B-183040, APR 18, 1975

B-183040: Apr 18, 1975

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WHERE PROTEST AGAINST RFP SPECIFICATIONS IS FILED 3 DAYS BEFORE DATE FOR RECEIPT OF PROPOSALS. AGENCY IS NOT REQUIRED TO POSTPONE DATE FOR RECEIPT OF PROPOSALS. INCORPORATED: REQUEST FOR PROPOSALS (RFP) N00600-75-R-5223 WAS ISSUED DECEMBER 16. IT IS REPORTED THAT ON SAID DATE OFFERS WERE RECEIVED FROM 32 FIRMS. THE PROTESTER'S OBJECTION IS DIRECTED TO THE REQUIREMENTS THAT A SUCCESSFUL OFFEROR AGREE TO ASSIGN TO ANY RESULTING CONTRACT THE EMPLOYEES WHOSE RESUMES WERE SUBMITTED WITH THE PROPOSAL AND THAT IF ANY SUBSTITUTION IS DESIRED DURING THE PERIOD OF CONTRACT PERFORMANCE. THE CONTRACTOR IS TO SUBMIT THE REASON FOR SUBSTITUTION. PERMIT THE GOVERNMENT TO DETERMINE WHETHER THEY ARE AT LEAST AS QUALIFIED AS THE INDIVIDUALS INITIALLY OFFERED AND APPROVED.

B-183040, APR 18, 1975

1. IN PROCUREMENT OF HIGHLY SPECIALIZED TECHNICAL SERVICES, AGENCY PROPERLY MAY REQUIRE OFFERORS TO SUBMIT RESUMES OF PROPOSED PERSONNEL FOR EVALUATION, AND REQUIRE SUCCESSFUL OFFEROR TO SUBMIT FOR APPROVAL ANY PROPOSED SUBSTITUTIONS DURING CONTRACT PERFORMANCE. SUCH ACTION DOES NOT CREATE DIRECT "EMPLOYER-EMPLOYEE RELATIONSHIP" BETWEEN GOVERNMENT AND CONTRACTOR'S PERSONNEL, AS CHARGED BY PROTESTER. 2. WHERE PROTEST AGAINST RFP SPECIFICATIONS IS FILED 3 DAYS BEFORE DATE FOR RECEIPT OF PROPOSALS, AGENCY IS NOT REQUIRED TO POSTPONE DATE FOR RECEIPT OF PROPOSALS.

HEW ES CO., INCORPORATED:

REQUEST FOR PROPOSALS (RFP) N00600-75-R-5223 WAS ISSUED DECEMBER 16, 1974, BY THE NAVAL REGIONAL PROCUREMENT OFFICE, WASHINGTON, D.C. NAVY YARD TO FILL A REQUIREMENT OF THE NAVAL AIR TECHNICAL SUPPORT FACILITY, PHILADELPHIA, PENNSYLVANIA FOR TECHNICAL MANUAL SUPPORT SERVICES.

THE RFP AS AMENDED, ESTABLISHED JANUARY 17, 1975, AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IT IS REPORTED THAT ON SAID DATE OFFERS WERE RECEIVED FROM 32 FIRMS, BUT THAT THE PROTESTER DID NOT SUBMIT A PROPOSAL.

THREE DAYS PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS, THE PROTESTER OBJECTED TO CERTAIN FEATURES OF THE RFP, CONTENDING THAT THEY WOULD CREATE AN INTOLERABLE "EMPLOYER-EMPLOYEE RELATIONSHIP." THE PROTESTER'S OBJECTION IS DIRECTED TO THE REQUIREMENTS THAT A SUCCESSFUL OFFEROR AGREE TO ASSIGN TO ANY RESULTING CONTRACT THE EMPLOYEES WHOSE RESUMES WERE SUBMITTED WITH THE PROPOSAL AND THAT IF ANY SUBSTITUTION IS DESIRED DURING THE PERIOD OF CONTRACT PERFORMANCE, THE CONTRACTOR IS TO SUBMIT THE REASON FOR SUBSTITUTION, THE NAMES, EXPERIENCE AND QUALIFICATIONS OF THE PROPOSED SUBSTITUTES, AND PERMIT THE GOVERNMENT TO DETERMINE WHETHER THEY ARE AT LEAST AS QUALIFIED AS THE INDIVIDUALS INITIALLY OFFERED AND APPROVED. IS ALSO CONTENDED THAT THE REQUIREMENT IN THE RFP THAT PERSONNEL IDENTIFIED IN THE RESUMES BE AVAILABLE FOR INTERVIEW IS IMPROPERLY RESTRICTIVE OF COMPETITION IN THAT A PROSPECTIVE CONTRACTOR WOULD BE COMPELLED TO HIRE SUCH PERSONNEL WITHOUT ANY ASSURANCE OF AN ENSUING CONTRACT. ACCORDINGLY, IT IS SUBMITTED THAT THE GOVERNMENT SHOULD BE RESTRICTED TO A REVIEW OF RESUMES, AND THAT THE GOVERNMENT SHOULD NOT BE PERMITTED TO "PICK-AND CHOOSE" A CONTRACTOR'S PROSPECTIVE EMPLOYEES.

BY LETTER OF MARCH 10, 1975, THE PROTESTER ALLEGED CERTAIN OTHER IMPROPRIETIES IN THE RFP, CONTENDING THAT THE EVALUATION FACTORS AND BASIS FOR AWARD ARE AMBIGUOUSLY STATED. IN ADDITION THE PROTESTER OBJECTED TO EVALUATION OF PROPOSALS PRIOR TO OUR RESOLUTION OF ITS PROTEST.

FOR THE FOLLOWING REASONS, THE PROTEST IS DENIED.

WE ARE ADVISED BY THE NAVY THAT THE REQUIREMENT FOR SUBMISSION OF RESUMES WAS BASED UPON THE NECESSITY OF EVALUATING PROPOSALS FOR TECHNICAL COMPETENCE, AND INASMUCH AS A SUBSTANTIAL PORTION OF THE PROCUREMENT CALLS FOR THE FURNISHING OF HIGHLY SPECIALIZED TECHNICAL SERVICES, THE SKILLS AND EXPERIENCE OF A PROSPECTIVE CONTRACTOR'S WORK FORCE WERE ESSENTIAL SUBJECTS OF EVALUATION. IT IS REPORTED THAT THE RESUMES ARE REVIEWED ONLY FOR PURPOSES OF EVALUATION OF THE OFFER IN ACCORDANCE WITH THE EVALUATION CRITERIA SET FORTH IN THE RFP, AND THAT THE REVIEW IS NOT FOR THE PURPOSE OF REQUIRING THAT A PARTICULAR EMPLOYEE BE USED IN PERFORMANCE OF THE PROSPECTIVE CONTRACT. MOREOVER, WE NOTE THAT THE PROVISION IN THE RFP (PAGE 22) CONCERNING THE INTERVIEWING OF PROPOSED PERSONNEL IS ADDRESSED TO THE ACTIVITIES OF A PRE-AWARD TEAM DURING ITS VISIT TO THE FACILITIES OF AN OFFEROR. AS SUCH, IT APPEARS THAT THE INTERVIEWING WOULD BE SOLELY FOR THE PURPOSE OF EVALUATING THE OFFEROR'S CAPABILITY TO PERFORM THE CONTRACT, AS STATED IN THE RFP.

FURTHERMORE, IT IS REPORTED THAT THE REQUIREMENT THAT ANY SUBSTITUTIONS DURING PERFORMANCE OF THE CONTRACT BE SUBMITTED FOR GOVERNMENT APPROVAL IS BASED ON THE GOVERNMENT'S NEED TO ASSURE THAT A SUBSTITUTION WOULD NOT ENTAIL A DIMINUTION IN QUALITY OF THE CONTRACT SERVICES. IT IS STATED THAT A PROPOSED SUBSTITUTE WOULD BE SUBJECT TO OBJECTION BY THE GOVERNMENT ONLY IF THE EMPLOYEE'S QUALIFICATIONS WERE INFERIOR TO THE INDIVIDUAL FOR WHOM HE WAS SUBSTITUTED. THUS, THE GOVERNMENT'S ONLY DESIRE WAS TO ASSURE THAT ONCE PROPOSALS WERE EVALUATED AND A CONTRACT AWARDED, THE CONTRACTOR'S TECHNICAL COMPETENCE WOULD BE MAINTAINED.

WE CANNOT CONCUR WITH THE PROTESTER THAT THE FOREGOING REQUIREMENTS ARE INTENDED TO, OR DO IN FACT, PERMIT THE GOVERNMENT TO "DICTATE" TO THE CONTRACTOR THAT A PARTICULAR EMPLOYEE BE REQUIRED TO PERFORM THE SERVICES. THE RFP SETS OUT EVALUATION CRITERIA PREDICATED UPON A CERTAIN LEVEL OF EXPERTISE AND LEAVES IT TO THE OFFEROR TO PROPOSE THE PERSONNEL WHICH IT FEELS WILL MEET THE EVALUATION CRITERIA OF THE RFP. THAT THE GOVERNMENT RESERVES THE RIGHT TO DETERMINE WHETHER POST-AWARD SUBSTITUTIONS ARE ACCEPTABLE, IN NO WAY PERMITS IT TO DEMAND A PARTICULAR EMPLOYEE. THE CONTRACTOR MAY SUBMIT ANY PERSONNEL IT SO DESIRES, SUBJECT ONLY TO THE GOVERNMENT'S AFFIRMATION THAT AN INDIVIDUAL'S QUALIFICATIONS SATISFY THE REQUIRED CONTRACT STANDARDS. WE DO NOT AGREE WITH THE PROTESTER'S CONTENTION THAT THESE REQUIREMENTS ARE IMPROPER OR CONTRARY TO PREVIOUS RULINGS BY THIS OFFICE. SEE SERV AIR, INC., B-179065, APRIL 22, 1974, AND PROGRAMMING METHODS; B-181845, DECEMBER 12,1974.

CONCERNING THE ALLEGATION THAT THE EVALUATION FACTORS ARE AMBIGUOUS, OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRE THAT PROTESTS AGAINST ALLEGED IMPROPRIETIES APPARENT IN A SOLICITATION BE FILED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. 4 C.F.R. 20.2(A). INASMUCH AS THIS ALLEGATION WAS RAISED FOR THE FIRST TIME ALMOST 2 MONTHS FOLLOWING THE DATE UPON WHICH PROPOSALS WERE RECEIVED, IT IS UNTIMELY AND THEREFORE INELIGIBLE FOR OUR CONSIDERATION.

FINALLY, CONCERNING THE COMPLAINT THAT THE PROCURING ACTIVITY ACTED IMPROPERLY IN EVALUATING PROPOSALS PRIOR TO THE RESOLUTION OF HEW ES CO.'S PROTEST, THE RECORD CONTAINS NO EVIDENCE OF ANY PROTEST FILED AGAINST THE SOLICITATION UNTIL OUR RECEIPT OF THE PROTESTER'S TELEGRAM ON JANUARY 14, 1975, ONLY 3 DAYS PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SETS OUT CERTAIN PROCEDURES RELATIVE TO THE AWARD OF A CONTRACT PENDING THE RESOLUTION OF A PROTEST (ASPR 2-407.8(B)(2) AND (3)). HOWEVER, THERE IS NO SIMILAR PROSCRIPTION AGAINST THE EVALUATION OF OFFERS DURING THE PENDENCY OF A PROTEST'S RESOLUTION.

ACCORDINGLY, THE PROTEST IS DENIED.