TITLE: B-299088; B-299088.2, Alutiiq Global Solutions, February 6, 2007
BNUMBER: B-299088; B-299088.2
DATE: February 6, 2007
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B-299088; B-299088.2, Alutiiq Global Solutions, February 6, 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: Alutiiq Global Solutions
File: B-299088; B-299088.2
Date: February 6, 2007
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Stephen D. Knight, Esq.,
Stephanie D. Capps, Esq., and Mary Pat Gregory, Esq., Smith Pachter
McWhorter PLC, for the protester.
Andrew P. Hallowell, Esq., and Frank C. Gulin, Esq., Pargament &
Hallowell, PLLC, for TW & Company, Inc.; David B. Dempsey, Esq., Kristen
E. Ittig., Esq., and David J. Craig, Esq., Holland & Knight LLP, for
Chenega Security & Protection Services, LLC; Stuart B. Nibley, Esq.,
Michael J. Askew, Esq., and Emily A. Jones, Esq., Thelen Reid Brown
Raysman & Steiner LLP, for Doyon Security Services, LLC, intervenors.
Capt. Sean M. Connolly and Peter D. DiPaola, Esq., Department of Army, for
the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest is denied where there is no evidence that the contracting
officer ignored relevant information in making affirmative determinations
of responsibility regarding the awardees.
2. Protest allegation challenging agency's evaluation of protester's
proposal is denied where the alleged evaluation error did not result in
competitive prejudice to protester.
3. Protester is not an interested party to challenge evaluation of
awardee's proposal where record shows that another firm, not the
protester, would be in line for award if protester's challenge were
sustained, and protester does not challenge evaluation of the other firm's
proposal.
DECISION
Alutiiq Global Solutions protests the award of contracts to TW & Company,
Inc., Chenega Security & Protection Services, LLC (Chenega SPS), and Doyon
Security Services, LLC under request for proposals (RFP) No.
W911SO-06-R-0019, issued by the Army Northern Region Contracting Center,
Department of the Army, for security guard services. Alutiiq argues that
the agency's evaluation of offerors' proposals and source selection
decision were improper.
We deny the protest.
BACKGROUND
The RFP, issued on July 21, 2006, as a section 8(a) set-aside,[1]
contemplated the award of up to three
indefinite-delivery/indefinite-quantity contracts for a base year with
four 1-year options to provide security guard services in accordance with
the solicitation's performance work statement (PWS) at various Army
installations within three defined geographic regions--Northeast, West,
and Pacific Coast. The RFP established six evaluation factors: mission
capability; personnel; experience; past performance; small business
participation; and price.[2] The solicitation informed offerors that the
first four evaluation factors were of equal importance, and were more
important than the small business participation and price evaluation
factors. Additionally, all nonprice evaluation factors, when combined,
were significantly more important than price. RFP at 109. Contract award
for each geographic region was to be made to the responsible offeror whose
proposal was determined to be most advantageous to the government based on
consideration of all evaluation factors. Id.
Fifteen offerors, including Alutiiq, TW, Chenega SPS, and Doyon, submitted
proposals for one or more geographic regions by the August 11 closing
date. Alutiiq, TW, and Chenega SPS proposed for all three regions, while
Doyon proposed only for the Pacific Coast region.[3]
An agency source selection evaluation board (SSEB) evaluated offerors'
technical proposals using the adjectival rating system set forth in the
RFP. On August 25, the SSEB provided the source selection authority (SSA)
with its evaluation ratings of offerors' technical proposals, Agency
Report (AR), Tab 11, SSEB Technical Evaluation Report, and the SSA also
received a separate evaluation of offerors' prices. Id., Tab 12, Price
Evaluation Report. The technical and price evaluation ratings of offerors'
proposals for each geographic region were as follows:
+------------------------------------------------------------------------+
| Offerors (Northeast Region)[4] | Overall Technical | Price |
|--------------------------------+----------------------+----------------|
| TW | Very Good | $79,343,586 |
|--------------------------------+----------------------+----------------|
| [Offeror A] | Very Good | $83,518,100 |
|--------------------------------+----------------------+----------------|
| Chenega SPS | Very Good | $86,571,900 |
|--------------------------------+----------------------+----------------|
| Alutiiq | Very Good | $92,204,328 |
|--------------------------------+----------------------+----------------|
| [Offeror B] | Very Good | $99,560,147 |
+------------------------------------------------------------------------+
+------------------------------------------------------------------------+
| Offerors (West Region)[5] | Overall Technical | Price |
|---------------------------+-----------------------+--------------------|
| Chenega SPS | Very Good | $51,074,036 |
|---------------------------+-----------------------+--------------------|
| TW | Very Good | $55,279,842 |
|---------------------------+-----------------------+--------------------|
| Offeror B] | Very Good | $58,918,566 |
|---------------------------+-----------------------+--------------------|
| [Offeror A] | Very Good | $60,778,048 |
|---------------------------+-----------------------+--------------------|
| Alutiiq | Very Good | $61,951,644 |
+------------------------------------------------------------------------+
+------------------------------------------------------------------------+
| Offerors (Pacific Coast | Overall Technical | Price |
| Region)[6] | | |
|------------------------------------+--------------------+--------------|
| Doyon | Very Good | $66,750,156 |
|------------------------------------+--------------------+--------------|
| Chenega SPS | Very Good | $67,682,445 |
|------------------------------------+--------------------+--------------|
| TW | Very Good | $70,076,335 |
|------------------------------------+--------------------+--------------|
| Alutiiq | Very Good | $80,311,929 |
+------------------------------------------------------------------------+
Id., Tab 13, SSA Briefing, at 10-12.
The technical evaluation ratings of Alutiiq's proposal and its proposed
prices compared to those of the three awardees is as follows:
+------------------------------------------------------------------------+
| Factor | Alutiiq | TW |Chenega SPS | Doyon |
|---------------------+------------+-----------+------------+------------|
|Mission Capability | Very Good | Very Good | Very Good | Very Good |
|---------------------+------------+-----------+------------+------------|
|Personnel | Very Good | Very Good | Very Good | Very Good |
|---------------------+------------+-----------+------------+------------|
|Past Experience | Very Good | Very Good | Very Good | Very Good |
|---------------------+------------+-----------+------------+------------|
|Past Performance | Very Good | Very Good | Very Good | Very Good |
|---------------------+------------+-----------+------------+------------|
|Small Business |Satisfactory| Very Good |Satisfactory|Satisfactory|
|Participation | | | | |
|---------------------+------------+-----------+------------+------------|
|Overall | Very Good | Very Good | Very Good | Very Good |
|---------------------+------------+-----------+------------+------------|
|Price (Northeast) |$92,204,328 |$79,343,586|$86,571,900 | N/A |
|---------------------+------------+-----------+------------+------------|
|Price (West) |$61,951,644 |$55,279,842|$51,074,036 | N/A |
|---------------------+------------+-----------+------------+------------|
|Price (Pacific Coast)|$80,311,929 |$70,076,335|$67,682,445 |$66,750,156 |
+------------------------------------------------------------------------+
Id., Tab 14, Source Selection Decision, at 3.
Both Doyon and another offeror, Santa Fe Protective Services, identified
Coastal International Security (CIS) as their subcontractor for various
aspects of the security guard services. Id., Tab 8, Doyon's Proposal, Vol.
I, Technical Proposal, Executive Summary, at 1; Tab 11, SSEB Technical
Evaluation Report, at 24. Doyon and Santa Fe did not, however, propose on
the same geographic regions: Doyon proposed for only the Pacific Coast
region, while Santa Fe proposed for only the Northeast and West regions.
Id., Tab 14, Source Selection Decision, at 3.
Prior to the agency's award determination, the contracting officer
recognized that the Doyon and Santa Fe technical proposals were nearly
identical to each other, and that both offerors had identified CIS as
their primary subcontractor.[7] As a result, the contracting officer made
the following inquiry of both offerors:
In regards to the above solicitation, the Federal Acquisition Regulation
(FAR) requires that I make a responsibility determination. In reviewing
the proposals, I note that your proposal is virtually identical to the
proposal of [Doyon, or Santa Fe]. . . . In order to alleviate this
concern, please address this issue and explain your relationship with
[Doyon, or Santa Fe] and Coastal International Security.
Id., Tab 25, Contracting Officer's Memorandum for Record, Oct. 18, 2006.
In its reply, Doyon informed the contracting officer that while it had
entered into a Department of Defense (DOD) Mentor-Protege Program[8]
relationship with CIS, and had relied on CIS to jointly draft Doyon's
technical proposal, Doyon had no relationship with Santa Fe and had not
been privy to Santa Fe's pricing. Id., Tab 26, Letter from Doyon to
Contracting Officer, Oct. 16, 2006. Similarly, Santa Fe informed the
contracting officer that while it had shared operational information with
CIS, and had relied on CIS for proposal preparation, Santa Fe had neither
business nor personal relationships with Doyon and never saw Doyon's
proposal. Id., Tab 27, Letter from Santa Fe to Contracting Officer, Oct.
17, 2006. Based on the responses received, the contracting officer
concluded that CIS's participation in the proposals of both Doyon and
Santa Fe was not improper. Id., Tab 25, Contracting Officer's Memorandum
for Record, Oct. 18, 2006.
TW's proposal identified Chenega Integrated Systems, LLC (Chenega IS) as
its primary subcontractor. Id., Tab 6, TW's Proposal, Vol. II, Technical
Proposal, at 5. Chenega IS is a different business entity than offeror
Chenega SPS, although both firms share a common corporate parent, Chenega
Corporation.[9] After the protest was filed, the contracting officer
sought clarification from offerors TW and Chenega SPS regarding their
relationship with Chenega IS. Contracting Officer's Statement, Dec. 12,
2006. Chenega SPS's president informed the contracting officer that there
were "absolutely no discussions with TW and/or [Chenega IS] on pricing or
the composition of the technical proposal" for the solicitation here.[10]
Id., attach. 1, Email from Chenega SPS to Contracting Officer, Dec. 11,
2006, at 2. TW also informed the contracting officer that it had had no
contacts with Chenega SPS (which it viewed as a competitor to itself and
partner Chenega IS), including no interaction regarding the pricing of its
proposal here. Id., attach. 2, Letter from TW to Contracting Officer, Dec.
12, 2006, at 4.
On October 23, the agency awarded contracts to TW, Chenega SPS, and Doyon
for the Northeast, West, and Pacific Coast regions, respectively. This
protest followed.
DISCUSSION
Alutiiq alleges that the contracting officer's responsibility
determinations regarding Chenega, Doyon, and TW were flawed insofar as the
contracting officer failed to properly consider substantial evidence of
price collusion among the awardees.[11] Alutiiq also protests that the
agency's evaluation of Doyon's proposal under the past performance and
experience factors was unreasonable, and that the agency's evaluation of
Alutiiq's proposal under the small business participation factor was
improper.[12] Alutiiq contends that had the agency properly evaluated
offerors' proposals, it would have awarded all three contracts to Alutiiq.
Responsibility Determination Issue
Alutiiq first challenges the contracting officer's responsibility
determinations regarding Doyon, TW, and Chenega SPS. Specifically, the
protester contends that, in order to be considered a responsible
contractor, an offeror is required to propose prices independently and
without sharing price information with other competitors. Alutiiq argues
that TW and Chenega SPS could not have priced their proposals
independently of each other, as TW had proposed Chenega IS as its primary
subcontractor. Likewise, the protester argues that Doyon and Santa Fe
could not have priced their proposals independently as both proposed CIS
as their subcontractor. Alutiiq argues that in light of the fact that the
offerors must have shared price information, the contracting officer's
responsibility determination was flawed for lack of investigating whether
any price collusion occurred. Protest, Nov. 30, 2006, at 7-9.
GAO will not consider protests challenging affirmative determinations of
responsibility except under limited, specified circumstances--where it is
alleged that definitive responsibility criteria in the solicitation were
not met or evidence is identified that raises serious concerns that, in
reaching a particular responsibility determination, the contracting
officer unreasonably failed to consider available relevant information or
otherwise violated statute or regulation. Bid Protest Regulations, 4
C.F.R. sect. 21.5(c) (2006); American Printing House for the Blind, Inc.,
B-298011, May 15, 2006, 2006 CPD para. 83 at 5-6; Government Contracts
Consultants, B-294335, Sept. 22, 2004, 2004 CPD para. 202 at 2. This
includes protests where, for example, the protest includes specific
evidence that the contracting officer may have ignored information that,
by its nature, would be expected to have a strong bearing on whether the
awardee should be found responsible. Universal Marine & Indus. Servs.,
Inc., B-292964, Dec. 23, 2003, 2004 CPD para. 7 at 2; Verestar Gov't
Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD para. 68 at 4.
Here, Alutiiq has not alleged that definitive responsibility criteria were
not met and, as detailed below, its only evidence that the contracting
officer failed to consider available relevant evidence in determining the
awardees responsible is the speculation that TW, Chenega SPS, and Doyon
did not price their proposals independently. This is not, in our view, a
proffer of evidence sufficient to raise serious concerns that the
contracting officer ignored relevant information in making her
responsibility determinations.
The record indicates that the contracting officer inquired into Doyon's
and Santa Fe's reliance on CIS and gave reasonable consideration to the
information the protester contends she failed to review. See Triple H
Servs., B-298248, B-298248.2, Aug. 1, 2006, 2006 CPD para. 115 at 3.
Likewise, with respect to Chenega SPS and TW, the contracting officer
reasonably considered the information the protester contends she failed to
review; accordingly, there simply is no evidence showing that the
contracting officer ignored the information on which the protester bases
its challenge to the affirmative determinations of responsibility.
Moreover, the facts relied on by the protester here--that Doyon and Santa
Fe had a common subcontractor, and that Chenega SPS and Chenega IS (TW's
subcontractor) have common corporate ownership--do not constitute
information that would be expected to have a strong bearing on whether the
awardees should be found responsible, as required to trigger our review
under 4 C.F.R. sect. 21.5(c). Universal Marine & Indus. Servs., Inc.,
supra; Verestar Gov't Servs. Group, supra. In this regard, the requirement
that competing concerns prepare their offers independently and without
consultation with each other does not preclude competitors from proposing
common subcontractors. McCombs Fleet Servs., B-278330, Jan. 16, 1998, 98-1
CPD para. 24 at 4; Ross Aviation, Inc., B-236952, Jan. 22, 1990, 90-1 CPD
para. 83 at 2-3. Alutiiq has presented no evidence, beyond its mere
speculation, that Doyon's and Santa Fe's reliance on CIS for various
technical aspects of their proposals must have also resulted in the
offerors exchanging price information, and we will not assume that this
was the case.[13] Ross Aviation, Inc., supra, at 3. Similarly, with
respect to Chenega SPS and TW, it is important to note that there are two
different Chenegas involved here--Chenega SPS, which was an offeror, and
Chenega IS, which TW proposed as its subcontractor--that are "sister
subsidiaries" of the same parent corporation, Chenega Corporation. The
fact that two offerors, or an offeror and a second offeror's
subcontractor, have common corporate ownership is not by itself sufficient
to establish that the offerors failed to price their proposals
independently, and where, as here, a protester presents no other evidence,
beyond mere speculation, showing that competitors did not arrive at their
prices independently, we will not assume otherwise. See McCombs Fleet
Servs., supra, at 4.
Other Evaluation Issues
Alutiiq also protests that the Army improperly evaluated its proposal
under the small business participation factor. Specifically, the protester
contends that the agency's evaluation noted that Alutiiq had proposed to
meet the small business participation goals set forth in the RFP. Alutiiq
contends that since its proposal was of high quality and met all
requirements, it should have received a rating of very good rather than
satisfactory under this factor. Protest, Oct. 31, 2006, at 7. We find that
the protester has failed to demonstrate any prejudice here.
Our Office will not sustain a protest unless the protester demonstrates a
reasonable possibility of prejudice, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. Parmatic Filter Corp.,
B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD para. 71 at 11; see also
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
Here, even if Alutiiq's proposal were assigned a higher rating of very
good under the small business participation factor, this rating, when
combined with the ratings it received on the remaining nonprice evaluation
factors, would not have changed the overall very good rating assigned
Alutiiq's technical proposal. Under these circumstances, we conclude that
Alutiiq was not prejudiced, even assuming that the agency's evaluation of
the protester's proposal under the small business participation factor was
flawed.
Lastly, Alutiiq protests the agency's evaluation of Doyon's proposal with
regard to the past performance and experience factors. The protester
contends that Doyon's proposal indicates a lack of relevant prime
contractor security guard experience at military installations. Alutiiq
also contends that Doyon's primary subcontractor, CIS, has had significant
past performance problems on its prior security guard service contracts.
By failing to take this information into account, the protester argues,
the agency's rating of Doyon's proposal as very good for both past
performance and experience was unreasonable. Protest, Oct. 31, 2006, at
5-6. We find that Alutiiq is not an interested party to protest the
evaluation of, and award to, Doyon because it would not be next in line
for award of the Pacific Coast region contract if the award to Doyon were
set aside.
In order for a protest to be considered by our Office, a protester must be
an interested party, which means that it must have a direct economic
interest in the resolution of a protest issue. 4 C.F.R. sect. 21.0(a);
Cattlemen's Meat Co., B-296616, Aug. 30, 2005, 2005 CPD para. 167 at 2
n.1. A protester is an interested party to challenge the evaluation of the
awardee's proposal where there is a reasonable possibility that the
protester's proposal would be in line for award if the protest were
sustained. Joint Mgmt. & Tech. Servs., B-294229, B-294229.2, Sept. 22,
2004, 2004 CPD para. 208 at 9; Ridoc Enter., Inc., B-292962.4, July 6,
2004, 2004 CPD para. 169 at 9.
The record here clearly reflects that the SSA considered the proposals of
Doyon, Chenega SPS, TW, and Alutiiq to be technically equal (i.e., no
proposal contained any meaningful advantage that was not otherwise
balanced by, encompassed in, or provided for in the other offerors'
proposals).[14] AR, Tab 14, Source Selection Decision, at 18-23. Moreover,
as set forth above, the proposals of Chenega SPS and TW were both
lower-priced than that of Alutiiq for the Pacific Coast region. Where, as
here, there are intervening offerors that would be in line for award ahead
of Alutiiq if its challenge to the award to Doyon were sustained, we
consider Alutiiq's interest to be too remote to qualify it as in
interested party. See Ridoc Enter., Inc., supra.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] Section 8(a) of the Small Business Act, 15 U.S.C. sect. 637(a) (2000),
authorizes the Small Business Administration (SBA) to enter into contracts
with government agencies and to arrange for performance through
subcontracts with socially and economically disadvantaged small business
concerns. Federal Acquisition Regulation (FAR) sect. 19.800(a). Department
of Defense agencies have been delegated authority to enter into 8(a)
contracts on behalf of the SBA. Department of Defense FAR Supplement
(DFARS) sect. 219.800(a).
[2] The RFP established evaluation subfactors with regard to the mission
capability, personnel, and past performance factors. The solicitation also
set forth the Army's planned evaluation rating scheme. Specifically, the
RFP stated that proposals would be rated under all factors, subfactors,
and overall, using an adjectival rating system (i.e., very good,
satisfactory, marginal, unacceptable, or neutral with regard to past
performance), and provided definitions for each adjectival rating. RFP at
109-11.
[3] In instances where an offeror proposed for more than one geographic
region, the RFP required the offeror to submit one technical proposal (all
geographic regions utilized the same PWS) and a separate price proposal
for each region. RFP at 101.
[4] Six additional offerors submitted proposals for the Northeast region.
All received overall technical ratings of no higher than satisfactory, and
all were higher-priced than TW. Id., Tab 13, SSA Briefing, at 10.
[5] Six additional offerors submitted proposals for the West region. All
received overall technical ratings of no higher than satisfactory, and all
were higher-priced than Chenega SPS. Id., Tab 13, SSA Briefing, at 11.
[6] Eight additional offerors submitted proposals for the Pacific Coast
region. All received overall technical ratings of no higher than
satisfactory, and all but one were higher-priced than Doyon. Id., Tab 13,
SSA Briefing, at 12.
[7] The contracting officer found that Doyon's and Santa Fe's price
proposals were not the same, however, as the offerors had proposed on
different regions. AR, Tab 25, Contracting Officer's Memorandum for
Record, Oct. 18, 2006.
[8] The DOD Mentor-Protege Program provides incentives for DOD contractors
to assist protege firms in enhancing their capabilities and to increase
participation of such firms in government and commercial contracts. DFARS
sect. 219.7100.
[9] By contrast, Chenega SPS identified Wackenhut Services Inc., and not
Chenega IS or Chenega Corporation, as its primary subcontractor. AR, Tab
7, Chenega SPS's Proposal, Vol. I, Technical Proposal, at 10.
[10] Chenega SPS's president also stated that he was the sole approver of
the technical and price proposals submitted by the firm, and that neither
he nor his staff ever discussed any content or strategy with TW or Chenega
IS employees. Id., attach. 1, Email from Chenega SPS to Contracting
Officer, Dec. 11, 2006, at 2.
[11] Alutiiq also protested that TW, Chenega SPS, and Doyon were
ineligible for award because they had violated FAR sect. 52.203-2,
Certificate of Independent Price Determination, Protest, Nov. 20, 2006, at
5; this basis of protest was later withdrawn. Protester's Response to
Agency Dismissal Request, Nov. 30, 2006, at 1.
[12] Alutiiq also originally protested that: 1) the agency's evaluation of
TW's and Chenega SPS's past performance and experience was improper; 2)
the agency failed to properly evaluate all awardees' proposals under the
mission capability and personnel evaluation factors; 3) the agency failed
to properly evaluate Alutiiq's proposal under a personnel subfactor; 4)
the agency failed to conduct a proper best value determinations as part of
its source selection decisions; and 5) the agency's evaluation of Doyon's
proposal was improper because Doyon was unable to comply with FAR
sect. 52.219.14, Limitations on Subcontracting. We previously dismissed
these protest issues as lacking adequate detail and factually and legally
insufficient. GAO Facsimile to Parties, Nov. 14, 2006.
[13] While it is true that CIS knew the prices at which it had offered to
perform work for Doyon and Santa Fe (and that in each instance CIS's price
would become a significant part of that offeror's cost), there is no
evidence that CIS knew that Doyon or Santa Fe would utilize that precise
price, without any mark-up or mark-down, in their proposals. There is also
no evidence that CIS knew of Doyon's or Santa Fe's prices, or that Doyon
or Santa Fe communicated with the other regarding the prices that each
offeror intended to propose.
[14] The SSA also determined that the proposal of the lowest-priced,
lower-technically- rated offeror, did not represent the best value to the
government. AR, Tab 14, Source Selection Decision, at 23-24.