TITLE: B-296090.2; B-296090.3, Kola Nut Travel, Inc., June 17, 2005
BNUMBER: B-296090.2; B-296090.3
DATE: June 17, 2005
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B-296090.2; B-296090.3, Kola Nut Travel, Inc., June 17, 2005

   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: Kola Nut Travel, Inc.

   File: B-296090.2; B-296090.3

   Date: June 17, 2005

   Bryant S. Banes, Esq., for the protester.

   Josephine L. Ursini, Esq., for Ravenel Brothers, Inc., an intervenor.

   Major Frank A. March, Department of the Army, for the agency.

   Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protester's assertion that awardees are part of a "conglomerate" and
   should not qualify as small businesses constitutes a challenge to the size
   status of the awardees, an issue that is not for consideration by GAO.

   2. Where awardees' consultant will earn a fee based on profits earned
   during the awardees' performance of the contract, and there is no evidence
   of improper influence on government officials regarding the contract award
   decisions, the agreement between the awardees and the consultant does not
   violate the statutory and regulatory limitations on contingent fees.

   3. Agency's evaluation of protester's proposed approach is reasonable
   where contemporaneous evaluation documents explain the basis for agency
   concerns and protester offers no substantive rebuttal of those concerns.

   DECISION

   Kola Nut Travel, Inc. protests the Department of the Army's award of
   contracts to Ravenel Brothers, Inc. and AirTrak Travel for travel
   management and related services under request for proposals (RFP) Nos.
   W91-QUZ-04-R-0003 and W91-QUZ-04-R-0007. Kola Nut maintains that the
   contract awards reflect an improper contingent fee agreement between the
   awardees and a consultant, and that the agency improperly evaluated Kola
   Nut's proposal.

   We deny the protest.

   BACKGROUND

   The Army published the two solicitations at issue here in February 2004,
   seeking proposals to provide travel management and related services for
   Department of Defense (DOD) travelers whose duty stations are within
   several specified travel areas. RFP No. W91-QUZ-04-R-0007 sought travel
   services for military entrance processing station (MEPS) locations, and is
   referred to in the decision as the MEPS solicitation; RFP No.
   W91-QUZ-04-R-0003 sought travel services for non-MEPS locations, and we
   refer to it as the non-MEPS solicitation. Agency Report (AR) at 2.[1] Both
   solicitations contemplated separate contract awards for each of the
   specified travel areas; accordingly, the agency performed separate
   evaluations and source selection decisions with regard to each area. AR at
   2-3. All travel areas under both solicitations were set aside for small
   businesses, and offerors were permitted to submit proposals for any or all
   areas. Kola Nut's protest challenges the agency's contract awards to
   Ravenel for travel areas 73 and 91 under the non-MEPS soliciation, and to
   AirTrak for travel area 100 under the MEPS solicitation.

   Both solicitations provided that proposals would be evaluated on the basis
   of the following factors, listed in descending order of importance:
   technical,[2] price,[3] and performance risk.

   With regard to proposed price, the solicitation recognized that travel
   service contractors may receive airline commissions, as well as
   utilization fees from global distribution system (GDS) providers,[4] but
   recognized that some uncertainty existed regarding the future receipt of
   such commissions and fees.[5] In this regard, the solicitations contained
   the following clauses:

   G.17 CESSATION OR REDUCTION OF AIRLINE COMMISSIONS

   G.17.1 Where Contractors are receiving Airline Commissions, these
   commissions shall be factored by the Travel Agencies into their proposed
   fixed price transaction fees identified in their proposal.

   G.17.2 If after contract award, and during the period of performance of
   the contract, the payment of commissions are reduced or suspended by the
   Airlines, the contractor will be entitled to an equitable price
   adjustment.

   . . . .

   G.21 CESSATION OR REDUCTION OF GDS UTILIZATION FEES

   G.21.1 GDS utilization fees are currently being paid by the GDS providers
   (SABRE, WORLDSPAN, APOLLO/GALILEO and AMADEUS) to Commercial Travel
   Agencies. Receipt of these fees have been factored by the Travel Agencies
   into their proposed fixed price transaction fees identified in the
   contract.

   G.21.2 If after contract award, and during the period of performance of
   the contract, the payment of GDS fees are reduced or suspended by the GDS
   provider, the Contractor will be entitled to an equitable price
   adjustment.

   AR, Vol. 1, Tab 3, at 119-20; AR Vol. 4, Tab 3, at 119-20.

   On or before the specified closing dates, proposals were submitted for the
   travel areas at issue by several offerors including Kola Nut, Ravenel, and
   Air Trak. Both Ravenel's and AirTrak's proposals offered prices that were
   considerably lower than the prices proposed by Kola Nut. In this regard,
   Ravenel's and AirTrak's proposals advised the agency that they were
   associated with a group of travel agencies who, with the common assistance
   of a consultant, Mr. Alvin Chisik,[6] had negotiated higher commissions
   and utilization fees from the airlines and GDS providers based on the
   consolidated higher volume of business that the group of companies is
   expected to provide to the airlines and GDS providers.

   The agency evaluated the proposals under each of the stated evaluation
   factors with the following results:

   Travel Area 73

   +------------------------------------------------------------------------+
   |                            |       Ravenel       |      Kola Nut       |
   |----------------------------+---------------------+---------------------|
   |Technical                   |        Good         |     Acceptable      |
   |----------------------------+---------------------+---------------------|
   |Price                       |      $421,910       |      [deleted]      |
   |----------------------------+---------------------+---------------------|
   |Performance Risk            |      Very Low       |      Very Low       |
   +------------------------------------------------------------------------+

   Travel Area 91

   +------------------------------------------------------------------------+
   |                            |       Ravenel       |      Kola Nut       |
   |----------------------------+---------------------+---------------------|
   |Technical                   |        Good         |     Acceptable      |
   |----------------------------+---------------------+---------------------|
   |Price                       |     $1,014,479      |      [deleted]      |
   |----------------------------+---------------------+---------------------|
   |Performance Risk            |      Very Low       |      Very Low       |
   +------------------------------------------------------------------------+

   Travel Area 100

   +------------------------------------------------------------------------+
   |                            |       AirTrak       |      Kola Nut       |
   |----------------------------+---------------------+---------------------|
   |Technical                   |        Good         |     Acceptable      |
   |----------------------------+---------------------+---------------------|
   |Price                       |      $471,693       |      [deleted]      |
   |----------------------------+---------------------+---------------------|
   |Performance Risk            |      Moderate       |      Moderate       |
   +------------------------------------------------------------------------+

   AR at 7-9.

   Based on the evaluations summarized above, the agency awarded contracts to
   Ravenel for travel areas 73 and 91 pursuant to the non-MEPS solicitation,
   and to AirTrak for travel area 100 pursuant to the MEPS solicitation. By
   letter dated March 28, Kola Nut filed this protest with our Office.

   DISCUSSION

   Kola Nut first challenges the awards on the basis that the awardees' lower
   evaluated prices allegedly reflect various improprieties, complaining that
   the lower proposed rates constitute rates of a "conglomerate." In this
   regard, Kola Nut asserts that there is an agency bias against what Kola
   Nut characterizes as "true" small businesses. Protest at 1-2, 4.

   We view these assertions of Kola Nut as, in essence, a challenge to the
   size status of the awardees, an issue that is not for consideration by our
   Office. Specifically, as we have previously advised Kola Nut, the Small
   Business Act, 15 U.S.C. sect. 637(b)(6), gives the Small Business
   Administration, not our Office, conclusive authority to determine matters
   of small business size status for federal procurements.[7] Bid Protest
   Regulations, 4 C.F.R. sect. 21.5(b)(1) (2005); Randolph Eng'g Sunglasses,
   B-280270, Aug. 10, 1998, 98-2 CPD para. 39 at 3. Accordingly, to the
   extent Kola Nut is challenging the size status of the awardees, the
   protest is dismissed.

   Next, Kola Nut complains that Mr. Chisik earns a "contingent fee" of 49
   percent of the profit realized under the awardees' performance of the
   contracts at issue and maintains that these "contingent fee" arrangements
   are "clearly improper" due to the statutory limitation on contingent fees.
   10 U.S.C. sect. 2306(b) (2000).

   Section 2306(b) of title 10, United States Code, places certain
   limitations on obtaining contracts under "contingent fee" arrangements.
   However, the purpose of this limitation, as implemented by Federal
   Acquisition Regulation (FAR) subpart 3.4, is to prevent the attempted or
   actual exercise of improper influence by third parties over the federal
   procurement system. Puma Industrial Consulting v. Daal Assocs., Inc., 808
   F.2d 89 (2d Cir. 1987); Quinn v. Gulf & Western Corp., 644 F.2d 89 (2d
   Cir. 1981); E&R, Inc.--Claim for Costs, B-255868.2, May 30, 1996, 96-1 CPD
   para. 264 at 3-4; Howard Johnson Lodge--Recon., B-244302, Mar. 24, 1992,
   92-1 CPD para. 305. We have held that the prohibition applies only to
   situations where an agent agrees "to solicit or obtain" a contract from a
   procuring agency. Bertsch Constr., B-253526, Aug. 25, 1993, 93-2 CPD para.
   122. The fact that an agent's fee is contingent upon the contractor's
   successful performance of the contract, or even upon receiving the
   contract award, is not sufficient, by itself, to bring a fee agreement
   under the contingent fee prohibition; rather, the regulation contemplates
   a specific demonstration that an agent is retained for the express purpose
   of contacting government officials, where such contact poses a threat of
   the exertion of improper influence to obtain government contracts.
   Convention Mktg. Servs., B-245660.3, B-246175, Feb. 4, 1992, 92-1 CPD
   para. 144.

   Here, Mr. Chisik's fee agreement, as described by the protester, provides
   Mr. Chisik a fee which is calculated as a portion of the profit resulting
   from the awardees' performance of the contract--not in exchange for the
   awardees' receipt of contract awards. Protest at 3. Further, the record is
   devoid of any evidence that the challenged awards reflect any improper
   influence on government officials. To the contrary, as discussed in more
   detail below, the record indicates that the agency's source selection
   decisions were based solely on the agency's evaluation of offerors'
   proposals against the stated evaluation factors--including the second most
   important factor, price. Accordingly, Kola Nut's assertion that the
   contracts incorporate a prohibited contingent fee agreement is without
   merit.

   Kola Nut next maintains that the agency misevaluated its proposal with
   regard to the non-MEPS solicitation for travel areas 73 and 91,
   complaining that "Kola Nut was downgraded on its technical factor based
   solely upon performance from a central office." Protest at 2. Kola Nut
   notes that its proposal was rated as "acceptable, with no noteworthy
   strengths" under the technical factor, but maintains that it should not
   have been downgraded with regard to performance from a central office, and
   thus maintains that the rating should have been higher.

   As noted above, the solicitation for the non-MEPS locations specifically
   advised offerors that the agency would consider an offeror's technical
   approach to "servicing the unique needs of multiple customers from a
   central location." AR, Vol. 4, Tab 3, at 61. The record also indicates
   that the agency specifically sought information from Kola Nut regarding
   this matter, but that Kola Nut's response did not alleviate the agency's
   concern. Specifically, the agency's contemporaneous documentation
   supporting its evaluation of Kola Nut's proposal under the technical
   evaluation factor states:

   Offeror's entire discussion illustrates Offeror still interprets this
   subfactor to apply to travelers (individual or groups) departing the same
   origin and arriving at the same destination via shared transportation
   (e.g., the same flight or same train). Offeror appears not to understand
   that this subfactor actually pertains to having capability to service
   multiple travelers many of whom may have differing travel needs from a
   central location (e.g., a singular staffed office or a central call
   center). Multiple travelers departing same origin/arriving same
   destination via shared transportation likely would be a purely random
   event and be the exception rather than the rule.

   AR, Vol. 7, Tab 52, at 5.

   In its comments responding to the agency report, Kola Nut continues to
   assert that its proposal adequately addressed its approach to servicing
   multiple customers from a central location, but fails to respond in any
   way to the specific agency concerns discussed above. On this record, we
   find no basis to question the agency's evaluation of Kola Nut's proposed
   technical approach as merely "acceptable."[8]

   Finally, in pursuing this protest, Kola Nut has raised various other
   allegations, including the assertion that the agency failed to adequately
   consider the risk associated with the awardees' proposals. We have
   considered all of Kola Nut's assertions and find no basis for sustaining
   its protest.[9]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] There are six travel areas, incorporating 67 locations, under the MEPS
   solicitation, and 25 travel areas, incorporating 61 locations, under the
   non-MEPS solicitation.

   [2] With regard to the technical evaluation factor, both solicitations
   provided that the agency would consider the following: understanding the
   requirements; feasibility of approach; and completeness. AR at 3-5.
   Overall, the language used to describe the evaluations the agency would
   perform under the two solicitations was very similar. However, under the
   solicitation for non-MEPS locations, the solicitation specifically
   provided that the agency's evaluation would include an assessment of the
   offeror's proposed approach to "servicing unique needs of multiple
   customers from a central location." AR, Vol. 4, Tab 3, at 161. This
   language did not appear in the solicitation for MEPS locations. See AR,
   Vol. 1, Tab 3, at 162.

   [3] Offerors were required to propose fixed transaction fees,
   point-of-sale fees, and fixed prices for certain required reports. AR,
   Vol. 1, Tab 3, at 163-64; AR, Vol. 4, Tab 3, at 162-63. Section M.4.3 of
   the solicitations provided, "The proposed fees will be evaluated as
   outlined herein," thereafter stating that the proposed fees and prices
   "will be multiplied by the [estimated quantity provided for each line
   item] to arrive at the overall total estimated contract value . . . ." AR,
   Vol. 1, Tab 3, at 163-64; AR, Vol. 4, Tab 3, at 163-64.

   [4] A GDS is defined as an "[o]n-line, transaction processing system with
   access to computer-based carrier reservation systems capable of providing
   lowest cost fare evaluations, reservations, ticketing, related travel, and
   accessorial services." AR, Vol.1, Tab 10, at 5.

   [5] The issue of whether such fees and commissions are likely to continue
   in the travel industry has been a subject of controversy before our Office
   for several years. See, e.g., CW Gov't Travel, Inc. d/b/a/ Carlson
   Wagonlit Travel; American Express Travel Related Services Co., Inc.,
   B-283408, B-283408.2, Nov. 17, 1999, 99-2 CPD para. 89 (protests asserting
   that solicitation incorporating commission-based pricing of travel
   services was contrary to customary commercial practice).

   [6] Kola Nut describes Mr. Chisik as "the Society of Government Travel
   Professionals 2003 Person of the Year." Protest at 3.

   [7] On March 14, Kola Nut submitted a protest to our Office challenging
   the agency's award for another travel area to another awardee, similarly
   complaining that the awardee was part of a group of companies who, by
   virtue of their common association with Mr. Chisik, should not qualify as
   small businesses. We dismissed that protest on the basis that our Office's
   bid protest jurisdiction does not extend to review of size determinations.
   Kola Nut Travel, Inc., B-296090, Mar. 16, 2005. By letter dated March 16,
   20005, Kola Nut sought "reconsideration" of that dismissal, arguing for
   the first time that the awardee's agreement with Mr. Chisik represented a
   prohibited contingent fee arrangement. As discussed above, we do not view
   the awardees' agreement with Mr. Chisik as constituting a violation of the
   statutory and regulatory limitations regarding contingent fees.
   Accordingly, Kola Nut's request for reconsideration is denied.

   [8] Kola Nut also complains that the agency's evaluation of proposals
   under the two solicitations was inconsistent in that the agency's
   evaluation of Kola Nut's proposal in response to the MEPS solicitation did
   not reflect the above-quoted criticism. Kola Nut Comments on Agency Report
   (May 8, 2005), at 1. We do not view Kola Nut's assertion of inconsistency
   as constituting a valid basis for protest. As discussed above, the
   non-MEPS solicitation specifically advised offerors that proposals would
   be assessed with regard to "servicing unique needs of multiple customers
   from a central location," AR, Vol. 4, Tab 3, at 161; the MEPS solicitation
   did not. (It appears that this difference in the solicitation provisions
   reflects the agency's expectation that travelers from MEPS locations are
   more likely to travel via shared transportation than travelers from
   non-MEPS locations.) Thus, there is no basis to question the consistency
   of the agency's evaluation in this regard.

   [9] To the extent Kola Nut is challenging the solicitation provisions
   contained in section G.17 and G.21, quoted above, its protest is not
   timely filed. 4 C.F.R. sect. 21.2(a)(1). Similarly, to the extent Kola Nut
   is suggesting that offerors' evaluated prices should have been calculated
   in a manner other than that specified in section M.4.3 of the
   solicitation, quoted above, its protest is not timely filed. Id.