B-239892, Oct 2, 1990, 90-2 CPD ***

B-239892, Oct 2, 1990, 90-2 CPD ***

PROCUREMENT - Competitive Negotiation - Offers - Evaluation errors - Allegation substantiation DIGEST: Protest that agency failed to evaluate awardee's reduction in level of manning from that proposed is denied where there is no evidence that awardee misrepresented in its proposal its intended level of manning and the record indicates that reduction to a level no less than that proposed by protester (which agency evaluated as acceptable) would not have materially altered the evaluation of the awardee's proposal.

Attorneys

TECOM, Inc.:

TECOM, Inc. protests the Department of the Air Force's award of a contract to Lear Siegler Management Services Corporation, the incumbent contractor, under request for proposals (RFP) No. F09650-89-R-0095. The protester primarily contends that the awardee materially misrepresented in its proposal the manning level it intended to provide under the contract.

We deny the protest.

The RFP contemplated award of a firm, fixed-price contract for the containerization and consolidation of goods for shipment at Warner Robins Air Force Base, Georgia. The RFP's performance work statement required that the successful contractor provide all necessary personnel, equipment, tools and materials. The RFP provided for evaluation of proposals under both general criteria-- past performance, proposed contractual terms and conditions, financial capability, and results of a preaward survey-- and four specific criteria, listed in descending order of importance as management, production, quality, and safety, with production and quality of equal importance. The RFP listed under production various subfactors including manning, at issue here. In this regard, the RFP requested offerors to submit a manning chart designating the proposed number of employees by specialty, the number on hand, the source of the remainder (e.g., transfer, on call, or recruitment), the ratio of supervisory to nonsupervisory personnel, and its rationale for determining manpower requirements (taking into account shop effectiveness, indirect support, leave, administration, downtime, and any other factors that affect production). With respect to cost, the solicitation advised of evaluation for reasonableness, completeness and realism, with total cost to the government to be a substantial consideration in the source selection decision.

The Air Force received 11 proposals in response to the solicitation. Lear Siegler's initial proposal received a higher overall rating-- exceptional (blue) low risk-- than did TECOM's, which received an acceptable (green) low risk rating. The two proposals received equal ratings under all of the criteria except production, where Lear Siegler was rated exceptional low risk and TECOM was rated marginal (yellow) moderate risk. While production included the manning subfactor, manning was not the specific area of evaluated difference between the offerors; both TECOM's and Lear Siegler's offered manning levels, i.e., 38 and 41 employees, respectively, were considered acceptable. Rather, TECOM's marginal moderate risk rating was due to its equipment acquisition plan being viewed as incomplete, while Lear Siegler's exceptional low risk rating was due to its exceptional production and equipment plans and exceptional training programs.

Following discussions with all offerors in the competitive range, including Lear Siegler and TECOM, the agency requested best and final offers (BAFOs). Although the rating of Lear Siegler's BAFO remained the same as for its initial proposal, TECOM's proposal was determined to show improvement; specifically, the agency determined that the deficiency in TECOM's equipment acquisition plan had been corrected. Nevertheless, while Lear Siegler's BAFO price ($4,768,986) was $95,619 more than TECOM's ($4,673,367), the source selection authority determined that award to Lear Siegler outweighed the relatively small additional cost-- approximately 2 percent-- due to Lear Siegler's superior technical rating and outstanding past performance record as the incumbent. After learning of the award to Lear Siegler, TECOM filed this protest with our Office.

TECOM alleges that Lear Siegler misstated in its proposal its intended manning level; according to the protester, rather than the 41 total employees the awardee offered to commit to contract performance, the firm actually commenced performance with a total of 38 employees, the same number proposed by TECOM. The protester complains that the agency's failure to evaluate Lear Siegler's reduction in manning, which allegedly occurred prior to contract award, caused the awardee's proposal to be evaluated technically superior so as to outweigh TECOM's lower proposed cost.

TECOM's argument is without merit. The Air Force reports that the awardee is currently performing with 40 employees, a decrease of only 1 employee from Lear Siegler's proposed manning level, and that this difference in the level of manning is insufficient to cause any change in the level of service. In this regard, the agency has made an in camera submission listing the 40 Lear Siegler employees currently committed to the contract.

We will find a material misrepresentation where an offeror knowingly submits a proposal that does not reflect what it intends to furnish. Federal Data Corp., 69 Comp.Gen. 196 (1990), Jan. 25, 1990, 90-1 CPD Para. 104. s not contain evidence establishing that Lear Siegler misrepresented in its proposal its intended level of manning. We do not think the elimination of a single employee from the awardee's proposed manning level establishes misrepresentation on Lear Siegler's part. Rather, this change appears just as likely to be due to the normal turnover of employees over time, with any vacant positions likely to be filled as necessary.

Even if Lear Siegler's current performance manning were at the level alleged by TECOM (38) rather than at the level reported by the Air Force (40), such a reduction in manning would not have had a material influence on the evaluation since the protester proposed only 38 employees and was evaluated as acceptable. Again, while Lear Siegler received a higher (exceptional low risk) rating under the overall production criteria which included manning among its subcriteria, Lear Siegler's superiority reflected the perceived superiority of its production and equipment plans and training program rather than its proposed slightly higher level of manning.

TECOM alleges that the reduction in Lear Siegler employees would have influenced the evaluation due to the resulting change in the supervisory ratio. The record shows other-wise. Lear Siegler proposed seven supervisors while TECOM proposed four; both levels were viewed as acceptable. It is difficult to determine from the in camera listing precisely how many supervisory personnel have been furnished, but we have been able to identify five superiors with certainty. Even assuming that only five supervisors currently are performing, since TECOM's manning was determined acceptable with just 4 supervisors for a manning level of 38, there is no basis for concluding Lear Siegler's 5 supervisors for a manning level of 40 would have materially altered the evaluation. The situation here is clearly distinguishable from those in the cases cited by the protester in which misrepresentation by the awardee in its proposal materially influenced the evaluation. See, e.g., Informatics, Inc., 57 Comp.Gen. 217 (1978), 78-1 CPD Para. 53; Electronic Data Sys. Federal Corp., GSBCA No. 9869-P, 89-2 BCA Para. 21,655.

TECOM also contends that in its evaluation the Air Force departed from the evaluation criteria by considering Lear Siegler's experience as the incumbent of paramount importance, while ignoring the relevant experience of other offerors. This contention is not supported by the record. While the agency considered Lear Siegler's outstanding past performance as the incumbent contractor and determined that this consideration along with the firm's evaluated technical superiority outweighed TECOM's slightly lower-- approximately two percent less-- offered price, the solicitation specifically provided for consideration of past performance, and we find no basis upon which to conclude that Lear Siegler's past performance was given undue importance in the evaluation. The performance of the other offerors was not ignored. As stated in the agency's source selection decision, the agency considered and reviewed all offerors' past performance, but did not find "any pertinent discriminators which would alter the decision" to award to Lear Siegler. Based upon our review of the record, we find the agency's conclusion reasonable. Maytag Aircraft Corp., B-237068.3, Apr. 26, 1990, 90-1 CPD Para. 430.

TECOM has failed to demonstrate that Lear Siegler misrepresented its intended level of manning, that the awardee's minor reduction in the level of manning from that proposed would have had a material influence on the evaluation, or that the evaluation was otherwise deficient. Accordingly, we find no basis upon which to question the award to Lear Siegler.

The protest is denied.