TITLE: B-310966.2, Alanna Orr, May 14, 2008 MACROBUTTON nomacro
BNUMBER: B-310966.2
DATE: May 14, 2008 MACROBUTTON nomacro
********************************************************
B-310966.2, Alanna Orr, May 14, 2008 MACROBUTTON nomacro

   Decision

   Matter of: Alanna Orr

   File: B-310966.2

   Date: May 14, 2008

   Alanna Orr for the protester.
   Elin M. Dugan, Esq., for the Department of Agriculture.
   Frank Maguire, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that successful quotation did not include adequate technical
   proposal, that agency improperly provided sample quality control program
   to successful vendor, and that successful vendor submitted plagiarized
   technical documents is denied where stated evaluation factors included
   only price and past performance; since evaluation of vendors' technical
   proposals, including quality control program and technical documents, was
   not a factor in evaluation, allegations regarding technical proposal do
   not provide a basis for challenging selection decision.

   DECISION

   Alanna Orr protests the issuance of a purchase order to Jan Breakfield
   under request for quotations (RFQ) No. SO5SC0908278, issued by the
   Department of Agriculture, U.S. Forest Service, for janitorial services.
   The protester contends that Ms. Breakfield's quotation did not comply with
   technical requirements of the RFQ, that the agency improperly provided a
   sample quality control program to her, that she submitted plagiarized
   technical documents, and that she received preferential treatment.

   We deny the protest.

   The RFQ requested quotations for janitorial services at the Forest
   Service's Big Valley Ranger District Office for a period of 1 year, with
   two 1-year options. The RFQ, in the statement of work (SOW), required that
   vendors establish a quality control program and an operating plan, setting
   forth, inter alia, a schedule of services, areas to be serviced, and
   estimated time to complete work in each area. RFQ at 5-6. The RFQ provided
   that the government would issue an order "to the responsible quoter whose
   quote conforming to the solicitation will be most advantageous to the
   Government, price and relative past performance considered." Id. at 38.

   Quotations were received from Ms. Orr and Ms. Breakfield. The agency
   ultimately selected Ms. Breakfield's quotation on the basis of her
   significantly lower price. Agency Report (AR) at 54-55, Contracting
   Officer's Statement, Dec. 20, 2007. On December 17, 2007, Ms. Orr filed a
   protest in our Office challenging issuance of the order to Ms. Breakfield,
   contending that Ms. Breakfield's quotation did not comply with
   requirements of the RFQ, that Ms. Breakfield (but no other vendor)
   improperly had been provided a sample quality control program, and that
   Ms. Breakfield received preferential treatment as a result of her
   relationship with an employee in the contracting office. Subsequent to the
   filing of that protest, the agency advised us that it would take
   corrective action by assigning a different evaluator and reevaluating the
   quotations based only on past performance and price, as provided by the
   RFQ. Based on this corrective action, we dismissed the protest as academic
   (B-310966, Jan. 16, 2008).

   The new evaluator evaluated the quotations based on price and past
   performance. Using a numerical points system, he ranked Ms. Orr's
   quotation higher than Ms. Breakfield's in past performance, but lower on
   price with regard to every line item. Following the reevaluation, the
   contracting officer again issued the purchase order to Ms. Breakfield,
   finding that, "taking into consideration both price and past performance,"
   her quotation provided "the best value to the government." AR at 38. This
   protest followed.

   Ms. Orr challenges the selection on the basis that technical information
   included in Ms. Breakfield's quotation was inadequate in several respects.
   Specifically, Ms. Orr claims that Ms. Breakfield failed to provide an
   adequate quality control program and operating plan and did not provide
   for the use of approved products or address specific cleanliness
   requirements set forth in the solicitation, consistent with the RFQ. Ms.
   Orr further contends that the quality control program included in
   Ms. Breakfield's quotation was copied from a sample program provided to
   her, but no other vendor, by the agency, and that other technical
   documents were plagiarized. Protest at 3.

   Agencies are required to evaluate quotations and base ordering decisions
   only on evaluation factors stated in the RFQ. Ann Riley & Assocs.,
   Ltd., B-241309.2, Feb. 8, 1991, 91-1 CPD para. 142; Federal Acquisition
   Regulation (FAR) sect. 13.106-2. Here, as noted above, the stated
   evaluation factors included only price and past performance; nothing in
   the RFQ provided for evaluation of any technical information included with
   the quotations. Accordingly, evaluation of vendors' technical information
   would have been improper, and the adequacy of those proposals thus could
   not have been a factor in the agency's source selection decision. See,
   e.g., Cellular One, B-250854, Feb. 23, 1993,  93-1 CPD para. 169 at 4.[1]
   This is the case notwithstanding that the RFQ specifically called for
   vendors to provide additional information regarding performance of the
   requirement. Solicitations may establish informational, technical,
   administrative, and other requirements that are not to be included in the
   evaluation process. See, e.g., All Phase Envtl., Inc., B-292919.2 et al.,
   Feb. 4, 2004, 2004 CPD para. 62 at 4 (informational requirements included
   in solicitation's instructions were not evaluation criteria); JW
   Associates, Inc., B-275209.3, 97-2 CPD para. 27 at 3 (protest that
   awardee's proposal failed to include sufficient explanation of its
   technical approach denied where evaluation criteria included no "technical
   approach" criterion); SWR Inc., B-286044.2, B-286044.3, Nov. 1, 2000, 2000
   CPD para. 174 at 4 (quality control plan and phase-in plan were mandatory
   parts of every offer, but solicitation provided that only price and past
   performance would be evaluated).

   Since the technical information underlying the protest assertions did not
   affect the selection decision, any impropriety regarding that information
   did not result in competitive prejudice to Ms. Orr. Prejudice is an
   essential element of every viable protest and, where it is not
   demonstrated or otherwise evident, we will not sustain a protest
   allegation, even where the record shows that the agency's actions arguably
   were improper. GC Servs. Ltd. P'ship, B-298102, B-298102.3, June 14, 2006,
   2006 CPD para. 96 at 7-8. The protester's assertions regarding the
   adequacy of Ms. Breakfield's technical proposal therefore do provide a
   basis for questioning the selection decision.[2]

   Ms. Orr alleges that an employee in the agency's contracting office had a
   "familial/friendship" relationship with Ms. Breakfield. More specifically,
   Ms. Orr seems to claim that Ms. Breakfield's mother-in-law was employed at
   the facility, that the contracting officer's representative (COR) who
   conducted the original evaluation was a friend of the mother-in-law's, and
   that the evaluator who conducted the new evaluation was a friend of the
   COR's. Ms. Orr concludes that these relationships unfairly influenced the
   evaluation. Protest at 3, exh. H.

   Our Office will not attribute unfair or prejudicial motives to procurement
   officials on the basis of inference or supposition. Such allegations must
   be supported by convincing proof. Midwest Metals, B-299805, July 17, 2007,
   2007 CPD para. 131 at 3 n.2. In addition to producing credible evidence
   showing bias, the protester must demonstrate that any bias translated into
   action that unfairly affected the protester's competitive position.
   RTF/TCI/EAI Joint Venture, B- 280422.3, Dec. 29,1998, 98-2 CPD para. 162
   at 6. Ms. Orr has not met this standard.

   The agency removed the COR from the evaluation process following the
   original protest, and Ms. Orr's speculation based on the fact that
   Ms. Breakfield's relative worked in the office and that other employees
   involved in the evaluation may have been friendly with her, does not
   constitute the convincing proof required in order for us to conclude that
   the evaluation was biased. Nor, in any case, is there any showing that any
   bias translated into improprieties in the evaluation. As discussed, the
   agency's actions about which Ms. Orr complains--the manner in which the
   agency applied the RFQ requirements concerning the technical
   proposals--were consistent with the evaluation scheme in the RFQ, and
   there is no evidence that the new evaluator acted improperly or that the
   evaluation was inconsistent with the RFQ or otherwise unreasonable. Ms.
   Orr has raised no viable challenge to the agency's price and past
   performance evaluation, which was the basis for the selection decision. We
   note, moreover, that the best value decision was driven primarily by
   Ms. Breakfield's low price, an objective discriminator. There thus is no
   basis for a finding of bias in the selection decision.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] To the extent the protester believes technical proposals should have
   been included in the agency's evaluation scheme, it was required to
   protest on that ground prior to the deadline for receipt of quotations.
   Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2008). Since Ms. Orr
   did not protest until after issuance of the purchase order, any protest on
   this ground is untimely. SWR Inc., supra, at 4; K9 Operations, Inc.,
   B-299923, Aug. 6, 2007, 2007 CPD para. 146 at 3.

   [2] Ms. Orr complains that Ms. Breakfield improperly was permitted to
   submit a second quality control program. Protest at 3. Again, given that
   the program was not part of the evaluation, Ms. Orr suffered no
   competitive prejudice from this alleged action. In any case, moreover, we
   note that the RFQ specifically provided for amendments to the quality
   control program on approval of the contracting officer. RFQ at 5.