B-175764(1), JUL 14, 1972

B-175764(1): Jul 14, 1972

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A RESUME REQUIREMENT IS A REASONABLE METHOD OF PROVIDING A BASIS FOR THAT EVALUATION. IT CANNOT BE SPECULATED AS TO WHETHER THEIR CONTEMPLATED PROPOSAL WOULD HAVE SATISFIED THE RESUME REQUIREMENTS. IT SHOULD BE NOTED THAT THE AWARD WAS MADE TO A CONTRACTOR OTHER THAN THE ALLEGED RECIPIENT OF THE INFORMATION. INCORPORATED: THIS IS IN REPLY TO YOUR LETTERS OF APRIL 19. WAS FOR BASE MANAGEMENT SERVICES IN THE AREAS OF SUPPLY. STATED THAT THE "MANAGEMENT AND TECHNICAL COMPETITION *** WILL BE THE MOST IMPORTANT FACTOR IN THE OVERALL EVALUATION.". QUALIFICATION AND EXPERIENCE OF PROPOSED PERSONNEL WAS LISTED AS AN EVALUATION FACTOR. WAS FURTHER AMPLIFIED AS FOLLOWS: "AS A MINIMUM. PROVE THAT QUALIFIED PERSONNEL WILL BE AT LAAFS ON 1 JULY 1972.".

B-175764(1), JUL 14, 1972

BID PROTEST - EVALUATION METHODS - RESUMES - SERVICE CONTRACT ACT DENIAL OF PROTEST BY MURCOLE, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE LOS ANGELES AIR FORCE STATION, CALIF., FOR BASE MANAGEMENT SERVICES IN THE AREAS OF SUPPLY, TRANSPORTATION, AND MAINTENANCE. SINCE THIS TYPE OF PROCUREMENT REQUIRES EVALUATION OF THE PROPOSALS, A RESUME REQUIREMENT IS A REASONABLE METHOD OF PROVIDING A BASIS FOR THAT EVALUATION. FURTHER, SINCE MURCOLE DID NOT SUBMIT A PROPOSAL FOR THIS REQUIREMENT, IT CANNOT BE SPECULATED AS TO WHETHER THEIR CONTEMPLATED PROPOSAL WOULD HAVE SATISFIED THE RESUME REQUIREMENTS. FURTHER, THE RECORD FAILS TO ESTABLISH THAT EITHER THE AIR FORCE OR THE INCUMBENT CONTRACTOR REVEALED ANY SERVICE CONTRACT ACT INFORMATION IN VIOLATION OF THE RFP. ADDITIONALLY, IT SHOULD BE NOTED THAT THE AWARD WAS MADE TO A CONTRACTOR OTHER THAN THE ALLEGED RECIPIENT OF THE INFORMATION.

TO MURCOLE, INCORPORATED:

THIS IS IN REPLY TO YOUR LETTERS OF APRIL 19, 1972, AND JUNE 5, 1972, IN WHICH YOU PROTEST AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS F04693- 72-Q-0011, ISSUED MARCH 9, 1972, BY THE LOS ANGELES AIR FORCE STATION, CALIFORNIA.

THE SOLICITATION, A SMALL BUSINESS SET-ASIDE, WAS FOR BASE MANAGEMENT SERVICES IN THE AREAS OF SUPPLY, TRANSPORTATION AND MAINTENANCE. SECTION D OF THE RFP, AS AMENDED BY MODIFICATION NO. 1, CALLED FOR A MANAGEMENT AND TECHNICAL PROPOSAL SEPARATE FROM A PRICE QUOTATION, AND STATED THAT THE "MANAGEMENT AND TECHNICAL COMPETITION *** WILL BE THE MOST IMPORTANT FACTOR IN THE OVERALL EVALUATION." QUALIFICATION AND EXPERIENCE OF PROPOSED PERSONNEL WAS LISTED AS AN EVALUATION FACTOR, AND WAS FURTHER AMPLIFIED AS FOLLOWS:

"AS A MINIMUM, QUALIFICATIONS FOR ALL MANAGEMENT AND SUPERVISORY PERSONNEL SHALL BE STATED BY PROVIDING RESUMES. IN ESSENCE, PROVE THAT QUALIFIED PERSONNEL WILL BE AT LAAFS ON 1 JULY 1972."

"C. IT WILL BE THE RESPONSIBILITY OF SUCCESSOR CONTRACTOR TO OBTAIN THE TENURE OF EMPLOYEES OF THE INCUMBENT CONTRACTOR, IF DESIRED, BEFORE OR AFTER AWARD OF THE CONTRACT. THE INCUMBENT CONTRACTOR HAS NO OBLIGATION UNDER THE SERVICE CONTRACT ACT, ANY OTHER STATUTE, CONTRACT OR REGULATION TO PROVIDE THIS INFORMATION. HOWEVER ANY EMPLOYEE INFORMATION, THAT THE INCUMBENT CONTRACTOR ELECTS TO PROVIDE, AS IT IS RELATED TO APPLICATION OF THE SERVICE CONTRACT ACT, WILL BE PROVIDED TO ALL CONTRACTORS SUBMITTING QUOTATIONS ON AN EQUAL BASIS AND WILL BE PROVIDED BY THE OFFICE ISSUING THIS RFQ AND THE RESULTING CONTRACT. INFORMATION MAY, HOWEVER, BE OBTAINED FROM THE UNION LOCAL STATED IN THE DEPARTMENT OF LABOR WAGE DETERMINATION (ATTACHMENT E, PART IV, SECTION M) OR FROM EACH EMPLOYEE. PROSPECTIVE CONTRACTORS AND AWARDED CONTRACTOR WILL NOT INTERVIEW EMPLOYEES DURING NORMAL WORKING HOURS OR CAUSE ANY DELAY IN THE WORK PERFORMANCE OF AN EMPLOYEE."

PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, YOU OBJECTED TO THE REQUIREMENT FOR SUBMITTING RESUMES, CLAIMING IT WAS IMPOSSIBLE OF COMPLIANCE, APPARENTLY BECAUSE EMPLOYEES OF THE INCUMBENT CONTRACTOR, WHICH WAS NO LONGER A SMALL BUSINESS AND THEREFORE INELIGIBLE FOR AWARD, REFUSED TO PROVIDE YOU WITH THEIR RESUMES. YOU REPORT THAT THE INCUMBENT CONTRACTOR HELD A MEETING OF ITS EMPLOYEES FOR THE BENEFIT OF ONE PROSPECTIVE PROPOSER AT WHICH IT PROVIDED SERVICE CONTRACT ACT INFORMATION, AND YOU CLAIM YOU WERE ENTITLED TO RECEIVE, FROM THE AIR FORCE, THE INFORMATION THAT WAS MADE AVAILABLE AT THAT MEETING.

THE AIR FORCE FOUND YOUR CLAIMS TO BE WITHOUT MERIT, AND REFUSED YOUR REQUEST TO EXTEND THE APRIL 10, 1972, CLOSING DATE. YOU THEN PROTESTED TO THIS OFFICE, WITHOUT HAVING SUBMITTED ANY PROPOSAL IN RESPONSE TO THE SOLICITATION, ON THE GROUNDS THAT YOU WERE NOT GIVEN AN EQUAL OPPORTUNITY TO BID. AWARD WAS MADE ON JUNE 5, 1972.

SPECIFICALLY, YOU ALLEGE THAT THE INCUMBENT'S MANAGER REQUIRED ALL OF THE INCUMBENT'S PRESENT PERSONNEL TO PREPARE AND SUBMIT RESUMES FOR ONE OF THE COMPETING COMPANIES, AND THAT THE MANAGEMENT PERSONNEL EVEN WERE REQUIRED TO ATTEND A MEETING FOR THE PURPOSE OF HAVING THEM SIGN A LETTER STATING THAT THEY WOULD NOT GIVE RESUMES TO OTHER PROSPECTIVE CONTRACTORS. YOU REPORT THAT THESE FACTS WERE KNOWN TO THE AIR FORCE AND THAT THE BASE COMMANDER WENT SO FAR AS TO CALL A MEETING WITH THE CONTRACTOR TO ADVISE HIM THAT THIS WAS NOT PROPER.

FURTHER, YOU STATE THAT THE INCUMBENT'S MANAGER FURNISHED INFORMATION ON SALARIES TO THE PROSPECTIVE CONTRACTOR WHO ATTENDED THE MEETING IN QUESTION, CONTRARY TO CLAUSE C OF THE RFP (CITED ABOVE) WHICH REQUIRES THAT SUCH INFORMATION BE FURNISHED EQUALLY TO ALL PROSPECTIVE CONTRACTORS. YOU CONTEND THAT UNDER THESE CIRCUMSTANCES THE AIR FORCE SHOULD HAVE PROVIDED INFORMATION ON THE TENURE AND SALARIES OF THE KEY PERSONNEL TO ALL OF THE PROSPECTIVE CONTRACTORS. IN ADDITION, YOU FEEL THAT THE RESUME REQUIREMENT WAS PREJUDICIAL TO YOUR FIRM AND THAT IT WAS UNNECESSARY. YOU STATED THAT "PERMISSION BY THE PRESENT CONTRACT EMPLOYEES TO USE THEIR NAMES SHOULD BE SUFFICIENT TO INDICATE THAT COMPETENT PERSONNEL WILL BE HIRED."

IN RESPONSE TO YOUR ALLEGATIONS CONCERNING THE MEETING IN QUESTION, THE AIR FORCE JUDGE ADVOCATE REPORTS THAT THIS MEETING WAS HELD "OUTSIDE OF THE SPECIFIC CONTROL AND KNOWLEDGE OF THE GOVERNMENT." HE STATES THAT TO THE BEST OF THE AIR FORCE'S KNOWLEDGE, THE INFORMATION CONCERNING THE INCUMBENT'S PERSONNEL APPARENTLY REVEALED AT THE MEETING DID NOT RELATE TO THE SERVICE CONTRACT ACT, BUT RATHER RELATED TO EACH EMPLOYEE'S "QUALIFICATIONS FOR GETTING AND HOLDING HIS JOB AS DISTINCT FROM MINIMUM WAGES TO BE PAID HIM AND *** WORKING CONDITIONS TO BE MAINTAINED FOR HIM, AFTER HE IS ON THE JOB. IT IS WITH THESE MINIMUM WAGE-WORKING CONDITIONS THAT THE SERVICE CONTRACT ACT IS CONCERNED. SEE ASPR 12-1001."

WITH RESPECT TO YOUR CONTENTION CONCERNING THE RESUME REQUIREMENT, IT SHOULD BE NOTED THAT THIS TYPE OF PROCUREMENT REQUIRES EVALUATION OF PROPOSALS TO PROVIDE SERVICES. A RESUME REQUIREMENT IS A REASONABLE METHOD OF PROVIDING A BASIS FOR THAT EVALUATION. YOU SUGGEST THAT WHERE THE INCUMBENT'S EMPLOYEES WERE PROPOSED TO BE USED THE MERE LISTING OF THESE NAMES SHOULD HAVE PROVIDED A SUFFICIENT BASIS FOR AN ADEQUATE EVALUATION. YOU CITE OUR DECISIONS B-164175, AUGUST 9, 1968, AND B- 165094, OCTOBER 18, 1968, IN SUPPORT OF THIS POSITION. THOSE CASES MERELY STAND FOR THE WELL-SETTLED PROPOSITION THAT DATA REGARDING THE RESPONSIBILITY OF A BIDDER OR PROPOSER MAY BE SUBMITTED SUBSEQUENT TO THE SUBMISSION OF BIDS OR PROPOSALS, NOTWITHSTANDING A REQUIREMENT IN THE SOLICITATION THAT THE INFORMATION MUST BE SUBMITTED WITH THE BID OR PROPOSAL. THESE DECISIONS DO NOT SUGGEST, HOWEVER, THAT SUCH INFORMATION MAY NOT BE REQUIRED.

SINCE YOUR FIRM ELECTED NOT TO SUBMIT A PROPOSAL FOR THIS PROCUREMENT, WE ARE NOT IN A POSITION TO SPECULATE WHETHER THE PROPOSAL YOU CONTEMPLATED WOULD HAVE SATISFIED THE RESUME REQUIREMENT. AS YOU SUGGEST THE MERE LISTING OF CERTAIN NAMES MIGHT HAVE SATISFIED THIS REQUIREMENT. WE NOTE, HOWEVER, THAT A PROPOSER WAS NOT REQUIRED BY THE RFP TO HIRE EMPLOYEES OF THE INCUMBENT CONTRACTOR, BUT WAS FREE TO UTILIZE ANY QUALIFIED PERSONNEL. WE ALSO NOTE THAT THE RESUME REQUIREMENT APPARENTLY DID NOT PREVENT OTHER FIRMS FROM SUBMITTING COMPETITIVE PROPOSALS SINCE SEVERAL OF THE PROPOSALS WERE DETERMINED TO FALL WITHIN THE COMPETITIVE RANGE.

REGARDING YOUR CLAIM THAT THE INCUMBENT CONTRACTOR'S MANAGER IMPROPERLY PROVIDED SERVICE CONTRACT ACT INFORMATION TO ONE OF THE PROSPECTIVE CONTRACTORS, THE RECORD FAILS TO ESTABLISH THAT EITHER THE AIR FORCE OR THE INCUMBENT CONTRACTOR REVEALED ANY SUCH INFORMATION IN VIOLATION OF CLAUSE C OF THE RFP. ADDITIONALLY, WE NOTE THAT THE AWARD WAS EVENTUALLY MADE TO A FIRM OTHER THAN THE ONE REPORTEDLY ATTENDING THE MEETING IN QUESTION. ON THE RECORD BEFORE US WE HAVE NO BASIS TO DISTURB THIS AWARD.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED. HOWEVER, BY LETTER OF TODAY, WE ARE RECOMMENDING TO THE SECRETARY OF THE AIR FORCE THAT IN VIEW OF THE SITUATION REPORTED IN THIS CASE, IT MAY BE APPROPRIATE FOR HIS DEPARTMENT TO FURTHER INSURE THAT FULL AND FREE COMPETITION BE OBTAINED FOR THESE TYPES OF PROCUREMENT. A COPY OF THIS LETTER IS ENCLOSED FOR YOUR INFORMATION.