TITLE:  The Staten Island Hotel, B-292893.3, August 6, 2004
BNUMBER:  B-292893.3
DATE:  August 6, 2004
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   Decision

   Matter of:   The Staten Island Hotel

   File:            B-292893.3

   Date:              August 6, 2004

   Louis Biancone, Esq., and Thomas B. Wilinsky, Esq., Biancone & Wilinsky,
for the protester.

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

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

   DIGEST

   Agency reasonably assigned protester's proposal no more than a
satisfactory rating under past performance factor where record of
protester's recent performance of incumbent contract, for meals, lodging
and transportation for military applicants, indicated discrepancies with
respect to matters relating to applicants' health and safety, failures to
comply with specification requirements concerning the availability and
selection of food for applicants, and failures to afford applicants the
same level of service and quality of facilities offered to other guests.

   DECISION

   The Staten Island Hotel (SIH) protests the Department of the Army's award
of a contract to the Hilton Garden Inn (HGI), under request for proposals
(RFP) No.A 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.  SIH challenges the agency's evaluation
of proposals.

   We deny the protest.

   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 atA 16-18. 

   The Army received 15 proposals in response to the solicitation, including
those of SIH, HGI and Command Management Services (CMS) for the Wyndham
Newark Airport Hotel (CMS/Wyndham).[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, SIH's proposal received an overall rating of
marginal, with marginal ratings for quality control, facility quality, and
past performance, and a satisfactory rating for transportation; 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; and CMS/Wyndham's proposal received
an overall rating of excellent, with an excellent rating for each of the
non-cost factors.  Even though SIH offered the lowest evaluated price, in
accordance with the RFP, SIH's proposal was not considered for award due
to its marginal overall rating.[2]  The agency instead determined that the
proposal of CMS/Wyndham represented the best value, given its overall
advantage under the non-cost factors, even though its evaluated price was
higher than HGI's.  First Contracting Officer's Determination, Jan. 27,
2004.

   Shortly after award to CMS on its CMS/Wyndham proposal, SIH filed an
agency-level protest contesting the award.  During the course of this
protest it came to light that SIH possessed the independent government
estimate (IGE), having been inadvertently given the IGE by a local MEPS
employee.  In response, the agency reopened discussions, furnishing each
offeror with the IGE and an opportunity to submit revised technical and
cost proposals by March 8, 2004.  The agency also assigned a new
contracting officer to this procurement. 

   HGI furnished additional technical information in its revised proposal. 
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,[3] 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.  CMS/Wyndham submitted price and technical changes, and was
again rated excellent.  SIH provided additional technical information,
and, as a result, its marginal ratings for facility quality and past
performance were raised from marginal to satisfactory, its rating for
transportation remained satisfactory, and its rating for quality control
remained marginal.  SIH's overall technical rating was raised to
satisfactory, and its revised price was $7,902,146.  Based on his review
of the revised proposals, the second contracting officer concluded that
HGI's proposal, with a significantly lower price than CMS/Wyndham's and
"significant quality advantages," represented the best value.  Although
SIH's price was lower than HGI's, the contracting officer determined that
"the mediocrity of its facility quality, quality control, and past
performance do not offer significant value to the Government for the cost
proposed."  Second Contracting Officer's Determination, Mar. 24, 2004. 
Upon learning of the resulting award to HGI, SIH filed this protest.

   SIH challenges the agency's evaluation of technical proposals.[4]  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 evaluation of proposals, and the resulting selection
of HGI's proposal as the best value proposal, to be reasonable. 

   SIH contends that the agency improperly evaluated its past performance. 
In this regard, the RFP instructed offerors to describe their past
performance on similar contracts that had been performed in the past 2
years.  SIH, the incumbent contractor, submitted three letters of
commendation from prior MEPS commanders.  The protester contends that the
agency did not give sufficient weight to these letters of commendation, as
evidenced by its having received only a satisfactory rating. 

   We find no basis upon which to question the past performance evaluation. 
Although the letters from prior MEPS commanders which Staten furnished
with its proposal noted SIH's superior performance on the MEPS contract,
the Army reports, and the record confirms, that SIH's performance had
deteriorated in the most recent contract year.  In this regard, the
contracting officer had available monthly inspection reports, prepared by
the contracting officer's representative (COR), which documented
"discrepancies" in SIH's performance, including matters relating to
applicants' health and safety, such as unsafe lighting, garbage strewn
around the applicants' entrance, unsanitary food handling, and soiled
utensils; failures to comply with specification requirements concerning
the availability and selection of food for the applicants; and failures to
afford applicants the same level of service and quality of facilities
offered to other guests.  These evaluation reports (including a report
dated January 21, 2003) indicated that some of the discrepancies were
"repeat" discrepancies, previously raised with the contractor but not yet
resolved.  Further, in addition to the monthly inspection reports, the
contracting officer also had available negative evaluation
sheetsa**a**entitled "How Do We Rate?"a**a**that had been completed by
MEPS applicants after their stay at the SIH facility (and had been
retained so that the criticisms therein could be addressed with the
contractor).  These applicant evaluation sheets included a number of
complaints, such as the fact that there were not sufficient amounts of
food, that the food lacked flavor, and that the food was cold.  While the
applicant evaluation sheets retained by the agency may have represented
only a portion of the evaluations returned by the applicants, they appear
to confirm the criticisms in the COR's inspection reports and the agency's
position that, at least recently, SIH's performance of the MEPS contract
had been deficient.  On this record, given the current deficiencies in its
performance, we find that the agency reasonably concluded that SIH
warranted no more than a satisfactory rating for past performance.[5] 

   SIH argues that HGI's facility failed to comply with the specification
requirement that "[t]he contractor's facility shall comply with applicable
fire and safety codes and regulations."  Statement of Work, S 5.1.2. 
According to the protester, HGI has only a temporary certificate of
occupancy, which means that HGI's facility does not meet the applicable
fire and safety codes and regulations, as required by the solicitation. 

   SIH's argument furnishes no basis upon which to question the award.  While
the solicitation did not require offerors to submit documents relating to
compliance with fire and safety codes, HGI in fact included in its
proposal documents concerning its compliance with fire and safety codes
and regulations.[6]   Nothing in these documents indicated that HGI's
facility would not comply with applicable fire and safety codes and
regulations.  Specifically, HGI submitted with its proposal:  (1) a letter
signed by the Public Safety Manager of the City of New York Fire
Department stating that HGI's Fire Safety Plan was conditionally accepted,
with final acceptance depending on provision of a permanent certificate of
occupancy and HGI's deputy fire safety director attending fire safety
director school; and (2) a letter of approval from the City of New York
Fire Department, signed by the Chief of Fire Prevention, stating that
HGI's fire alarm system and central office connection were approved.  As
for HGI's temporary certificate of occupancy, which was not furnished with
its proposal, the certificate indicated that HGI's facility possessed a
fire alarm and signal system, smoke detectors, and automatic sprinkler
system.  In these circumstances, given the information available to the
Army, we find no basis to conclude that it was unreasonable for the agency
to determine that HGI's facility would meet the specification requirements
regarding compliance with applicable fire and safety codes and
regulations.

   SIH contends that HGI is not providing all of the transportation as
required in the specifications.[7]  However, whether a contractor in fact
performs in accordance with solicitation requirements is a matter of
contract administration that is the responsibility of the contracting
agency, and is not for consideration by our Office. 4A C.F.R. S
21.3(m)(1).  In any case, we note that the Army reports that HGI is in
fact

   furnishing all of the transportation services required under the
specifications.  Contracting Officer's Supplemental Statement, July 20,
2004, at 1.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [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] The RFP stated that proposals with an overall marginal or
unsatisfactory rating would not be considered for award.  RFP at 19. 

   [3] 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. 

   [4] SIH, in comments filed on June 21, also contends that the agency
incorrectly characterized the document that it received from a local MEPS
employee as the initial government estimate when it was only SIH's prices
from its prior contract, and therefore improperly decided to cancel the
award to CMS, distribute the so-called IGE to the offerors, and reopen
negotiations.  In the circumstances here, this protest ground is analogous
to a challenge to an alleged solicitation impropriety.  Our Bid Protest
Regulations require that protests based upon alleged improprieties in a
solicitation which are apparent prior to the next closing date for receipt
of proposals must be filed prior to the closing time.  4A C.F.R. S
21.2(a)(1) (2004); International Corporate Sec., B-249562, Nov. 25, 1992,
92a**2 CPD P 382 at 4.  If this protest ground is not properly viewed as
an alleged solicitation impropriety, it would have to be raised within 10
days of when SIH learned of it (or should have known it).  Since SIH knew
or should have known the basis of this objection at least by the time that
the agency reopened discussions and called for revised proposals, its
failure to protest until more than 3 months later renders this ground of
protest untimely.  

   [5] SIH also alleged that one of the evaluators is currently employed by
the awardee, and therefore must have had an undisclosed conflict of
interest because he presumably was pursuing employment with HGI at the
same time as he was  evaluating proposals.  There appears to be no basis
for SIH's speculation in this regard; according to the agency, the
evaluator in question is still an active member of the United States
Army.  Army Comments, June 25, 2004, at 2.  

   [6] We note that SIH did not submit any certificates or official letters
with its proposal indicating that its facility was in compliance with
applicable fire and safety codes and regulations. 

   [7] Under the specifications, the contractor is required to provide
transportation from the New York MEPS facility to its facility at 5 p.m.,
and from its facility back to the MEPS for arrival no later than 5:30
a.m., and transportation for applicants stranded at the airport to its
facility.  Amend. 1 at 2.