TITLE: B-298734; B-298734.2, Leader Communications Inc., December 7, 2006
BNUMBER: B-298734; B-298734.2
DATE: December 7, 2006
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B-298734; B-298734.2, Leader Communications Inc., December 7, 2006

   Decision

   Matter of: Leader Communications Inc.

   File: B-298734; B-298734.2

   Date: December 7, 2006

   Inslee T. Bennett for the protester.

   Maj. Kevin J. Wilkinson, and Douglas J. Thiesen, Esq., Department of the
   Air Force, for the agency.

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

   DIGEST

   1. Agency reasonably determined that the award of a contract for business
   support services to a firm currently performing a contract for acquisition
   support services did not create an organizational conflict of interest.

   2. Agency's evaluation of the protester's proposal submitted in response
   to a solicitation for business support services was reasonable where the
   agency's evaluated criticisms of the protester's proposal were consistent
   with terms of the solicitation and the record.

   DECISION

   Leader Communications Inc. (LCI) protests the award of a contract to CC&G
   Company[1] under request for proposals (RFP) No. FA9451-06-R-0002, issued
   by the Department of the Air Force, for business resources and support
   services (BRASS) for the Air Force Research Laboratory (AFRL), Kirtland
   Air Force Base (AFB), New Mexico.

   We deny the protest.

   The RFP, issued as a competitive set-aside under section 8(a) of the Small
   Business Act, provided for the award of a 5-year
   indefinite-delivery/indefinite-quantity contract that provides for the
   issuance of cost-plus-fixed-fee task orders. RFP sections B039, B051. The
   contractor will be required to provide all personnel, services, and other
   items necessary to perform business reporting, analyses, and management
   administration support functions in support of the Directed Energy and
   Space Vehicle Directorates at AFRL.[2]

   The RFP listed the following evaluation factors to determine the
   best-value proposal: past performance, mission capability, price/cost, and
   proposal risk. The past performance and mission capability factors were
   said to be equal in importance and significantly more important than the
   price/cost and the proposal risk factors. The mission capability factor
   was comprised of two equally weighted subfactors: personnel
   qualifications/corporate experience and management. RFP sect. M002.

   By the RFP's closing date, the agency received nine proposals, including
   those of LCI (the incumbent contractor on the predecessor contract to the
   BRASS contract, which was called the Business and Staff Support (BASS)
   contract) and CC&G. Agency Report (AR), Tab 23, Source Selection Decision
   Document, at 1. The proposals were evaluated, with CC&G's proposal
   receiving ratings of "high confidence" under the past performance factor,
   with "blue" with "low" proposal risk ratings under both subfactors
   comprising the mission capability factor, at a proposed price of
   $17.2 million and an evaluated cost/price of $17.3 million.[3] LCI's
   proposal received ratings of "high confidence" under the past performance
   factor, "green" with "low" proposal risk under the personnel
   qualifications/corporate experience subfactor of the mission capability
   factor, and "green" with "moderate" proposal risk under "management"
   subfactor, at a proposed price of $17.4 million.[4] AR, Tab 22, Evaluation
   Matrix; Tab 23, Source Selection Decision, at 17. The agency selected
   CC&G's highest rated, lowest cost/price proposal for award.

   LCI protests that CC&G should be precluded from receiving award under this
   solicitation because one of its joint venture partners, CAS, has an
   organizational conflict of interest (OCI). LCI, which asserts that its
   incumbent BASS contract included an OCI clause that "barred [it] from
   competition on any other AFRL contract," contends that because CAS is
   currently performing an acquisition closeout support services (ACSS)
   contract for AFRL at Kirtland AFB, "fundamental fairness" requires that
   CC&G "be barred from participating on the BRASS Contract" because the BASS
   contract "was of a similar nature to CAS['s] ACSS" contract. Protester's
   Comments at 3; Protester's Supp. Comments at 4. In this regard, the
   protester contends that "[a]ccess to contract sensitive information and
   developing requirements is an implicit part" of the ACSS contract.
   Protester's Supp. Comments at 3.

   The Federal Acquisition Regulation (FAR) generally requires contracting
   officers to avoid, neutralize or mitigate potential significant conflicts
   of interest so as to prevent unfair competitive advantage or the existence
   of conflicting roles that might impair a contractor's objectivity. FAR
   sections 9.504, 9.505; Snell Enters., Inc., B-290113, B-290113.2, June 10,
   2002, 2002 CPD para. 115 at 3. FAR sect. 2.101 provides that an
   organizational conflict of interest exists when "because of other
   activities or relationships with other persons, a person is unable or
   potentially unable to render impartial assistance or advice to the
   Government, or the person's objectivity in performing the contract work is
   or might be otherwise impaired, or a person has an unfair competitive
   advantage." The situations in which organizational conflicts of interest
   arise, as addressed in FAR subpart 9.5 and the decisions of our Office,
   can be broadly categorized into three groups.

   The first group consists of situations in which a firm has access to
   nonpublic information as part of its performance of a government contract
   and where that information may provide the firm an unfair competitive
   advantage in a later competition for a government contract. FAR sect.
   9.505-4. In these "unequal access to information" cases, the concern is
   limited to the risk of the firm gaining an unfair competitive advantage;
   there is no issue of possible bias. Aetna Gov't Health Plans, Inc.;
   Foundation Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995,
   95-2 CPD para. 129 at 12.

   The second group consists of situations in which a firm, as part of its
   performance of a government contract, has in some sense set the ground
   rules for the competition for another government contract by, for example,
   writing the statement of work or the specifications. In these "biased
   ground rules" cases, the primary concern is that the firm could skew the
   competition, whether intentionally or not, in favor of itself. FAR
   sections 9.505-1, 9.505-2. These situations may also involve a concern
   that the firm, by virtue of its special knowledge of the agency's future
   requirements, would have an unfair advantage in the competition for those
   requirements. Aetna Gov't Health Plans, Inc.; Foundation Health Fed.
   Servs., Inc., supra, at 13.

   The third group comprises cases where a firm's work under one government
   contract could entail its evaluating itself or a related entity, either
   through an assessment of performance under another contract or an
   evaluation of proposals. FAR sect. 9.505-3. In these "impaired
   objectivity" cases, the concern is that the firm's ability to render
   impartial advice to the government could appear to be undermined by the
   relationship with the entity whose work product is being evaluated. Id.;
   Aetna Gov't Health Plans, Inc.; Foundation Health Fed. Servs., Inc.,
   supra, at 13.

   Contracting officers are to exercise "common sense, good judgment, and
   sound discretion" in assessing whether a potential conflict exists and in
   developing appropriate ways to resolve it; the primary responsibility for
   determining whether a conflict is likely to arise, and the resulting
   appropriate action, rests with the contracting agency. FAR sect. 9.505;
   Science Applications Int'l Corp., B-293601.5, Sept. 21, 2004, 2004 CPD
   para. 201 at 4. Once an agency has given meaningful consideration to
   potential conflicts of interest, our Office will not sustain a protest
   challenging a determination in this area unless the determination is
   unreasonable or unsupported by the record. Science Applications Int'l
   Corp., supra. In this regard, substantial facts and hard evidence are
   necessary to establish a conflict; mere inference or suspicion of an
   actual or apparent conflict is not enough. Snell Enters., Inc., supra, at
   4.

   As an initial matter, we find no merit to the protester's assertion that
   CC&G should have been precluded from receiving award of the BRASS contract
   based upon the protester's assertion that the ACSS contract awarded to CAS
   in January 2006 should have included, as a matter of "fundamental
   fairness," an OCI clause that would have barred CAS (and thus CC&G) from
   competing. The matter of whether a contract should include an OCI clause
   or a contractor should be precluded from a competition based upon an
   agency's determination that an OCI exists that cannot be avoided,
   neutralized, or mitigated, is dependent upon a reasoned application of
   regulation and case law, rather than a competing contractor's view of
   "fundamental fairness."[5]

   As noted by the agency, the protester does not argue that CAS has had
   access to any other firm's proprietary data or had any "unequal access" to
   any other information during its performance of the ACSS contract that
   would have provided CC&G with an unfair competitive advantage on this RFP.
   Although the protester argues that CAS may gain access to a firm's
   proprietary information at some point during its performance of the ACSS
   contract, such speculation as to the possible occurrence of such an
   incident in the future does not render unreasonable the agency's
   determination that CC&G was eligible for the award of the BRASS contract.

   The protester asserts that "developing requirements is an implicit part"
   of the ACSS contract, apparently suggesting that CAS may have had some
   input into the solicitation under which the BRASS contract was awarded to
   CC&G, thus creating a "biased ground rules" conflict of interest. See
   Protester's Supp. Comments at 3. However, the agency points out that
   because "the acquisition support services of ACSS were (and currently are)
   not `on contract' or funded. . . . CAS had no opportunity to participate
   in the acquisition planning, drafting of specifications, work statements
   or any other facet of the BRASS acquisition." Agency Supp. Report at 2.
   Under the circumstances and given the protester's failure to provide any
   evidence in support of its apparent "biased ground rules" allegation, we
   find this aspect of LCI's protest to be without merit.

   With regard to the potential for an "impaired objectivity" OCI, the agency
   states that "[t]he BRASS contract does not create situations in which CAS
   or CC&G would provide advice or judgments related to assessment of its own
   performance." The agency adds, however, that it is aware that CAS, in
   performing its ACSS contract, may effectively "be closing out its own
   orders," in that it may perform closeout services for the agency with
   regard to tasks performed by CC&G under the BRASS contract. The agency
   explains that it has considered this possibility, and has determined that
   because "the ACSS closeout services are primarily administrative and do
   not involve advice, judgment, evaluation or assessment of the performance
   of the contractor whose contract is to be closed out," the cognizant
   contracting officer determined that there is no impaired objectivity
   "conflict between the ACSS and BRASS contracts." Agency Supp. Report at
   3-4. Based upon this record, and given the protester's failure to
   substantively respond to the agency's explanation as set forth above, we
   find the agency's determination that there was no prohibited "impaired
   objectivity" conflict here to be reasonable. That is, since the work of
   CAS under the ACSS contract regarding the close out of contracts is, as
   explained by the agency, largely administrative and does not require
   subjective judgments or evaluations, there is no basis for finding that
   CC&G should be precluded from receiving the award of the BRASS contract
   here. See Computers Universal, Inc., B-292794, Nov. 18, 2003, 2003 CPD
   para. 201 at 2-3.

   In sum, the agency reasonably found no OCI concerns regarding CAS that
   would bar award to CC&G.

   The protester next argues that the evaluation of its proposal under the
   personnel qualifications/corporate experience and management subfactors to
   the mission capability factor was unreasonable and inconsistent with the
   terms of the solicitation. The evaluation of technical proposals is a
   matter within the discretion of the contracting agency since the agency is
   responsible for defining its needs and the best method of accommodating
   them. In reviewing an agency's evaluation, we will not reevaluate
   technical proposals, but instead will examine the agency's evaluation to
   ensure that it was reasonable and consistent with the solicitation's
   stated evaluation criteria. An offeror's mere disagreement with the agency
   does not render the evaluation unreasonable. Westinghouse Gov't and Env'tl
   Servs. Co., Inc., B-280928 et al., Dec. 4, 1998, 99-1 CPD para. 3 at 5.

   The RFP included detailed proposal preparation instructions, and required
   that the section of the offeror's proposal addressing the personnel
   qualifications/corporate experience subfactor to the mission capability
   factor include, among other things, a "[d]escri[ption] of the experience,
   expertise and qualifications of your key personnel," including "but not
   limited to program/project manager and deputy." RFP sect. L036. The RFP
   provided under the mission capability factor for the evaluation of "the
   experience, expertise, and qualifications of the proposed key personnel
   relevant to the proposed efforts." RFP sect. M002.

   The agency found in evaluating LCI's proposal under the personnel
   qualifications/corporate experience subfactor to the mission capability
   factor that LCI's proposed contract manager "is qualified and has
   extensive relevant experience." AR, Tab 23, Source Selection Decision
   Document, at 8. The agency noted with regard to the protester's proposed
   deputy contract managers that while the protester's proposal provided the
   names of the proposed personnel, their years of experience, and positions
   held, the proposal failed to "provide specific details of [the] type or
   level of supervision and or management experience each person had." Id.

   In challenging this criticism of its proposal, the protester does not
   dispute the accuracy of this assessment, but argues that it did not
   provide such details in its proposal because they were not expressly
   requested by the RFP. However, as referenced above, the RFP specified that
   "the experience, expertise, and qualifications of the proposed key
   personnel relevant to the proposed effort" would be evaluated. RFP
   sect. M002. Thus, it is obvious that a description of information
   regarding the supervisory or management experience of the key personnel
   proposed for supervisory and management positions, such as the deputy
   contract managers identified in LCI's proposal, should have been provided
   with the proposal, and that LCI's failure to provide sufficient details in
   this regard could reasonably be negatively evaluated by the agency and did
   not constitute an "unstated evaluation factor." See Network Eng'g, Inc.,
   B-292996, Jan. 7, 2004, 2004 CPD para. 23 at 3.

   The protester makes a somewhat similar complaint with regard to the
   evaluation of its proposal under the management subfactor of the mission
   capability factor. Here, the RFP included detailed proposal preparation
   instructions, and informed offerors that "[m]anagement would be evaluated
   to determine the degree to which the offeror demonstrates the capability
   to effectively and efficiently manage the same or similar contract
   requirements," including providing staffing. RFP sections L036, M002.

   The agency criticized LCI's proposal of two deputy contract managers, with
   one having responsibility for the Directed Energy Directorate and the
   other having responsibility for the Space Vehicle Directorate, and each
   having additional duties in support of the Directorates, because this
   arrangement assertedly "provides the potential for inconsistencies and
   lack of continuity of policies, decisions and communication." AR, Tab 23,
   Source Selection Decision Document, at 13. The protester argues that the
   agency's criticism was unreasonable because LCI's proposed approach of
   having two deputy contract managers has "been successfully and
   effective[ly] used by LCI during the last six months of the [predecessor]
   BASS contract." Protester's Supp. Comments at 7. The protester represents
   that this approach was thus "field tested," and asserts that the agency
   evaluators "[k]new of the success of this approach." Id. at 8.

   An agency's evaluation is dependent upon information furnished in a
   proposal, and it is the offeror's burden to submit an adequately written
   proposal for the agency to evaluate. Chant Eng'g Co., Inc., B-279049;
   B-279049.2, Apr. 30, 1998, 98-2 CPD para. 65 at 7. The agency points out
   in this regard that "LCI did not incorporate any information in their
   proposal indicating that [its] approach had been subject to a field test
   or that the results had been successful." Contracting Officer's Supp.
   Statement at 4. The agency adds that the chairperson of the agency
   evaluation team "had no knowledge of the dual [deputy contract manager]
   concept implemented by LCI on the BASS contract," and that the evaluators
   considered "LCI's proposal as submitted and did not use data from the
   field test which was not referenced, much less included in the proposal."
   Id. at 4-5. Although the protester appears to contend that the success of
   its proposed dual deputy contract manager approach could have been
   verified through AFRL personnel, it was LCI's responsibility to provide,
   within the four corners of its proposal, the information it felt necessary
   for the agency to properly evaluate LCI's proposed approach. See Chant
   Eng'g Co., Inc., supra.

   LCI also protests that the agency's evaluation of its proposal under the
   past performance and cost/price factors was unreasonable. With regard to
   the evaluation of its proposal under the past performance factor, the
   protester argues that the agency failed to consider information regarding
   its performance of the BASS contract that should have been available to
   the agency through the contractor performance assessment reporting system.
   Protest at 4. The protester also complains with regard to its cost/price
   proposal that the agency erroneously concluded that it could not determine
   the realism of LCI's proposed costs because the concerns that were noted
   by the cognizant agency cost/price analyst were assertedly unreasonable.
   Protest at 3-4.

   Although the agency has responded in detail to LCI's protest here, we need
   not consider these aspects of LCI's protest on the merits. Competitive
   prejudice is an essential element of every viable protest; where the
   record does not demonstrate that the protester would have had a reasonable
   chance of receiving award but for the agency's actions, we will not
   sustain a protest, even if deficiencies, such as an unreasonable or
   unequal evaluation of proposals, are found. CAE USA, Inc., B-293002;
   B-293002.2, Jan. 12, 2004, 2004 CPD para. 25 at 16. As evidenced by the
   record, LCI's proposal received the highest rating possible under the past
   performance factor, so its past performance rating could not be improved,
   and in considering the relative merits of LCI's proposal vis-a-vis CC&G's
   proposal in performing its source selection, the agency used LCI's
   proposed cost/price. Accordingly, there is nothing in the record to
   suggest that LCI was prejudiced by any alleged improper evaluation of its
   proposal under either the past performance or cost/price factors.

   LCI next protests that the agency improperly used "subjective evaluations
   to apply objective ratings." Protest at 4. The protester asserts in this
   regard that the RFP's evaluation "criteria were not specific and the
   ratings could only have been based upon subjective opinion." Id. The
   protester complains that as a result it was not given credit during the
   evaluation process for certain aspects of its proposal that had been
   favorably evaluated "in other solicitation evaluations," such as "LCI['s]
   dynamic corporate capacity to manage multidimensional projects."
   Protester's Supp. Comments at 11.

   The protester's complaint that the RFP's evaluation "criteria were not
   specific and the ratings could only have been based upon subjective
   opinion" is a protest of an apparent alleged solicitation impropriety,
   which should have been protested prior to the closing time for receipt of
   proposals, and is therefore untimely and not for our consideration. Bid
   Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2006). In any event, we
   note that our Office has long recognized that subjective evaluations are
   not improper. Sunbelt Properties, Inc., B-249969 et al., Nov. 17, 1992,
   92-2 CPD para. 353 at 6. With regard to LCI's apparent complaint that
   certain alleged aspects of its proposal were more favorably evaluated in
   procurements with other agencies, we note that each federal procurement
   stands on its own, so that evaluation ratings under another solicitation
   are not probative of the alleged unreasonableness of the evaluation
   ratings under the present RFP. Parmatic Filter Corp., B-285288,
   B-285288.2, Aug. 14, 2000, 2000 CPD para. 185 at 7. Given this, as well as
   LCI's failure to provide any sort of specific explanation as to how the
   evaluation of its proposal was improper in this regard, we have no reason
   to object to this aspect of the agency's evaluation.

   The protester finally points out that the initial solicitation issued by
   the agency for BRASS was cancelled on February 24, 2006. The protester
   argues that the BRASS solicitation here, which differs from the prior
   solicitation in that the current solicitation includes certain additional
   work and provides for the issuance of task orders on a cost-plus-fixed-fee
   basis rather than a fixed-price basis, was issued and the prior
   solicitation cancelled "to facilitate and accommodate joint venture
   bidders," such as CC&G. Protest at 3.

   Although the agency has responded in detail to this aspect of the LCI's
   protest, we need not address it on the merits. To the extent that the
   protester is challenging the cancellation of the prior solicitation based
   upon the subsequent issuance of an RFP which it believes is not materially
   different, this protest ground concerns a matter other than an alleged
   solicitation impropriety, and therefore falls under the 10-day rule set
   forth in our Bid Protest Regulations. 4 C.F. R. sect. 21.2(a)(2); S & C
   Constr. Co., B-252545, Apr. 7, 1993, 93-1 CPD para. 301 at 3. That is, LCI
   knew or should have known its basis of protest--that the agency did not
   have a reasonable basis for canceling the prior RFP given the terms of the
   RFP here, or that the agency had misrepresented the reasons for canceling
   the prior RFP--when it received the RFP here, which was issued on March
   27, 2006. Given that LCI did not file its protest challenging the agency's
   cancellation of the prior RFP and issuance of the RFP here until August
   25, 2006, its protest here is untimely. S & C Constr. Co., supra. To the
   extent that the protester is arguing that the agency's cancellation of the
   prior RFP was motivated by bias in favor of the CC&G joint venture, we
   note that LCI has failed to provide any explanation or point to anything
   in the record in support of this argument. Prejudicial motives will not be
   attributed to contracting officials on the basis of unsupported
   allegations, inference, or supposition. McDonnell Douglas Corp.,
   B-259694.2; B-295694.3, June 16, 1995, 95-2 CPD para. 51 at 28.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] CC&G is an 8(a) joint venture of Corporate Allocation Services, Inc.
   (CAS); Compa Industries, Inc.; and Galactic Network Integrators, Inc.

   [2] The Directed Energy Directorate develops "directed energy
   technologies," such as high-energy lasers and high-power microwaves, and
   the "mission of the Space Vehicles Directorate is to develop and
   transition high pay-off space technologies supporting the war fighter
   while leveraging commercial, civil and other Government capabilities to
   ensure America's advantage." RFP, Performance Work Statement, at 4.

   [3] Proposals could be evaluated under the past performance factor as
   "high confidence," "significant confidence," "confidence," "little
   confidence," or "no confidence," and under the mission capability factor
   as "blue/exceptional," "green/acceptable," "yellow/marginal" and
   "red/unacceptable," and as having "high," "moderate," or "low" proposal
   risk. AR, Tab 9, Source Selection Briefing, at 18.

   [4] The agency found that it could not evaluate LCI's proposal for cost
   realism because of a number of evaluated inadequacies in the cost
   proposal.

   [5] The protester's contention that "fundamental fairness" requires that
   CC&G be barred from receiving the contract is based largely upon the
   protester's view that because its BASS contract included an OCI clause
   that "barred [LCI] from competing on any other AFRL contract," CAS's ACSS
   contract did or should have included a similar OCI clause. Protest at 2.
   In response, the agency notes that the BASS and ACSS contracts are
   dissimilar in both nature and scope, such that the inclusion of different
   OCI clauses in the respective contracts was warranted, and that in any
   event, and as evidenced by the record here, the section of the OCI clause
   that LCI asserts acted as a bar to its competing for other AFRL contracts
   was in fact deleted by the agency from LCI's BASS contract after 1 year,
   with LCI continuing to perform the contract for 4 more years. Agency Supp.
   Report at 3; Tab 6, Modification 0005 of LCI's BASS Contract (June 6,
   2002), at 3-5. The agency further explains that it considered the specific
   types of OCIs that may occur through a contractor's performance of the
   ACSS contract, and determined that the ACSS contract was to include a
   tailored OCI clause that governs the ACSS contractor's access and use of
   proprietary information pertaining to other contractors and which does not
   bar it from competing for this RFP.