TITLE:  Command Management Services, Inc, B-292893.2, June 30, 2004
BNUMBER:  B-292893.2
DATE:  June 30, 2004
**********************************************************************
   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

   A 

   Matter of:   Command Management Services, Inc

   A 

   File:            B-292893.2

   A 

   Date:              June 30, 2004

   A 

   Ira E. Hoffman, Esq., Mark R. Mann, Esq., and James A. McMillan, Esq.,
Grayson, Kubli & Hoffman, for the protester.

   Capt. Richard M. Sudder II, Department of the Army, for the agency.

   Katherine I. Riback, Esq., and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   A 

   Protest against evaluation of revised proposals, undertaken after
negotiations were opened as part of corrective action following initial
award to protester, is denied where agency reasonably determined that as a
result of changes in the current awardee's revised proposal, the proposal
warranted a higher rating than it received in the first evaluation.

   DECISION

   A 

   Command Management Services, Inc. (CMS) protests the Department of the
Army's award of a contract to the Hilton Garden Inn (HGI), under request
for proposals (RFP) No. DABK21-03-R-0036, for meals, lodging, and
transportation for applicants arriving for processing at the Military
Entrance Processing Station (MEPS) in New York City, New York.  CMS
primarily argues that the agency improperly evaluated the awardee's
proposal in a number of areas.

   A 

   We deny the protest.

   A 

   The RFP, a *commercial acquisition using a combination of  [Federal
Acquisition Regulation parts] 12 & 15,* provided for award of a
fixed-price requirements contract, for a base period with four 1a**year
option periods, to the offeror whose proposal was most advantageous to the
government.  Amend. 2.  Determination of the most advantageous proposal
was to be based on fiveA evaluation factors:  (1)A facility quality,
including subfactors for sanitation and cleanliness, room condition,
meals, security, special features, and facility location; (2)
transportation; (3) quality control; (4) past performance; and
(5)A price.  Among the non-cost factors, facility quality was more
important than transportation, which was more important than past
performance, which was as important as quality control.  The RFP further
provided that the *[n]ona**cost factors are more important than cost or
price.*  RFP
at 16-18. 

   A 

   The Army received 15 proposals in response to the solicitation, including
those of CMS for the Wyndham Newark Airport Hotel (CMS/Wyndham) and
HGI.[1]  These proposals were evaluated by a three-member team, which then
conducted a videotaped, on-site inspection of each offeror's lodging and
dining facilities to verify the information in the offeror's proposal. 
Based on the results of the inspection and the evaluation of the
proposals, CMS/Wyndham's proposal received an overall rating of excellent,
with an excellent rating for each of the non-cost factors, while HGI's
received an overall rating of satisfactory, with satisfactory ratings for
facility quality and quality control and excellent ratings for
transportation and past performance.  Although the evaluated price of
CMS/Wyndham's proposal ($10,971,689) was higher than HGI's [DELETED], the
agency determined that given its overall advantage under the nona**cost
factors, the CMS/Wyndham proposal represented the best value.  First
Contracting Officer's Determination, Jan. 27, 2004.

   A 

   Shortly after award to CMS on its CMS/Wyndham proposal, another firm filed
an agency-level protest contesting the award.  During the course of this
protest it came to light that the agency-level protester possessed the
independent government estimate (IGE), having been inadvertently given the
IGE by a local MEPS employee.  In addition, the agency concluded after a
review of the past performance evaluation that the rating given the
agency-level protester in this regard was unjustified.  In response, the
agency reopened discussions, furnishing each offeror with the IGE and an
opportunity to submit revised technical and cost proposals.  The agency
also assigned a new contracting officer to this procurement. 

   A 

   CMS/Wyndham submitted price and technical changes, and was again rated
excellent, at a revised price of [DELETED].  HGI furnished additional
technical information, including a videotape that highlighted the features
and qualities of its 22-acre property on Staten Island, 10 miles from the
MEPS.  In this regard, the second contracting officer noted that *the
facilities and grounds of the hotel,* which were only approximately 2
years old, were *extremely attractive and should make [an] excellent
impression on arriving applicants,* and that the *hotel grounds are
park-like.*  Second Contracting Officer's Determination, Mar. 24, 2004, at
2.  In addition, the second contracting officer noted that a shortfall in
dining room capacity cited in the original evaluation had been alleviated
by the conversion of conference space.  Id.  As a result, HGI's rating for
facility quality was raised from satisfactory to good, while its rating
for transportation was lowered from excellent to good,[2] and its ratings
for past performance and quality control remained excellent and
satisfactory respectively.  HGI's overall technical rating was raised to
good, at a revised, reduced price of $8,277,725.  Based on his review of
the revised proposals, the second contracting officer concluded that the
CMS/Wyndham proposal did not offer *significant quality of value*
sufficient to warrant payment of its nearly [DELETED] higher price, and
that HGI's proposal, with a significantly lower price and *significant
quality advantages,* instead represented the best value.  Id.  Upon
learning of the resulting award to HGI, CMS/Wyndham filed this protest.

   A 

   CMS/Wyndham challenges the agency's rating methodology and the evaluation
of the awardee's technical proposal.[3]  We review challenges to an
agency's evaluation only to determine whether the agency acted reasonably
and in accord with the solicitation's evaluation criteria and applicable
procurement statutes and regulations.  PharmChem, Inc., Ba**291725.3 et
al., July 22, 2003, 2003 CPD P 148 at 3.  A protester's mere disagreement
with the agency's judgment is not sufficient to establish that the agency
acted unreasonably.  Entz Aerodyne, Inc., B-293531, Mar. 9, 2004, 2004 CPD
PA 70 at 3.  Based on our review of the record, we find the selection of
HGI's proposal as the best value proposal to be reasonable. 

   A 

   CMS/Wyndham asserts that the agency in its evaluation of proposals gave
price more weight than was stated in the RFP.  The protester notes that
the RFP provided that the *[n]on-cost factors are more important than cost
or price.*  RFP at 19.  According to the protester, this means that each
non-cost factor is more important than price.  The agency, on the other
hand, maintains that this language in the RFP meant that the non-cost
factors when combined are more important than price. 

   A 

   To be reasonable an interpretation must be consistent with the
solicitation, read as a whole and in a reasonable manner.  Fox Dev. Corp.,
B-287118.2, Aug. 3, 2001, 2001 CPD P 140 at 2.  Here we find that the
language of the RFP indicates by the use of the plural of *non-cost
factors* contrasted with the singular of *cost* that the RFP was referring
to the non-cost factors collectively.  In any case, to the extent that
this language was also susceptible to the interpretation advanced by the
protester, that is, that each non-cost factor was more important than
price, the solicitation was ambiguous on its face.  Where a solicitation
contains such a patent ambiguity, an offeror has an affirmative obligation
to seek clarification prior to the first due date for submission of
proposals following introduction of the ambiguity into the solicitation. 
4 C.F.R. S 21.2(a)(1) (2004); American Connecting Source d/b/a/
Connections, B-276889, July 1, 1997, 97-2 CPD P 1 at 3.  The purpose of
our timeliness rule in this regard is to afford the parties an opportunity
to resolve ambiguities prior to the submission of offers, so that such
provisions can be remedied before offerors formulate their proposals. 
Gordon R. A. Fishman, Ba**257634, Oct. 11, 1994, 94-2 CPD P 133 at 3. 
Where a patent ambiguity is not challenged prior to submission of
proposals, we will dismiss as untimely any subsequent protest assertion
that is based on one of the alternative interpretations as the only
permissible interpretation.  U.S. Facilities, Inc., Ba**293029;
B-293029.2, Jan.A 16, 2004, 2004 CPD P 17 at 10.

   A 

   CMS/Wyndham asserts that the agency improperly raised HGI's proposal
rating in the reevaluation based on its consideration of the grounds of
HGI's facility.  According to the protester, grounds was not a stated
evaluation factor or subfactor, and even if it was, the agency exaggerated
its importance by improperly considering it under more than one evaluation
subfactor.

   A 

   CMS/Wyndham's arguments furnish no basis on which to question the overall
evaluation.  As an initial matter, we disagree with CMS/Wyndham's
contention that consideration of HGI's grounds represents use of an
undisclosed evaluation criterion.  While agencies are required to identify
the major evaluation factors, they are not required to identify all areas
of each factor which might be taken into account, provided that the
unidentified areas are reasonably related to or encompassed by the stated
criteria.  Bioqual, Inc., Ba**259732.2; B-259732.3, May 15, 1995, 95-1 CPD
P 243 at 4. 

   A 

   Here, the contracting officer states that HGI's grounds were considered
under the facility quality factor, including the special features and
location subfactors, two of the six subfactors of that factor. 
Contracting Officer's Supplemental Statement, MayA 14, 2004.  We view the
consideration of the grounds at HGI's facility as reasonably related to,
and encompassed by, the facility quality factor, the most heavily weighted
evaluation factor.   See Marine Animal Prods. Int'l, Inc., B-247150.2,
July 13, 1992, 92a**2 CPD P 16.  Likewise, consideration of HGI's grounds
clearly was reasonably related to, and encompassed by, the special
features subfactor, under which the agency was to evaluate the special
features of the hotel, *including any amenities such as recreational
areas, dining facilities and non-smoking rooms.*  RFPA at 17. 

   A 

   It does not appear that the agency's consideration of the quality of the
facility's grounds was reasonably related to, or encompassed by, the
facility location subfactor, under which the agency was to evaluate *the
distance of the proposed lodging facility from the MEPS and the distance
of the proposed dining and food preparation facilities from the lodging
facility.*  RFP at 17.  However, there is no basis for finding that the
agency's consideration of the facility grounds under the facility location
subfactor resulted in competitive prejudice to CMS/Wyndham.  In this
regard, our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility that it was prejudiced by the
agency's actions, that is, unless the protester demonstrates that, but for
the agency's actions, it would have had a substantial chance of receiving
the award.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD P 54 at 3;
see Statistica v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir.A 1996). 
Here, the second contracting officer has explained the increase in HGI's
rating for facility quality from satisfactory to good on the basis of his
consideration not only of the grounds at HGI's facility, but also of the
quality of the *facilities,* the alleviation of a shortfall in dining room
capacity noted in the original evaluation, and HGI's submission of
information on traffic volume in the area (apparently relevant to facility
location).  Second Contracting Officer's Determination, Mar. 24, 2004, at
2; Contracting Officer's Statement, Apr. 8, 2004.  According to the second
contracting officer, consideration of the facility's grounds was *just one
component of [his] high quality impression* of the HGI facility. 
Contracting Officer's Supplemental Statement, May 14, 2004.  In these
circumstances, and since consideration of HGI's superior grounds was
properly considered at least under the special features subfactor of the
facility quality factor, HGI's argument here furnishes no basis for
questioning the overall rating of good under the facility quality factor.

   A 

   CMS/Wyndham contends that it was improper for the agency to consider a
videotape that HGI submitted with its revised proposal which featured the
grounds and the facility; according to the protester, the agency was
limited by the solicitation to only considering written materials.  The
protester also asserts that raising HGI's rating due to its grounds
ignores the concern of the previous contracting officer that HGI's
extensive grounds and the lack of security cameras in such a large area
caused significant concern for applicant safety.  First Contracting
Officer's Determination atA 10. 

   A 

   These arguments are without merit.  While the protester bases its
objection to the agency's consideration of HGI's videotape on the fact
that the solicitation generally referred, in the descriptions of the
adjectival evaluation ratings, to evaluating a *written proposal,* we
agree with the agency that neither these references, nor any other
provision in the RFP, precluded the submission by offerors, and the
agency's consideration in the evaluation, of videotapes.  Indeed, as noted
by the agency, HGI's submission of a videotape was not materially
different from CMS/Wyndham's own submission of photographs of its
facilities.  Nor are we persuaded by CMS/Wyndham's argument that the
second contracting officer, in raising HGI's rating for facility quality
from satisfactory to good, necessarily ignored the security concerns
perceived by the first contracting officer.  We have long recognized that
different evaluation panels could reasonably reach different conclusions
regarding the quality of an offeror's proposal, given the subjective
judgment necessarily exercised by evaluators.  Warvel Prods., Inc.,
B-281051.5, July 7, 1999, 99-2 CPD PA 13A at 10-11.  Here, the second
contracting officer determined that the grounds of HGI's facility did not
represent a security risk, but instead were one of several advantages
offered by HGI.  CMS has furnished no evidence to the contrary.

   A 

   CMS/Wyndham asserts that the agency's cost-technical tradeoff here was
improper. Agencies enjoy a relatively broad discretion in making
tradeoffs, which is limited only by the test of rationality and
consistency with the stated evaluation factors.  Information Sys. Tech.
Corp., B-289313, Feb.  5, 2002, 2002 CPD PA 36 at 6.  As explained above,
the contemporaneous evaluation record shows that the second contracting
officer concluded that the CMS/Wyndham proposal did not offer
significantly higher quality as to warrant payment of its [DELETED] higher
price, and that HGI's proposal, with a significantly lower price and
significant quality advantages, instead represented the best value.  We
find this cost-technical tradeoff and the resulting source selection to be
reasonable and consistent with the terms of the solicitation.[4]

      

   The protest is denied.

   A 

   Anthony H. Gamboa

   General Counsel

   A 

   A 

   A 

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

   [1] CMS is a management company that subcontracts with local hotels to
perform MEPS contracts throughout the country.  CMS teams with multiple
hotels for a given competition, and submits multiple proposals, each for a
different hotel with CMS's management services.  Using various hotels, CMS
submitted 12 of the offers here.

   [2] HGI's transportation rating was lowered by the second contracting
officer because HGI had not yet purchased the additional vans needed to
transport the applicants.  Contracting Officer's Supplemental Statement,
May 14, 2004.

   [3] CMS also initially challenged the evaluation of the awardee's proposal
in a number of additional areas.  The agency responded to each of these
additional arguments in its administrative report, explaining why the
evaluation in each case was reasonable.  Since the protester did not
respond to the agency's explanation in its comments on the report, we view
the additional raised arguments as abandoned and will not consider them. 
United Janitorial Servs.; Olympus Bldg. Servs., Inc., B-286769.3;
Ba**286769.4, June 5, 2001, 2001 CPD P 3, n.1. 

   [4] CMS/Wyndham also asserts that HGI does not have a sufficient number of
double rooms to meet the maximum requirement set out in the RFP.  In this
regard, the solicitation stated that the maximum number of MEPS applicants
that the hotel could expect on a daily basis was 104, and that fewer than
10 percent of the applicants would require single room accommodations.  In
its proposal, HGI stated that it had 53 double rooms and 95 single rooms,
more than sufficient to meet the maximum number of MEPS applicants.  HGI
Technical Proposal, Proposal Summation.  (The agency confirmed these
figures upon receipt of this protest.)  In these circumstances, we find no
basis to question agency's determination during the evaluation that HGI
had a sufficient number of rooms to accommodate the expected number of
applicants.