TITLE: B-297282, M&M Ret. Enterprises, LLC, December 15, 2005
BNUMBER: B-297282
DATE: December 15, 2005
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B-297282, M&M Ret. Enterprises, LLC, December 15, 2005

   Decision

   Matter of: M&M Ret. Enterprises, LLC

   File: B-297282

   Date: December 15, 2005

   Dale F. Meeks for the protester.

   Pamela A. Dugger, Esq., and Eric Kattner, Department of the Air Force, for
   the agency.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency should have rejected awardee's proposal as technically
   unacceptable for failure of the company's owners/management personnel to
   hold allegedly required security clearances is denied, where solicitation
   did not expressly require clearances for those personnel, and there is no
   basis to conclude that contract work cannot be performed as required
   without those additional clearances.

   DECISION

   M&M Ret. Enterprises, LLC protests the Department of the Air Force's award
   of a contract to TD Support Services (TDSS) under request for proposals
   (RFP) No. FA4897-05-R-0013, for facilities management and information
   technology activity security support services at Mountain Home Air Force
   Base.[1] M&M primarily argues that the Air Force should have found the
   awardee's proposal technically unacceptable.

   We deny the protest.

   The RFP, which was set aside for small businesses owned by
   service-disabled veterans, contemplated the award of a fixed-price
   contract for a period of 1 1/2 months, with four 1-year option periods.
   The solicitation stated that the Air Force would select, from among the
   technically acceptable proposals, the proposal that represented the "best
   value" to the government, with price and past performance as the two
   equally-weighted evaluation factors. Technically acceptable proposals were
   defined as those evidencing the firm's ability to understand and satisfy
   the requirements. RFP at 17. The RFP included a requirement that all
   contract personnel have secret security clearances, and, in order to allow
   the Air Force to verify the clearances, offerors were required to submit a
   list of personnel names and social security numbers with the proposal. Id.

   The agency received six proposals that it deemed to be technically
   acceptable, including M&M's and TDSS's. The Air Force evaluated the
   proposals and gave M&M, a recently formed company consisting of the two
   individuals who had been performing the work at issue for the incumbent
   contractor, a past performance rating of satisfactory/some confidence. The
   agency reasoned that this rating reflected both the two individuals' lack
   of experience managing a company, and the exceptional past performance
   ratings they received for their work. Agency Report (AR), Tab 13, Proposal
   Evaluation Report, at 6. The Air Force gave TDSS a past performance rating
   of neutral/unknown confidence based on the firm's lack of relevant past
   performance. In this respect, although TDSS had submitted past performance
   information for four contracts, the Air Force determined that these
   contracts were not relevant to the requirement here. Id. at 7. The agency
   also concluded that TDSS had met the security clearance requirement by
   submitting the names of two individuals who had the appropriate
   clearances. Id. The Air Force subsequently determined that TDSS's
   lower-priced proposal ($471,073, compared to M&M's price of $626,667)
   offered the best value to the government, and made award to that firm.

   M&M principally argues that the agency should have found TDSS's proposal
   technically unacceptable since, although TDSS's proposed personnel hold
   secret security clearances, TDSS's owner (or management personnel) lacks a
   secret security clearance.[2] M&M asserts that TDSS's owner was required
   to have this clearance because the solicitation stated that "all personnel
   supporting" the performance work statement (PWS) were to have such a
   clearance and, M&M asserts, various provisions in the PWS required the
   contractor's owner (or management) to support the contract. PWS sect. 1.3.
   In this regard, M&M points to such PWS language as "[t]he contractor
   shall" perform certain duties (such as maintain a current list of
   employees, have a contract manager, have a company facility security
   officer, have a contractor security point of contact, obtain passes and
   identification items for employees, etc.), and concludes that these
   requirements are to be performed by the owner (or management personnel) in
   support of the contract, rather than the on-site employees.

   In reviewing a procuring agency's evaluation of an offeror's technical
   proposal, we will not question an agency's evaluation judgments absent
   evidence that those judgments were unreasonable or contrary to the stated
   evaluation criteria. Kay & Assocs., Inc., B-291269, Dec. 11, 2002, 2003
   CPD para. 12 at 4. Furthermore, to be reasonable, an interpretation of a
   solicitation provision must be consistent with the solicitation when read
   as a whole and in a reasonable manner. Burns and Roe Servs. Corp.,
   B-251969.4, Mar. 1, 1994, 94-1 CPD para. 160 at 7. We will not read a
   provision restrictively where it is not clear from the solicitation that
   such a restrictive interpretation was intended by the agency.
   International Data Prods.; Commax Techs., Inc., B-275480.2 et al., Apr. 3,
   1997, 97-1 CPD para. 179 at 4.

   We find no basis to conclude that TDSS's owner/management personnel were
   required to have a secret security clearance. Notwithstanding the
   protester's attempt to read a more restrictive requirement into the RFP,
   there was nothing in the RFP that expressly required personnel other than
   those proposed to perform the contract to hold security clearances. The
   RFP did require "all personnel supporting" the contract to hold
   clearances, but it did not specify that the owner/management personnel
   were required to perform services in support of the contract, such that
   they would be required to hold clearances. While the protester would have
   us read the PWS as assigning the owner/management personnel functions that
   would bring them under the heading of personnel supporting the contract,
   in fact, nothing in the RFP required that any function be performed by
   other than the proposed personnel. The solicitation's statement that "the
   contractor shall" perform certain functions required only that the
   functions be performed, not that the owner/management personnel perform
   them. We note, in this regard, that under the protester's own proposal all
   functions would be performed by one or both of M&M's on-site employees.
   While, apparently unlike TDSS, M&M's on-site employees are also management
   personnel, nothing in the solicitation would preclude TDSS from empowering
   its on-site employees to perform these same functions. Accordingly, since
   it is undisputed that TDSS's on-site personnel hold the required security
   clearances, the agency reasonably determined that TDSS met the security
   clearance requirement.

   In any case, we note that, even if we accepted M&M's reading of the RFP,
   it is not apparent--and M&M does not explain--how M&M was competitively
   harmed by the agency's less restrictive reading of the security clearance
   requirement. Specifically, M&M does not assert that it would have
   structured or priced its proposal differently had it been aware that the
   agency would not require owners/management personnel to hold security
   clearances. Under these circumstances, there is no basis for finding that
   M&M was competitively prejudiced; we will not sustain a protest absent a
   showing of such prejudice. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1
   CPD para. 54 at 3; see Statistica, Inc., v. Christopher, 102 F.3d 1577,
   1581 (Fed. Cir. 1996).

   M&M further argues that TDSS should not have been awarded the contract
   because it lacks relevant past performance. This argument is without
   merit. Under the past performance factor, in accordance with Federal
   Acquisition Regulation (FAR) sect. 15.305(a)(2)(iv), the solicitation
   specifically stated that firms lacking relevant past performance would
   receive a neutral/unknown confidence rating, and that such a rating would
   have no positive or negative evaluation significance. RFP at 18. Since
   TDSS lacks relevant experience, it properly received a neutral rating.
   Since the RFP stated that a neutral rating would have no negative effect
   on the evaluation, the agency properly determined that TDSS's neutral
   rating did not render the firm ineligible for award.

   Finally, M&M alleges that the agency engaged in improper and unequal
   discussions when it informed the other offerors, but not M&M, that their
   proposed prices were higher or lower than the government estimate. Again,
   however, even if we agreed with M&M that the agency acted improperly, the
   agency's actions did not competitively harm the protester. In this regard,
   since M&M's final proposal price--$638,444 (later reduced by the agency to
   $626,667 due to a shortened performance period)--was lower than the
   government estimate ($692,958), there is no reason to believe that being
   told where its price stood relative to the estimate would have led M&M to
   lower its price further, or otherwise to alter its offer to its
   competitive advantage. Consequently, we find no competitive prejudice.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] These services are to be performed in support of the Mission Training
   Center (MTC), and include program support, administrative support, quality
   assurance services, and technical services for the 366th Fighter Wing
   flying squadron. More specifically, the contractor is to provide personnel
   with technical expertise in operational security, communication security,
   automated information security, security programs, information systems
   security, classified documentation and media control, combat readiness
   training, and facilities security. Also included in the solicitation are
   facilities management services, such as monitoring the MTC's temperature
   and humidity, and coordinating repairs.

   [2] In its comments on the agency report, M&M also challenges the agency's
   determination that M&M lacks relevant corporate management experience.
   Since M&M became aware of this determination during the agency debriefing,
   it was required to raise this protest basis within 10 days of the
   debriefing. Due to its failure to do so, this aspect of the protest is
   untimely, and will not be considered. 4 C.F.R. sect. 21.2(a)(2) (2005).