TITLE: B-297210; B-297210.2; B-297210.3, WorldWide Language Resources, Inc., November 28, 2005
BNUMBER: B-297210; B-297210.2; B-297210.3
DATE: November 28, 2005
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B-297210; B-297210.2; B-297210.3, WorldWide Language Resources, Inc., November 28, 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: WorldWide Language Resources, Inc.

   File: B-297210; B-297210.2; B-297210.3

   Date: November 28, 2005

   Richard D. Lieberman, Esq., Warren S. Feldman, Esq., and Nicole S. Allen,
   Esq., McCarthy, Sweeney & Harkaway, PC, for the protester.

   Alison L. Doyle, Esq, McKenna Long & Aldridge, LLP, for SOS International,
   Ltd., an intervenor.

   Clarence D. Long, III, Esq., Department of the Air Force, for the agency.

   Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging award for linguistics support services is denied,
   where agency reasonably concluded that protester's quotation was
   technically unacceptable since the protester's linguists did not meet the
   requirements of the solicitation.

   DECISION

   WorldWide Language Resources, Inc. (WWLR) protests the award of a delivery
   order to SOS International, Inc. under request for quotations (RFQ) No.
   FA4416-05-Q-0900 issued by the Department of the Air Force for linguistics
   support services.

   We deny the protest.

   The RFQ sought 22 linguists to provide 24-hour, 7-day per week coverage in
   support of the Air Force Office of Special Investigations (AFOSI), which
   is responsible for providing special investigative and
   counter-intelligence support services to the United States Air Force. The
   primary function of the linguists was to furnish language, dialect, and
   interpretation services for AFOSI throughout Central and Southwest Asia in
   furtherance of the global war on terrorism. Of the 22 linguists required,
   2 were to possess "top secret" security clearances (either final or
   interim clearances) and 20 were to have "secret" security clearances
   (which had to be "verifiable [and] final"). RFQ, Performance Work
   Statement (PWS), sections 1.0-1.1.1, 1.2.5.1.2; amend. 1, Q&A 22 and 39.
   The RFQ also stated that "[o]n a case-by-case, limited basis, interim
   secret clearances may be accepted by the [contracting officer's
   representative]." RFQ, PWS, sect. 1.2.5.1.2. Linguists were also required
   to possess a minimum of 2 years translation experience and "demonstrate
   the ability to write, understand, listen, read, speak and electronically
   translate in clear and concise grammar and pronunciation from the required
   target language as well as back into English." Id., sect. 1.2.5.2.

   The RFQ was issued to 14 vendors holding General Services Administration
   (GSA) Federal Supply Schedule (FSS) contracts. The solicitation provided
   for award of a fixed-price delivery order for a 6-month base period with a
   6-month option. Award was to be made on a "best value" basis, considering
   price, technical acceptability, and past performance. Technical
   acceptability was to be determined on a pass/fail basis, considering
   resumes (which were to be evaluated against standards stated in the PWS,
   including security clearances) and test scores (which were to "achieve a
   minimum of 95% accuracy rate"). The RFQ provided that technically
   acceptable quotations "shall be treated equally except for their prices
   and performance records" and that past performance was "significantly more
   important than cost or price considerations." RFQ at 13-14.

   WWLR and SOS were among five vendors that responded to the RFQ. WWLR's
   quotation (at a price of $5,752,580) included linguists that were
   providing AFOSI mission support under another contract. The agency
   determined that WWLR's quotation was technically unacceptable because
   [redacted] of the 20 identified linguists did not possess the requisite
   final secret clearances (although these linguists possessed interim secret
   clearances). In addition, the evaluators noted that some of the linguists
   did not have the required experience and/or their test scores were too
   low.[1] Agency Report (AR), Tab 7, Memorandum for Record and Individual
   Technical Evaluation Sheets (WWLR).

   SOS's quotation and that of another vendor were found to be technically
   acceptable as those firms identified linguists with the requisite
   clearances, experience, and test scores. Of these two technically
   acceptable quotations, SOS's received a past performance rating of "high
   confidence," while the other vendor's quotation received a rating of
   "unknown confidence," and SOS's quotation (at a price of $5,832,728) was
   lower in price. AR, Tab 10, Contracting Officer Decision Document, at 4.
   The agency selected SOS's quotation as the "best value" for the
   government, and awarded the firm a delivery order for the services.

   WWLR protests the award, challenging the agency's finding that WWLR's
   quotation was technically unacceptable and asserting that two of the
   evaluation members were "biased" against the firm. It also contends that
   SOS performed a "bait and switch" of its identified personnel, arguing
   that the firm, instead, intended to employ WWLR employees. WWLR asserts
   that its lower priced, technically acceptable quotation should have been
   selected for award.

   Where, as here, an agency solicits FSS vendor responses and uses an
   evaluation approach like a negotiated procurement to evaluate quotations,
   our Office will review the agency's actions, if protested, to ensure that
   the evaluation is fair and reasonable, and consistent with the terms of
   the solicitation. COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998,
   98-1 CPD para. 34 at 5.

   WWLR contends that the agency unreasonably determined its quotation to be
   technically unacceptable, asserting that interim secret clearances were
   permitted by the RFQ and were accepted under past contracts. We find no
   merit to this contention. Although the PWS gave authority to the agency to
   accept interim secret clearances, it did not require the agency to do so,
   and the agency further clarified in an amendment to the RFQ that although
   interim top secret clearances were acceptable, "interim secret
   [clearances] [were] not acceptable." RFQ amend. 1, Q&A 39. That the agency
   may have accepted interim clearances in other contracts has no bearing on
   the evaluation here, which required final secret clearances.[2] Since
   [redacted] of WWLR's linguists did not have the required final secret
   clearances (and of those, some did not possess the minimum experience or
   test scores), we find that the agency reasonably determined that WWLR's
   quotation was technically unacceptable.[3]

   WWLR complains that, before its resumes were evaluated, the agency
   redacted from each of the linguist's resumes that the individual was a
   "Current Linguist for [AF]OSI Mission Support" and that this "den[ied] the
   technical panel important information about the qualifications and
   experience of WWLR linguists." Second Supplemental Protest at 7. However,
   as the agency explains, it deleted information from all vendors' resumes
   (including those submitted by SOS) that would identify the vendors to the
   evaluators in order to keep the quotations anonymous.[4] The language at
   issue here was redacted because it identified WWLR as the vendor.
   Nevertheless, the agency left disclosed the individuals' stated
   qualifications and experience, including a description of the tasks
   currently being performed in Iraq as part of the AFOSI mission support,
   which enabled the evaluators to reasonably evaluate the linguists'
   qualifications and experience. See AR, Tab 7, Memorandum for Record and
   Individual Technical Evaluation Sheets (WWLR) (including redacted
   resumes). From this information, the agency reasonably concluded that the
   linguists lacked final secret clearances and, in some instances, did not
   possess the minimum experience or test scores required by the RFQ. The
   redacted information does not demonstrate that these conclusions were in
   error.

   WWLR complains that "some unknown person(s) or force changed the
   evaluation" of WWLR's quotation from technically acceptable to
   unacceptable, and that one evaluator altered another evaluator's
   worksheet. Second Supplemental Protest at 3, 5. However, the record shows
   that the evaluator was present and concurred with the other member's
   notations on the worksheet, and that the rating changes occurred because
   the evaluators reviewed the solicitation and determined that their initial
   ratings were based on an incorrect belief that interim secret clearances
   were permitted. Declaration of Deputy Director of Logistics/Technical
   Evaluation Team Member para. 4; Declaration of Supervisory Contract
   Specialist/Technical Evaluation Team Member paras. 4-5; Declaration of
   Chief/Technical Evaluation Team Member para. 6; Declaration of Contracting
   Officer para. 4. Our review confirms that, notwithstanding these
   "changes," the agency reasonably ultimately determined that many of WWLR's
   identified personnel lacked the required final secret clearances in that
   they possessed only interim secret clearances.

   WWLR also complains that one evaluator was biased against the firm based
   on interactions that occurred during the administration of a prior
   contract, and that the contracting officer made threatening comments
   toward the firm. Government officials are presumed to act in good faith
   and, where a protester contends that contracting officials are motivated
   by bias or bad faith, it must provide convincing proof, since this Office
   will not attribute unfair or prejudicial motives to procurement officials
   on the basis of inference or suppositions. United Coatings, B-291978.2,
   July 7, 2003, 2003 CPD para. 146 at 14. WWLR's inferences do not rise to
   the level of proof required to demonstrate that the evaluators were biased
   here. Moreover, even if these individuals were biased, as noted above, the
   record confirms that WWLR's quotation was reasonably found unacceptable.

   WWLR finally complains that SOS engaged in an impermissible "bait and
   switch" of its linguists by replacing the individuals identified in its
   quotation with WWLR employees, many of whom only had interim secret
   clearances. WWLR asserts that this shows that the agency was not going to
   require SOS to provide individuals with final secret clearances and was
   going to waive this requirement for SOS.

   To establish an impermissible "bait and switch," a protester must show
   that a firm either knowingly or negligently represented that it would rely
   on specific personnel that it did not expect to furnish during contract
   performance, and that the misrepresentation was relied on by the agency
   and had a material effect on the evaluation results. Computers Universal,
   Inc., B-292794, Nov. 18, 2003, 2003 CPD para. 201 at 3.

   Although the record shows that SOS engaged in some discussions with WWLR
   employees about coming to work for SOS if the firm was awarded the
   contract, and SOS has since hired a few of WWLR's personnel, the record
   does not support WWLR's assertion that SOS misrepresented the intended
   linguistics personnel in its quotation, or that it has been, or will be,
   permitted to replace its identified personnel with individuals who have
   only an interim secret clearance.[5] In its quotation, SOS identified 22
   linguists that possessed the requisite security clearance, experience, and
   test scores, [redacted] of whom were WWLR employees.[6] Although some of
   the identified personnel ultimately did not accept employment and SOS had
   to replace them, we find nothing to suggest that an impermissible "bait
   and switch" occurred, and the record shows that all of the replacement
   personnel met the agency's security clearance, experience, and test score
   requirements. Contracting Officer's Statement at 6; Declaration of Deputy
   Director of Logistics/Technical Team Member para. 5; Declaration of SOS
   Executive Vice President paras. 6, 7, 15.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Two other vendors' quotations were also found to be technically
   unacceptable and were not further considered.

   [2] To the extent that WWLR now asserts that the final security clearance
   requirement is unnecessary, that protest allegation is untimely. Protests
   challenging defects in an RFQ must be raised on or before the date set for
   receipt of initial quotations. See 4 C.F.R. sect. 21.2(a)(1) (2005).

   [3] Because the agency found WWLR's quotation to be technically
   unacceptable, the agency was not required to evaluate the firm's past
   performance or perform a past performance/price tradeoff. In addition,
   since the firm was not eligible for award, it is not an interested party
   to challenge the agency's best value determination. See 4 C.F.R.
   sections 21.0(a), 21.1(a).

   [4] Although WWLR contends that the agency did not similarly redact
   identifying information from the linguists' resumes included in SOS's
   quotation, the record shows that the agency treated vendors equally in
   this regard. Compare AR, Tab 7, Memorandum for Record and Individual
   Technical Evaluation Sheets (WWLR) with AR, Tab 8, Memorandum for Record
   and Individual Technical Evaluation Sheets (SOS) (both of which include
   redacted resumes).

   [5] Although WWLR parses a series of e-mails from SOS in support of its
   arguments, our review of the totality of the e-mails evidences that the
   agency had no intention of waiving the requirements for final secret
   clearances.

   [6] Of [redacted] WWLR employees, only [redacted] was working on the
   predecessor contract providing AFOSI mission support. Declaration of SOS
   Executive Vice President para. 7.