TITLE: B-296435.2; B-296435.3; B-296435.7; B-296435.8, Incident Catering Services, LLC, September 7, 2005
BNUMBER: B-296435.2; B-296435.3; B-296435.7; B-296435.8
DATE: September 7, 2005
**************************************************************************************************
B-296435.2; B-296435.3; B-296435.7; B-296435.8, Incident Catering Services, LLC, September 7, 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: Incident Catering Services, LLC

   File: B-296435.2; B-296435.3; B-296435.7; B-296435.8

   Date: September 7, 2005

   Ronald S. Perlman, Esq., and Michael B. Tuite, Esq., Buchanan Ingersoll
   PC, for the protester.

   David G. Brown, Esq., Merrill O'Sullivan, LLP, for North Slope Catering,
   LLC; Susan M. Stewart, Stewart's Firefighter Food Catering, Inc.; and
   Harold M. Nelson, Big Sky Mobile Catering, intervenors.

   Byron W. Waters, Esq., Department of Agriculture, for the agency.

   Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that agency unreasonably evaluated the protester's technical
   proposal is denied where the record shows that the agency's evaluation of
   proposals was reasonable and consistent with the stated evaluation
   criteria; protester's disagreement with agency's evaluation is
   insufficient to show it was unreasonable.

   2. Protest alleging that, in its evaluation of the protester's proposal,
   the agency unreasonably ignored information that was "close at hand" (but
   not contained in the protester's proposal) is denied where the information
   in question bears on whether the protester's proposed equipment satisfied
   the technical requirements of the solicitation, and thus by nature could
   vary in response to the individual solicitation.

   3. Protest that agency unreasonably decided not to hold discussions with
   offerors is denied given that the contracting officer has broad discretion
   in deciding whether to hold discussions and nothing in the record
   indicates that the contracting officer abused her discretion in
   determining not to conduct discussions.

   DECISION

   Incident Catering Services, LLC (ICS) protests its nonselection for
   contract award under request for proposals (RFP) No. 49-05-07, issued by
   the National Interagency Fire Center, Forest Service, Department of
   Agriculture, for mobile food services in various locations; for certain
   locations, the Forest Service awarded contracts to offerors other than ICS
   and, for other locations, elected not to make contract award. ICS argues
   that the agency's evaluation of its proposal and decision not to conduct
   discussions were improper.

   We deny the protest.

   BACKGROUND

   The RFP, issued on February 9, 2005, contemplated multiple awards of
   fixed-price and cost-reimbursement requirements contracts for a base year
   and four 1-year options. The contractors would be required to provide hot
   and cold meals and supplemental items at 27 field locations (referred to
   as designated dispatch points, or DDPs) during wildland fires and other
   types of activities throughout the contiguous western United States and
   Alaska. RFP sect. C.1, at 7. The RFP permitted offerors to submit
   proposals for multiple DDPs, but contemplated the award of one contract
   for each location.

   In addition to cost/price, the solicitation identified the following
   technical evaluation factors, in descending order of importance: proposed
   equipment; past performance; experience; and technical approach. The RFP
   informed offerors that the technical factors, when combined, were
   approximately equal in importance to cost or price. Contract awards were
   to be made to the offerors submitting the proposals determined to meet the
   minimum requirements of the solicitation and to be the most advantageous
   (i.e., "best value") to the government. Relevant to the protest here, the
   RFP also stated that contract awards might be made without discussions,
   and that the agency might reject any or all offers and not award all DDP
   locations if doing so were determined to be in the government's best
   interest. RFP sect. M.2, at 105.

   The RFP included detailed instructions for the preparation of proposals,
   and requested that the offerors' proposals consist of two parts--a
   technical part and a business/cost part. Offerors were instructed that the
   technical proposals would be used to determine, among other things,
   whether the proposals met the requirements of the RFP. In this regard, the
   RFP required that offerors "clearly and concisely provide" written
   specifications and drawings of the mobile food service units (MFSU)
   offered, "indicating equipment location, traffic flow, layout, size, and
   capacity of the unit." RFP sect. L.6, at 101. The solicitation also
   established minimum equipment requirements for an MFSU, and required
   offerors to complete an equipment requirements checklist for each unit
   offered. RFP sect. C.3, at 21-27,

   exh. M.2, at 112-18. The solicitation stated that the equipment
   requirements would be evaluated on a pass/fail basis, and that "any unit
   that fails to meet any of these minimum requirements will be unacceptable
   and may not be considered any further." Id. at 112.

   Twenty-five offerors, including ICS, submitted proposals by the March 11
   closing date. ICS offered four MFSUs for 15 DDP locations.[1] An agency
   technical evaluation board (TEB) evaluated offerors' technical proposals
   using an adjectival rating system: exceptional, acceptable, marginal, or
   unacceptable for those technical factors other than past performance; and
   exceptional, acceptable, neutral, marginal, or unacceptable for past
   performance.[2] The TEB completed its evaluation of offerors' technical
   proposals on June 2, including each of the MFSUs proposed by ICS, which
   were rated as follows:

+------------------------------------------------------------------------------+
|     Factor     |    MFSU A     |    MFSU B    |    MFSU C    |    MFSU D    ||
|----------------+---------------+--------------+--------------+--------------+|
|   Equipment    | Unacceptable  | Unacceptable | Unacceptable | Unacceptable ||
|----------------+---------------+--------------+--------------+--------------+|
|Past Performance|Exceptional (-)| Exceptional  | Exceptional  | Exceptional  ||
|                |               |     (-)      |     (-)      |     (-)      ||
|----------------+---------------+--------------+--------------+--------------+|
|   Experience   |   Marginal    | Exceptional  | Marginal (+) | Exceptional  ||
|----------------+---------------+--------------+--------------+--------------+|
|   Technical    |Acceptable (-) |Acceptable (-)|Acceptable (-)|Acceptable (-)||
|    Approach    |               |              |              |              ||
|----------------+---------------+--------------+--------------+--------------+|
|    Overall     |   Marginal    |   Marginal   |   Marginal   |   Marginal   ||
|----------------+---------------+--------------+--------------+--------------+|
+------------------------------------------------------------------------------+

   Agency Report (AR), Tab 21, TEB Consensus Report, at 2. The TEB found each
   MFSU unacceptable under the equipment factor because it determined that
   ICS had failed to demonstrate compliance with all minimum equipment
   requirements of the solicitation. Id. at 11-12.

   The TEB subsequently considered offerors' evaluated prices and technical
   ratings, and made award recommendations for each DDP. Id., Tab 22, TEB
   Best Value Analysis Report. In certain instances the TEB recommended that
   no contract award be made because of the lack of offerors that were
   considered technically acceptable with fair and reasonable prices. The
   contracting officer concurred with the TEB's recommendations, decided not
   to conduct discussions with offerors, and forwarded the award
   recommendations and associated materials to the agency's source selection
   authority for review and approval. Id., Tab 23, Source Selection Decision;
   Contracting Officer's Statement, July 21, 2005, at 8. The source selection
   authority accepted the findings and recommendations of the TEB and made
   contract award to 12 offerors for 21 DDPs. AR, Tab 23, Source Selection
   Decision. ICS received no awards. These protests followed. The agency
   authorized the offerors who had received awards to begin performance
   notwithstanding the protests, based on a written determination that urgent
   and compelling circumstances significantly affecting the interests of the
   United States would not permit waiting for the decision of our Office. See
   31 U.S.C. sect. 3553(d) (2000).

   DISCUSSION

   ICS first protests that the agency's evaluation of its technical proposal
   was improper.[3] ICS primarily argues that the Forest Service unreasonably
   determined that its proposal was unacceptable under the proposed equipment
   factor for failing to meet various minimum requirements. Although we do
   not here specifically address each of ICS's complaints about the
   evaluation of its proposal, we have fully considered all of them and find
   that they afford no basis to question the agency's selection decision.

   Where a protester challenges an agency's evaluation of a proposal's
   technical acceptability, our review is limited to considering whether the
   agency's judgment was reasonable and consistent with the stated evaluation
   criteria and applicable procurement statutes and regulations. See Knoll,
   Inc.; Steelcase, Inc., B-294986.3, B-294986.4, Mar. 18, 2005, 2005 CPD
   para. 63 at 3. Clearly stated RFP technical requirements are considered
   material to the needs of the government, and a proposal that fails to
   conform to such material terms is technically unacceptable and may not
   form the basis for award. Id.; National Shower Express, Inc.; Rickaby Fire
   Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4-5.
   An offeror is responsible for affirmatively demonstrating the merits of
   its proposal and risks the rejection of its proposal if it fails to do so.
   HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD para. 8 at 5. As
   with any evaluation review, our chief concern is whether the record
   adequately supports the agency's conclusions. Innovative Logistics
   Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD para. 144 at 9. A
   protester's mere disagreement with the agency's judgment does not
   establish that the evaluation was unreasonable.

   C. Lawrence Constr. Co., Inc., B-287066, Mar. 30, 2001, 2001 CPD para. 70
   at 4. Our review of the record provides us no basis to find the agency's
   evaluation here unreasonable or otherwise objectionable.

    

   As set forth above, the RFP informed offerors that, with regard to the
   proposed equipment factor, the agency would evaluate each offeror's
   proposed MFSU(s) to determine the extent to which the unit(s) would meet
   or exceed the solicitation's stated performance requirements. RFP sect.
   M.3, at 106. In performing its evaluation the TEB determined that ICS's
   proposal failed to demonstrate that each MFSU offered met all minimum
   equipment requirements in six specific areas.[4] AR, Tab 21, TEB Consensus
   Report, at 11-12. Based on our review of the record, we find that the TEB
   reasonably concluded that the information submitted by ICS failed to
   establish that ICS met the solicitation's minimum equipment requirements.
   For example, the solicitation mandated that offerors propose a minimum of
   1,200 cubic feet of refrigeration storage space. RFP sect. C.3.1.2.2, at
   26, exh. M-2, at 117. ICS's proposal failed to show that it met this
   requirement, instead stating only that "[DELETED]."[5] AR, Tab 5, ICS
   Proposal, vol. II, exh. M.2.

   ICS does not dispute that its proposal contained various "omissions" and
   "minor informalities" where it failed to expressly state compliance with
   the RFP's minimum equipment requirements. See Protest, June 21, 2005, at
   3; Comments, Aug. 2, 2005, at 5-6. Rather, ICS contends that the Forest
   Service did not treat all offerors equally in its evaluation under the
   proposed equipment factor.[6] Specifically, ICS argues that other
   offerors' proposals also failed to demonstrate complete compliance with
   all the minimum equipment requirements, but were nevertheless not found to
   be unacceptable under the proposed equipment evaluation factor.

   It is a fundamental principle of government procurement law that an agency
   must treat all offerors equally and evaluate their offers evenhandedly
   against the solicitation's requirements and evaluation criteria. Rockwell
   Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 CPD para. 65 at
   5; CRAssociates, Inc., B-282075.2,

   B-282075.3, Mar. 15, 2000, 2000 CPD para. 63 at 5. Our review of the
   record confirms that the Forest Service evaluated offerors' proposals
   equally under the proposed equipment factor.

   First, in performing its evaluation, the TEB determined that the proposals
   of eight other offerors also failed to demonstrate compliance with the
   solicitation's minimum equipment requirements. AR, Tab 21, TEB Consensus
   Report, at 2-3. In each instance where the TEB determined that an
   offeror's proposal did not meet all minimum equipment requirements, the
   TEB rated the proposal as unacceptable under the proposed equipment
   factor. Id. The record also indicates that the agency treated offerors
   equally with regard to each minimum equipment requirement. For example,
   ICS argues that the proposals of six other offerors also failed to
   demonstrate compliance with the RFP's 1,200-foot refrigeration storage
   capacity requirement.[7] The contracting officer states, and the record
   sufficiently indicates, that in contrast to ICS's proposal, the proposals
   of the other offerors did demonstrate refrigeration storage capacity
   meeting or exceeding the RFP requirement.[8] AR, Tab 9, Proposal of
   Offeror A, at 89; Tab 10, Proposal of Offeror B, at 149; Tab 12, Proposal
   of Offeror C, at 84; Tab 13, Proposal of Offeror D, at 54; Tab 15,
   Proposal of Offeror E, at 63; Tab 17, Proposal of Offeror F, at 38.
   Similarly, with regard to ICS's assertion that other offerors also failed
   to meet the solicitation's freezer storage capacity requirement, the
   record reflects that the agency reasonably determined that the proposals
   of other offerors demonstrated compliance with the requirement while the
   proposal submitted by ICS did not. Id., Tab 21, TEB Consensus Report;
   Contracting Officer's Statement, Aug. 9, 2005, at 10. In sum, we find that
   the difference in evaluation ratings here was not the result of unequal
   treatment by the agency, but instead stemmed from the agency's recognition
   of differences in the offerors' proposals.

   ICS also argues that its proposal should not have been found unacceptable
   under the proposed equipment factor because the Forest Service failed to
   consider information known to it regarding ICS's MFSUs. In support of its
   contention, ICS alleges that the TEB chairman had personally participated
   in inspections of ICS's equipment during the prior year, and had personal
   knowledge that ICS actually possessed all the equipment required by the
   solicitation. ICS contends that this information was "too close at hand"
   for the agency to ignore in the evaluation of ICS's proposal, citing our
   decisions that hold that certain information known to an agency in the
   evaluation process cannot be ignored. Therefore, ICS argues, the agency's
   failure to consider information known to it here was unreasonable.

   An offeror has the burden of submitting an adequately written proposal,
   and an agency may downgrade a proposal for the lack of requested
   information. Formal Mgmt. Sys., Inc., B-259824, May 3, 1995, 95-1 CPD
   para. 227 at 3. Our Office has recognized that in certain limited
   circumstances, however, an agency evaluating an offeror's proposal has an
   obligation (as opposed to the discretion) to consider "outside
   information" bearing on the offeror's proposal. International Bus. Sys.,
   Inc.,

   B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5; G. Marine Diesel;
   Phillyship, B-232619, B-232619.2, Jan. 27, 1989, 89-1 CPD para. 90 at 4-5.
   Where we have charged an agency with responsibility for considering such
   outside information, the record has demonstrated that the information in
   question was "simply too close at hand to require offerors to shoulder the
   inequities that spring from an agency's failure to obtain, and consider,
   this information." International Bus. Sys., Inc., supra; see GTS Duratek,
   Inc., B-280511.2, B-280511.3, Oct. 19, 1998, 98-2 CPD para. 130 at 14.

   The facts here regarding the equipment that ICS was allegedly proposing
   are distinguishable from those in our decisions articulating the "too
   close at hand" principle. In the decisions cited above, we addressed
   situations where an agency failed to include in its evaluation past
   performance information that was specifically known to the officials
   handling the protested procurement. For example, the G. Marine Diesel;
   Phillyship decision dealt with a contracting officer's failure to consider
   information, personally known to the contracting officer, that the
   awardee's performance on a predecessor contract had been deficient; the
   GTS Duratek decision dealt with the agency's failure to consider the
   offeror's performance of a prior contract where the contract was discussed
   in the offeror's past performance proposal and the contracting officer's
   technical representative for the contract was a member of the technical
   evaluation team for the subject solicitation.

   Here, ICS argues that because the TEB chairman personally knew that ICS
   possessed and had previously employed mobile food services equipment
   meeting the RFP's requirements, the agency was required to take this
   knowledge into account in performing its evaluation. Even accepting that
   ICS's contention is factually accurate, the protester's argument requires
   the Forest Service to assume that ICS intended to employ the same
   equipment as it had in the past. An offeror's proposed technical
   capabilities, including equipment, may be varied by the offeror in
   response to the specifics of each solicitation, and merely because certain
   equipment may have been proposed or used in the past does not require the
   offeror to propose it on subsequent occasions.[9] In sum, we see no basis
   here to regard the information regarding ICS's equipment as falling within
   the category of data that we deem "too close at hand" for the agency to
   ignore.

   ICS also protests that the agency's decision not to hold discussions with
   offerors was unreasonable. ICS argues that the various deficiencies
   identified in the evaluation of its proposal could have been easily
   corrected through discussions, and that the agency's rationale for
   forgoing discussions was groundless. The Forest Service maintains that ICS
   was on notice of the potential for an award without discussions, that its
   unacceptable technical proposal eliminated it from consideration for
   award, and that the delay in contract awards resulting from holding
   discussions with offerors would have adversely affected the government's
   interests.

   There is generally no obligation that a contracting agency conduct
   discussions where, as here, the RFP specifically instructs offerors of the
   agency's intent to award a contract on the basis of initial proposals. All
   Bldg. Servs., Inc., B-293519, Mar. 23, 2004, 2004 CPD para. 73 at 4;
   Techseco, Inc., B-284949, June 19, 2000, 2000 CPD para. 105 at 4; see
   Federal Acquisition Regulation sect. 15.306(a)(3). The contracting officer
   has broad discretion in deciding whether to hold discussions, which our
   Office will review only to ensure that it was reasonably based on the
   particular circumstances of the procurement. All Bldg. Servs., Inc.,
   supra.

   From our review of the record, we see nothing which indicates that the
   contracting officer abused her discretion in determining not to conduct
   discussions with offerors. The contracting officer states that the Forest
   Service anticipated above- normal fire potential in many areas of the
   western United States for the 2005 fire season, that the agency had no
   long-term contracts for mobile food services in place at the time, and
   that holding discussions with offerors would have delayed all contract
   awards by at least another 30 to 45 days.[10] Contracting Officer's
   Statement, July 21, 2005, at 8; Contracting Officer's Statement, Aug. 9,
   2005, at 14. The contracting officer was also aware of the prior
   difficulties experienced by the Forest Service and contractors when
   contract awards for mobile food services were made during, instead of in
   advance of, the fire season. Accordingly, the contracting officer
   determined that it was in the government's best interests not to conduct
   discussions and to award contracts for as many DDP locations as possible
   based on initial proposals. Contracting Officer's Statement, Aug. 9, 2005,
   at 14. There is no basis on this record to object to the agency's
   determination not to conduct discussions, and the protester's disagreement
   with the agency's decision to forgo discussions does not demonstrate that
   the agency's decision was unreasonable.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] In accordance with the RFP instructions, ICS's proposal set forth the
   award location preferences for each of its MFSUs. AR, Tab 5, Proposal of
   ICS, vol. I, at 4.

   [2] The TEB rated each offeror's MFSUs separately. The TEB also employed
   the use of "+" and "-" (e.g., "acceptable plus") in its rating system. AR,
   Tab 21, TEB Consensus Report, at 2-3.

   [3] ICS also initially protested that the agency improperly conducted
   discussions with other offerors, and that the agency improperly failed to
   follow the solicitation's small business cascade preference plan. Protest,
   July 26, 2005, at 3-5. The Forest Service addressed these allegations in
   its report, and the protester filed no further comments on these issues.
   Thus, we consider ICS to have abandoned these protest bases and will not
   consider them further here. International Marine Prods., Inc., B-296127,
   June 13, 2005, 2005 CPD para. 119 at 5 n.3; see Delco Indus. Textile
   Corp., B-292324, Aug. 8, 2003, 2003 CPD para. 141 at 3 n.2. ICS also
   initially protested that the Forest Service had engaged in an improper
   quid pro quo, whereby another offeror received contract awards in exchange
   for the withdrawal of its protest. Protest, July 13, 2005, at 1-2. ICS
   subsequently withdrew this protest issue. Comments, Aug. 2, 2005, at 4.

   [4] The areas in which the TEB found that ICS's proposal failed to meet
   minimum equipment requirements were: (1) the 400 gallon gray water storage
   capacity for hand washing sinks; (2) the 400 gallon potable water storage
   capacity for hand washing sinks; (3) the 500 gallon gray water storage
   capacity for the kitchen unit; (4) the 1,200 cubic feet of refrigeration
   storage capacity for the kitchen unit; (5) the 512 cubic feet of freezer
   storage capacity for the kitchen unit; and (6) the 200 gallon potable
   water storage capacity for the kitchen unit. AR, Tab 21, TEB Consensus
   Report, at 11-12.

   [5] The agency determined that the other aspects of ICS's proposal also
   did not clearly demonstrate that the offeror met the solicitation's
   refrigeration storage capacity requirement. AR, Tab 21, TEB Consensus
   Report, at 11-12; Contracting Officer's Statement, July 21, 2005, at 10.

   [6] ICS also argues that the agency's evaluation was unreasonable because
   ICS had the equipment required, its proposal did not state that it was
   unable or unwilling to provide the equipment required, and ICS would not
   have submitted a proposal if it did not have the equipment required.
   Protest, June 21, 2005, at 2-3. The protester's arguments here
   fundamentally misunderstand what was required by the solicitation. It is
   the obligation of the offeror to include sufficient information in its
   proposal for the agency to determine whether the proposal would meet its
   needs; it was not the agency's obligation during the evaluation process to
   fill in the gaps or to perform a "leap of faith." G&M Indus., B-290354,
   July 17, 2002, 2002 CPD para. 125 at 4; Robotic Sys. Tech., B-278195.2,
   Jan. 7, 1998, 98-1 CPD para. 20 at 9. Since ICS had the burden of
   submitting an adequately written proposal, yet failed to do so, we have no
   basis to question the reasonableness of the agency's evaluation.

   [7] The contracting officer states that while the RFP also mandated
   refrigeration equipment capable of maintaining a temperature of 41 degrees
   Fahrenheit, the agency considered refrigeration temperatures to be easily
   adjustable and, thus, did not fail any offeror for not specially
   addressing the temperature requirement. Contracting Officer's Statement,
   Aug. 9, 2005, at 10. The contemporaneous record reflects that the agency
   treated offerors equally here; no offeror, including ICS, was noted as
   failing to meet the refrigeration temperature requirement even where the
   offeror's proposal did not address this requirement. See AR, Tab 5,
   Proposal of ICS, vol. II, exh. M.2., Tab 21, TEB Consensus Report, at
   11-12.

   [8] We note that ICS does not deny that the proposals of the other
   offerors here demonstrated compliance with the refrigeration storage
   requirement; rather, ICS simply alleges that the contracting officer's
   statement failed to provide supporting citations to the agency record.
   Comments, Aug. 17, 2005, attach. 1, at 24.

   [9] Although the protester asserts that the agency "knew that our
   intention was to use the same [equipment] . . . ," Comments, Aug. 2, 2005,
   attach. 4, Statement of ICS President, at 8, it does not point to any
   specific language in its proposal to support this assertion. Our own
   review of ICS's proposal revealed only that ICS makes the general
   statement that one of its four MFSUs "[DELETED]." Proposal at 179. This
   broad statement in the proposal is not sufficient to trigger application
   of the "too close at hand" rule. Given that the effect of the rule here in
   essence would be to relieve the protester of the obligation of preparing
   an adequately written proposal, and shift to the agency the obligation to
   take into account information outside the proposal, we think its
   application in this case would be appropriate only if the proposal itself
   clearly indicated beyond any reasonable doubt that the offeror was
   committing itself contractually to use the identical equipment, unchanged
   in any relevant way, as it had in the past. That simply is not the case
   here.

   [10] ICS contends that it would have taken very little time--1 or 2
   days--for it to respond to any deficiencies or irregularities in its
   proposal. Comments, Aug. 17, 2005, at 10. The protester ignores the fact
   that if the agency had held discussions with any one offeror, the agency
   would then have been required to hold discussions with all offerors. The
   Forest Service would then have had to provide each offeror with the
   opportunity to revise or modify any aspect of its proposal, which would
   then necessitate the agency having to evaluate all offerors' final
   proposal revisions. We find nothing unreasonable in the contracting
   officer's estimate of 30 to 45 days for the resulting delay in contract
   award.