TITLE: B-299929; B-299929.3; B-299929.5, AlliedBarton Security Services LLC, October 9, 2007
BNUMBER: B-299929; B-299929.3; B-299929.5
DATE: October 9, 2007
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B-299929; B-299929.3; B-299929.5, AlliedBarton Security Services LLC, October 9, 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: AlliedBarton Security Services LLC

   File: B-299929; B-299929.3; B-299929.5

   Date: October 9, 2007

   Daniel B. Abrahams, Esq., and Michael D. Maloney, Esq., Epstein, Becker &
   Green, P.C.; and W. Jay DeVecchio, Esq., David A. Churchill, Esq., Kevin
   C. Dwyer, Esq., and Daniel E. Chudd, Esq., Jenner & Block LLP, for the
   protester.

   Audrey H. Liebross, Esq., Federal Emergency Management Agency, 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 challenging agency's eligibility determination under the
   authority of the Robert T. Stafford Disaster Relief and Emergency
   Assistance Act, 42 U.S.C. sect. 5150, is denied where the agency
   reasonably concluded that the protester was not a firm residing or doing
   business primarily in the designated set-aside location.

   2. Protester is not an interested party for purposes of challenging the
   successful vendor's eligibility for receipt of a task order where the
   record shows that, even if the protest were sustained on this ground, an
   intervening vendor would be next in line for selection.

   DECISION

   AlliedBarton Security Services LLC protests the issuance of a task order
   to Inner Parish Security Corporation pursuant to request for quotations
   (RFQ) No. HSFEHQ-07-Q-0052, issued by the Federal Emergency Management
   Agency (FEMA), Department of Homeland Security, for armed guard services
   for FEMA housing site locations in the New Orleans, Louisiana area.
   AlliedBarton argues that the agency's determination, pursuant to the
   Robert T. Stafford Disaster Relief and Emergency Assistance Act, as
   amended, 42 U.S.C. sect. 5121 et seq. (2000) (the Stafford Act), that it
   was not a firm residing or primarily doing business in the state of
   Louisiana, and therefore was ineligible for receipt of a task order under
   the RFQ, was unreasonable. The protester also claims that FEMA's
   evaluation of Inner Parish's quotation was improper.

   We deny the protest.

   BACKGROUND

   The RFQ, issued on April 11, 2007, to holders of General Services
   Administration (GSA) Federal Supply Schedule (FSS) contracts for guard
   services, contemplated the issuance of a time-and-materials type task
   order with fixed unit prices and quantities specified by the agency for a
   base period of 2 months together with ten 6-month options. The
   solicitation included a statement of work (SOW), instructions to vendors
   on the submission of quotations, and evaluation factors for award. The RFQ
   established four technical evaluation factors, in descending order of
   importance--technical approach, management plan, personnel, and past
   performance--as well as price. The technical factors, when combined, were
   significantly more important than price. The agency would select the
   vendor whose quotation represented the overall best value to the agency,
   all factors considered. RFQ amend. 2, Instructions to Vendors, at 11-13.
   Additionally, under the authority of the Stafford Act, the RFQ set aside
   the procurement for firms residing or doing business primarily in the
   state of Louisiana. Id. at 1-2.

   Eight vendors, including AlliedBarton and Inner Parish, submitted
   quotations by the May 17 closing date. The agency then conducted
   technical, price, and Stafford Act eligibility evaluations of vendors'
   quotations. The agency's final evaluation ratings of the quotations
   submitted by AlliedBarton and Inner Parish were as follows:

   +---------------------------------------------------------------+
   |Factor                    |   AlliedBarton   |  Inner Parish   |
   |--------------------------+------------------+-----------------|
   |Technical Approach        |    Very Good     |    Very Good    |
   |--------------------------+------------------+-----------------|
   |Management Plan           |   Exceptional    |    Very Good    |
   |--------------------------+------------------+-----------------|
   |Personnel                 |    Very Good     |    Very Good    |
   |--------------------------+------------------+-----------------|
   |Past Performance          |    Very Good     |    Very Good    |
   |--------------------------+------------------+-----------------|
   |Overall                   |    Very Good     |    Very Good    |
   |--------------------------+------------------+-----------------|
   |Stafford Act Eligible     |        No        |       Yes       |
   |--------------------------+------------------+-----------------|
   |Price                     |   $238,937,006   |  $241,225,283   |
   +---------------------------------------------------------------+

   Agency Report (AR), Tab 9, Consensus Report, at 10-11; Tab 10, Consensus
   Technical Report, at 4-29. The agency subsequently determined that Inner
   Parish's quotation, which was lowest-priced among the most highly
   technically-rated, eligible vendors, represented the best value to the
   agency.[1] Id., Tab 11, Source Selection Decision, at 1. These protests
   followed.

   DISCUSSION

   AlliedBarton's protest raises numerous issues regarding the agency's
   evaluation of both its and Inner Parish's quotations. Of foremost
   importance, AlliedBarton protests that FEMA improperly determined that,
   for purposes of the Stafford Act, it was not a business residing in the
   state of Louisiana. The protester also challenges the agency's
   determination that Inner Parish was a firm residing or doing business
   primarily in the state of Louisiana. Lastly, AlliedBarton argues that the
   agency's evaluation of Inner Parish's quotation with regard to the
   vendor's experience and past performance was unreasonable.[2] For the
   reasons set forth below, we find FEMA's Stafford Act eligibility
   determination of AlliedBarton to be reasonable; as a result, we also find
   AlliedBarton is not an interested party to pursue its other bases of
   protest.[3]

   AlliedBarton's Stafford Act Eligibility

   AlliedBarton first protests that the agency improperly determined that it
   was not eligible for selection here under the Stafford Act. The protester
   argues that FEMA's determination that it was not a firm residing or doing
   business primarily in the state of Louisiana was unreasonable and lacked
   adequate documentation. While AlliedBarton does not contend that it
   primarily does business in Louisiana, the protester contends that it is a
   firm residing in Louisiana for purposes of the Stafford Act.

   Pursuant to the authority of section 307 of the Stafford Act, 42 U.S.C.
   sect. 5150, amended by the Post Katrina Emergency Management Reform Act,
   Pub. L. No. 109-295, sect. 694, 120 Stat. 1355 (2006), and the SAFE Port
   Act, Pub. L. No. 109-347, sect. 611, 120 Stat. 1943 (2006), agencies may
   provide a preference to or set aside disaster relief recovery contracts to
   individuals or firms either residing or doing business primarily in the
   designated location. In its entirety, the Stafford Act provision at issue
   here states:

   Use of Local Firms and Individuals

   (a) Contracts or Agreements With Private Entities-

   (1) In General -- In the expenditure of Federal funds for debris
   clearance, distribution of supplies, reconstruction, and other major
   disaster or emergency assistance activities which may be carried out by
   contract or agreement with private organizations, firms, or individuals,
   preferences shall be given, to the extent feasible and practicable, to
   those organizations, firms, and individuals residing or doing business
   primarily in the area affected by such major disaster or emergency.

   * * * * *

   (3) Specific Geographic Area -- In carrying out this section, a contract
   or agreement may be set aside for award based on a specific geographic
   area.[4]

   42 U.S.C. sect. 5150.

   Accordingly, the RFQ here was limited to firms residing or primarily doing
   business in Louisiana, and incorporated Federal Acquisition Regulation
   (FAR) clause 52.226-3, "Disaster or Emergency Area Representation." RFQ
   amend. 2, at 55. Further, the solicitation provided vendors with
   additional "guidance on what constitutes a firm residing or primarily
   doing business in the State of Louisiana."[5] Id., Instructions to
   Vendors, at 1-2. The RFQ also stated that "[i]f these factors establish by
   a preponderance of the evidence that the firm in question resides or
   primarily does business in the State of Louisiana, then said firm shall be
   categorized as such." Id. at 2.

   AlliedBarton's quotation included the required volume addressing its
   Stafford Act eligibility. The protester's quotation set forth in detail
   its ties to Louisiana, in a format consistent with the RFQ's quotation
   preparation guidance factors, and included copies of its certificate of
   incorporation and various Louisiana state licenses.[6] AR, Tab 6,
   AlliedBarton's Quotation, vol. III, Stafford Act Evidence.

   The agency subsequently determined that AlliedBarton was neither residing
   nor primarily doing business in Louisiana. AR, Tab 9, Consensus Report, at
   10. As expressed in a statement filed with FEMA's report to our Office,
   the contracting officer considered relevant that AlliedBarton was
   incorporated in Delaware, had its corporate headquarters in Pennsylvania,
   and identified Arlington, Virginia as the location of its primary point of
   contact for government business. Contracting Officer's Statement, July 17,
   2007, at 1. The contracting officer also stated as follows:

   I balanced the factors in Federal Acquisition Regulation 52.226-3 to
   determine whether the company resides in or primarily does business in
   Louisiana. Favoring a decision that the company resides in or primarily
   does business in Louisiana is the fact that it has been working in
   Louisiana for 20 years and has had a Louisiana office since November 2002,
   before Hurricane Katrina struck. On the other hand, its teaming agreement
   with a local company did not provide sufficient assurance that the local
   company would provide 50% of the cost of the guard workforce. Furthermore,
   AlliedBarton indicated that its local office employs 200 individuals, but
   it did not state anywhere that the individuals employed at the local
   office are themselves local. Finally, AlliedBarton's 2006 Louisiana gross
   revenues account for only about one percent of its total gross revenues.

   Id. at 1-2. The contracting officer concluded that, in her opinion,
   AlliedBarton had not satisfied the burden of demonstrating that it either
   resided or did business primarily in Louisiana. Id. at 2.

   AlliedBarton does not dispute the contracting officer's finding that only
   one percent of its total gross revenues comes from Louisiana; rather,
   AlliedBarton contends that this fact is irrelevant to a determination of
   whether it resides there. Protest at 2 n.2. The protester also does not
   dispute the contracting officer's findings that its teaming agreement did
   not provide assurance that the local company would provide 50 percent of
   the cost, or that AlliedBarton's quotation failed to indicate that the
   200 individuals employed by its local office were themselves local. See
   Comments, Aug. 8, 2007, at 19. Rather, AlliedBarton alleges that these
   were merely post-hoc rationalizations by the agency to which our Office
   should not give any weight. The protester also argues that FEMA's Stafford
   Act eligibility determination was inadequately documented, unreasonable,
   and failed to consider much of the specific evidence that AlliedBarton
   submitted establishing its residency within Louisiana. We disagree.

   Where, as here, an agency issues an RFQ to FSS contractors under FAR
   Subpart 8.4 and conducts a competition (see FAR sect. 8.405-2), we will
   review the record to ensure that the agency's evaluation is reasonable and
   consistent with the terms of the solicitation. See GC Servs. Ltd. P'ship,
   B-298102, B-298102.3, June 14, 2006, 2006 CPD para. 96 at 6; RVJ Int'l,
   Inc., B-292161, B-292161.2, July 2, 2003, 2003 CPD para. 124 at 5. In
   reviewing an agency's evaluation of quotations, our Office will not
   reevaluate quotations, but instead will examine the record to determine
   whether the agency's judgment was reasonable and in accord with the stated
   evaluation criteria and applicable procurement statutes and regulations.
   Sumaria Sys., Inc., B-299517,
   B-299517.2, June 8, 2007, 2007 CPD para. 122 at 7.

   In reviewing an agency's evaluation, we do not limit our review to
   contemporaneous evidence, but consider all the information provided,
   including the parties' arguments, explanations, and any hearing testimony.
   Remington Arms Co., Inc., supra, at 10. While we generally give little
   weight to reevaluations and judgments prepared in the heat of the
   adversarial process, Boeing Sikorsky Aircraft Support, B-277263.2,
   B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15, post-protest
   explanations that provide a detailed rationale for contemporaneous
   conclusions simply fill in previously unrecorded details, and will
   generally be considered in our review of the rationality of selection
   decisions, so long as those explanations are credible and consistent with
   the contemporaneous record. NWT, Inc.; PharmChem Labs., Inc.,
   B-280988,  B-280988.2, Dec. 17, 1998, 98-2 CPD para. 158 at 16. While the
   record documenting the agency's eligibility determination lacks details,
   nonetheless, based on the entire record in this case, we conclude that
   FEMA did undertake a Stafford Act eligibility determination of vendors,
   including AlliedBarton, prior to its award decision. Moreover, the
   contracting officer's statement here does not involve after-the-fact,
   subjective judgments; rather, we view the post-protest documentation here
   as merely a memorialization of a contemporaneous analysis.[7]

   Further, as explained in detail below, our review of the record indicates
   that FEMA's evaluation of AlliedBarton's quotation and resulting
   determination that the vendor was not a firm residing (or doing business
   primarily) in Louisiana for purposes of the Stafford Act was reasonable
   and consistent with the stated evaluation criteria. The record reflects
   that the contracting officer properly considered the information which
   AlliedBarton submitted as well as other relevant information. Although we
   do not specifically address all of the protester's arguments about the
   evaluation of its quotation, we have fully considered all of them and find
   that they afford no basis to question the agency's Stafford Act
   eligibility determination.

   As a preliminary matter, we note that both the relevant FAR clause and the
   additional solicitation guidance provided to vendors regarding what
   constitutes residing or primarily doing business in Louisiana set forth
   non-exclusive lists of factors to be considered as part of the agency's
   determination. Thus, it was not improper for the agency to consider
   information beyond that which the RFQ required vendors to submit. Further,
   the FAR clause does not express which factors are considered relevant to
   the "residing" prong, and which are relevant to the "doing business
   primarily" prong, of a Stafford Act eligibility determination. The FAR
   clause also does not state how the factors are to be weighed, or preclude
   giving different weights to different factors. Accordingly, our review
   focuses on whether the agency's determination was reasonable and
   consistent with the stated evaluation criteria, all factors considered.

   We find that FEMA's determination regarding AlliedBarton's Stafford Act
   eligibility was a reasonable one. As set forth above, the contracting
   officer properly considered where the vendor was incorporated, where it
   had its corporate headquarters, and the location of the company's
   government business primary point of contact, all of which were outside
   Louisiana. The contracting officer also considered information contained
   within the vendor's quotation favoring a decision that the company resided
   in Louisiana, as well as information to the contrary.[8] The contracting
   officer then balanced the factors set forth in FAR clause 52.226-3 and
   concluded that AlliedBarton had not satisfied the burden of demonstrating
   that it either resided or did business primarily in Louisiana. Once an
   agency has given meaningful consideration to all relevant information, a
   protest challenging an agency's evaluation of such information will not be
   sustained unless the agency's judgments were unreasonable or contrary to
   the stated evaluation criteria. See Kay & Assocs., Inc.,  B-291269, Dec.
   11, 2002, 2003 CPD para. 12 at 4; see also Alion Sci. & Tech. Corp.,
   B-297022.4, B-297022.5, Sept. 26, 2006, 2006 CPD para. 146 at 8. We find
   the protester's challenge to the agency's evaluation here amounts to mere
   disagreement with the agency's judgment and thus does not establish that
   the evaluation was unreasonable. JAVIS Automation & Eng'g, Inc.,
   B-293235.6, Apr. 29, 2004, 2004 CPD para. 95 at 5.

   AlliedBarton also asserts that the agency's Stafford Act determination was
   improper because the agency believed that a business concern could not
   reside in multiple places simultaneously. The protester essentially argues
   that the contracting officer focused too heavily, if not exclusively, on
   AlliedBarton's state of incorporation. While the protester does not
   dispute that it is incorporated in Delaware and headquartered in
   Pennsylvania, it argues that if, under the Stafford Act, "residing" was to
   mean only where a company was incorporated or had its principal place of
   business, then Congress, or the FAR, would have reflected that view.
   Comments, Aug. 8, 2007, attach. 1, Comments in GAO Protest B-299978,
   at 10-11. The protester's argument is not supported by the record. The
   record indicates that the agency did not interpret the term "residing" to
   mean only where a firm was incorporated or headquartered; rather, the
   contracting officer reasonably considered all relevant information,
   including, but not limited to, where AlliedBarton was incorporated and
   headquartered as part of her determination.

   AlliedBarton also argues that there is no documentation in the record
   establishing that the agency considered much of its Stafford Act evidence,
   including its list of customers in various Louisiana cities, its local
   offices, the fact that AlliedBarton had been licensed in Louisiana since
   1983, the firm's relationships with local vendors and subcontractors, and
   other information submitted by AlliedBarton which, the firm asserts,
   establishes that AlliedBarton resides in Louisiana. AlliedBarton argues
   that even the contracting officer's post-protest statement fails to
   indicate that FEMA considered all the evidence presented by AlliedBarton
   on this matter. AlliedBarton argues that, in light of the agency's alleged
   failure to consider all relevant information, the conclusion that the firm
   did not reside in Louisiana was unreasonable. Comments at 29-32.

   The record does not support AlliedBarton's assertion that FEMA ignored
   specific evidence submitted by the vendor and favoring a determination
   that the firm was residing in Louisiana. Instead, the record reflects that
   the agency reviewed the evidence submitted by AlliedBarton and balanced
   the factors set forth in FAR clause 52.226-3 when determining the firm's
   Stafford Act eligibility. There is simply no requirement that the agency
   restate each favorable aspect of the vendor's quotation, or the complete
   list of evaluation criteria set forth in the applicable FAR clause, as
   part of its determination. See SAMS El Segundo, LLC, B-291620, B-291620.2,
   Feb. 3, 2003, 2003 CPD para. 44 at 18; Jacobs COGEMA, LLC, B-290125.2,
   B-290125.3, Dec. 18, 2002, 2003 CPD para. 16 at 22.

   Other Protest Issues

   AlliedBarton protests that the agency improperly determined that Inner
   Parish qualified as a firm residing or doing business primarily in
   Louisiana, and that the agency's evaluation of the firm's technical
   quotation was also unreasonable. AlliedBarton is not an interested party
   to raise these issues.

   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. Bid Protest Regulations, 4
   C.F.R. sections 21.0(a)(1), 21.1(a) (2007); 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 successful vendor's
   quotation where there is a reasonable possibility that the protester's
   quotation would be in line for selection if its 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. Here, AlliedBarton is
   ineligible for selection because, as discussed above, the agency
   reasonably found it not to be a firm residing or doing business primarily
   in the RFQ's designated set-aside area. Given that there are other
   eligible vendors that would be in line for selection even if
   AlliedBarton's challenge to FEMA's evaluation of Inner Parish's quotation
   were sustained, we consider AlliedBarton's interest to be too remote to
   qualify it as an interested party to pursue these issues. See Ridoc
   Enter., Inc., supra.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The agency determined that, in addition to Inner Parish, five other
   vendors had also submitted technically acceptable quotations and were
   Stafford Act eligible. AR, Tab 9, Consensus Report, at 11.

   [2] AlliedBarton also originally protested that the agency's evaluation of
   its quotation under the technical approach factor was unreasonable.
   Protest, July 9, 2007, at 2-5. The agency specifically addressed this
   issue in its report to our Office, discussing how FEMA's evaluation of the
   protester's quotation was reasonable and consistent with the stated
   evaluation criteria. AR, July 29, 2007, at 7-9. As AlliedBarton's comments
   offered no rebuttal to the agency position here, see Comments, Aug. 8,
   2007, at 5-8, we regard this argument as abandoned. Remington Arms Co.,
   Inc.,
   B-297374, B-297374.2, Jan. 12, 2006, 2006 CPD para. 32 at 4 n.4.

   [3] After development of the record in these protests, the GAO attorney
   conducted an outcome prediction alternative dispute resolution (ADR)
   conference (for a description of GAO's outcome prediction ADR process, see
   Alaska Structures, Inc.--Costs, B-298575.4, Jan. 22, 2007, 2007 CPD para.
   15 at 4 n.4). He advised the parties that AlliedBarton's protest appeared
   to be without merit insofar as the record showed that FEMA's evaluation of
   the protester's Stafford Act eligibility was reasonable and consistent
   with the stated evaluation criteria, and that AlliedBarton was not an
   interested party to pursue its remaining bases of protest. The protester
   subsequently informed our Office that it did not intend to withdraw its
   protest based on this ADR session, but would rather have a written
   decision on the merits of its case.

   [4] For a description of the process by which the federal government
   provides federal assistance generally under the Stafford Act, see AshBritt
   Inc., B-297889, B-297889.2, Mar. 20, 2006, 2006 CPD para. 48 at 3-4.

   [5] The RFQ's guidance on what constitutes a firm residing or primarily
   doing business in Louisiana consisted of a non-exclusive list of factors
   to be considered by the agency that essentially restated the criteria set
   forth in FAR clause 52.226-3. For example, the list included location of
   the firm's permanent office, existing state licenses, and record of past
   work in the designated area.

   [6] AlliedBarton's quotation represented that the firm, among other
   things, had both permanent primary and satellite offices located in
   Louisiana, held a Louisiana state security license and was originally
   licensed in Louisiana in 1983, had continued to provide security services
   in Louisiana since 1983, had 200 permanent employees who worked in and
   mostly resided in Louisiana, had relationships with various vendors
   supporting its business, and was a member of various organizations with
   local chapters in Louisiana. AR, Tab 6, AlliedBarton's Quotation, vol.
   III, Stafford Act Evidence, at 2-5.

   [7] While we think it is unobjectionable here to consider the post-protest
   documentation offered by the agency to fill in the previously unrecorded
   details, the better practice clearly would have been to memorialize the
   details contemporaneously rather than after a protest was filed.

   [8] The protester does not dispute the validity of the information on
   which the contracting officer relied here supporting the determination
   that the firm was not residing in Louisiana.