TITLE: B-309752.8, Kellogg, Brown & Root Services, Inc.--Reconsideration, December 20, 2007
BNUMBER: B-309752.8
DATE: December 20, 2007
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B-309752.8, Kellogg, Brown & Root Services, Inc.--Reconsideration, December 20, 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: Kellogg, Brown & Root Services, Inc.--Reconsideration

   File: B-309752.8

   Date: December 20, 2007

   DECISION

   Kellogg, Brown & Root Services, Inc. (KBRSI) asks that we reconsider our
   decision, Contingency Mgmt. Group, LLC; IAP Worldwide Servs., Inc.,
   B-309752 et al., Oct. 5, 2007, 2008 CPD para. ___, in which we sustained
   the protests of the award of contracts to KBRSI, Fluor Intercontinental,
   Inc., and DynCorp International under request for proposals (RFP) No.
   W52P1J-06-R-0049, issued by the Army Sustainment Command, Department of
   the Army, for logistics support on a global basis. In its request for
   reconsideration, KBRSI complains that in sustaining the protests, our
   Office failed to find competitive prejudice, improperly relied on
   information outside of the contemporaneous evaluation and source selection
   record in determining that the agency misunderstood an aspect of KBRSI's
   technical proposal, misconstrued a government audit report regarding
   KBRSI's business systems, and improperly recommended that discussions be
   reopened.

   We deny the request for reconsideration.

   The acquisition was for Logistics Civil Augmentation Program (LOGCAP)
   Combat Support and Combat Service Support (CS/CSS) augmentation on a
   global basis. RFP at 14-17. The RFP provided for award of up to three
   indefinite-delivery/ indefinite-quantity contracts for a base period of 1
   year with nine 1-year options. Award was to be on a "best value" basis,
   considering management, past performance, technical (scenario), and
   cost/price. Id. at 99-102. Among the items evaluated was each offeror's
   response to a fictional "scenario" that was provided with the RFP. Id. at
   94-95. After conducting a comprehensive evaluation, the agency selected
   Fluor, KBRSI, and DynCorp for award, and two other offerors (Contingency
   Management Group, LLC, and IAP Worldwide Services, Inc.) protested.

   Our Office sustained the protest. We found that the agency's evaluation of
   Fluor's technical proposal was unreasonable and evidenced unequal
   treatment, given that Fluor's technical approach contained material that
   expressly differed from the assumptions set forth in the solicitation's
   scenario, and there was nothing in the contemporaneous evaluation record
   indicating that the agency considered the proposal's stated assumptions.
   We also found that the agency misunderstood KBRSI's technical approach to
   providing equipment, and evaluated this approach in a manner that was
   inconsistent with its evaluation of another offeror's proposal. We found
   that the agency misevaluated KBRSI's business systems under the management
   factor when it failed to adequately consider Defense Contract Audit Agency
   (DCAA) comments concerning KBRSI's business systems. Finally, we found
   that the agency did not adequately explain the basis for its evaluation of
   proposed staffing approaches, specifically what percentage or range of
   percentages of Host Country Nationals, Third Country Nationals, and
   Expatriates were acceptable or constituted a weakness or strength in the
   evaluation.

   We recommended that the Army reopen discussions, request and review
   revised proposals, evaluate those submissions consistent with the terms of
   the solicitation, and make a new source selection. In the event a proposal
   or proposals other than KBRSI's, Fluor's, and DynCorp's were found to
   represent the best value to the government, one or more of the contracts
   previously awarded should be terminated and a contract be awarded to the
   successful offeror or offerors in accordance with the terms of the RFP.

   Under our Bid Protest Regulations, to obtain reconsideration, the
   requesting party must set out the factual and legal grounds upon which
   reversal or modification of the decision is deemed warranted, specifying
   any errors of law made or information not previously considered. 4 C.F.R.
   sect. 21.14(a)(2007). The repetition of arguments made during our
   consideration of the original protest and mere disagreement with our
   decision do not meet this standard. R.E. Scherrer, Inc.--Recon.,
   B-231101.3, Sept. 21, 1988, 88-2 CPD para. 274. As discussed below, KBRSI
   fails to satisfy the standard for reconsideration.

   For example, in its request for reconsideration, KBRSI does not challenge
   our conclusion that Fluor's proposal contained material that expressly
   differed from the assumptions set forth in the solicitation's scenario, or
   our conclusion that there is nothing in the contemporaneous evaluation
   record indicating that the agency considered the proposal's stated
   assumptions. In other words, KBRSI has not pointed to any factual or legal
   error warranting our reconsideration of this aspect of the underlying
   decision. Instead, KBRSI simply complains that the underlying decision
   "failed to find competitive prejudice" and that, even if there were
   prejudice, a reevaluation of Fluor's proposal, as opposed to reopening
   discussions and requesting and evaluating revised proposals, was all that
   would be necessary under the circumstances. Reconsideration Request at 3
   n.2.

   KBRSI's arguments provide no basis to reconsider our decision that
   offerors were prejudiced by the agency's actions with respect to Fluor's
   proposal. It is well settled that prejudice is an essential element of
   every viable protest, McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD
   para. 54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1681 (Fed.
   Cir. 1996), and although we did not expressly address prejudice in our
   decision, competitive prejudice is implicit in any decision in which we
   sustain the protest, and we considered, and found, prejudice here as well.
   KBRSI's other arguments reflect only mere disagreement with our
   recommendation for corrective action, which, as noted above, does not meet
   the standard for reconsideration. We believe that the reopening of
   discussions and the request for, and the evaluation of, revised proposals,
   continues to be the appropriate remedy because it will allow the agency to
   correct a material and prejudicial flaw in its conduct of the procurement
   by affording it the opportunity to discuss with Fluor its scenario
   assumptions and, with respect to the other competitive range offerors, it
   will allow the agency to discuss perceived areas of concern with their
   proposals. The bottom line is that, as a result of reopening discussions,
   all offerors will be given a meaningful and equal opportunity to compete.
   On this record, there is no basis for our Office to reconsider the
   underlying decision addressing the evaluation of Fluor's proposal.

   Next, KBRSI's requests reconsideration of our decision that the agency
   misunderstood KBRSI's technical approach to providing equipment and
   evaluated this approach in a manner that was inconsistent with its
   evaluation of another offeror. Reconsideration Request at 10-18. In our
   decision, we pointed to language in KBRSI's proposal, where KBRSI
   described [DELETED] as an "in-country vendor" that could "immediately
   provide" KBRSI with the heavy equipment required, adding that the use of
   "rental equipment that was available locally . . . eliminate[d] the need
   to ocean freight the heavy equipment." Id. at 14; KBRSI TEP at CS-94;
   KBRSI Cost/Price Volume at 792. In our view, the fact that [DELETED]
   planned to obtain the equipment from a source within Sierra Leone was
   confirmed by a written statement from KBRSI's counsel, made during the
   course of our consideration of the protests, that "[i]t is KBR[SI]'s
   position, as stated in KBR[SI]'s proposal, that the equipment IS available
   locally." KBRSI's Counsel's E-mail (Aug. 28, 2007). Again, since the
   evaluation and rating of KBRSI's proposal under the technical evaluation
   factor as "good" overall was, at least in part, predicated on the agency's
   apparent misunderstanding of this aspect of KBRSI's technical approach
   (that is, the agency believed that [DELETED] would acquire the heavy
   equipment from outside Sierra Leone), we could not find the evaluation
   reasonable. Decision at 14.

   KBRSI objects to our referral to a written statement of its counsel during
   the development of this protest, arguing that the statement was not part
   of the contemporaneous evaluation and source selection record, and
   therefore should not have been considered. Reconsideration Request at
   13-14, 16-17. KBRSI points to nothing that would preclude our
   consideration of this statement as it relates to the client's proposal.[1]
   Furthermore, based on a reasonable reading of KBRSI's technical and cost
   proposal and after giving reasonable consideration to the contemporaneous
   evaluation and source selection record, we concluded that [DELETED],
   KBRSI's proposed supplier of heavy equipment, planned to acquire these
   items for lease to KBRSI from a source inside, not outside, of Sierra
   Leone. Thus, the statement of KBRSI's counsel was not the primary basis
   for our conclusion; rather, this statement merely served to confirm our
   view of the documents in the contemporaneous record.

   KBRSI also disagrees with the merits of the underlying decision, pointing
   in great detail to, among other things, sections of its technical and cost
   proposal to support its position that [DELETED] was not acquiring the
   heavy equipment locally, but was going to use sources outside of Sierra
   Leone to acquire these items. Reconsideration Request at 13-18. However,
   as stated previously, under our Regulations, to obtain reconsideration,
   the requesting party must show that our prior decision may contain either
   errors of fact or law or present information not previously considered
   that warrants reversal or modification of our decision. 4 C.F.R.
   sect.21.14(a) (emphasis added). Information not previously considered
   means information that was not available to one of the parties, in this
   case KBRSI, when the initial protest was filed. Failure to make all
   arguments or to submit all information available during the course of the
   initial protest undermines the goals of our bid protest forum--to produce
   fair and equitable decisions based on consideration of the arguments of
   all parties on a fully developed record--and cannot justify
   reconsideration of our prior decision. See, e.g., Brooks Towers,
   Inc.--Recon., B-255944.3, Dec. 29, 1994, 95-1 CPD para. 4 at 3; U.A.
   Anderson Constr. Co.--Recon., B-244711.2, Jan. 23, 1992, 92-1 CPD para.
   106 at 2. Here, KBRSI's methodical "walks through" of the contents of its
   technical and cost proposal to show that [DELETED] would be acquiring
   heavy equipment from sources outside of Sierra Leone (rather than using
   local, in-country sources), in addition to being information KBRSI could
   have submitted during consideration of the protest, does not alter our
   view of the record and thus does not provide a basis for reconsideration.

   KBRSI also complains that our underlying decision failed to address
   prejudice, maintaining that given the differential in costs/prices between
   its proposal and the proposals of CMG and IAP, the protesters were not
   prejudiced by any alleged flaw in the agency's evaluation of its technical
   proposal regarding the [DELETED] matter. Reconsideration Request at 10-13.
   Notwithstanding the differential in costs/prices between the proposal of
   KBRSI and the proposals of CMG and IAP, we continue to conclude that the
   protesters were prejudiced by the above-described evaluation flaws
   regarding the RFP's technical scenario. In this regard, the
   contemporaneous evaluation and source selection record showed that, not
   only did the agency have concerns with KBRSI's technical proposal being
   less than clear in terms of where [DELETED] would acquire heavy equipment
   for use by KBRSI, a matter that should have been resolved during
   discussions, but also, that the agency did not equally evaluate proposals
   against the same standard. Because of these problems, we did not know, and
   we would not speculate, how a reasonable and equal evaluation of the
   proposals would have affected the ultimate source selection decision. In
   such circumstances, we resolve any doubts regarding prejudice in favor of
   a protester since a reasonable possibility of prejudice is a sufficient
   basis for sustaining a protest. See, e.g., Creative Info. Tech., Inc.,
   B-293073.10, Mar. 16, 2005, 2005 CPD para. 110 at 9; Cygnus Corp., Inc.,
   B-292649.3, B-292649.4, Dec. 30, 2003, 2004 CPD para. 162 at 7; Department
   of Energy--Recon.; Sprint Communications Co.--Recon., B-250516.4,
   B-250516.5, Aug. 20, 1993, 93-2 CPD para. 111 at 6; IRT Corp., B-246991,
   Apr. 22, 1992, 92-1 CPD para. 378 at 6. For these reasons, and in order to
   remedy the described evaluation flaws identified in our decision, we
   recommended reopening discussions and evaluating revised proposals, a
   recommendation that KBRSI disagrees with, but has not shown to be
   unreasonable.

   KBRSI also challenges our conclusion that the agency misevaluated KBRSI's
   business systems under the management factor when it failed to adequately
   consider DCAA comments concerning KBRSI's business systems, and asserts
   that CMG and IAP were not prejudiced by the agency's failure to explain
   what percentages of host country nationals would be considered acceptable
   or characterized as a strength or weakness. Reconsideration Request at
   3-10. We again conclude that KBRSI's position on reconsideration
   constitutes mere disagreement with the underlying decision.

   In sum, we conclude that KBRSI has failed to articulate any error of fact
   or law, or to point to any information not previously considered, that
   would warrant reconsideration of the underlying decision.

   The request for reconsideration is denied.

   >

   Gary L. Kepplinger
   General Counsel

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

   [1] In appropriate circumstances, we also consider, for example, protest
   hearing testimony and declarations and affidavits filed with protest
   submissions, none of which are part of an agency's contemporaneous
   evaluation and source selection record.