BNUMBER: B-270012.3
DATE: April 24, 1996
TITLE: Ogden Support Services, Inc.
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Ogden Support Services, Inc.
File: B-270012.3
Date:April 24, 1996
Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer,
Fierman, Hays & Handler, for the protester.
Dennis J. Riley, Esq., and Joseph G. Billings, Esq., for Riley &
Artabane, an intervenor.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency intends to preserve the contract award in
implementing the recommendations made in a prior General Accounting
Office decision sustaining the protester's challenge to the award is
dismissed as premature.
2. Request for reconsideration of the remedy, recommended in a prior
General Accounting Office decision sustaining the requester's protest
is denied because it is based on the erroneous premise that the prior
decision found that the requester's proposal represented a lower cost
than the awardee's proposal, when, in fact, the prior decision found
the awardee's proposal represented the lower evaluated cost.
DECISION
Ogden Support Services, Inc. protests the corrective action that may
be undertaken by the Central Intelligence Agency (CIA), Office of
Information Technology, pursuant to our decision in Ogden Support
Servs., Inc., B-270012.2, Mar. 19, 1996, 96-1 CPD para. 177, which
sustained Ogden's protest against the award of a contract to American
Systems Corporation (ASC) under request for proposals (RFP) No.
95-W001, for mail and courier support services. Additionally, the
protester requests clarification/reconsideration of the remedy
recommended in the prior decision.
We dismiss the protest because it merely anticipates improper action
that has not yet taken place and deny the request for reconsideration
because it provides no basis for reconsidering our prior decision.
Our decision found with respect to the evaluation of ASC's proposal,
which had been rated technically equal to Ogden's, that there was
"insufficient information and analysis in the record to establish a
reasonable basis for the past performance score ASC received vis-a-vis
Ogden's past performance score." We sustained the protest on the
basis that it was unclear whether the agency, under a proper
evaluation, would have considered the difference in the two firms'
evaluated past performance to be a meaningful discriminator, such that
Ogden's proposal would have been considered technically superior, or
whether Ogden's and ASC's proposals would still have been considered
technically equal. While not the basis for sustaining the protest, we
also noted that the source selection authority misapprehended several
facts when he made the award decision; specifically, he erroneously
believed that ASC proposed a more accelerated phase-in schedule and
offered more man-hours for the basic contract work. We concluded that
if the two proposals are reasonably found technically equal, then
ASC's lower evaluated cost would result in that firm's selection, but
if Ogden's proposal is found technically superior to ASC's lower cost
proposal, the agency would have to perform a cost/technical tradeoff
to determine which proposal represents the best value to the
government. We recommended that the CIA reevaluate the offerors'
technical proposals, determine and document whether they are
technically equal, and, if the agency determined that award should
more appropriately be made to Ogden, that ASC's contract be terminated
and an award made to Ogden.
Ogden protests that the CIA intends to preserve the award to ASC by
papering the file in a manner that will retain ASC's past performance
score from the prior evaluation, and that it will not properly account
for the other flaws in the procurement as found in our prior decision.
Since Ogden is speculating as to whether the agency will take
appropriate action in accordance with our decision, we find that this
basis of protest is premature. We do not consider premature protests.
See General Elec. Canada, Inc., B-230584, June 1, 1988, 88-1 CPD para.
512. Thus, we dismiss Ogden's protest.
Ogden requests reconsideration/clarification on the basis that our
decision found that Ogden's proposal in fact offered the lowest cost,
and that Ogden should therefore receive the award, even if the
proposals are considered to be technically equal. Ogden's request is
based on an erroneous premise--our prior decision found that ASC's
proposal, not Ogden's, represented the lower cost.
As indicated above, our decision expressly concluded that ASC's
proposal reflected the lower cost, notwithstanding that Ogden's
proposal offered the lower cost. The cost evaluation methodology used
by the agency was to divide the number of hours offered by each
offeror into that offeror's total proposed costs. This cost
evaluation methodology essentially normalized the labor hours in
determining which offer represented the lowest cost. ASC's proposal
reflected the lowest cost because ASC's cost proposal reflected a
lower hourly rate for its proposed personnel and both offerors were to
supply the same 22 persons working the same hours for the bulk of the
contract work.[1] While we noted that the cost evaluation methodology
had the effect of exaggerating ASC's cost advantage because the two
offerors proposed different levels of efforts for the phase-in period
(for which the agency did not properly account), ASC's proposal, by
virtue of its lower hourly rates for the basic contract work, still
represented the lowest cost, even counting ASC's greater number of
hours for the phase-in period.[2] Ogden has not shown that our
conclusion in this regard was in error and therefore provides no basis
for reconsideration.
Comptroller General
of the United States
1. ASC's proposal reflected lower hourly rates as well as a greater
number of labor hours for the basic contract work because its labor
rates were based on a man-year with a greater number of hours than
Ogden's man-year.
2. Our prior decision indicated that if a probable cost analysis had
been performed, Ogden's evaluated cost would reasonably have been
found even higher because of its failure to justify its proposed
indirect rates.
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