Matter of: Laro Service Systems Incorporated File: B-251001 Date: March 3, 1993

B-251001: Mar 3, 1993

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PROCUREMENT Competitive Negotiation Requests for proposals Government estimates Wage rates Protest challenging agency's use of undisclosed labor hours estimate for janitorial services is denied where the solicitation places offerors on notice that their proposed labor hours will be evaluated. PROCUREMENT Competitive Negotiation Offers Evaluation errors Evaluation criteria Application Protest that agency improperly evaluated protester's proposal is denied where the record shows that the evaluation was reasonable and in accordance with the solicitation's evaluation criteria. PROCUREMENT Competitive Negotiation Discussion Adequacy Criteria Protest that agency did not conduct meaningful discussions is denied where the agency advised offeror about the perceived deficiencies in its proposal.

Matter of: Laro Service Systems Incorporated File: B-251001 Date: March 3, 1993

PROCUREMENT Competitive Negotiation Requests for proposals Government estimates Wage rates Protest challenging agency's use of undisclosed labor hours estimate for janitorial services is denied where the solicitation places offerors on notice that their proposed labor hours will be evaluated, and the protester does not challenge the accuracy of the agency's estimate. PROCUREMENT Competitive Negotiation Offers Evaluation errors Evaluation criteria Application Protest that agency improperly evaluated protester's proposal is denied where the record shows that the evaluation was reasonable and in accordance with the solicitation's evaluation criteria. PROCUREMENT Competitive Negotiation Discussion Adequacy Criteria Protest that agency did not conduct meaningful discussions is denied where the agency advised offeror about the perceived deficiencies in its proposal, including the offeror's failure to submit its proposed minimum labor hour estimates for services required under the contract; an agency is not required to reopen discussions where a deficiency becomes apparent only after the agency has evaluated data an offeror submits to correct informational deficiencies raised during discussions.

Attorneys

DIGEST

DECISION Laro Service Systems Incorporated protests the award of a contract to Federal Services, Inc. under request for proposals (RFP) No. L/A 92-11, issued by the Department of Labor (DOL) for janitorial services. Laro alleges that the agency improperly evaluated its proposal.

We deny the protest.

The RFP, issued on April 10, 1992, as a total small business set-aside, sought prices and technical proposals for janitorial services at the Frances Perkins Building in Washington, D.C. The RFP described the types of duties under the contract as nonperiodic basic services (services scheduled to be performed on a bi-weekly basis or more frequently); periodic basic services (services to be performed on a less frequent basis than bi-weekly); utility services (basic services other than snow removal that are unscheduled); and additional services, which the Building Manager's Office orders via work orders. The solicitation advised that award was to be made to the offeror whose proposal was determined to be the most advantageous to the government, considering technical merit and price. Technical and price factors were weighted equally. The technical evaluation was to be based on the following factors with their relative weights: (1) the offeror's experience and qualifications (41 points); (2) the qualifications, experience, and availability of the offeror's personnel (12 points); and (3) the offeror's technical approach (47 points). Each technical evaluation factor contained several subfactors, having maximum point values ranging from 1 to 10. The technical approach factor contained subfactors requiring information about the offeror's proposed minimum number of labor hours to perform each type of service under the contract.

By the May 13 closing date, 23 firms submitted proposals. After its initial review of the proposals, the technical evaluation panel determined that 11 proposals, including Laro's and Federal Services's, were within the competitive range; specifically, the panel concluded that Federal Services's proposal was technically superior to all the other proposals and that Laro's technically unacceptable proposal was susceptible of being made acceptable. Best and final offers (BAFO) were due on August 26.

The agency received BAFOs from 10 offerors, including Laro and Federal Services. Of the 10, Laro submitted the second low-priced offer of $9,038,511, and was rated seventh technically; Federal Services submitted a slightly higher priced offer at $9,065,965, which was rated as the technically superior offer. Based on the combined scores for the technical and price factors, the agency rated the Laro and Federal Services proposals as follows out of a possible 200 points:

(1) Federal Services (190) (2) Offeror A (179) (3) Laro (164) (tied) (4) Offeror B (164) (tied)

On September 30, the contracting officer concluded that Federal Services's proposal was the most advantageous to the contracting agency and, thus, should be selected for award. Laro filed a protest with our Office on October 20, challenging the agency's evaluation of its proposal.

Laro contends that the evaluation was flawed because the agency downgraded its proposal based on a comparison with undisclosed minimum staffing level estimates. The protester alleges that the agency determined its minimum staffing requirements based on current staffing levels, and thus afforded the incumbent contractor an unfair advantage over all the other offerors by failing to apprise the non-incumbents of these estimated minimum staffing levels. The protester also argues that notwithstanding the agency's failure to disclose estimated staffing levels, the firm's proposed staffing approach was reasonably based on its interpretation of cleaning guidelines of the General Services Administration (GSA).

The agency was not required to disclose its labor hours estimate; it was required only to place offerors on notice that proposed staffing was an area which would be evaluated. See Intelcom Support Servs., Inc., B-222547, Aug. 1, 1986, 86-2 CPD Para. 135; Mark Dunning Indus., Inc., B-230058, Apr. 13, 1988, 88-1 CPD Para. 364. The agency did so, specifically stating in the RFP that the offerors' proposed minimum labor hours would be reviewed and evaluated under the technical approach area, the evaluation area worth more than any other areas. Since the protester was on notice that its proposed minimum labor hours for specific services would be evaluated, and the protester has not challenged the accuracy of those estimates, we have no basis to question the agency's use of them in its evaluation.

With regard to the protester's contention that the incumbent received an unfair advantage due to the agency's use of the estimates, any advantage the incumbent had was derived from its familiarity with the building and the agency's requirements by virtue of its performance on the current contract; such an advantage is often enjoyed by incumbents and is not unfair, since it does not result from preferential treatment or other unfair action by the agency.[1] See Harbor Branch Oceanographic Inst., Inc., B-243417, July 17, 1991, 91-2 CPD Para. 67. In fact, all the offerors were given an opportunity to inspect the building so that they could familiarize themselves with the actual layout of the building--in addition to the scaled drawings provided--and, thus, could more intelligently propose the labor hours necessary to perform the facility's cleaning requirements.

To the extent Laro challenges the agency's decision to down-grade its offer based on its proposed labor hours, the protest is without merit. The evaluation of technical proposals is primarily within the discretion of the procuring agency. Consequently, we question an agency's technical evaluation only when the record shows that the evaluation does not have a reasonable basis or is inconsistent with the evaluation criteria. Information Sys. & Networks Corp., 69 Comp.Gen. 284 (1990), 90-1 CPD Para. 203. A protester's disagreement with the agency's judgment is not sufficient to establish that the agency acted unreasonably. United HealthServ Inc., B-232540 et al., Jan. 18, 1989, 89-1 CPD Para. 43. Here, after reviewing the record, we conclude that the evaluation was reasonable and in accordance with the RFP's stated evaluation criteria.

Generally, the agency found that while Laro's proposal rated "high" to "medium" in the experience areas, it rated "low-medium" overall in the technical approach area. First, the agency found that Laro's estimated minimum labor hours for periodic services greatly exceeded the labor hours necessary to perform the work under the contract--the protester's proposed productive hours were more than three times the hours that the agency deemed necessary, and its proposed supervisory hours were six times greater. On the other hand, Laro's proposed labor hours for nonperiodic basic services were substantially lower than the labor hours the agency estimated were necessary. Specifically, Laro's proposed productive hours were less than one-sixth, and its supervisory hours were less than one- fourth, of the agency's estimated minimum hours. Given the disparity between the agency's estimates and Laro's proposed labor hours, and the fact that the RFP clearly conveyed the importance of the staffing levels in the evaluation, the agency properly downgraded Laro's proposal in this area.

While the protester claims that it based its proposed staffing approach on its interpretation of certain GSA guidelines, the protester has not identified what those guidelines are or explained why they are relevant. Absent such information, we fail to see why these unspecified guidelines should be substituted for the agency's own estimates, tailored to the specific building at which the services are required. We will not overturn an agency's determination of its minimum needs simply because the protester argues that other calculations on which it relies are more correct. See GTE Gov't Sys. Corp., B-222587, Sept. 9, 1986, 86-2 CPD Para. 276.

Although Laro's challenge to the agency's evaluation of its proposal is limited to the fact that the agency downgraded its proposal after comparing it with the agency's labor hour estimates, the agency's negative evaluation comments were not limited to this area. For example, the agency found that Laro's proposal was incomplete in certain areas in which the RFP called for listings of all items necessary to perform the work called for under the contract. Numerous service elements in Laro's schedules of periodic and nonperiodic services were missing; several pieces of janitorial equipment were missing from its equipment inventory; and several key items were missing from its listing of supplies. Despite the RFP's requirement that each offeror list subcontractor references in its proposal, Laro's proposal also failed to contain such information even though its proposal manifested its intent to subcontract some of the cleaning requirements.

In addition, while the RFP advised Laro that it must submit a proposed plan to ensure a highly responsive and satisfactory relationship with the contracting officer's technical representative and the contracting officer, Laro failed to address such pertinent issues as whom among the contractor's staff the contracting agency should contact in cases of emergency. The technical evaluation committee also questioned Laro's ability to relocate all of its "central" personnel assigned to the contract from New York to Washington, D.C.

The protester does not refute any of these weaknesses. In light of the shortcomings in its proposal, we see no basis to question the agency's evaluation of Laro's proposal.

To the extent that Laro argues that the agency failed to adequately apprise it about the problems with its proposed labor hours, the protest lacks merit. In its initial proposal, Laro failed to provide specific productive and supervisory hours for periodic and nonperiodic services even though the RFP specifically requested this information. Thus, in the subsequent discussions, the agency could not cite any specific concerns other than to point out--as it did--that the required information was not in the initial proposal. An agency is not required to reopen discussions to afford an offeror a second chance to correct its proposal or to correct deficiencies that, through no fault of the agency, become apparent only after the agency has evaluated data an offeror submits to correct informational deficiencies that were addressed during discussions. Telecommunications Specialists, Inc., B-224842.2, Feb. 26, 1987, 87-1 CPD Para. 221. Consequently, the agency was not required to reopen discussions to afford Laro another opportunity to correct the weaknesses that were not revealed until the agency received Laro's labor hour estimates in its BAFO.

The protest is denied.

1. In any event, the agency states that the estimates it used were not based exclusively on the incumbent's current staffing level. Rather, the agency also took into account labor hour data from prior janitorial contracts dating back to 1982 and its estimation of hours necessary to accomplish additional work that was not in the previous contracts.