TITLE: B-297291; B-297291.2, Computer Cite, December 23, 2005
BNUMBER: B-297291; B-297291.2
DATE: December 23, 2005
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B-297291; B-297291.2, Computer Cite, December 23, 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: Computer Cite

   File: B-297291; B-297291.2

   Date: December 23, 2005

   Charles R. Marvin, Jr., Esq., and Sharon A. Jenks, Esq., Venable LLP, for
   the protester.

   Maj. Derek S. Sherrill, Department of the Air Force, for the agency.

   Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency unreasonably evaluated offerors' proposals submitted
   in response to solicitation for telecommunications support services is
   denied where the record shows that the agency's evaluation of proposals
   was reasonably supported by the record.

   DECISION

   Computer Cite protests the award of a contract to D. S. Information
   Systems Corporation (DSIS) by the Department of the Air Force under
   request for proposals (RFP) No. FA5215-05-R-0010, to provide
   telecommunications support services at Hickam Air Force Base (AFB) and
   other government locations in Hawaii. Computer Cite challenges the
   agency's evaluation and award decision, and alleges that the evaluation
   was tainted by a conflict of interest that makes award to DSIS improper.

   We deny the protest.

   BACKGROUND

   The RFP was issued as a competitive section 8(a) set-aside, seeking
   proposals for a contractor to provide all personnel, supervision,
   equipment, tools, and material necessary to perform installation, testing,
   documentation, and maintenance and repairs. The solicitation's statement
   of work (SOW) identified typical tasks or areas of work, including
   consulting, engineering, diagnostics (on-site and remote), telephone and
   network wiring, installation, records maintenance, and other recurring
   support services. RFP, SOW, at 3. The RFP contained four contract line
   item numbers (CLINs), each describing the services to be performed, along
   with estimated quantities, for each performance period. RFP at 3-10.

   The solicitation incorporated by reference the contract clause at Federal
   Acquisition Regulation (FAR) sect. 52.222-41, "Service Contract Act (SCA)
   of 1965, as Amended," and included various wage determinations for the
   areas to be serviced by the contract. The solicitation also incorporated
   by reference the clause at FAR sect. 52.222-42, "Statement of Equivalent
   Rates for Federal Hires,"[1] and included the following information:

                     This Statement is for Information Only

                         It is not a Wage Determination

   Employee Class Monetary Wage -- Fringe Benefits

   TELECOMMUNICATIONS MECHANIC I WG-8 $22.27

   TELECOMMUNICATIONS MECHANIC II WG-10 $25.37

   RFP at 27.[2]

   As amended, the solicitation contemplated award, without discussions, of a
   fixed-price requirements contract (with a cost-reimbursement component) to
   the firm submitting the lowest-priced, technically acceptable proposal,
   for a base period with four 1-year option periods. RFP amend. 2, at 2.
   Proposals were to be evaluated on the basis of two factors--technical
   capability and price. The technical capability evaluation was to be on a
   pass/fail basis with proposals being rated as either acceptable or
   unacceptable. The first prong of the technical capability assessment
   required offerors to include the following information for evaluation:

   written certification from Avaya Professional Certification Program or
   from accredited Information Technology Training Center that they are
   qualified to perform maintenance and repair work on Avaya telephone switch
   system.

   RFP amend. 2, at 2. The second prong of the assessment of the
   acceptability of the offeror's technical capability, and the one at issue
   in this protest, stated:

   The standard is met when: . . . The offeror provides a listing of similar
   projects in telecommunications support services similar in volume as
   Hickam AFB's workload. The listing shall include the project's total
   dollar value, location, point of contact and phone number information and
   work listing can be commercial or governmental.

   Id.

   Only those technical proposals evaluated as acceptable would then be
   evaluated under the price factor. For pricing purposes, offerors were
   required to propose fixed unit and extended prices for each CLIN, by
   contract period, with the overall price to be determined by multiplying
   the unit prices by the corresponding estimated quantities, and then
   totaling the extended unit prices. Price proposals were to be evaluated
   only for reasonableness. RFP amend. 2, at 2.

   Eight proposals were received in response to the RFP, including proposals
   from DSIS and Computer Cite and its teaming partner, SDV
   Telecommunications, Inc. (SDV), the incumbent contractor at that time. A
   technical evaluation panel (TEP) reviewed the offerors' technical
   proposals and only six proposals were evaluated as acceptable under the
   technical capability factor. Agency Report (AR), exh. 6, Proposal
   Evaluation Report; AR, exh. 7, Technical Evaluation/Abstract of Offers.
   These proposals were evaluated under the price factor; the lowest-priced
   proposal was that of DSIS at an evaluated price of $6,316,224.48,
   inclusive of all options; the next lowest-priced proposal was that of
   Computer Cite at a price of [DELETED] inclusive of all options. Id. at 6.
   On the basis of these evaluation results, the source selection authority
   (SSA) selected DSIS for award, concluding that its proposal was the
   lowest-priced, technically acceptable proposal. AR exh. 8, Source
   Selection Decision, at 3. Following a debriefing on August 22, and the
   denial of Computer Cite's agency-level protest, this protest followed.[3]

   DISCUSSION

   Computer Cite challenges the evaluation of the DSIS proposal under the
   technical capability factor, asserting that the prior contracts reviewed
   by the agency for evaluation of DSIS's experience were not
   telecommunications services contracts similar in volume to the workload at
   Hickam AFB. Computer Cite, therefore, concludes that the technical
   evaluation was flawed and unsupported, and that the resulting award was
   improper. Protester's Comments at 3-4; Protester's Supplemental Comments
   at 2-6.

   The RFP did not set out clear criteria for determining technical
   acceptability with respect to assessing offerors' experience. Instead, as
   quoted above, it indicated that the proposal would be considered to have
   met the standard if it included a list of "similar projects in
   telecommunications support services similar in volume as Hickam AFB's
   workload."

   It appears that in assessing the awardee's experience, the agency
   primarily considered DSIS's experience under its [DELETED] contract. The
   agency apparently viewed the contract value and period of performance as
   similar to the requirements of the current RFP, and found similarity in
   the [DELETED] work requirements to those solicited here, such as the
   requirement to integrate "computer networks with satellite communications
   systems and secure voice radio and telephone systems." See AR exh.5, DSIS
   Proposal, at 32. Although, as the protester points out, and the agency
   appears to concede, this telecommunications work was only one of the
   functions performed by DSIS under that contract, that alone does not make
   the telecommunications work dissimilar to the work to be performed under
   the contract at issue here.

   While the protester contends that the agency had no reasonable basis for
   finding DSIS's experience similar to the requirements of the current
   procurement, the fact is that the RFP did not establish objective criteria
   for defining "similar," and the record demonstrates that the agency
   interpreted the word generously for the protester as well as for the
   awardee. Specifically, the record shows that the agency found Computer
   Cite's experience acceptable, even though the [DELETED] projects the
   protester claimed were similar were [DELETED].[4] In other words, it
   appears from the record that to the extent the agency did not interpret
   "similar" in the strict way that the protester now advocates, nothing in
   the RFP required it to, and both DSIS and Computer Cite appear to have
   benefited from the agency's interpretation.

   Computer Cite also alleges that the agency improperly allowed DSIS to
   propose engineering technicians, because, in the protester's view, the RFP
   required the use of telecommunications mechanics I and II (higher-skilled,
   higher-cost labor classifications). In support, the protester principally
   relies on the naming of those latter two labor classifications where the
   RFP incorporated FAR sect. 52.222-42, "Statement of Equivalent Rates for
   Federal Hires," as quoted previously. By not requiring DSIS to propose
   telecommunications mechanics I and II, the protester argues, the agency
   improperly waived a solicitation requirement, resulting in an unfair
   competitive advantage for the awardee.

   We find no impropriety here. It is true that the full FAR clause (not
   incorporated in full in the RFP) states that "this clause identifies the
   classes of service employees expected to be employed under the contract,"
   FAR sect. 52.222-42, but the clause advises offerors (and this language
   was incorporated explicitly in the RFP) that the employee class and
   compensation were included in the solicitation for informational purposes
   only. RFP at 27. Nothing in the RFP required that offerors propose to use
   telecommunications mechanics I and II, and we do not view the mere listing
   of particular labor categories or grades as part of FAR sect. 52.222-42 in
   a solicitation as requiring offerors to propose employees in those
   categories or grades. See Symvionics, Inc., B-281199.2, Mar. 4, 1999, 99-1
   CPD para. 48 at 9 (it was not reasonable for the protester to rely on
   service employee information listed under the Federal Hires FAR clause as
   a requirement of the RFP, given language that the listed service employee
   class was provided for informational purposes only). Instead, an offeror
   was allowed to make its own determination as to what combination of
   employee classifications could best perform the required contract
   services. DSIS, therefore, was not required by the RFP to propose
   telecommunications mechanics I and II, and its proposal of a different
   labor category was not inconsistent with the terms of the RFP.

   To the extent the protester argues, in the alternative, that a latent
   ambiguity existed as to the use of telecommunications mechanics such that
   the agency was required to issue an amendment and resolicit proposals, we
   disagree. Even if we agreed with Computer Cite's interpretation of the
   solicitation language referring to telecommunications mechanics, that
   would, at most, create a patent ambiguity that Computer Cite was required
   to protest prior to the closing time for receipt of proposals. Bid Protest
   Regulations, 4 C.F.R. sect. 21.2(a)(1) (2005).

   Computer Cite argues that the agency failed to reasonably determine that
   DSIS's proposed prices were fair and reasonable, given that the firm's
   prices were based on its use of lower-cost and allegedly less-qualified
   personnel. Protester's Supplemental Comments at 12. We conclude, however,
   that this argument lacks merit.

   Here, as acknowledged by Computer Cite, the agency compared DSIS's offered
   prices to those of the other offerors and concluded that DSIS's total
   offered price was fair and reasonable. See FAR sect. 15.404-1(b)
   (describing a number of price analysis techniques that may be used to
   determine whether proposed prices are fair and reasonable, including
   comparing the prices received in response to a solicitation). Other than
   alleging that the agency impermissibly permitted the awardee to propose
   less-qualified, lower-cost personnel (an argument we reject for the
   reasons set forth above), Computer Cite has provided no meaningful basis
   for our Office to question the reasonableness of the agency's conclusion
   that DSIS's price was fair and reasonable. See WorldTravelService,
   B-284155.3, Mar. 26, 2001, 2001 CPD para. 68 at 3.

   Computer Cite also asserts that DSIS had an improper competitive advantage
   in connection with the procurement because of a close and ongoing
   relationship between the president of DSIS and the SSA. We find no merit
   to this aspect of Computer Cite's protest. The agency has furnished our
   Office with an affidavit from the SSA which indicates that the SSA had
   little, if any, contact with DSIS's president when that individual was an
   enlisted member of the Air Force. Agency's Response to Protester's
   Supplemental Comments, attach. 1, Affidavit of SSA. The agency also
   categorically denies, and the record does not otherwise establish, that
   DSIS's president received favorable treatment because of that individual's
   prior military service. Further, as we concluded above, the agency's
   evaluation was reasonable. We, therefore, have no basis to conclude that
   DSIS gained an unfair competitive advantage in this procurement. See Snell
   Enters., Inc., B-290113, B-290113.2, June 10, 2002, 2002 CPD para. 115 at
   3-4.

   In sum, the agency's evaluation of DSIS's proposal was reasonable and we
   have no basis to question the award to that firm.[5]

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] In a solicitation for services, such as this, FAR sect. 22.1006(b)
   requires the contracting officer to insert this provision.

   [2] With respect to personnel requirements, there was no particular class
   of employees or labor categories (other than program manager) identified
   in the RFP. Rather, the RFP advised that "personnel performing work in the
   execution of this SOW shall be technically qualified." RFP, SOW, at 13.

   [3] Upon receipt of the agency report, Computer Cite filed a supplemental
   protest.

   [4] Computer Cite also listed [DELETED] projects performed by its
   subcontractor, SDV. However, under the RFP, only the prime contractor's
   experience with similar projects would be considered.

   [5] Although we have not specifically discussed all of the protest grounds
   raised by Computer Cite, we have reviewed all of its allegations and we
   find them to be without merit.