B-311310, Rhonda Podojil--Agency Tender Official, May 9, 2008

B-311310 May 09, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Rhonda Podojil, the agency tender official (ATO) for the U.S. Army Medical Command tender in a public-private competition under Office of Management and Budget (OMB) Circular A-76, protests the Army's decision to procure nutrition care services at 10 military treatment facilities in the United States through a contract awarded to Sodexho Management, Inc. under request for proposals (RFP) No. W81K04-07-R-0016, rather than continuing to have those services performed in-house by government employees. We dismiss the protest as untimely. View Decision B-311310, Rhonda Podojil--Agency Tender Official, May 9, 2008 Decision Matter of: Rhonda Podojil--Agency Tender Official File: B-311310 Date: May 9, 2008 LTC Daniel G. Jordan, and Randall J. Vance, Esq., Department of the Army, for the protester. Thomas J. Madden, Esq., Terry L. Elling, Esq., and Sharon A. Jenks, Esq., Venable LLP, for Sodexho Management, Inc., the intervenor. Scott N. Flesch, Esq., Department of the Army, for the agency. Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest by agency tender official (ATO) challenging result of competition conducted pursuant to OMB Circular A-76 is dismissed as untimely where the ATO filed the protest more than 10 days after the ATO knew or should have known the basis of protest. While debriefing exception to timeliness rules applies to A-76 competitions conducted on the basis of competitive proposals, protest nevertheless is untimely because the ATO did not timely request a debriefing--a predicate to invoking the exception. DECISION Rhonda Podojil, the agency tender official (ATO) for the U.S. Army Medical Command tender in a public-private competition under Office of Management and Budget (OMB) Circular A-76, protests the Army's decision to procure nutrition care services at 10 military treatment facilities in the United States through a contract awarded to Sodexho Management, Inc. under request for proposals (RFP) No. W81K04-07-R-0016, rather than continuing to have those services performed in-house by government employees.[1] On behalf of the employees, the ATO argues that through discussions, the contracting officer led the protester to increase its staffing to a level beyond that required by the RFP, which in turn caused the protester to increase its price to its competitive prejudice. We dismiss the protest as untimely. On September 15, 2006, the U.S. Army Medical Command, Center for Health Care Contracting, published an announcement on the Federal Business Opportunities (FedBizOpps) website, publicizing the Army's intent to conduct a standard competition[2] to compare the cost of continued in-house performance of the requirements at issue with obtaining those services by contract. On June 22, 2007, the agency issued the RFP, which provided for a –lowest-priced, technically acceptable— selection process. By the RFP closing time, the agency received four private-sector proposals, including a proposal from Sodexho, as well as the agency tender, which was submitted by the ATO.[3] The Army performed an initial evaluation of the agency tender and found its proposed approach to be technically unacceptable. Through written discussions with the ATO dated October 9, the agency raised its concerns regarding the agency tender's proposed approach. After receiving a revised technical proposal, the Army reassessed the agency tender's technical proposal, again found it to be technically unacceptable, and again raised its concerns with the protester in –face-to-face— discussions in early December. In response, the protester then submitted a second revised technical proposal for the agency tender, which the Army evaluated as technically acceptable. In a letter dated January 14, 2008, the agency notified the protester that the technical proposal of the agency tender had been evaluated as acceptable, but asked the protester to address certain errors in the agency tender's pricing proposal, update the pricing to reflect newly issued 2008 General Schedule pay information, and submit a final revised proposal. Thereafter, the protester submitted a final proposal revision for the agency tender in the amount of $70,403,570. Consistent with advice from the agency in the January 14 letter, the protester did not revise the technical proposal of the agency tender since it had been evaluated as acceptable by the agency. On February 12, utilizing the OMB A-76 COMPARE software, the Army compared the cost of in-house performance (based on the technically acceptable agency tender) with the cost of private-sector performance (based on the price proposed by Sodexho, which had submitted the lowest-priced technically acceptable private- sector proposal).