TITLE: B-298751, Philadelphia Produce Market Wholesalers, LLC, December 8, 2006
BNUMBER: B-298751
DATE: December 8, 2006
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B-298751, Philadelphia Produce Market Wholesalers, LLC, December 8, 2006

   Decision

   Matter of: Philadelphia Produce Market Wholesalers, LLC

   File: B-298751

   Date: December 8, 2006

   Ellis M. Fleisher for the protester.

   David P. Metzger, Esq., and Kristen E. Ittig, Esq., Holland & Knight LLP,
   for Four Seasons Produce, Inc., an intervenor.

   Jay P. Manning, Esq., and Elliot J. Clark, Jr., Esq., Defense Commissary
   Agency, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest challenging proposal evaluation and source selection is denied
   where record shows evaluation and award decision were reasonable and
   consistent with solicitation; protester's mere disagreement with agency's
   determination that a lack of detail in the firm's proposal did not warrant
   assigning full evaluation credit to the proposal is insufficient to show
   that the evaluation was unreasonable.

   2. Protest that awardee obtained an unfair competitive advantage by hiring
   as a consultant a former government employee who had served as a technical
   evaluator for a previous procurement is denied where record shows that the
   individual did not assist in the preparation of the current solicitation
   and that there is no reason to believe inside information was shared with
   awardee.

   DECISION

   Philadelphia Produce Market Wholesalers, LLC protests the award of a
   contract to Four Seasons Produce, Inc. under request for proposals (RFP)
   No. HDEC02-06-R-0005, issued by the Defense Commissary Agency (DeCA) for
   fresh fruits and vegetables (produce) for resale at commissaries located
   in DeCA's East Region (Area 3, Group 2).[1] Philadelphia contends that the
   agency improperly failed to give its technical proposal additional credit,
   and unreasonably determined that Four Seasons' higher technically rated,
   higher-priced proposal offered the best value to the government.
   Philadelphia also contends that the awardee received an unfair competitive
   advantage by hiring a former DeCA commissary produce manager as a
   consultant.[2]

   We deny the protest.

   The RFP, issued as a small business set-aside on March 20, 2006,
   contemplated the award of a requirements type, indefinite-delivery
   contract by regional group of commissaries; each group's contract was to
   have a 2-year base period with two 12-month option periods. RFP at 28, 50.
   Award was to be made to the firm that submitted the proposal deemed to
   offer the best value to the agency considering technical capability, past
   performance, and price. Technical capabilty (including subfactors for
   experience, quality program, production capability/distribution plan, and
   additional support/promotion plan) was significantly more important than
   past performance; technical capability and past performance combined were
   significantly more important than price. Id. at 28.

   The RFP provided technical specifications and performance requirements for
   the provision of produce, and emphasized that offerors' technical
   proposals were to detail the firms' capabilities, including all quality
   control procedures and back-up plans (regarding, for example, food safety,
   product recalls, sanitation, and pest management). Id. at 15-27. For the
   evaluation of price, offerors were to propose a minimum percentage of
   patron savings, defined in the RFP as:

     the average amount the contractor will save the commissary patron on all
     core items over the selling price of the same or similar items from
     comparable commercial operations within the local commuting area and/or
     geographical area within a 25-mile radius of the commissary location
     (excluding membership clubs and convenience type stores).

   Id. amend. 5, at 7.

   Each offeror was to propose unit prices for core and non-core produce
   items reflecting application of its proposed patron savings percentage.
   Unit prices were to be reviewed for reasonableness, realism, and to assess
   the offeror's understanding of the use of the minimum patron savings
   percentage; the evaluated total price of the offer was to serve as the
   estimated dollar amount of the contract. Id. at 15.

   Twelve proposals were received under the RFP for Area 3, Group 2; all but
   one were included in the competitive range for discussions. Revised
   proposals were received and evaluated. Four Seasons' proposal was rated
   "excellent" under both the technical capability and past performance
   factors, and received the highest overall technical score. The firm
   offered the third highest patron savings percentage. Philadelphia offered
   the highest patron savings percentage; the firm's proposal was rated "very
   good" under the technical capability and past performance factors, and was
   ranked fourth highest of the 11 proposals for technical merit. Comparing
   the technical and past performance strengths of the Four Seasons' proposal
   to the lower number of strengths identified in the Philadelphia proposal,
   and considering that the technical and past performance factors, combined,
   were significantly more important than price under the RFP's evaluation
   terms, the contracting officer determined that Four Seasons' higher
   technically rated, higher-priced proposal offered the best value. Award
   was made to Four Seasons, and this protest followed.

   Philadephia contends that the agency unreasonably found a lack of detail
   in the firm's proposal regarding its quality control program procedures.
   The protester also generally challenges the decision to award the contract
   to a higher technically rated, higher-priced offeror.

   In reviewing protests of alleged improper evaluations and source selection
   decisions, it is not our role to reevaluate proposals. Rather, we will
   examine the record to determine whether the agency's judgment was
   reasonable and in accord with the stated evaluation criteria and
   applicable procurement laws and regulations. See Abt Assocs., Inc.,
   B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. It is an offeror's
   obligation to submit an adequately written proposal for the agency to
   evaluate, United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD para.
   75 at 19, and a protester's mere disagreement with the evaluation is not
   sufficient to render it unreasonable. Ben-Mar Enters., Inc., B-295781,
   Apr. 7, 2005, 2005 CPD para. 68 at 7.

   Our review of the record confirms the reasonableness of the agency's
   evaluation. Specifically, while Philadelphia's proposal was rated "very
   good" and was ranked fourth highest of the 11 proposals for technical
   merit, in light of its relative lack of detail and the associated increase
   in performance risk, the record provides no support for the protester's
   general contention that its proposal warrants a higher evaluation rating.
   In addition to the lack of detail regarding the firm's quality control
   program, the evaluation record reveals other areas of the proposal that
   similarly failed to receive higher evaluation credit due to a lack of
   detail regarding specific approaches to be used. While both firms'
   proposals had noted technical strengths, Four Seasons' proposal was cited
   as having additional strengths; some of those strengths were attributed to
   the proposal's substantial detail regarding the firm's established
   business operations and practices, successes achieved from those
   practices, and how its proposed approaches would benefit the commissary
   patrons.

   While the protester does not challenge the evaluators' findings that its
   proposal lacked detail in several other areas, Philadelphia does challenge
   the lack of detail noted for its quality control program. The protester
   argues that the agency must have failed to consider the documentation it
   provided during discussions in response to the agency's request for
   additional information regarding its quality control program. Our review
   of the record shows that the documentation was considered, and while
   substantial in length, it appears to be in essence an outline of standard
   procedures used by the company. We cannot find unreasonable the agency's
   characterization of the submission as general in nature; for example, the
   submission contains generally worded procedures and checklists which, at
   times, fail to indicate with specificity who performs the procedures, what
   tools are used to implement the quality checks, or what use is made of the
   recorded results of the quality control efforts. Some quality provisions,
   whether by inadvertence or otherwise, mention only what the firm should do
   (regarding product display, for instance) rather than what specific
   actions will be taken during performance of this contract.

   Given the RFP's emphasis on the need for each offeror to provide details
   about its technical capability and approach, and the reasonableness of the
   ratings assigned to the two firms' proposals for the level of detail
   provided, we see no basis to question the propriety of the evaluation. The
   protester's mere disagreement with the evaluation is insufficient to
   render it unreasonable. See id. With regard to the selection decision, the
   agency identified various strengths in the Four Seasons proposal, mostly
   attributable to its detailed methodologies and solid demonstration of its
   experience, facilities, and distribution capabilities; regarding its
   quality control program, for instance, the awardee included a detailed
   discussion of staff responsibilities, training, procedures to be followed,
   the analysis of recorded findings, and contingency/back-up plans. Given
   the importance of technical merit under the RFP's evaluation terms, we
   cannot find unreasonable the agency's determination that the awardee's
   technically superior, higher-priced proposal presented the best value to
   the agency.[3]

   The protester next contends that the awardee obtained an unfair competitve
   advantage by hiring a consultant who is a former DeCA employee. Prior to
   his recent retirement, the consultant served as the produce category
   manager responsible for store support and merchandising produce, and was a
   spokesperson for the agency at two industry roundtables held to solicit
   industry views and suggestions regarding the conversion of commissary
   produce operations, the consideration of commercial business practices,
   and the appropriate grouping of commissaries. He also served as an
   evaluator reviewing two technical proposals (but not price proposals)
   submitted for a follow-on contract to a short-term test contract awarded
   for the provision of produce to the Area 1 commissaries.[4] Philadelphia
   contends that the consultant had a conflict of interest; may have violated
   post-employment rules for former government employees; and may have shared
   inside information with the awardee, giving the firm an unfair competitive
   advantage in the procurement.

   As an initial matter, we note that the interpretation and enforcement of
   post-employment conflict of interest restrictions are primarily matters
   for the procuring agency and the Department of Justice, not our Office.
   See Medical Dev. Int'l, B-281484.2, Mar. 29, 1999, 99-1 CPD para. 68 at
   7-8; Physician Corp. of Am., B-270698 et al., Apr. 10, 1996, 96-1 CPD
   para. 198 at 5 n.1. Our role, within the confines of a bid protest, is to
   determine whether any action of the former government employee may have
   resulted in prejudice for, or on behalf of, the awardee during the award
   selection process. See Creative Mgmt. Tech., Inc., B-266299, Feb. 9, 1996,
   96-1 CPD para. 61 at 7. Specifically, we review whether an offeror may
   have prepared its proposal with knowledge of inside information sufficient
   to establish a strong likelihood that the offeror gained an unfair
   competitive advantage in the procurement. PRC, Inc., B-274698.2,
   B-274698.3, Jan. 23, 1997, 97-1 CPD para. 115 at 17. Our review includes
   consideration of whether the former government employee had access to
   competitively useful information, as well as whether the individual's
   activities with the firm likely resulted in disclosure of such
   information. Id.

   Here, the record shows that, while he worked for DeCA, the consultant
   participated in preliminary market research and strategy planning with his
   supervisors who were coordinating the conversion of operations from DSC-P,
   and that he was an agency spokesperson for the agency's two industry
   roundtables. However, it is clear that those roundtables were held for the
   purpose of releasing to the public for industry comment, at least in
   summary form, research and planning information gathered by the agency.
   Specifically, the agency not only discussed its market research and its
   plan to change its produce business model, but also released to the
   substantial number of vendors in attendance the terms of its recent test
   program and follow-on procurement for the provision of produce to Area 1
   commissaries. The record thus shows that at least much of the preliminary
   research known to the consultant was in fact shared with other vendors and
   thus cannot be characterized as inside information.[5]

   As for the current solicitation, the agency reports that the individual
   did not assist in the preparation or development of the source selection
   plan or the solicitation, which was issued almost 4 months after his
   retirement from the government. Additionally, the agency points out that
   there are differences in the terms of the solicitation compared to the
   prior procurement the former government employee participated in as an
   evaluator (where he reviewed two initial technical proposals, but had no
   access to price proposals). For instance, the previous solicitation
   included a requirement for port delivery of produce for commissaries in
   Keflavik, Iceland and Guantanamo Bay, Cuba (including meeting airlift
   times and sailing dates); there are no such requirements in the RFP for
   the Area 3, Group 2 award at issue here. While we recognize that the prior
   and current solicitations share similar general provisions regarding the
   basic performance requirement here--delivering quality produce to
   commissaries at competitive prices--the differences between the two
   solicitations suggest that the information to which the consultant had
   access during the prior procurement might be of limited value in the
   current procurement.

   In any event, even assuming that the consultant's participation in the
   prior procurement gave him access to inside information, the consultant
   signed a non-disclosure agreement certifying that he would not disclose
   contractor or source-selection information that he may have learned as an
   evaluator, and we see no basis in the record here to conclude that the
   Four Seasons proposal was prepared based on such information. Rather, the
   record shows that upon his retirement, the consultant was advised by the
   agency ethics officer that offering his services as a commissary produce
   consultant would be unobjectionable as long as inside information was not
   used; that he relayed that information to his client, Four Seasons; that
   Four Seasons confirmed the accuracy of the restriction with the DeCA
   ethics officer; and that both the consultant and the awardee deny that any
   communication involving inside information took place. Our conclusion is
   further supported by the responses received to our inquiries as to the
   type of assistance rendered by the consultant. The record shows that Four
   Seasons, a commercial produce vendor with limited experience in
   contracting with the federal government, specifically hired another
   consultant (a professional federal government contract proposal
   writer)--not the consultant at issue in the protest--to work closely with
   the firm to prepare its proposal. The role of the consultant at issue here
   was limited to the review of that proposal; the record shows, for
   instance, that he made suggestions of editorial and style changes to the
   proposal related to achieving clarity and compliance with the RFP
   instructions calling for offerors to provide details regarding their
   capabilities, approaches, and accomplishments; this advice suggests no use
   of inside information.

   Our review of the evaluation record confirms that the awardee's favorable
   evaluation clearly was based on the strength of the firm's established
   business operations and experience, described in its well-written,
   detailed technical proposal. In short, there has been no showing that the
   consultant's involvement gave the awardee an unfair competitive advantage,
   and, on this record, we have no reason to question the propriety of the
   award.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] DeCA recently took over procurement responsibility for the provision
   of produce to its military commissaries from the Defense Supply
   Center-Philadelphia (DSC-P) and generally is seeking to utilize a new
   business model, considering commercial industry practices, for its
   commissaries' produce operations in an effort to obtain a good selection
   of high quality produce offered at a savings to commissary patrons. The
   agency has organized its commissaries, for produce procurement purposes,
   by regional area and group. This RFP, for example, serves commissaries in
   Area 3, Groups 1 and 2, and Area 5, Groups 1 and 2. Since Philadephia only
   submitted a proposal in response to the Area 3, Group 2 requirement, this
   decision is limited to the award of a contract for that group.

   [2] The protester proceeded with its protest pro se and therefore did not
   have an attorney who could obtain access to nonpublic information pursuant
   to the terms of a protective order. Accordingly, our discussion of the
   evaluation, source selection, and use of a consultant by a competitor is
   necessarily general in nature to avoid reference to nonpublic information.
   Our conclusions, however, are based on our review of the entire record,
   including nonpublic information.

   [3] In its comments, Philadelphia argues that its lower price should have
   been determinative for award here, since product quality is mandated by
   USDA grade and inspection requirements. This argument fails to recognize
   that the RFP specified that technical considerations, beyond the fact that
   generally product quality is mandated by USDA requirements, would be
   reviewed and, together with past performance, were in fact more important
   than price.

   [4] In December 2004, a joint test program was held with DSC-P and DeCA
   personnel to validate the use of a new business model at 20 commissaries
   (Area 1) and to confirm the produce industry's capability to meet the
   commissaries' produce service needs. In May 2005, DeCA announced its
   satisfaction with the test program and subsequently issued the follow-on
   procurement for Area 1.

   [5] The agency also reports that the consultant did not have access to any
   of the arguably procurement-sensitive industry responses received for
   consideration by the agency after the roundtables.