TITLE: B-299576; B-299576.2, Meeks Disposal Corporation, June 28, 2007
BNUMBER: B-299576; B-299576.2
DATE: June 28, 2007
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B-299576; B-299576.2, Meeks Disposal Corporation, June 28, 2007

   DOCUMENT FOR PUBLIC RELEASE

   The decision issued on the date below was subject to a GAO
   Protective Order. No    party requested redactions; we are
   therefore releasing the decision in its entirety.

   Decision

   Matter of: Meeks Disposal Corporation

   File: B-299576; B-299576.2

   Date: June 28, 2007

   J. Bryan Plumlee, Esq., Paul R. Schmidt, Esq., and David B. Oakley, Esq.,
   Huff, Poole & Mahoney, PC, for the protester.

   Joseph M. Goldstein, Esq., and Michael J. McAllister, Esq., Shutts & Bowen
   LLP, for Dorado Services, Inc., an intervenor.

   Damon A. Martin, Esq., and David L. Nimmich, Esq., Department of the Navy,
   for the agency.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency unreasonably determined that protester's proposal was
   unacceptable under technical approach/management factor is denied where
   the solicitation required that the proposals include a description of the
   methods and procedures the offeror would use to recruit and retain
   experienced personnel and managers, but protester provided only a brief
   and general statement on the subject.

   DECISION

   Meeks Disposal Corporation, a small business, protests the award of a
   contract to Dorado Services by the Naval Facilities Engineering Command,
   Department of the Navy, under request for proposals (RFP)
   No. N40085-06-R-1131, issued to procure refuse collection and recycling
   services at specified Navy facilities in the Hampton Roads, Virginia area.
   Meeks objects that its proposal was improperly evaluated as technically
   unacceptable, and that the Navy based the evaluation on criteria that were
   not disclosed in the solicitation.

   We deny the protest.

   BACKGROUND

   The Navy issued the RFP on September 13, 2006, seeking proposals to
   provide these waste management services under what the agency terms a
   "combination firm-fixed price/indefinite quantity-indefinite delivery"[1]
   contract to perform a number of waste management services for a base
   period and four annual options. RFP at 74. The RFP detailed four
   evaluation factors: technical approach/management, corporate experience,
   past performance, and price. RFP at 71.

   After generally advising offerors to submit a "precise, detailed, and
   complete" proposal, RFP at 70, the RFP went on to explain the evaluation
   of the technical approach/management factor using very similar language in
   both sections L and M. Specifically, each offeror was instructed to

     clearly demonstrate its understanding of and approach to accomplishing
     the complexity and magnitude of service requirements set forth in the
     performance objectives and standards of the Performance Work Statement
     by submitting a narrative statement . . . Each of the four paragraphs
     below must be included in the narrative and tabbed in the technical
     proposal and discussed separately for each technical annex of the RFP.

       (a) Phase-In Transition Plan . . .

       (b) Describe what methods and procedures you will use to recruit and
       retain experienced personnel and managers in regards to this project.

       (c) Workforce Management . . .

       (d) Government-Furnished Property . . .

   RFP amend. 12, at 5-6.

   The evaluation scheme provided that proposals would be assessed as
   "acceptable," "less than acceptable,"[2] or "unacceptable" under each
   factor (with the addition of a "neutral" rating for the past performance
   factor). In effect, a rating of "less than acceptable" reflected a
   proposal that was unacceptable as tendered, but susceptible of becoming
   acceptable through revisions after discussions. Award was to be made to
   the lowest-priced, technically acceptable offeror. RFP amend. 12, at
   11-13.[3]

   The agency received five proposals, including those submitted by Dorado
   and Meeks. The Navy evaluators prepared a technical evaluation report to
   reflect their views of each offeror's proposal under each evaluation
   factor. The evaluators rated Meeks less than acceptable under the
   technical approach/management, experience, and past performance factors,
   resulting in an overall rating of less than acceptable. Dorado was rated
   acceptable under all factors, and acceptable overall. Technical Evaluation
   Board (TEB) Report at 3. The evaluators also explained their consensus
   ratings for each offeror under each factor, and listed any evaluated
   strengths, weaknesses, or deficiencies under each factor.

   Under the technical approach/management factor, although the evaluators
   praised Meeks's detailed phase-in plan and thorough phase-out plan, they
   identified several concerns, including that "Meeks did not provide
   specifics on recruitment . . ." TEB Report at 7. Correspondingly, the
   evaluators enumerated four weaknesses for Meeks under the technical
   approach/management factor, two of which related to recruitment and
   retention. On these issues, the evaluators concluded:

     1.      Recruit and retain plan did not provide any details how they
     plan to recruit and retain employees.

     2.      They discuss their current workforce and management, but did not
     discuss how they planned to staff for this RFP and retain existing
     personnel.

   Id. at 7.

   The source selection board (SSB) concurred with the TEB's findings,
   including the conclusion that Meeks's proposal was less than acceptable
   under the technical approach/management factor. The SSB also concluded
   that, among other things, Meeks's recruitment and retention plan lacked
   details. SSB Report at 6. As a result, the SSB recommended award to Dorado
   as the lowest-priced, technically acceptable offeror, as reflected in the
   following summary of the evaluation (A=acceptable; LA=less than
   acceptable; N=neutral):

   +------------------------------------------------------------------------+
   |         |Technical Approach/|Corp. |Past |Small Bus.|OVERALL|  TOTAL   |
   |         |       Mgmt.       |Exper.|     |Subcontr. |       |          |
   |         |                   |      |Perf.|          |RATING |  PRICE   |
   |         |                   |      |     |          |       |(millions)|
   |---------+-------------------+------+-----+----------+-------+----------|
   |Dorado   |         A         |  A   |  A  |    A     |   A   |  $34.5   |
   |---------+-------------------+------+-----+----------+-------+----------|
   |Offeror A|        LA         |  A   |  A  |    A     |   A   |  $35.4   |
   |---------+-------------------+------+-----+----------+-------+----------|
   |Offeror B|         A         |  A   |  A  |    A     |   A   |  $44.1   |
   |---------+-------------------+------+-----+----------+-------+----------|
   |Meeks    |        LA         |LA[4] |N[5] |    A     |  LA   |  $11.7   |
   |---------+-------------------+------+-----+----------+-------+----------|
   |Offeror C|        LA         |  LA  |  N  |    LA    |  LA   |  $15.2   |
   +------------------------------------------------------------------------+

   SSB Report at 5.

   The source selection authority (SSA) then reviewed both the TEB and SSB
   reports. The SSA concurred with the ratings by the SSB, and the selection
   of Dorado as the lowest-priced, technically acceptable offeror.[6] Source
   Selection Decision at 4. In accordance with the SSA's decision, the
   contracting officer awarded the contract to Dorado. The Navy notified
   Meeks of the award to Dorado and provided a debriefing at Meeks's request.
   This protest followed.

   DISCUSSION

   Meeks objects that its ratings under the technical approach/management
   factor and the corporate experience factor were unreasonable, and argues
   that many of the evaluated weaknesses were based on unstated evaluation
   criteria.[7] Meeks argues that award should have been made to it, at its
   significantly lower price.

   For example, Meeks contends that the criticisms that it lacked a plan for
   recruiting and retaining personnel were unjustified because its proposal
   included a "separate tabbed section" addressing that issue, and also
   indicated that Meeks's existing staff would fill the principal management
   positions under the contract. Meeks also argues that its comprehensive
   safety program document, which was included as an attachment to its
   proposal, explained the firm's policies for hiring truck drivers.
   Protester's Comments at 4, 8-12.[8]

   In answer, the Navy contends that Meeks's proposal provided no substantive
   explanation of where and how it would recruit new employees, or of the
   techniques the firm would use to ensure retention of its existing staff.
   Legal Memorandum at 9. While the Navy acknowledged that Meeks's safety
   program materials did state some minimum qualifications for truck drivers,
   it concluded that the materials provided no information on how the firm
   planned to recruit and retain drivers meeting those qualifications. Id.

   The Navy also points out that the so-called "separately tabbed section" of
   Meeks's proposal regarding recruitment and retention was less than half a
   printed page, which stated in its entirety:

     [Meeks] is fortunate to have an incredible pool of management and
     skilled employees. Even so, we recognize that there will always be a
     need to be better stewards and ensure consistency in performance based
     contracts. We are committed to continuing to rise to that challenge.

     [Meeks] must continue to recruit and retain high quality and skilled
     employees to maintain this project and its current customer base.
     Currently all senior management positions are filled and we have
     attracted experienced management from appropriate backgrounds to meet
     the needs [of] our Company and this project.

     Furthermore, [Meeks] realizes it is crucial to recruit and retain
     employees and management who have high ethical standards and who have
     experience, acumen, judgment and other attributes that are recognizable
     by us in the refuse and disposal industry. To that end, [Meeks]
     recruitment policies are being tightened and staff recruitment will
     include appropriate background check at the highest levels of industry
     standard.

   Meeks Proposal at 23.

   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. 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. Where, as here, an offeror provides
   cursory, general assurances that it can perform the work in response to
   specific requirements in an RFP to provide detailed information, the
   agency may reasonably find that the proposal lacks required information
   and thus is technically unacceptable. Worldwide Primates, Inc., B-294481,
   Oct. 12, 2004, 2004 CPD para. 206 at 4-5.

   Here, in answer to the RFP's requirement that each offeror explain its
   plan to recruit and retain staff, Meeks provided only the brief, general
   statement quoted above, which expressed its intention to recruit and
   retain high-quality staff. And Meeks cannot reasonably claim that the
   limited information in its proposal addressing the qualifications required
   for truck drivers should be construed as a substantive plan for recruiting
   and retention for a project of this magnitude. We conclude that the Navy
   reasonably evaluated Meeks as unacceptable, based on the firm's failure to
   address this specific material requirement of the RFP.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] See Naval Facilities Engineering Command Contracting Manual (P-68)
   sect. 5252.216-9310 (Dec. 2000 edition) (available online at
   https://portal.navfac.navy.mil/pls/portal/url/ITEM/FBCB61789B9622D4E0340003BA194E27)
   (last visited June 26, 2007).

   [2] The RFP defined "less than acceptable" thus:

     The proposal does not fully meet some or all of the performance
     objectives and standards. The proposal lacks information or contains
     conflicts with solicitation requirements. The proposal contains some
     weaknesses, significant weaknesses, or deficiencies that must be
     corrected before further consideration. The proposal offers a moderate
     to high performance risk to the Government.

   RFP amend. 12, at 12. The rating of "unacceptable" was to be applied to a
   proposal with "no reasonable likelihood of success" and flaws "so major or
   extensive that a major revision tantamount to complete rewrite of the
   proposal would be needed." Id.

   [3] In amendment 11, the Navy deleted section M.1 of the RFP, which was
   the section that had specified that "[t]he government will select the
   lowest price-technically acceptable offer whose proposal provides the best
   value to the Government." RFP at 76; RFP amend. 11, at 25. None of the
   offerors challenged this change. Since the RFP, as amended, still
   specified that evaluation subfactors would use ratings of "acceptable,"
   "less than acceptable," and "unacceptable;" since no offeror has
   challenged the basis for award; and, since the source selection decision
   reflects that award was made on a lowest-price, technically acceptable
   basis, we will not address the effect of the amendment here.

   [4] As a small business that proposed to perform the contract itself,
   Meeks was rated acceptable under the small business factor, but less than
   acceptable under the corporate experience factor. If Meeks's rating of
   "less than acceptable" under the corporate experience evaluation factor
   were the sole basis for concluding that its proposal was unacceptable, it
   appears, from this record, that the Navy would be required to refer this
   issue to the Small Business Administration for a certificate of competency
   review. See Clegg Indus., Inc., B-242204.3, Aug. 14, 1991, 91-2 CPD
   para. 145 at 2-3. We do not reach that conclusion here, as we find that
   Meeks was properly rated less than acceptable overall on the basis of its
   rating under the technical approach/ management factor.

   [5] Here, the SSB replaced the TEB's assessment of Meeks's past
   performance as less than acceptable with a rating of "neutral." SSB Report
   at 6. While the references contacted in the past performance inquiry had
   assessed Meeks's performance as either "good" or "excellent," the TEB had
   downgraded the firm's past performance because the evaluators felt that
   the reference contract work was not sufficiently relevant.

   [6] While Meeks's initial protest argued that its proposal also had been
   rejected on the basis of unacceptably low pricing, and the record confirms
   that the SSB and SSA referred to Meeks's price as "unrealistic and
   unreasonable," see Source Selection Decision at 3, any alleged error in
   this regard did not result in competitive prejudice because, as discussed
   below, Meeks's proposal was reasonably evaluated as technically
   unacceptable.

   [7] Meeks also raised other grounds of protest, which we address here only
   in summary. For example, Meeks raised several challenges to the
   solicitation, or to how the procurement was conducted which, in order to
   be considered timely, had to be protested before submission of proposals.
   Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2007). Meeks also
   raised challenges to the Navy's affirmative determination of Dorado's
   responsibility, which we did not consider because the protester's
   arguments did not raise the kind of issues we will review as part of a
   challenge to an affirmative determination of responsibility. See Bid
   Protest Regulations, 4 C.F.R. sect. 21.5(c). Finally, Meeks broadly
   challenged the technical competence of the evaluators, which our Office
   will not review absent a showing of fraud, conflict of interest, or actual
   bias--none of which Meeks has alleged. Telestar Corp., B 275855, Apr. 4,
   1997, 97-1 CPD para. 150 at 5 n.3.

   [8] Meeks also argued in a supplemental protest that the Navy improperly
   downgraded the firm for not providing a company-wide recruiting and
   retention plan, and that the alleged requirement to submit such a plan was
   both unreasonable and an undisclosed evaluation factor. We think the
   record confirms that the Navy only sought and evaluated whether Meeks had
   a reasonable plan to recruit and retain the personnel that it was
   proposing for performance of this contract. Supplemental Legal Memorandum
   at 9.