Proteccion Total/Magnum Security, S.A., B-278129.4, May 12,

B-278129.4 May 12, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest of agency's decision to reopen discussions after initial award and request an additional round of best and final offers (BAFO) is untimely where not filed prior to the closing time for receipt of BAFOs. 2. Protest that awardee's employment of former government employee afforded it an unfair competitive advantage is denied where the former employee had left the government during the preliminary stages of developing the solicitation for the prior procurement for the services and he had no involvement in developing the current solicitation or evaluating proposals for the current procurement. 3. Protest that agency failed to take into consideration deficiencies in the awardee's performance of prior contract for guard services is denied where agency was aware of and considered the performance deficiencies. View Decision Matter of: Proteccion Total/Magnum Security, S.A. File: B-278129.4 Date: May 12, 1998 DIGEST Attorneys DECISION Proteccion Total/Magnum Security, S.A. protests the Department of the Army's award of a contract to Prosegur/Universal Security, S.A., under request for proposals (RFP) No. DAJN21-97-R-0026, for security guard services for United States military installations and facilities in the Republic of Panama. We deny the protest. The solicitation, issued on July 21, 1997, provided for award to be made to the offeror whose proposal offered the best value under the following four factors (listed in descending order of importance): (1) management, including subfactors for past performance, general management techniques, and phase-in and phase-out; (2) technical adequacy, including subfactors for technical approach and schedule compliance; (3) quality control, including subfactors for specific inspection techniques and corrective action; and (4) price. The solicitation also provided for a performance risk evaluation to assess the offeror's current and past records of performance as they relate to the possibility of successful accomplishment of the required effort. The Army initially awarded the contract to Proteccion on September 15. Prosegur protested the award and, on October 28, the agency advised offerors by facsimile transmission that it would take corrective action with respect to Prosegur's protest, by reopening discussions and requesting new best and final offers (BAFO). The agency reopened negotiations on November 26, and on December 11 requested BAFOs to be submitted by December 19. After evaluating the BAFOs, the agency selected Prosegur for award. This protest followed. REOPENED DISCUSSIONS Proteccion asserts that the Army's decision to reopen discussions and request new BAFOs was inconsistent with the requirement in the Federal Acquisition Regulation (FAR) that an agency not reopen negotiations after receipt of BAFOs unless it is clearly in the government's interest, FAR Sec. 15.611(c) (June 1997), and was also improper because it resulted in prohibited technical leveling. See FAR Sec. 15.610(d) (June 1997). Under our Bid Protest Regulations, protests based upon alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be filed not later than the next closing time for receipt of proposals following the incorporation. 4 C.F.R. Sec. 21.2(a)(1) (1998). As a general matter, an objection to an agency's decision to reopen discussions constitutes such a protest, and thus must be filed no later than the next closing time for receipt of proposals. Minact, Inc., B-237128.2, Nov. 9, 1989, 89-2 CPD Para. 450 at 2-3. Proteccion did not challenge the Army's decision to reopen discussions and request an additional round of BAFOs until after award had been made to Prosegur, at the conclusion of the reopened negotiations. These allegations therefore are untimely. Proteccion also argues that the agency improperly failed to provide it with information that was provided to Prosegur during a debriefing on the original award as required by FAR Sec. 15.1007(c) (June 1997). That section provides that where, within 1 year of contract award, a protest causes the agency to issue a new request for BAFOs, the agency shall make available to the original offerors that are requested to submit new BAFOs, information provided in any debriefings conducted on the original award about the successful offeror's proposal, and other nonproprietary information provided to the original offerors. Neither the November 26 letter reopening discussions, nor the December 11 letter requesting new BAFOs--which was signed by the contracting officer and sent to all offerors and therefore constituted a solicitation amendment, see Scientific Research Corp., B-260478.2, July 10, 1995, 95-2 CPD Para. 8 at 6--included the information Proteccion alleges was required under the FAR.