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.