B-246760, Apr 3, 1992

B-246760: Apr 3, 1992

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Protest jurisdiction of the General Accounting Office (GAO) extends to protests filed by interested parties challenging procurements conducted by federal agencies and does not turn on whether appropriated funds are involved. GAO will consider a protest against Department of the Army solicitation for relocation services to military personnel at "no-cost" to the agency where the agency's selection of firms will result in service to government employees and will benefit government. It is a procurement of services by a federal agency. 2. Protest that agency improperly evaluated protester's proposal is denied where record shows that the agency's evaluation of the proposal was reasonable and in accordance with the solicitation's evaluation factors.

B-246760, Apr 3, 1992

DIGEST: 1. Protest jurisdiction of the General Accounting Office (GAO) extends to protests filed by interested parties challenging procurements conducted by federal agencies and does not turn on whether appropriated funds are involved. GAO will consider a protest against Department of the Army solicitation for relocation services to military personnel at "no-cost" to the agency where the agency's selection of firms will result in service to government employees and will benefit government, and, thus, it is a procurement of services by a federal agency. 2. Protest that agency improperly evaluated protester's proposal is denied where record shows that the agency's evaluation of the proposal was reasonable and in accordance with the solicitation's evaluation factors.

Century 21-- AAIM Realty, Inc.:

Century 21-- AAIM Realty,Inc. (AAIM) protests the proposed award of a contract under an Expression of Interest (EOI), dated August 9, 1991, which was issued by the Department of the Army on behalf of the Joint Interservice Resource Study Group (JIRSG), for "no-cost" home-finding and/or relocation assistance services. AAIM contends that the Army improperly evaluated its proposal.

We deny the protest.

BACKGROUND

The EOI, issued August 9, 1991, called for firms to submit no-cost proposals for home marketing assistance services which included, but were not limited to: (1) the development of a marketing strategy, a suggested list price, and probable selling price and terms; (2) recommendations for repairs and improvement to enhance salability; (3) recommendation of a listing broker; and (4) advice on negotiating with potential buyers and evaluation of offers. The EOI also required the successful firms to provide relocation information kits discussing community life programs; commuting distance; moving tips; and information about medical, school, and recreation facilities.

The EOI listed the following evaluation factors with their relative weights: (1) technical evaluation approach (30 points); (2) concept and execution of services (25 points); (3) staff experience (20 points); (4) firm experience (20 points); and (5) cost savings to the members (5 percent). To highlight their technical evaluation approach, the firms were required to submit a preliminary plan of action and milestones which included their overall approach to complete the services contemplated under the EOI; /1/ they were also required to include a detailed discussion of their quality control/assurance plan as well as a discussion outlining the manner in which the firm planned to integrate the services of other real estate firms into their overall home-finding/relocation assistance program. With regard to the "concept and execution of services" evaluation area, the firms were required to discuss their concept, understanding of the assistance program and their overall approach to providing technical assistance and consultation to enhance the agency's in-house relocation efforts.

The JIRSG received five proposals, including AAIM's, on August 26. After initially reviewing the five proposals, the JIRSG Program Manager decided that the evaluation team needed to conduct a more thorough evaluation before submitting its findings to the Deputy Commander of the Military District of Washington. The Program Manager made this decision after realizing that most of the positive comments that the evaluators made regarded the colorful and/or fanciful appearance of certain proposals rather than the technical merits of those proposals. As a result, the Program Manager decided that since the technical evaluation approach area and the concept of execution of services area equaled more than 50 percent of the firms' total scores, a fair evaluation would have to take these areas into account. The Program Manager then directed the evaluators to conduct a second evaluation.

After conducting the second evaluation, the evaluation team combined the scores from the initial evaluation and the subsequent evaluation. The team determined that AAIM's combined scores resulted in the firm being "qualified but not selected." Although the team found AAIM to be "quite capable of providing a full service relocation program" and "fully capable of expanding its resources to meet the on-going expectation of the military commanders on a national scale," the team did not select AAIM on the bases that: (1) AAIM did not fully explain how it will ensure that national services coverage will be performed by the firm; (2) AAIM did not provide references "to the utilization of non-Century 21 affiliated relocation/real estate firms"; and (3) AAIM submitted a weak quality assurance plan. By letter dated September 25, the JIRSG advised AAIM that its initial proposal was not selected and that the JIRSG would not accept a revised proposal. AAIM's protest to our Office followed.

JURISDICTION

As a preliminary matter, the Army contends that the protest should be dismissed as beyond the bid protest jurisdiction of our Office because the services requested under the EOI do not involve the use of appropriated funds and thus is not a "contract" under Federal Acquisition Regulation (FAR) Sec. 2.101. The Army also argues that since it issued an EOI rather that a solicitation, this procurement action will not result in a contract as the term is understood in government contract law.

Under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Secs. 3551 et seq. (1988), our bid protest jurisdiction encompasses protests of solicitations issued by federal agencies leading to contracts for the procurement of property or services and does not turn on whether appropriated funds are involved. Computer Support Sys., Inc., 69 Comp.Gen. 644 (1990), 90-2 CPD Para. 94. The fact that the government may obtain these services without direct cost does not negate the fact that in essence what results here is a procurement contract. In this regard, we have recognized that where a concession or similar type contract results in a benefit to the government, the contract is one for the procurement of property or services and therefore is encompassed by our bid protest jurisdiction. See T.V. Travel, Inc. et al., 65 Comp.Gen. 109 (1985), 85-2 CPD Para. 640; Gino Morena Enters., 66 Comp.Gen. 231 (1987), 87-1 CPD Para. 121, aff'd, B-224235.2, May 13, 1987, 87-1 CPD Para. 501.

Here, under the statement of work, the military commander may provide to the selected firm or firms administrative office space, authorization for installation of an "1-800" number, authorization to advertise on installation media, and attendance at in and out processing sessions, among other things. In exchange, the firm provides home marketing assistance to members, including development of a marketing strategy, suggested price list, recommendations for repairs and improvements to enhance salability, advice on negotiating with potential buyers and evaluation of offers, and furnishing numerous relocation kits. While the EOI ultimately results in a selection of a firm or firms at "no-cost" to the government, the mutual tasks required to be performed upon conclusion of the selection process are intended to benefit the mission of the military agencies in reassigning their personnel expeditiously nationwide and worldwide. We therefore view the selection of the relocation service firms as giving rise to procurement contracts which are supported by mutual obligations between the parties. See Gino Morena Enters., supra; Alpine Camping Servs., B-238625.2, June 22, 1990, 90-1 CPD Para. 580. With respect to the agency's claim that we do not have jurisdiction because the agency did not issue a solicitation for award of a contract in the "usual sense that such terminology is utilized in government contracting," our jurisdiction is not dependent upon the characterization of the instrument used. Since the EOI will result in a contractual obligation to provide services to government employees upon their request, we conclude that it is a solicitation for services for purposes of our bid protest jurisdiction. See New York Tel. Co. et al., 69 Comp.Gen. 61 (1989), 89-1 CPD Para. 435.

DISCUSSION

CICA does not govern procurements in which a military agency, as here, does not use appropriated funds to pay for services. See 10 U.S.C. Sec. 2303 (1988). Where the basic procurement statute is not applicable to a procurement that is within our protest jurisdiction, we review the actions taken by the agency to determine whether they were reasonable. See Flexsteel Indus. et al., B-221192 et al., 69 Comp.Gen. 61 (1989), 89-2 CPD Para. 435. AAIM contends that the agency improperly evaluated and subsequently downgraded its proposal when the agency allegedly considered factors that were not specified in the solicitation. To support its allegations, AAIM cites the following weaknesses that the agency determined were present in its proposal. (1) AAIM's "weak (vague) quality assurance plan," and (2) AAIM's failure to fully explain the rental assistance program. AAIM also argues, with respect to its alleged failure to demonstrate in its proposal that the firm had the ability to work with other firms on an equal basis throughout the course of the project, that the EOI did not require such information and that in any event its proposal was misinterpreted.

We find the record supports the reasonableness of the agency's technical evaluation and that the evaluation was consistent with the EOI's terms and evaluation criteria. First, we find unreasonable AAIM's contention that information concerning its quality assurance plan was not requested in the EOI. The EOI contained a description of the technical approach factor in narrative form. This description contained three paragraphs; the second paragraph specifically required each firm to submit a detailed discussion of its quality control/assurance plan. Despite this requirement, AAIM submitted a quality assurance plan that was, at best, very general in nature. While the firm stated that its plan was "multi-faceted" and "would insure the highest level of service being provided to the transferee," its plan failed to provide such basic information as details concerning its standards of accountability and its system of checks and balances to ensure successful operations throughout the duration of the program. Rather than detailing its internal practices and policies concerning quality control, AAIM's proposal merely stated that "through communications with the base commander or his designated representative, the program will be monitored and if required, changed." Since AAIM's proposal lacked-- as requested by the EOI-- a detailed discussion of the firm's quality control/assurance plan, and, thus, the assurance that the firm had a viable plan, the agency, in our view, properly downgraded its proposal.

Similarly, we find unreasonable AAIM's contention that information concerning its rental assistance plan was not requested in the EOI. The statement of work's description of home-finding assistance states that the selected firm "shall provide relocating employees with individualized counseling services in a timely manner ... regarding the real estate market (including rental properties)." In addition, the first paragraph of the technical approach factor specifically required each firm to submit its overall approach to complete all of the EOI requested services, including the requirement for rental assistance. Despite this requirement in the EOI, AAIM submitted a proposal which merely stated that AAIM has a number of properties management homes available for rent and that it had access, via a listing service, to other homes. While AAIM suggested that it would work with renters "with the same enthusiasm and energy that it would with buyers," its proposal failed to provide any discussion as to how it planned to provide assistance. Since AAIM's discussion was limited simply to broad, unsupported statements and lacked any indication that the firm in fact had substantive plans for providing a rental assistance program, the agency properly downgraded the firm in this area.

Finally, we find unpersuasive AAIM's argument that the agency misevaluated and misinterpreted its proposal for not providing references to the utilization of non-Century 21 affiliated relocation/real estate firms. The third paragraph of the EOI's technical approach description contained the requirement in narrative form that each firm outline how it planned to integrate the services of other relocation firms into the overall home-finding/relocation assistance program. Our understanding is that the overall program, involving a variety of services, could involve any real estate firm. AAIM's discussion of its proposed coordination with other real estate firms, however, was limited solely to Century 21 firms. Indeed, the protester states in its comments to the agency report that "never intended to use non-Century 21 firms." Accordingly, we think the agency properly could downgrade the proposal for failure to reflect the possibility that the selected firm might have to work with non-Century 21 firms.

The protest is denied.

/1/ These services include but are not limited to the following:

(1) home-finding/relocation information kits; (2) information on home-finding/rental assistance; (3) current information on mortgage accounts; (4) spousal employment assistance services; (5) school-match assistance program; and (6) training seminars.

Shelton H. Skolnick, Esq., for the protester. Gerald P. Kohns, Esq., Department of the Army, for the agency.

Barbara C. Coles, Esq., and Andrew T. Pogany, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.