection systems. AK-9 Proposal,
Quality Control Plan, at 6-8. The plan includes a quality standards
definitions section, as well as a statement of animal facility quality
standards. Id. at 8-10. Finally, the plan includes examples of the
firm's quality control checklists, as well as a representative quality
control inspection report. Id. at 5-6, 11. On its face, AK-9's quality
control plan appears complete, and MBM has not shown otherwise.
As for MBM's remaining argument, we do not agree with its interpretation
of the proposal statement that, in addition to time spent performing the
daily inspection regimen, [deleted] percent of the quality control
inspectors' time will be left open as *time available* for the quality
control inspectors to perform monthly (as opposed to daily) inspections.
Id. at 3. There is nothing in this language to support MBM's view that
the inspectors will perform the monthly inspections only if time is
available, and that AK-9 was essentially qualifying its offer. Rather, we
think the agency reasonably read this statement as indicating, simply, the
amount of its inspectors' time AK-9 believed would be needed to perform
the monthly inspections. We conclude that the agency reasonably found the
plan technically acceptable.[2]
MBM asserts that, to the extent that the AK-9 quality control plan was
found acceptable, MBM's plan also should also have been found acceptable.
We need not consider this assertion since, even if MBM were correct, its
proposal would still be unacceptable overall based on inadequate staffing,
as discussed above.
PAST PERFORMANCE
MBM asserts that the agency erroneously assigned the AK-9 proposal a
performance confidence rating of very good/significant confidence.
According to the protester, neither AK-9 nor its subcontractors had
relevant experience that would merit the rating assigned.
Regardless of the rating that may have been assigned the AK-9 proposal in
the area of past performance, the agency's actions could not have been
prejudicial to MBM. As noted, the RFP provided for a two-step
evaluation--only those proposals initially found technically acceptable
were evaluated in the area of past performance and included in the
performance/price tradeoff. RFP at 36-39. As discussed above, the agency
properly found the MBM proposal technically unacceptable for failing to
propose adequate staffing. Consequently, the MBM proposal was neither
eligible for evaluation in the area of past performance, nor eligible for
award under the agency's performance/price best value award decision. It
follows that the propriety of the agency's past performance evaluation of
the AK-9 proposal could not have competitively prejudiced MBM. Since
competitive prejudice is an element of every viable protest, Amcare Med.
Servs., Inc., B-271595, July 11, 1996, 96-2 CPD P: 10 at 3;
McDonald-Bradley, supra; Statistica, Inc. v. Christopher, supra, this
argument provides no basis for sustaining MBM's protest.
IMPROPER COMPETITIVE ADVANTAGE
MBM asserts that AK-9 had an improper competitive advantage in connection
with the acquisition because it made a contingent offer of employment to
an individual who, at the time proposals were submitted, was the agency's
site manager for the kennel. According to MBM, the individual in question
allegedly assisted in preparing the solicitation's statement of work, and
also had access to competitively useful information that it furnished to
AK-9 during the course of the procurement.
We find no merit to this aspect of MBM's protest. The interpretation and
enforcement of post-government employment restrictions are primarily
within the ambit of the Department of Justice and the contracting agency.
Our general interest within the confines of a bid protest is to determine
whether any action by a current or former government employee may have
called into question the integrity of the competition. See Protection
Total/Magnum Sec., S.A., B‑278129.4, May 12, 1998, 98‑1 CPD P:
137 at 3. Specifically, we review whether an offeror may have prepared
its proposal with knowledge of insider information sufficient to establish
a strong likelihood that the offeror gained an unfair competitive
advantage. Id. We consider whether the former government employee had
access to competitively useful information, as well as whether the
employee's activities with the successful offeror likely resulted in a
disclosure of such information. Id. at 3-4.
The record shows that, as to MBM's first assertion--that the individual in
question helped to prepare the statement of work--the protester is wrong
as a factual matter. The solicitation was issued in April 2002, but the
individual in question--a temporary government employee--was not employed
by the agency until September 2002. Contracting Officer's Supplemental
Statement, Apr. 7, 2003, at 3, and attachs. 1 and 2. The protester has
offered no evidence to rebut this showing on the part of the agency, and
we have no basis to find that the individual participated in preparing the
statement of work.
The agency also categorically denies that the individual in question,
either as part of his official duties or otherwise, had access to
competitively sensitive information, such as the offerors' proposals or
source selection materials generated by the agency contracting personnel.
Contracting Officer's Supplemental Statement, Apr. 7, 2003, at 3. As with
its other assertion, the protester has advanced absolutely no evidence to
support its position, or to contradict the agency's representations. We
therefore have no basis to find that the individual in question had access
to procurement sensitive information that might have been competitively
useful to AK-9 in the preparation of its proposal.
The protester nonetheless insists that the individual in question, by
virtue of his having performed the function of kennel supervisor, would
have detailed information relating to kennel operations not available to
other offerors that could provide AK-9 an advantage in preparing its
proposal. In this respect, the protester has submitted an affidavit
prepared by another former kennel supervisor in which she provides details
about the type of information that was available to her as kennel
supervisor; she opines that such information would be competitively useful
and represents that the same information would also have been available to
the individual in question. Protester's Supplemental Comments, Apr. 21,
2003, exh. 1.
We find no basis to conclude that the individual at issue was privy to
information that could have provided an improper advantage to AK-9. The
type of information to which the protester's affiant refers includes
records as to the number of dogs in the program and their status, and
information on the number of times per week the dogs are groomed,
exercised, fed and bathed. However, the type of information at issue was
included in the RFP; all offerors knew the number of dogs and the
frequency of various contract activities, and all proposals were evaluated
against identical quantities of contract services (for example, as
discussed above, all proposals were evaluated--both for technical and
price purposes--using the same number of grooming and exercise sessions).
Moreover, the mere employment of a current or former government employee
familiar with the type of work required--but not privy to the contents of
proposals or other inside agency information--does not confer an unfair
competitive advantage. Protection Total/Magnum Sec., S.A., supra, at 4.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] AK-9 divided 3,601 by 4 to arrive at 900 required weekly sessions.
MBM maintains that, because AK-9 divided the monthly total of 3,601 by 4
instead of 4.34 (the actual number of weeks in a month on an annual
basis), its proposal effectively offers to perform the contract for only
48, instead of the required 52, weeks a year. However, since AK-9's
alleged mathematical error consisted of dividing 3,601 by too small a
number, the effect was actually to have AK‑9 calculate its staffing
based too high a number of grooming and exercise sessions (900 versus
829). Thus, to the extent that the proposal contains a mathematical
error, the error resulted in AK-9's overstating its proposed staffing.
[2] MBM also suggests that AK-9's proposal should have been rated
unacceptable under the quality control subelement because the firm did not
submit a complete safety plan. The record shows that, during the site
visit, the agency advised all offerors that it was in the process of
revising the Air Force safety plan for military working dogs. The Air
Force never issued a solicitation amendment to include a revised Air Force
safety plan, and the awardee's proposal reiterates these facts and states
that, while there was no current agency guidance, the firm understood that
it would be required to adhere to subsequently-issued agency
requirements. AR, exh. 21, Letter of Dec. 23, 2002, at 7-8. The
protester's proposal includes a similar statement that, upon receipt of
guidance from the agency, it would prepare its safety plan. AR, exh. 22,
MBM Technical Proposal, at 43‑44. Since the record shows that
neither firm's proposal was downgraded during the reevaluation for failing
to include an adequate safety plan, AR, exh. 15, Source Selection Decision
Document, at 2, to the extent that the agency could be said to have waived
this element of the RFP, it did so for both firms; consequently this was
not prejudicial to MBM.