Matter of: DDD Company File: B-250213 Date: January 15, 1993
B-250213: Jan 15, 1993
PROCUREMENT Competitive Negotiation Offers Evaluation Personnel Availability Protest that awardee engaged in "bait-and-switch" tactic regarding proposed employee is denied where record shows awardee reasonably considered employee to be available. If transition to a new contractor was necessary. Four offers were received by the May 29 closing date. All were included in the competitive range. Award is being withheld pending resolution of the protest. Because transition costs of changing contractors are a significant cost factor. They may be included in an evaluation only where offerors are advised that they will be evaluated. We will resolve the matter by reading the solicitation as a whole and in a manner that is reasonable and which gives effect to all its provisions.
Matter of: DDD Company File: B-250213 Date: January 15, 1993
PROCUREMENT Competitive Negotiation Offers Prices Evaluation Technical acceptability PROCUREMENT Competitive Negotiation Requests for proposals Evaluation criteria Prices Where solicitation provision called for evaluation of equipment relocation cost as part of nonincumbent offerors' prices, and included line item for offerors to set forth their relocation costs, but did not specifically provide for evaluation of incumbent's and government's relocation costs, agency reasonably included only offerors' stated relocation cost in their evaluated prices. PROCUREMENT Competitive Negotiation Offers Evaluation Personnel Availability Protest that awardee engaged in "bait-and-switch" tactic regarding proposed employee is denied where record shows awardee reasonably considered employee to be available.
DECISION DDD Company protests the proposed award of a contract to RAI Rapid, Inc. under request for proposals (RFP) No. A-92-13, issued by the Department of the Treasury for warehousing services. DDD challenges the evaluation of RAI's price and argues that RAI misrepresented the availability of a proposed employee. We deny the protest.
The solicitation, issued on April 22, 1992, as a 100-percent small business set-aside, requested proposals for a contractor-owned/contractor- operated (CO/CO) facility to receive, store, and prepare for shipment government-owned furniture, equipment, and supplies. The price schedule called for fixed unit and extended prices for specified quantities (square feet) of storage space for a base and 4 option years, plus a single price for the "[r]elocation of [government]-owned equipment, supplies, and furniture from current facility to new CO/CO facility." In this regard, if transition to a new contractor was necessary, the RFP required the new contractor to "conduct a staged transfer of property from the existing facility into the [new] CO/CO," providing "all personnel, and equipment required for a one-time job to move all supplies, Government-owned furniture, and equipment from the present location to the new CO/CO facility."
Section M.3. of the solicitation stated that total evaluated prices would include the prices for the basic requirement, all options, and "the total cost of the initial transfer of furniture, supplies and equipment. . .
." Section M.5. provided that award would be made based on the lowest overall price for the base period, including "the one-time move of Government-owned furniture, equipment and supplies from the present warehousing facility to the new CO/CO warehousing facility. . . ."
Four offers were received by the May 29 closing date, and all were included in the competitive range. Treasury conducted discussions with each offeror and requested the submission of best and final offers (BAFO) by July 29. Finding all BAFOs to be technically acceptable, the agency selected RAI for award on the basis of its low overall offer ($318,368.60). DDD, the incumbent contractor and second-low offeror ($319,904.73), then filed this protest with our Office. Award is being withheld pending resolution of the protest.
DDD maintains that Treasury improperly failed to include all relocation costs in RAI's evaluated price. DDD argues that the language of sections M.3. and M.5. of the RFP, stating that the total cost of the initial transfer of furniture, supplies, and equipment would be evaluated, required RAI's evaluated price to include not only RAI's proposed relocation cost ($51,329), but also DDD's and the government's costs.
After learning of the award (and the award price), DDD advised the agency that it would incur costs of $16,456 in assisting in the transition to a new contractor. Adding this cost to RAI's price would make DDD's offer low.
Because transition costs of changing contractors are a significant cost factor, they may be included in an evaluation only where offerors are advised that they will be evaluated. See Cherokee Elecs. Corp., B-240659, Dec. 10, 1990, 90-2 CPD Para. 467. Where a dispute exists as to the actual meaning of a solicitation requirement, we will resolve the matter by reading the solicitation as a whole and in a manner that is reasonable and which gives effect to all its provisions. Aztek, Inc., B-245626, Jan. 17, 1992, 92-1 CPD Para. 91.
We find DDD's interpretation of the solicitation provisions regarding evaluation of relocation costs to be unreasonable. The RFP's description of the relocation services to be performed referred only to the obligations of a new contractor after award, and the schedule specifically called for offerors' prices for this aspect of the requirement. The RFP did not describe any relocation-related services to be provided by the government or the incumbent contractor, and did not contain any reference to or estimate of costs that would be incurred by the government or the incumbent. Given the way the relocation effort was addressed in the RFP as a whole, we think offerors reasonably were on notice only that their own stated relocation costs would be added to their offered prices in the evaluation. It follows that the agency properly evaluated RAI's offered price.
DDD claims that RAI's proposal did not comply with the solicitation requirement to furnish relocation services, since RAI has not arranged with DDD for the transfer of the government-owned equipment. Under the solicitation, however, proposals were to include a plan for conducting the relocation, and RAI's proposal complied with this requirement. The implementation of the plan, including arranging for the transfer with the incumbent, is part of the work to be performed under the contract, and thus is a matter of contract administration, not the technical acceptability of RAI's proposal. We therefore will not consider the argument. 4 C.F.R. Sec. 21.3(m)(1) (1992).
AVAILABILITY OF PROPOSED SUPERVISOR
DDD alleges that RAI knowingly proposed as its supervisor an individual it knew was not available to perform the contract. According to DDD, RAI's proposed supervisor, who was not then employed by RAI and is currently working for another firm, was not aware that RAI had proposed him for the subject contract, and, in fact, told RAI personnel that he was unavailable for this contract because the commute from his home in Dale City, Virginia to the place of performance in Jessup, Maryland was too great. In support of this claim, DDD has furnished our Office with a statement from the proposed supervisor, in which he indicated that:
"I did not authorize RAI to bid me for this project. Although I had submitted a request for employment to them, it was not to work on this contract. I made it very clear to them that I would not work on this contract because of its location in Jessup, Maryland." [Emphasis Added.]
An offeror has the responsibility to propose persons who it reasonably may expect will be available for contract performance. Offeror "bait-and- switch" tactics, whereby an offeror proposes personnel it does not expect to use during contract performance, have an adverse affect on the integrity of the competitive procurement system and generally provide a basis for proposal rejection. Informatics, Inc., 57 Comp.Gen. 217 (1978), 78-1 CPD Para. 53. This does not mean that an offeror must use the personnel it proposed or risk losing the contract for which it is competing in every case. For example, where an offeror obtains firm letters of commitment and the names are submitted in good faith with the consent of the respective individuals (that is, the offeror is not proposing personnel it has no intention of providing), the fact that the offeror, after award, provides substitute personnel does not make the award improper. Professional Safety Consultants Co. Inc., B-247331, Apr. 29, 1992, 92-1 CPD Para. 404.
We find RAI reasonably believed that the proposed supervisor would be available for the contract and thus properly included him in its proposal. First, it is not at all clear from the record that the individual was unavailable, as DDD claims. The record shows that the proposed supervisor wrote RAI requesting consideration for employment "on any current or future contracts"; he furnished RAI with a resume, completed Standard Form 171, "Application For Federal Employment," and a signed, unrestricted statement of availability to work for RAI beginning "immediately." Further, although the individual (at the request of DDD, in connection with this protest) initially indicated he had specifically qualified his availability to work for RAI on this contract (as noted above), in a subsequent statement he has indicated that "this [protest] is the first time I have ever heard" of the Treasury solicitation. He also conceded in this subsequent statement that he "did indeed give RAI permission to use my resume in proposals," with no indication that the resume was not for use in RAI's Treasury procurement proposal.
RAI has submitted statements from two of its personnel it identifies as the only RAI employees who communicated with the proposed supervisor. The first RAI employee states that:
"[The proposed supervisor and I] entered into many discussions spanning an entire year prior to the submission of RAI's proposal to provide Warehousing Services to the Department of the Treasury (DOT). The topic of each and every one of these discussions was [his] future employment with RAI. . . .
"[The proposed supervisor] gave me explicit permission to include his resume in RAI's proposal submitted in response to the Department of the Treasury solicitation DOT A-92-13. [He] also gave me permission to use his name in other proposals as well. At no time did [the proposed supervisor] express any unwillingness to work at RAI's facility in Jessup, Maryland. [He] did state his preference would be to work at a facility closer to his home in Dale City, VA, however, he stated to me that if the compensation for his work reflected the costs of his traveling time, he would work in Jessup."
Similarly, the second RAI employee states that:
"During my interview in late April 1992, I advised [the proposed supervisor] that RAI would like to recruit him for employment on government contracts. He indicated to me that he was willing to work on all contracts RAI was awarded. He made no qualification of any kind, geographically or otherwise. . . ."
We conclude that, while the proposed supervisor apparently preferred to work on a contract more convenient to his home, the record does not establish that at the time RAI submitted its proposal the individual had advised RAI that he would under no circumstances be available to work on the Treasury contract in issue. Indeed, while the statements of RAI's own employees are self-serving, the proposed supervisor's unrestricted statement of availability and request for employment tend to support the interpretation that he would have been available for the contract. Although RAI in fact has not employed the individual, RAI explains that this is only because of the delay in award caused by DDD's protest; during the delay, the individual obtained other employment. We conclude that RAI did not engage in an improper "bait-and-switch."
The protest is denied.