B-235134, Jul 18, 1989, 89-2 CPD 57

B-235134: Jul 18, 1989

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Protest that awardee improperly submitted resumes of key personnel with its proposal without consent of individuals in question is denied where record shows that resumes were supplied to awardee by individuals' employer for awardee's use in its proposal and awardee therefore reasonably believed individuals had agreed to use of resumes. Agency decision not to engage in technical discussions is unobjectionable where proposal is found technically acceptable on each element of evaluation scheme. Allegation that evaluation and scoring of revised proposal by chairman of technical evaluation panel (TEP) alone was improper is denied where only support for allegation of bias is fact that TEP chairman had access to pricing information which is not objectionable in itself and other TEP members orally were asked for their views and agreed with chairman's evaluation that proposals were technically equal.

B-235134, Jul 18, 1989, 89-2 CPD 57

PROCUREMENT - Competitive Negotiation - Offers - Evaluation - Personnel - Adequacy DIGEST: 1. Protest that awardee improperly submitted resumes of key personnel with its proposal without consent of individuals in question is denied where record shows that resumes were supplied to awardee by individuals' employer for awardee's use in its proposal and awardee therefore reasonably believed individuals had agreed to use of resumes. PROCUREMENT - Competitive Negotiation - Discussion - Determination criteria 2. Agency decision not to engage in technical discussions is unobjectionable where proposal is found technically acceptable on each element of evaluation scheme. PROCUREMENT - Competitive Negotiation - Technical evaluation boards Bias allegation - Allegation substantiation - Evidence sufficiency 3. Allegation that evaluation and scoring of revised proposal by chairman of technical evaluation panel (TEP) alone was improper is denied where only support for allegation of bias is fact that TEP chairman had access to pricing information which is not objectionable in itself and other TEP members orally were asked for their views and agreed with chairman's evaluation that proposals were technically equal.

Scheduled Airlines Traffic Offices, Inc.:

Scheduled Airlines Traffic Offices, Inc. (Sato), protests the award of a contract to Lifeco Travel Management under request for proposals (RFP) No. N00604-88-R-0119, issued by the Department of the Navy for the acquisition of travel-related support services at Camp H. M. Smith, and Kaneohe Marine Corps Air Station in Hawaii. Sato argues that the award is improper because Lifeco's proposal contained the resumes of certain key personnel who did not consent to an employment relationship with Lifeco. Sato also argues that the Navy failed to conduct meaningful discussions with it and improperly reevaluated the Lifeco proposal after the submission of proposal revisions.

We deny the protest.

The RFP as originally issued called for offerors to submit separate cost and technical proposals for a requirements type contract for the performance of travel agent services at the two locations noted above for both official and unofficial travel. The RFP further provided that, in the evaluation of offers, the technical evaluation criteria specified in the solicitation were substantially more important than the business management evaluation criteria, and the business management evaluation criteria were substantially more important than price. /1/ This relative ranking of evaluation criteria, however, contained a limiting provision to the effect that the relative importance of price vis-a-vis the other criteria would increase with the degree of technical equality between offerors. In addition to the relative ranking of the evaluation criteria, the RFP provided that proposals would be judged against four technical subfactors and three business management subfactors.

Three firms timely submitted offers in response to the RFP and, after initial evaluation, the contracting officer determined that only Sato and Lifeco were in the competitive range. The contracting officer's determination as to the competitive range primarily was based on the fact that, of the 80 possible technical and business management points available under the evaluation scheme, the technical evaluation panel (TEP) had assigned a score of 77.02 to Sato's proposal and 75.04 to Lifeco's proposal.

Subsequent to the initial evaluation, the contracting officer issued an amendment to the RFP which made minor changes to the scope of work called for under the solicitation. The amendment also contained a further clarification of the basis of award which in essence provided that, if the proposals were found to be technically equal, price would become the predominant factor in the agency's award decision.

At the time the amendment was issued the contracting officer also transmitted to Lifeco a list of seven discussion/clarification questions. Most of these questions dealt with issues considered minor by the TEP. However, one of the questions went to the adequacy of Lifeco's staffing which was found by the TEP to be technically unacceptable. No discussion questions were submitted to Sato because the TEP had found the firm's proposal technically acceptable in each of the evaluation areas. Both firms timely submitted revisions to their proposals.

After the receipt of the proposal revisions, the contracting officer forwarded those materials to the chairman of the TEP for reevaluation. Also, at that time, the chairman of the TEP was apparently provided with the initial discounts for official travel which had been submitted by the two firms. After convening a meeting of all but one member of the TEP, the TEP chairman was orally advised by the TEP members present that the TEP now viewed the technical proposals of Lifeco and Sato as essentially equal.

The contracting officer then solicited best and final offers (BAFOs) from Lifeco and Sato. In the letters requesting BAFOs, the contracting officer stated that all firms in the competitive range were considered technically equal and that award would be based upon the most advantageous price. Both firms submitted timely BAFOs, offering the following discount percentage rates on official travel:

Lifeco 4.96%

Sato 4.00%

The TEP chairman rescored only the revised Lifeco proposal by himself, with the result that Lifeco's assigned non-cost score increased to 78.87 points.

The contracting officer, based on the technical equality of the offers, proposed award to Lifeco on grounds that the firm had offered the greatest discount (lowest price). This decision was approved by the department's contract review board.

The protester first argues that Lifeco's contract should be terminated and its proposal disqualified from further consideration on grounds that the firm had submitted the resumes of three individuals, who were proposed by Lifeco as key employees, without their knowledge or consent. The three individuals in question are all Delta Airlines employees who, pursuant to a contractual agreement between Delta and Sato, work in Sato's Camp H. M. Smith Office. According to the protester, the submission of the three Delta employees' resumes by Lifeco was improper because Lifeco was required to first seek the permission of the employees. In support of its argument, Sato has submitted affidavits executed by the three Delta employees in which the employees state that they have not given permission for the use of their names and resumes in connection with this procurement to anyone except Sato. In addition, Sato has submitted a copy of its agreement with Delta.

Both the agency and Lifeco have responded to the protester's allegation regarding the three employees, arguing that the use of the three employees' names was proper. Specifically, both parties assert that Lifeco sought and obtained permission to use the three employees' names from Delta and that Delta furnished the resumes to Lifeco with the knowledge that they would be included in Lifeco's proposal. According to both Lifeco and the Navy, Delta's permission was all that was required under the circumstances. In this latter regard, Lifeco and the Navy point out that nothing in the RFP requires offerors to submit dispositive evidence of an employee's commitment to the contract effort.

Specifically, the Navy has submitted an affidavit executed by Lifeco's vice president for government affairs in which he attests to the fact that he was given the three employees' resumes by Delta for use in Lifeco's proposal. The Navy also has submitted an affidavit executed by Delta's district marketing manager in which he attests to the fact that Delta gave Lifeco the three resumes for use in the firm's proposal. Finally, the Navy has submitted an affidavit executed by the cognizant contract specialist in which she attests to having spoken to one of the three employees in question, stating that she was told by that individual that she (the Delta employee) would move if instructed to do so by Delta and that Delta, as her employer, can and has used her resume.

As a general rule, an agency's evaluation of a firm's proposed key employees is not objectionable where the names are submitted in good faith by the offeror with the consent of the individuals in question. See, e.g., Development Alternatives, Inc., B-217010, Feb. 12, 1985, 85-1 CPD Para. 188. In addition, where there is a question as to whether the key employees have granted their permission for the use of their name in a proposal, our Office will look to the entire record in an effort to determine whether, in fact, some type of permission was obtained by the offeror. Cf. Ultra Technology Corp., B-230309.6, Jan. 18, 1989, 89-1 CPD Para. 42, (record did not contain sufficient evidence to show that key employees had consented to the use of their names), even where firm letters of commitment are not required.

We are satisfied that Lifeco's submission of the three key employees' resumes was based on Lifeco's reasonable belief that the employees would work for Lifeco on this contract. First, it appears to us that Lifeco in good faith relied on Delta's approval to use the employees' resumes and believed that this authorization was a sufficient basis to include the individuals' resumes in its proposals. The affidavit of Lifeco's vice president shows that the firm believed that Delta could commit its own employees to Lifeco's contract effort. Second, we think that the record indicates that, based on the employer/employee relationship existing between Delta and the three individuals in question, Delta believed that it could commit its employees to the Lifeco proposal. This is borne out by the affidavit of Delta's district marketing manager which clearly shows his belief that he could commit the employees and that he did so based on his knowledge of Lifeco's intent to use the resumes in Lifeco's offer. addition, the affidavit of the contract specialist supports the nature of the employer/employee relationship between Delta and its employees; Delta employees are aware of and have consented to their movement by Delta to fulfill the needs of the airline to the extent that those needs arise out of the contractual obligations of third-party travel agents. This latter point is borne out by the terms of the Delta-Sato employee exchange agreement which reserves to Delta the right to retain and transfer its employees in order to meet the airline's requirements.

Finally, while the affidavits submitted by Sato show that only Sato actively solicited the consent of the three Delta employees in connection with this RFP, the protester has failed to submit any evidence which refutes the employer/employee relationship existing between Delta and its employees. The record thus reasonably establishes that Lifeco used the resumes in good faith with Delta Airline's consent. While Lifeco represented in its proposal that these employees indicated a willingness to join Lifeco, we think, given the fact that these were Delta employee's and Delta gave Lifeco permission to use their names, Lifeco's statement was not unreasonable. Under these circumstances, we deny this basis of protest.

Sato next argues that the Navy failed to conduct meaningful discussions with it and that the agency's failure in this regard was prejudicial to Sato. Specifically, Sato argues that it should have been given the same opportunity afforded Lifeco to amplify its proposal prior to the Navy's solicitation of BAFOs, since the Sato proposal did not receive a perfect score. Sato points to the area of staffing, which was the primary substantive area of discussion with Lifeco, arguing that Lifeco was afforded an opportunity to revise its staffing even though Lifeco had proposed more staff than Sato in its initial proposal.

The Navy responds that there was nothing legally objectionable in its conduct of discussions with Lifeco only. The Navy points out that it was under no obligation to conduct discussions with Sato because each element of the firm's proposal was deemed technically acceptable. In fact, with regard to staffing, the Navy points out that SATO proposed an adequate staff based on its current staffing at these facilities and promised to add staff if necessary based on increased sales. In contrast, the Navy points out, the TEP had a number of questions regarding the technical acceptability of various elements of the Lifeco proposal, particularly the proposed level of staffing at one of the bases.

Here, we conclude that the agency's actions were reasonable. Sato was given an initial technical score of 77.02 out of a possible 80 points, and the TEP found that Sato's proposal "clearly answered and meets or exceeds all requirements of the solicitation." On the particular question of staffing, we do not think that the Navy was required to discuss the matter with Sato since Sato proposed acceptable staffing and offered to increase staffing if sales increased. This is in contrast to Lifeco's proposal which raised questions as to its staffing level for official travel. Where the contracting agency identifies no significant technical deficiencies in a proposal, technical discussions are not required and discussions may be limited to an opportunity to submit a revised proposal. Metron Corp., B-227014, June 29, 1987, 87-1 CPD Para. 642. Based on the record, which shows that Sato's initial offer met or exceeded agency requirements, while Lifeco's offer required discussions to make it acceptable, we cannot conclude that the agency acted improperly by requesting a revised offer from Sato without asking any specific questions.

Lastly, Sato argues that the Navy showed favoritism toward Lifeco in the evaluation of Lifeco's proposal, alleging that the Navy acted improperly in the manner in which it rescored the Lifeco proposal after receiving Lifeco's proposal revisions. Specifically, the protester argues that it was improper for the contracting officer to have revealed the prices to the chairman of the TEP and that his knowledge of pricing information resulted in his rescoring the Lifeco proposal in a biased fashion. Sato also argues that it was legally improper for the TEP chairman to have rescored the Lifeco proposal by himself, especially in light of the fact that most of the TEP members were available to rescore the revised Lifeco proposal. The Navy responds that there was nothing legally improper either in its revealing the prices to the TEP chairman or in his rescoring the revised Lifeco proposal by himself. The Navy argues that, notwithstanding the rescoring by the TEP chairman based on Lifeco's revised proposal, virtually all TEP members previously had orally agreed that the revised proposals were essentially technically equal. As an initial matter, we point out that the fact that the offeror's prices were revealed to the TEP chairman prior to scoring of revised offers is not per se legally objectionable. Indeed, as we have noted in previous decisions of this Office, we are not aware of any legal restriction which would prohibit the release of pricing information to any or all members of a TEP. See, e.g., Joseph L. DeClerk and Assocs., Inc., B-221723, Feb. 10, 1986, 86-1 CPD Para. 146. In addition, we have previously held that, unless there is a question of bias, the fact that not all members of a TEP have participated in the rescoring of a proposal is not legally objectionable. See Vibra-Tech Engineers, Inc., B-209541.2, May 23, 1983, 83-1 CPD Para. 550.

In the instant case, we find no basis to object to the award decision. First, as noted above, there was no legal impediment to the release of prices to the TEP chairman. Consequently, we do not believe that this fact, standing alone, supports Sato's allegation of bias. Second, as noted above, all but one of the members of the TEP were queried by the TEP chairman regarding the technical equality of the proposals, and those members polled all agreed that the proposals were essentially technically equal. Thus, to the extent that the rescoring of Lifeco's proposal merely represented the judgment of the majority of the TEP that the proposals were technically equal, there is, in our opinion no support for Sato's allegation of bias. We also note that the TEP members were again queried subsequent to the filing of the instant protest and again agreed that the proposals were essentially technically equal. We view this as still further support for the Navy's position that the increase in Lifeco's proposal score was not the product of the TEP chairman's improper bias. Finally, the contracting officer also concluded the proposals were technically equal and the contracting officer's award decision was reviewed and approved by the department's regional contracting review board. Thus, under the circumstances, we have no basis to object to the Navy's actions in regard to this issue.

We deny the protest.

/1/ Price within the context of the RFP is expressed as a "discount" on official travel. Thus, the firm offering the highest discount on official travel was considered by the agency as the firm offering the "lowest" price.