The protest was denied

According to U.S. GAO the protest evaluation was denied where the agency reasonably determined that the protester's proposal was unacceptable.

BACKGROUND

On June 1, 2017, the agency issued the RFP as a hybrid time-and-materials, fixed-price, and cost-reimbursement contract.[1]  RFP at B.3.  The agency sought a contractor to provide organizational structure, management, and qualified staff to meet the agency's requirement for local guard service at 69 guard posts at the U.S. Embassy in Amman, Jordan, for a base year and four 1-year option periods.  RFP, Performance Work Statement (PWS) at C.1, F.1; RFP, Exh. A, Guard Posts and Schedule of Guard Coverage (Guard Posts and Coverage), at 8.  The local guard service would not only protect U.S. government personnel, property, and facilities, but also serve as an early warning signal to the embassy against criminal and terrorist attacks.  RFP, PWS at C.3.

The RFP required personnel to perform certain standard services, which were identified by post, location, labor category,[2]guard post function, and required English language proficiency level.[3]  RFP at B.7.1, C.4.1; RFP, Exh. A, Guard Posts and Coverage, at 1.  For example, at Post E-43, located at the Consular Lobby of the Embassy Compound, a guard would be required to provide visitor control services from Sunday to Thursday between 0700 to 1700 hours using a radio, and to communicate at Level 1 English proficiency.  RFP, Exh. A, Guard Posts and Coverage, at 4.

Award was to be made using a lowest-priced, technically-acceptable (LPTA) source selection process, with technical acceptability evaluated under the following three non-price factors:  management plan, past performance and experience, and preliminary transition plan.  RFP at L.11.2, M.3.  The first two factors were equally important and, when combined, were of greater importance than the third factor.  Id. at M.2.

The management plan consisted of eight subfactors listed in descending order of importance, including, as relevant here, the offeror's staffing plan and the training program.[4]  Id. at L.11.2, M.2.  The staffing plan and the training program were the second and the sixth most important subfactors, respectively.  Id. at M.2.

As also relevant here, the RFP required a detailed staffing plan that explained how the offeror would motivate and foster recruitment and retention of employees throughout the life of the contract.  Id. at L.11.2.1.3.A.  The RFP stated that an offeror should consider that the prior contract, but not the instant solicitation, required the contractor to pay a supplemental wage allowance (SWA) of $100, or approximately 71 Jordanian Dinar (JOD), a month to each employee, in addition to basic wages and other benefits.  Id. at B.3, L.11.2.1.3.K.  The RFP further advised offerors to consider how this information would affect retention and morale of the incumbent guards, as well the transition to a new contract, when developing compensation[5] and pay plans.  Id. at L.11.2.1.3.K.  As relevant here, offerors were required to explain whether the proposal included the value of the SWA, the impact on retention rates of incumbent guards offered the right of first refusal,[6] the approach to maintaining adequate staffing levels, and how potential guard morale issues would be addressed and managed.  Id.  Proposals would be evaluated with regard to whether the offeror adequately addressed requirements by providing a complete, clear response that demonstrated a thorough understanding of the requirements and the ability to successfully perform the contract.  Id. at M.2.2.1.3

The RFP stated that proposals would be evaluated on an acceptable/unacceptable basis.  Id. at M.2.2.  The RFP advised that an unacceptable rating for any subfactor could render the entire technical proposal unacceptable.  Id.

The agency received four proposals by the closing date, including Torres's and G4S's.  CO Statement at 3.

With regard to Torres's initial proposal, in addressing the SWA and retention rates, Torres noted that it elected to eliminate the SWA.  AR, Tab 6, Torres Initial Proposal, at 18.[7]  The proposal also stated that "to offset the negative impact of elimination of the SWA," Torres proposed to introduce a new pay allowance for [DELETED] to "keep [DELETED] retention for [DELETED] personnel at manageable levels."[8]  Id. at 21.  The proposal further stated that in order to deal with turnover due to decreased retention rates, "it [would] be essential that the DoS expedite the vetting and approval process of new hires to keep the headcount from dropping to unacceptable levels."  Id.  In addressing morale of security guards, the proposal stated that its compensation plan was designed to attract new candidates through [DELETED].[9]  Id. at 22.

In reviewing the initial proposal, the agency determined that the allowance for [DELETED] proposed by Torres did not include the guard position, and that the compensation plan would impact retention, the morale of incumbent guards, and the transition into the new contract.[10]  AR, Tab 12, Final Consensus Report, at 2.[11]  The agency decided to engage in discussions with Torres and G4S and request revised proposals.  CO Statement at 3.

As relevant here, the agency issued a notice advising Torres that the RFP did not require guards to have more than a Level 1 English language proficiency and asking "how . . . guards [would] be compensated since they may not be getting the [DELETED]."  AR, Tab 9, Discussion Letter at 2.  Additionally, in response to Torres's statement about expediting the vetting and approval process, the agency asked the protester to explain what action would be taken to mitigate retention of staff in the guard category with the removal of the SWA.  Id.

In responding to the agency's discussion notices regarding the SWA and retention rates, Torres's revised proposal stated that it would welcome reinstatement of the SWA if the government decided to make it mandatory, as eliminating the SWA would substantially reduce wages, especially for guards.  AR, Tab 11, Torres's Revised Proposal, at 27.[12]  To address the morale of guards, Torres added two [DELETED] allowances to supplement wages, i.e., a [DELETED] allowance and a [DELETED] for [DELETED].  Id. at 28.  The proposal stated that with the [DELETED] allowance and [DELETED], guard pay would be approximately [DELETED] percent above minimum wage even without the SWA and that Torres did not foresee any significant difficulties in recruiting new guards.[13]  Id.

In evaluating Torres's revised proposal, the agency determined that the [DELETED] allowance ([DELETED] JOD) and [DELETED] ([DELETED] JOD) would be less than the amount that would have been provided by the SWA.  AR, Tab 12, Final Consensus Report, at 2.  Additionally, the agency concluded that the [DELETED]--driven by paying staff commensurate with knowledge, skills, and abilities of each labor category--should already have been factored into the labor category hourly rates, and should not be considered an added benefit.  Id.

The agency also included a detailed explanation of its concerns that guards would be paid less on this contract because Torres's proposed compensation would be "too little" to retain and recruit guards and that "the mechanism [would] not work."  Id. at 2.  The agency calculated that, in addition to monthly wages, guards would receive [DELETED] JOD a month, while all other individuals would receive between [DELETED] and [DELETED] JOD a month.[14]  Id.  In this regard, the agency reasoned that the reduced compensation would result in "tremendous losses in staffing" and that Torres would be unable to adequately staff the requirement, which could lead to unmanned posts.  Id.  The agency concluded that while the inclusion or exclusion of the SWA was an independent business decision for Torres, the overall proposed compensation would negatively impact the retention and morale of the incumbent guards in a requirement where the majority of the workforce was comprised of guards.[15]  Id. at 3.

After evaluating Torres's revised proposals, the TEP concluded that Torres's proposal was technically unacceptable under the staffing plan and training program subfactors[16] for the following reasons:

1. Under the [s]taffing [p]lan, Torres proposed a compensation plan that cumulatively [would] not assist in retaining and increasing the morale of the incumbent guards.
2. Torres [did] not provide further details regarding the training program and [stated] that the original proposal adequately addressed the key elements and methods of training.  Without a robust training program, the guards will not be able to perform their duties.

Id. at 1, 3-4.

The agency determined that G4S's proposal was technically acceptable and offered a fair and reasonable price.  AR, Tab 13, Award Decision, at 4.  On January 9, 2018, DoS awarded the contract to G4S for an estimated ceiling price of $13,101,111.  Id.  Torres's final evaluated price was $11,705,776.  Id. at 3.  After receiving notification of award, and requesting and receiving a debriefing, Torres protested to our Office.

DISCUSSION

Torres challenges the agency's evaluation of the staffing plan and training program subfactors under the management plan factor and alleges that the agency erred in finding its proposal unacceptable.[17]  Protest at 5, 8.  Although our decision does not specifically discuss all of Torres's arguments, we have considered them all and find that they are without merit.[18]

In reviewing protests challenging an agency's evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency's evaluation was reasonable and consistent with the solicitation's evaluation criteria, as well as applicable statutes and regulations.  Franzosini Sud S.R.L., B-415009, Oct. 27, 2017, 2017 CPD ¶ 327 at 3.  A protester's disagreement with an agency's judgment, by itself, is insufficient to establish that the agency acted unreasonably.  VSE Corp., B-414057.2, Jan. 30, 2017, 2017 CPD ¶ 44 at 8.

Torres contends that its proposal was penalized for not providing the optional SWA, and that the agency erred in concluding that Torres would be unable to staff the contract. See Protest at 7; Comments at 3.  The agency responds that the TEP reasonably found that the estimated losses to incumbent guards, the most numerous labor category, due to reduced pay posed a serious risk to contract performance.  MOL at 5.

We find no basis to sustain the protest.  The RFP indicates that the government was concerned with recruitment, retention, and compensation, particularly at the guard level, and specifically focused on the impact that removal or inclusion of the SWA would have on retention of incumbent guards and the morale of guards.  RFP at  L.11.2.1.3.K, M.2.2.1.3, M.2.1.5.  Additionally, the RFP advised that proposed compensation would be compared to arrangements for the incumbent guard force and that lowering of compensation could be detrimental in obtaining adequate personnel.  Id. at L.11.1.4.

Here, the record shows that the agency reviewed Torres's staffing plan and proposed compensation, including the travel allowance and position differential, and had concerns that the amount would be inadequate to retain and recruit guards.  Additionally, the agency determined that the staffing plan under the current contract would provide incumbent guards with compensation that was lower not only in comparison to the prior contract, but also in comparison to pay that other staff would receive on the current contract.  Based on the concern about reduced pay to guards, the agency concluded Torres would suffer "tremendous losses in staffing," which negatively affect both recruitment and retention and could result in an inability to adequately staff the contract.  On this record, we conclude that the agency's evaluation was reasonable.[19]

We deny the protest.

Thomas H. Armstrong
General Counsel

 

After a seven-day trial, Azam Doost, aka “Adam Doost,” “Mohammad Azam Doost” and “Mohammad Azim” (Doost), 40, most recently of Freemont, California, was found guilty of three counts of major fraud against the United States, eight counts of wire fraud, four counts of false statements on loan applications or extensions and five counts of money laundering.  Doost is scheduled to be sentenced on Dec. 14 by U.S. District Judge Amit P. Mehta of the District of Columbia, who presided over the trial.

The evidence admitted at trial showed that in February 2010, while working at his company, Equity Capital Mining LLC, Doost, along with his brother, obtained a $15.8 million loan from OPIC for the development, maintenance and operation of a marble mine in western Afghanistan.  The loan proceeds were paid directly from OPIC to the alleged vendors who provided equipment for the mine, as reported to OPIC by Doost or his consultant.  Doost was required to deal with these companies in arms-length transactions or, to the extent any transactions were other than at arms-length, he was required to report to OPIC any affiliation he had with a vendor.  Instead, Doost falsely informed OPIC that he had no affiliation with any of the vendors with whom he dealt, when in fact he had financial relationships with several of them.  The evidence further showed that Doost’s business partner was listed on the bank accounts for a number of these vendors and, upon receipt of money from OPIC into the respective accounts, significant amounts of this money were then transferred from that respective account to companies and individuals with whom Doost was associated, or to pay debts Doost owed.  For example, Doost’s consultant received a commission of $444,000 for his purported consulting services with the first of three disbursements from OPIC, yet $40,000 was transferred from the consultant’s account to a Doost company in California.

The evidence at trial further showed that when the time came for Equity Capital Mining LLC to repay the loan to OPIC, Doost provided purported reasons to OPIC why it was not able to make those repayments at a time when Doost had control of sufficient funds to make those repayments.  Ultimately, Doost and his brother failed to repay any of the principal on the OPIC loan, paying only a limited amount of interest, and ultimately defaulted on the loan, the evidence showed.

SIGAR, with assistance from the FBI, investigated the case.  The Criminal Division’s Office of International Affairs also provided important assistance in this case.  Trial Attorneys Daniel Butler and Michael McCarthy of the Criminal Division’s Fraud Section are prosecuting the case.