TITLE: B-299022; B-299022.2, Wackenhut International, Inc., Wackenhut Puerto Rico, Inc., Wackenhut Jordan, Ltd.--a Joint Venture, January 23, 2007
BNUMBER: B-299022; B-299022.2
DATE: January 23, 2007
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B-299022; B-299022.2, Wackenhut International, Inc., Wackenhut Puerto Rico, Inc., Wackenhut Jordan, Ltd.--a Joint Venture, January 23, 2007

   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: Wackenhut International, Inc., Wackenhut Puerto Rico, Inc.,
   Wackenhut Jordan, Ltd.--a Joint Venture

   File: B-299022; B-299022.2

   Date: January 23, 2007

   David B. Dempsey, Esq., and David J. Craig, Esq., Holland & Knight LLP,
   for the protester.

   Gerald H. Werfel, Esq., Pompan, Murray & Werfel, PLC, for U.S. Defense
   Systems, LLC, an intervenor.

   Dennis J. Gallagher, Esq., Department of State, for the agency.

   Paula A. Williams, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly rejected protester's proposal as technically unacceptable
   for failing to comply with solicitation requirements regarding proposed
   management approach.

   DECISION

   Wackenhut International, Inc., Wachenhut Puerto Rico, Inc., Wackenhut
   Jordan, Ltd.--a Joint Venture (WII), protests the Department of State's
   rejection of WII's proposal responding to request for proposals (RFP) No.
   S-JO100-04-R-0001 for local guard services at the United States Embassy in
   Amman, Jordan. WII protests that the agency improperly rejected WII's
   proposal as technically unacceptable.

   We deny the protest.

   The agency issued the RFP in May 2004, seeking proposals for guard
   services at the U.S. Embassy in Amman, Jordan. The RFP provided that the
   services are required in order to "protect life, maintain order, deter
   criminal attacks against employees, dependents and property and terrorist
   acts against all U.S. assets."[1] RFP at 14. Pursuant to the solicitation,
   the successful contractor will be required to provide all necessary
   personnel, vehicles, and equipment to perform the guard service
   requirements. The RFP provided that the source selection decision would be
   made on the basis of the lowest-priced, technically acceptable proposal,
   and contemplated award of a time-and-materials contract for a 1-year base
   period and four 1-year option periods.

   With regard to technical acceptability, the RFP provided that proposals
   would be evaluated, on a pass/fail basis, against the following criteria:
   management plan, experience and past performance, preliminary transition
   plan, and compensation plan. RFP at 75. With regard to an offeror's
   proposed management plan, the RFP required, among other things, that: "The
   management plan will define how the offeror will ensure timely,
   professional and high quality performance." RFP at 65.

   Six proposals, including WII's, were submitted by the specified closing
   date. In its proposal, responding to the solicitation requirement that it
   propose an acceptable management plan, WII stated that its employees would
   be expected to routinely work [DELETED] per week. AR exh. 21, WII's
   Initial Proposal, Vol. 3, at 23. In evaluating WII's proposal, the agency
   questioned this proposed approach on the basis that such a lengthy
   workweek was likely to negatively affect the quality of WII's contract
   performance. Thereafter, in conducting discussions with WII, the agency
   stated:

     Your company has failed to address a significant number of areas
     required by the solicitation and has addressed other areas in a manner
     that is either unacceptable or unclear. These are the issues that
     require resolution.

     Management Plan

                                                      * * * * *

     The most critical aspect of a local guard contract is maintaining a
     highly motivated, happy and alert guard force. In doing this, a
     contractor could reasonably ensure that he could retain employees. This
     is achieved by providing a fair workweek and paying a fair salary. To
     this, your company's statements on page 23 of your proposal in reference
     to work hours are extremely disconcerting. In our opinion, the statement
     shows a workweek that is clearly excessive and that will only serve to
     exhaust and demoralize a guard force.

                                                      * * * * *

   We believe a [DELETED] workweek is excessive. Please address this issue by
   either convincing us that our position is wrong by providing information
   detailing how a [DELETED] workweek with a weekly rest of [DELETED] period
   will result in a fresh and highly alert guard force or by revising your
   staffing plan.

   AR exh. 6, Discussion Letter to WII, at 1-3. [2]

   In response to the agency's concern that WII's proposed workweek was
   "excessive," that it would "exhaust and demoralize a guard force," and was
   "extremely disconcerting" to the agency, WII declined to revise its
   proposal. Specifically, WII stated:

     The staffing plan originally submitted of [DELETED] workweeks in
     [DELETED] complies with section H.5.3 of the solicitation as well as
     with Jordanian labor law. As a matter of fact, this schedule is
     customary for many security deployments in Jordan. Our experience in
     Jordan has demonstrated no problems related to lack of alertness or
     motivation when using this schedule.

   AR exh. 22, WII's Revised Proposal, Vol. 3, at 7. [3]

   Thereafter, the agency again evaluated WII's proposal, and concluded that
   WII had failed to correct various proposal deficiencies, including its
   reliance on a [DELETED] workweek. With regard to WII's proposed management
   approach, the agency's contemporaneous evaluation record states:

     Wackenhut has again reinforced from its initial proposal its
     disconcerting statements regarding the basic working hours expected from
     the guard force.

                                                      * * * * *

     Despite what numbers of hours Wackenhut states they can legally expect
     their guard force to work according to Jordanian labor law, the TEP has
     already indicated that a [DELETED] workweek is untenable. As initially
     stated by the TEP, this type of workweek is clearly excessive and will
     only serve to exhaust and demoralize a guard force. Also, despite what
     Wackenhut's own experience is, the experience of Embassy Amman's TEP has
     found that a workweek of this length is highly demoralizing, and
     therefore unsafe for the embassy in light of Jordan's high terrorist
     threat environment. Requiring a workweek of this length would be counter
     productive to ensuring the best possible security services for the
     embassy.

   AR exh. 8, Evaluation of WII's Revised Proposal, at 2-3.

   Accordingly, the agency concluded that WII's proposal was technically
   unacceptable and eliminated it from further consideration. [4] This
   protest followed.

   DISCUSSION

   WII protests the agency's determination that its proposal was technically
   unacceptable, arguing that the agency improperly applied an unstated
   evaluation factor. More specifically, WII asserts that the solicitation
   contained "no specific restriction" regarding the permissible length of a
   proposed workweek[5] and, therefore, that the agency was precluded from
   considering the length of WII's proposed workweek in its evaluation.
   Protester's Comments, Nov. 27, 2006, at 3-12. We disagree.

   When an agency evaluation is challenged, we will review the agency's
   actions to ensure that they are reasonable and consistent with the
   solicitation's stated evaluation factors, as well as with applicable
   procurement laws and regulations. Worldwide Language Res., Inc., B-297210
   et al., Nov. 28, 2005, 2005 CPD para. 211 at 3; Ben-Mar Enters., Inc.,
   B-295781, Apr. 7, 2005, 2005 CPD para. 68 at 7. An agency properly may
   take into account matters that are reasonably encompassed by a stated
   evaluation factor. See STEM Int'l, Inc., B-295471, Jan. 24, 2005, 2005 CPD
   para. 19 at 3; North Am. Military Housing, LLC, B-289604, Mar. 20, 2002,
   2002 CPD para. 69 at 5.

   Here, as noted above, the solicitation specifically required that, to be
   evaluated as technically acceptable, an offeror's proposed management plan
   must "ensure timely, professional and high quality performance." RFP at
   65. Particularly in light of the requirements at issue here, the length of
   an offeror's proposed workweek is clearly encompassed within the stated
   requirement for high quality performance. Further, in conducting
   discussions with WII regarding this matter, the agency explicitly advised
   WII that the agency considered WII's proposed [DELETED] workweek to be
   "excessive," and that such a management approach would "exhaust and
   demoralize a guard force." Notwithstanding this explicit language
   indicating that the proposed workweek was unacceptable to the agency, WII
   neither provided a meaningful response to the agency's concerns, nor
   revised its proposed management approach.

   Procuring agencies are generally in the best position to determine their
   actual requirements and the best method for meeting them. In reviewing
   protests challenging an agency's assessments with regard to a particular
   performance approach, our Office will not substitute our judgment for that
   of the agency; rather, we will review the record to determine whether the
   judgments are reasonable and consistent with the solicitation criteria.
   See, e.g., RMS Indus., B-247233, B-247234, May 1, 1992, 92-1 CPD para.
   412.

   Here, based on our review of the entire record, we find no basis to
   question the agency's determination that WII's proposed [DELETED] workweek
   was excessive, that it would exhaust and demoralize WII's guard force and,
   therefore, that it rendered WII's proposal unacceptable for failure to
   comply with the solicitation requirement that an offeror's proposed
   management approach would "ensure timely, professional and high quality
   performance." Although WII continues to express disagreement in this
   regard, it has provided nothing to demonstrate that the agency's
   determination was unreasonable.

   The protest is denied.[6]

   Gary L. Kepplinger
   General Counsel

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

   [1] The agency states that "Embassy Amman faces security issues that are
   exceeded only by Embassy Kabul and Embassy Baghdad." Agency Report (AR),
   Contracting Officer's Statement, at 3.

   [2] The agency's discussion questions to WII also identified other
   concerns regarding WII's proposal, including concerns regarding WII's past
   performance, as follows:

     [W]e believe that your joint venture was the same entity that held the
     previous contract for these services. Our remaining record regarding
     your past performance was prepared by the COR [contracting officer's
     representative] at that time, after the conclusion of that contract. It
     lists many failings in terms of performance. These failings included
     failure to provide basic equipment for the guards, a poorly managed
     guard force with low morale, a very high turnover rate, poor appearance
     and attitude of your employees, and lack of interest from senior
     Wackenhut management in the contract performance. It appears that the
     problem was perceived to lie with the [DELETED] in the joint venture,
     more than [DELETED], though [DELETED] was cited as being nonresponsive
     to the needs of the Embassy.

   AR exh. 6, Discussion Letter to WII, at 3.

   [3] WII's response also listed various [DELETED] benefits that it believes
   will motivate its employees. Id.

   [4] In addition to WII's proposed management approach, the agency found
   that WII's proposal was unacceptable with regard to other evaluation
   factors, including past performance. In light of our conclusion that the
   agency reasonably rejected WII's proposal based on its unacceptable
   management plan, thus rendering its overall proposal unacceptable, we need
   not discuss the agency's additional bases for rejecting WII's proposal.

   [5] The solicitation precluded an offeror from proposing that guards would
   work more than 12 hours per day, but did not expressly limit the number of
   days per week that guards could be required to work. RFP at 21, 30.

   [6] In pursuing this protest, WII has raised various other issues,
   including assertions that the agency failed to conduct meaningful
   discussions, that the agency was precluded from considering WII's prior
   performance of the guard service requirements at issue here, and that the
   agency improperly criticized WII's proposal with regard to compensation
   issues, Internet training, and guard accommodations. We have considered
   all of WII's arguments and find no basis for sustaining its protest.