Free Administrative Record - District Court of Federal Claims - federal

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 1 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary Go Curcio, Esq. February 20, 2007 Page 14

e. See id. These rates are equal to or lower than the rates offered by Rowe.

4 For all full time positions, the hourly rate is calculated by dividing the annual salary proposed by Olympus by 2080 hours.

231

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 2 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 20, 2007 Page 15

For ali of the above reasons, Rowe has adequately addressed employee retention and its proposed wage rates do not pose a performance risk to the Government, 2, The slightly lower total price for the option years in Rowe's price proposal is attributed to start-up costs. Olympusl argument that Rowe's price proposal fails to account for increased costs of equipment and/or supplies is equally misplaced. If Rowe had failed to reasonably estimate equipment costs, one would presume that it would have budgeted

232

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 3 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 20, 2007 Page 16 less than Olympus. But Rowe actually budgeted more more than

Olympus had budgeted for Equipment costs over the entire contract. Compare Rowe Price Proposal "Other Operating Costs" line item Equipment for base year and all option years with Olympus Price Proposal line item "Equipment" at 9, 15, 21,27, 33. It is the same story for the costs of supplies. Rowe budgete supplies over the entire contrac for

more than Olympus. Compare Rowe Price

Proposal "Other Operating Costs" line item "Supplies" for base year and all option years with Olympus Price Proposal line item "Supply & Material Cost" at 9, 15, 2!, 27, 33.

. These amounts account for the slight d~op in Rowe's total annual price.

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 4 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 20, 2007 Page 17 3. Rowe's proposed price includes sufficient profit to account for any unexpected losses. Finally, even if Rowe experiences unexpected losses during the performance of this contract, Rowe has built in sufficient profit to cover any unexpected cost increases. See Rowe Price Proposal "Grand Totals" line item "Profit" for base years and all option years. Also, as discussed above, Rowe had budgeted rs more for

equipment and supplies than did Olympus. Rowe also proposed greater or comparable wage rates for its labor force than did Olympus. Given these facts, Rowe's profit is most than sufficient to cover any unexpected cost increases. Conclusion For the reasons set forth above, as well as in Rowe's Request for Dismissal and the Agency Report, Olympus' Protest and Supplemental Protest should be dismissed.

VeX truly yours,

. Weckstein Pame!A. Reynolds
co:

Grace Bateman, Esq. Lt. Col. Frank March, Esq.

1234

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 5 of 30

DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY

REPLY TO ATTENTION OF

901 NORTH STUART STREET ARLINGTON, VA 22203-1837 (703) 696-2826; DSN 426; Fax ext. 1537 E-mail: [email protected]

February 27, 2007 (Corrected February 28, 2007) Contract and Fiscal law Division

Mary G. Curcio, Esq. Office of the General Counsel Government Accountability Office 441 G. Street, NW Washington, D.C. 20548

PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GAO PROTECTIVE ORDER

Subject: Protest of Olympus Building Services, Inc. (B-296741.15) Dear Ms. Curcio: Please find enclosed the Government's administrative report ("AR") responding to the subject supplemental protest. This report also responds to other issues that GAO requested that the Government Address. Pursuant to 4 Code of Federal Regulations ("C.F.R.") § 21.3(c), the Government has sent a copy of the report directly to Grace Bateman, Esq., attorney for Olympus Building Services, inc., (hereafter "Protester" or "Olympus") on this date. This report contains protected information. Any comments by the Protester regarding this report should be sent directly to your office with a copy forwarded to: LTC Frank A. March Contract and Fiscal Law Division, Team I ATTN: JALS-KFLD 901 North Stuart Street, Suite 500 Arlington, Virginia 22203-1837

I. Statement of the Facts

The Defense Intelligence Agency ("DIA") responded to Protester's initial protest on January, 29, 2007 and its first supplemental protest on February 14, 2007. This memorandum

1235

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 6 of 30

incorporates the facts provided in the legal memorandum submitted to GAO and Protester on January 29, 2007 and February 14, 2007. After filing the report to the first supplemental protests, Olympus filed its second supplemental protest on February 20, 2007 alleging: 1. The SSA's tradeoff analysis is fatally flawed because it is based upon a material error of fact regarding the offerors proposed manpower; and 2. In the alternative, GAO cannot determine whether DIA's best value decision was reasonable in the absence of any documents in the record to show how the SSA evaluated the manpower proposal. On February 23, 2007, GAO requested that the Government respond to several questions to clarify the record. This report addresses the issues in the second supplemental protest and the questions to clarify the record.
II. Argument

Second Supplemental Protest A. Protester is not an interested party. This protest should be dismissed because Protester is not an interested party to bring this protest before the GAO. In adopting the language of the Competition in Contracting Act of 1984 ("CICA"),I the GAO Bid Protest Regulations define an interested party as an "actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract." 4. C.F.R. {} 21.0(a). Protester does not have a direct economic interest because it would not be in line for award even if it was successful in challenges to the award decisions because Protester has included its required escorts as

2

1236

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 7 of 30

employees charged under the contract as FTEs when the RFP requires that such escorts be provided at no additional cost to the Government. (AR, tab 3, p. 6) This issue came to light when Protester raised the issue of whether DIA properly calculated the FTEs of the offeror. A review of Protester's cost proposal shows the following costs for escort services in Olympus' price proposal:

(AR, tab 41) This huge unauthorized cost in its price proposal either renders Protester ineligible for award or displaces it as "next in line" for award. A protester is not an interested party where it would not be in line for contract award were its protest to be sustained. ECS Composites, Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD ¶ 7. B. The second supplemental protest is untimely. Though without merit, the second supplemental protest is untimely in accordance with 4 C.F.R. § 21.2(a)(2) because Protester should have known of the basis of its protest greater than ten days before it filed the second supplemental protest. Protester states that the basis of the protest is the February 14, 2007 report and a February 15, 2007 e-mail from agency counsel. Though Protester characterizes the e-mail as stating that the "agency does not have any

~ 31 U.S.C. §3551 etseq.

1237

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 8 of 30

evaluation documents to support the S SA's analysis of the manpower the respective firms offered," counsel actually informed Protester that it had no documents responsive to one of its doculnent requests.2 Though Protester is hinging the timeliness of its protest on these February 14 and 15 events, it should have been aware of the basis of this protest issue when it received the source selection decision (AR, tab 32) in the AR on January 29, 2007. On that date, Protester was aware of the comparison between the number of employees proposed by Olympus and Rowe. Protester was also aware of the documents that were produced in the record. By Protester's logic, it could conceivably wait until any stage of the protest process to inquire about the existence of a document and then file a supplemental protest concerning the absence of that document. GAO does not allow this. Protester's allegation that the tradeoffwas flawed because the SSA based her decision upon a material error of fact is untimely because the source selection decision produced in the January 29, 2007 report fully disclosed this fact. Protester's alternative allegation is also untimely because Protester should have known of the absence of any documents based on the documents that were produced with the AR on January 29, 2007. C. The SSA's did not base her decision on a material error regarding the offerors' proposed manpower. Protester alleges that the SSA was wrong in her assessment that Rowe 1 proposed by Olympus. (Second Sup. Protest at 3) The Contracting Officer explains:

2

A 7:31 a.m., February 15, 2007 e-mail of agency counsel stated: Protester requests all documents prepared by DIA in performing analysis or review of the offerors' price/cost proposals. There are no other documents
responsive to this request other than any documents that are already contained in the AR."

4

1238

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 9 of 30

(AR, tab 43) Though there was an error, the enor was in Protester's favor. In the source
selection decision, Protester was at a deficit of on FTEs as opposed half FTEs.

D. The GAO can determine whether DIA's best value analysis was reasonable concerning how the SSA evaluated Rowe's manpower proposal.

Protester contends that because there are no documents showing how the SSA arrived at the conclusion that Rowe offered to provide five more employees than Olympus, that there is no
basis for GAO to conclude that the source selection decision is reasonable. It is notable that this

allegation is an alternative argument. This is an apparent concession that the employee comparison contained in the source selection decision is actually accurate. If Rowe actually proposed to provide or more FTEs than Olympus, then this alternative argument is without

merit. The SSA's analysis of the differences in FTEs is well documented in the source selection decision. (AR, tab 32, pp. 14-16) While the underlying issue (whether Rowe really does offer or more FTEs than Olympus) is important, documentation of the actual analysis is not that

3 The Contracting Officer's response to the clarification questions are contained below in the legal memorandum, however, in the Contracting Officer's statement response l(f) was before the section where the Contracting Officer addressed the second supplemental protest issue regarding the FTEs.

1239

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 10 of 30

important. It is clear that the SSA documented that Rowe of offer

s 56 FTEs and that Olympus

FTEs. I_d_d. That is adequate documentation of the analysis. It is clea that 56 FTEs is . As long as it is accurate that Rowe actually proposed to pro e five or more

better than

FTEs than Olympus, then the source selection decision provides GAO adequate documentation to determine that the source selection decision is reasonable. Clarification Questions Below are the Contracting Officer's responses to the clarification questions: .QUESTION 1 a. What is the [htal FPR that ROWE sttbmitted attd that was evaluated b!, the TEB? The final FPR that ROWE submitted and was evaluated by the Technical Evaluation Board was: Best and Final Offer, Final revised Proposal for Custodial Services at the Defense Intelligence Analysis Center (DIAC, at Bolling AFB, Washington, DC, for Solicitation Number HHM40205-R-0017 and its amendments, submitted 29 November 2005, by ROWE Contracting Services, INC, Mandeville, Louisiana, 70471. The TEB evaluated this FPR which included a security awareness plan in conjunction with the original proposal as one document. b. How did the TEB evaluate the FPR of ROWE? The TEB evaluated the FPR of ROWE as second best out of five offerors. Please note that the top rated offeror at the time is disqualified. The methodology used by the TEB was set forth by the Source Selection Plan, HHM402-05-R-0017, pages 7 and 8, paragraph 3.6 Ratings. The rating criteria given and defined were: Excellent; Good; Marginal; and Unacceptable. These criteria were used in evaluating each of the vendors' proposals. c. That is, how did the agenc~ read the FRP replacetnent pages in coniunction with the FPR? The TEB read the FRP replacement pages in conjunction with the FPR as one complete document.

t of mes

1240

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 11 of 30

t. o

o

o e

t en 56 55.
g. What did the TEB make of ROWE not listhtg b~ name the cleared personnel fit the requirement?

ROWE listed the names and clearance level of 26 cleared level 6 personnel in their original proposal. The FPR did not indicate any change in number of personnel nor level of clearance. The alphabet A through R blank indicated to me that there was no change from the initial proposal because the personnel and clearance level were not addressed in the discussion letter (see paragraph d above). It was clear that ROWE's FPR responded only to the discussion letter dated 15 Sep 06. Alternatively, to construe the blank as a suggestion that ROWE intended to

7

1241

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 12 of 30

offer no cleared personnel would be nonsensical by virtue of the fact they were competing for this contract.
h. What is the security awareness plan that the TEB found in ROWE's proposal?

L What ~'orms is the TEB re['erencing regarding transferring worker clearances f!'om ROWE to DIA ? The security forms mentioned by the TEB which were interpreted as necessary to transfer worker clearances from ROWE to DIA are: DD Form 441 DD Form 441-1 DISCO Form 562 DD Form 398 DD Form 398-2 SF 86 SF 312

These forms are mentioned in ROWE's FPR security awareness plan of DoD self-inspection handbook for contractors section, pages 6 & 7. QUESTION 2 a. What price reMism analysis was conducted and b~ whom ? The price realism analysis was not conducted for competition of commercial services for firmfixed price in accordance with the FAR Part 15.404-1(b) & (d). However, all offered prices were reviewed by previous contracting officer and all price proposals were deternained to be in response to the clause addendum 52.212-1 of the solicitation then.
b. The source selection document that the prices proposed b~, all Offerors are realistic, but she does not elaborate on how she reached this conclusion?

1242

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 13 of 30

My analysis was based on FAR 15.505-l(b)(2)(i), adequate price competition establishes price reasonableness. The cost realism was determined based on the price reasonableness. Additional cost realism analysis was not required for a firm-fixed-price.
QUESTION 3. a. What/How man~ past performance references were considered in evaluating the past performance of Olympus?

Only two past performance references were considered.

c. What did the contracting officer think when she was performing the past performance ,evaluation.

I evaluated the cumulative information located in the AR file. In the case of Olympus, the overwhelming factor was . I did also consider the positive aspects of the questionnaires for Olympus.
d. What reference is the contracting officer citing when she states that a re~erence stated that theF would award to OlFntpus again if certain changes were made in lower level managentent?

As aforementioned, there was one wrong past performance questionnaire which does not belong to Olympus' file. I did not look at the offeror's name when I reviewed. It was in the Olympus file and I assumed that it belonged to Olympus. I realized the mistake after the initial PNM and I removed this questionnaire from the file; however, the comment from this questionnaire was carried over to the December 2006 PNM by mistake. Despite this fact, it was clear from my narrative on page 13 of the PNM that was the deciding factor in assigning Olympus a rating instead of "Excellent." Additionally, this comment concerning the discarded questionnaire was not a factor in the tradeoff analysis. To further minimize the impact

1243

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 14 of 30

of the statement from the discarded questionnaire, I specifically found during my contemporaneous review that, had Olympus received an "Excellent" for past performance, it still would not have been a best value due to its higher price.
Q UES TION 4. a. What is the difference between the Tab 26/Tab 27 evaluations of Rowe and OlFmpus and the Tab 31 concensus evaluation? Tab 26 and Tab 27 provide each vendor's technical evaluation. Tab 31 supports ranking order of the technical evaluation.

b. Is OlFmpus correct (page 8 of the Feb 2 sttpplemental protesO that the Tab 31 consensus is front Sept 2006? Olympus is not correct. My file does not indicate the date of consensus. However, I spoke with TEB and I was informed that their record shows the Tab 31 was prepared in May 2006. c. When were theF each completed relative to the award decisions? All technical evaluations, to include the consensus evaluation at tab 31 were completed prior to my source selection decisions in September and December 2006. d. Which is the evahlation that the final source selection decision is based on? I used the most recent technical evaluations (tabs 26 and 27) and consensus (tab 31) submitted by the second SEB. However, I made my own Source Selection Authority's independent judgment as shown in the Source Selection Decision. III. Conclusion The entire supplemental protest is untimely. DIA properly concluded that Rowe proposed 5 or more FTEs than Olympus. This fact is well documented in the source selection decision and this is more than sufficient documentation for GAO to conclude that five more FTEs is better than five less FTEs. DIA has clarified all open issues regarding the record.

10

1244

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 15 of 30

WHEREFORE, for the reasons set forth above, the Government respectfully requests that GAO deny Olympus' protest. If you have any questions regarding this matter, please

contact LTC Frank March at (703) 696-2826; fax (703) 696-1537. Sincerely, ~A. March Lieutenant Colonel, U.S. Army Chief, Trial Team I Copies Furnished:
Protester: Grace Bateman, Esq. Seyfarth Shaw LLP 815 Connecticut Ave., NW, Suite 500 Washington, DC 20006-4004 Telephone: 703-256-7754 Facsimile: 703-256-7883 Intervenor : Kenneth B. Weckstein, Esq. Epstein Becker & Green, P.C. 1227 25th St., N.W., Suite 700 Washington, DC 20037 Telephone: 202-861-0900 Facsimile: 202-861-3560

Installation Attorney: Virginia Contracting Activity/Defense Intelligence Agency ATTN: Lt. Col. Joe Treanor, DIAC-DAP-2 Building 6000 Bolling Air Force Base Washington, DC 20340-5100 Telephone: 202-231-2821 Facsimile: 202-231-2831 Directorate of Contracting:

11

1245

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 16 of 30

Virginia Contracting Activity/Defense Intelligence Agency ATTN: Cheong Chon, Contracting Officer Building 6000 Bolling Air Force Base Washington, DC 20840-5100, Telephone: 202-231-8416 Facsimile: 202-231-2831

12

1246

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 17 of 30

RESPONSE TO GAO SUPPLEMENTAL PROTEST QUESTIONS
QUESTION 1

What is th,# [fnal FPR that RoWE submitted and that was evaluated by the TEB? The final FPR that ROWE submitted and was evaluated by the Technical Evaluation Board was: Best and Final Offer, Final revised Proposal for Custodial Services at the Defense !,ntelligence Analysis Center (DIAC, at Bolling AFB, Washington, DC, for Solicitation Number HHM402-05-R-0017 and its amendments, submitted 29 November 2005, by ROWE Contracting Services, INC, Mandeville, Louisiana, 70471. The TEB evaluated !~his FPR which included a security awareness plan in conjunction with the original proposal as one document. b.,. How did the TEB eva, lu,..ate th,e FPR.ofROWE? The TEB evaluated the FPR of ROWE as second best out of five offerors. Please note that the top rated offeror at the time is disqua.lified. The methodology used by the TEB was set forth by the Source Selection Plan, HHM402-05-R-0017, pages 7 and 8, paragraph 3.6 Ratings. The rating criteria given and defined Were; Excellent; Good; Ma~gina]; and Unacceptable. These criteria were used in eva!uating each of the vendors' proposals. _c.. Th,at is, ho.w did the age..nev rea, d the ERP rep, lacem,,ent pages in ¢oniunc~,'on with, the EPR?. The TEB read the FRP replacement pages in conjunction with the FPR as one complete document,

t ny the

1247

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 18 of 30

nd us. the tial d E 1~. What did the TEB make o[ ROWE not h:~nj~ by ha,me the.cl.~ared,personnel in the reqtzirement ? ROWE listed the names and clearance level of 26 cleared Ievel 6 personnel in their origina! proposal. The FPR did not indicate any change in number of personnel nor level of clearance, The alphabet A through R blank indicated to me that there was no change from the initial proposal because the personnel and cle~ance level were not addressed in the discussion letter (see paragraph d above). It was clear that ROWE's FPR responded only to the discussion letter dated 15 Sep 06. Alternatively, to construe the blank as a suggestion that ROWE intended to offer no cleared personnel would be nonsensical by virtue of the fact they were competing for this contract.

ined se ation y her

1248

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 19 of 30

EB i. What [orms is,,the TEB referencinz re~ardinlz transferring worker clearances from, ROWE to DIA ? The security forms mentioned by the TEB which were interpreted as necessary to transfer worker clearances from ROWE to DIA are: ¯ DD Form441 - DD Form 441-1 ' - DISCO Form 562 ¯ DDForm398 DD Form 398-2 ¯ SF 86 ~, SF 312 These forms are mentioned in ROWE's FPR security awareness plan of DoD selfinspection handbook for contractors section, pages 6 & 7. O.UESTION 2 a. What t~rice realism analysis w~ conducted and by whom? The price realism analysis was not conducted for competition of commercial services for firm-fixed price inaccordance with the FAR Part 15.41M-1 .(b) & (d). However, all offered prices were reviewed by previous contracting officer and all price proposals were detennained to be in response to the clause addendum 52.212-1 of the solicitation then. b. .T..he..source .~e, lectt'on da,c, ument that the price,~( proposed by all Offerors are realistic, but she does not elaborate on how she reached this conclusion? My analysis was based on FAR 15,505-1(b)(2)(i), adequate price competitiort establishes price reasonableness. The cost realism was determined based on the price reasonableness, Additional cost realism analysis was not required for a firm-fixed-price. QUESTI, QN 3. a.,, What/How man~1J~t ~er[or, mance references were considered in evaluatin~ the .past performance of Olyml~,~s ?

Only two past performance references were considered.

1249

Case 1:07-cv-00243-LMB FEB-27-2007 17:39

AE-2A

Document 15-49

Filed 05/12/2007

Page 20 of 30
202 281 2881

tI l the did otice of

c. What did the contractinz officer think when she was perfarmimz the past performance evaluation., I evaluated the cumulative information located in the AR file. In the case of Olympus, the overwhelming factor was the cure notice. I did also consider the positive aspects of the questionnaires for Olympus. d, What reference i.~ the contracting officer citing when sheLs,,tates that a reference. stated that they would award to Olympus azain il: certain changes were made in lower level management? As aforementioned, there was one wrong past performance questionnaire which does not belong to Olympus ' f'de. I did not look at the offeror's n-a.rne when I reviewed.' It was in the Olympus file and I assumed that it belonged to Olympus. I realized the mistake after the initial PNM and [ removed this questionnaire from the file; however, the comment from this questionnaire was carried over to the December 2006 PNM by mistake. Despite this fact, it was clear from my narrative on page 13 of the PNM " Additionally, this comment concerning the discarded questionnaire was not a factor in the tradeoff analysis. To further irfinimize the impact of the statement from the discarded questionnaire, I specifically found during my contemporlmeous review that, had Olympus received an "Excellent" for past performance, it still would not have been a best value due to its higher pricel QUESTION 4. .a. ,,,,,,,,What i.~,the di.f~e,r, ence between the Tab 26/Tab 27 evaluations of Rowe and, Olympus and the ~qb 31 concensus,~,~aluatio, n, ? Tab 26 and Tab 27 provide each vendor's technical evaluation. Tab 31 supports ranking order of the technical evaluation.

1250

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 21 of 30

b. Is Olympus ,cqrrect (p~ze 8 of the Feb 2 supplemental protest) that the Tab_31, con.~e.n_.sus £~" l~rom Sept 20067 Olympus is not correct. My file does not indicate the date of consensus. However, I spoke with TEB and I was informed that their record shows the Tab 31 was prepared in May 2006.
c. When were they each completed relative to the award decisions?

All technical evaluations, to include the consensus evaluation at tab 31 were completed prior to my source selection decisions in September and December 2006, d. Which is the ~valuation that the, ~ina! source selection decision is ba.~ed on? I used the most recent tectmical evaluations (tabs 26 and 27) and consensus (tab 31) submitted by the second SEB. However, I made my own Source Selection Authority's independent judgment as shown in the Source Selection Decision.
Second Sttpplemental Protest

Rowe offered 62.5 full time equivalents. As explained in my answer to question number If above, initially, the error occurred when I mistakenly read the 15 (FT) to 15 (PT) of the DIAC expansion offer page. I have discovered the additional error of 1 FTE erroneously credited. The new calculation shows the fall time equivalent of 37 employees for the DIAC and 25.5 FTE employees for the DIAC Expansion, resulting in a total of 62.5 FTEs. I have verified that 51 FTEs are still the correct number for Olympus, Thus the difference in FFEs between ROWE and Olympus is I 1.5 in ROWE's favor, Again, however, this difference in the number of FTE personnel was a secondary consideration to the cost differential in deten'nining best value,

Date: 27 Febl"uary 2007

1251
TOTAL P.O06

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 22 of 30

EPSTEIN BEOKER & I~REEN~

FACSIMILE COVER SHEET

PRIVILEGED AND CONFIDENTIAL
To: Lt. Col. Frank March Fax Number: (703) 696-1537 Arty, No. Client No.: 052 053807.005

Telephone Number: (703) 696-2826
Pages (including cover):

From: Date;

Kenneth B. Weckstein February 28, 2007

Comments:

PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

NOTICE O~ PRIVILEGE AND CONFIDENTIALITY THIS I"EL~COPY IS PRIVILEGED AND CONFIDEN~AL. IT IS INTENDI~D SOLELY FOR "rH~ ADDRESSE~, ANY UNAUTHORIZED DISCLOSURE, REPRODUCTION, DISTRIBUTION OR THE TAKING OF ANY ACTION IN P.SLIANCE ON THE CONTENTS OF THIS INFORMATION IS PROHIBITED, IF YOU P.ECErv'BD THIS TELECOPY IN ERROR, PLEASE NOTII~" US IMMEDIATISLY, THIS COMMUNICATION DOES NOT CONPORM TO THE STANDARDS OF A COVERED OPINION WITHIN THE MEANING OF CIRCULAR 230 ISSUED BY THg UNITED STATES SECRETARY OF THE TREASURY, ACCOP..DINGL'V, ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION CANNOT BE USED, AND WAS NOT INTENDED OR WRITTEN TO BE USED, FOR THI~ PURPOSE OF AVOIDING UNITED STATES TAX PENALTIP..q. IN ADDITION, ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION MAY NOT BE USF~D TO PROMOTE, NIAI~IqET OR F.ECOMMEND A TRANSACTION TO ANOTHER PER.SON, IF YOU DO NOT RECEIVE ALL PAGES OR HAVE ANY PROBLEMS IN REC~il/'ING THIS TELECOPY~ PLEASE CALL THE SENDER IMMEDDI TEL E

DC:854921 vl

1252

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 23 of 30

EPSTEIN REIDKER & GREEN~
~TTOI~NEYS AT LAW

P, C.

WASHINGTON, DD ~OO37-1 I75

E~GLAW,GOM KENNETH B. WE[3KSTEIN TEL: ~13~t,t~, 1 ,13=3130 KW EEKSTEI N@ EB (3 LAW.

February 28, 2007

VIA TELEFAX

Mary G. Curcio, Esquire U.S. Government Accountability Office 441 G Street, N.W. Washington, D.C. 20548
Re:

PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Comments on Agency Report on Second Supplemental Protest of Olympus Building Services, Inc. B-296741,15 Solicitation No. HHM402-05-R-0017

Dear Ms. Curcio: Rowe Contracting Services, Inc. ("Rowe") is the awardee under the referenced solicitation and has intervened in this protest. Rowe, through its undersigned counsel, hereby submits its Comments on the Agency Report on the Second Supplemental Protest of Olympus Building Services, Inc. ("Olympus"), filed on February 20, 2007. ("Second Supplemental Protest"). For the reasons set forth below, the Second Supplemental Protest should be dismissed or denied. Olympus has filed three protests in this matter. As it must, Olympus has argued that the Defense Intelligence Agency ("DIA", "Agency" or "Government") made material errors in making contract award to Rowe. However, the record shows otherwise.

1253

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 24 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER Mary G. Curcio, Esq. February 28, 2007 Page 2 Olympus initially complained that its past performance was wrongly evaluated as being "Good". Specifically, Olympus argued that it was improper for DIA to have assigne~l it a past performance ratin

See Comments of Rowe dated February 20, 2007 generally and at 15-16 (comparing the specific costs of the Rowe and Olympus proposals). Rowe's price and proposed costs are reasonable (and more than adequate) standing alone and when compared to Olympus' proposed costs. Id. at 6-17.

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 25 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Es,q. February 28, 2007 Page 3 Olympus' Second Supplemental Protest also argues that the source selection documents produced by DIA do not support DIA's decision to make award to Rowe, However, as the Agency has noted, the source selection documents were produced to Olympus on or before January 29, 2007. On that date, at the latest, Olympus knew what was and was not in the source selection decision and what source selection documents existed. Any protest about the inadequacy of the source selection documents had to be filed on or before February 8, 2007. Olympus' protest of that issue on February 20, 2007 was not timely.

At the end of the day, there were no material errors in the DIA decision to award to Rowe. RoWe offered a lower price than did Olympus

255

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 26 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 28, 2007 Page 4

. And Rowe surpassed all requirements of the solicitation for cleared personnel. To the extent that Olympus has asserted any other alleged errors, they are not material, Olympus has not been in any way prejudiced. Olympus has not shown that DIA's decision to award to Rowe was unreasonable or unlawful or that Olympus should have received contract award. !~ Olympus' Protest of the SSA's Evaluation of the Proposed Manpower Has No Basis.

A, The SSA was not mistaken when she found that Rowe offered more productive employees than Olympus offered. In its Second Supplemental Protest, Olympus claims that the SSA incorrectly calculated the number of FTEs that Rowe and Olympus offered. See Supplemental Protest, at 2.

." See Supplemental Protest, at 5 fn. 3. For Rowe, Olympus calculated 60.1 FTEs for Option Year 1. See id. at 5.

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 27 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 28, 2007 Page 5

." See id. Olympus' math is wrong. Olympus included in its hours a substantial amount of "non-productive" hours, which were not counted in Rowe's numbers. For instance, Olympus included holiday and vacation days in its own calculations for its janitorial staff. This is hardly an accident.

257

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 28 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 28, 2007 Page 6 Notwithstanding the above, the figure used in Olympus' Second Supplemental Protest was calculated based

5. As Olympus recognized when it did its initial calculation of FTEs, escorts do not ¯ provide any benefit to the Government. Escorts do not provide any cleaning services. Escorts only are permitted.as an accommodation to contractors who donot have their own cleared personnel. For this reason, the solicitation provided that while escorts could

258

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 29 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq, February 28, 2007 Page 7

be used, escorts could not be charged to the Government on this contract.1 See AR Tab 3, at 6 ("The contractor is responsible for all escorts at no additional cost to the Government."). Olympus acknowledged that escorts do not provide productive work when Olympus excluded them from the productive labor hours for the janitorial personnel. See Supplemental Protest, at 5. The actual FTE calculations are as follows:
Rowe's Proposed Total Manpower (Janitorial and Management) for the DIAC and the Expansion Buildingz
Contract Period 7 Month Base Period Option I Option 2 Option 3 O_ ption 4 Total Total Annual Labor Hours Total FTEs

~ To the extent Olympus now attempts to argue that its inclusion of costs for escorts in its proposal should have been regarded as a deficiency, that argument fails for two reasons. First, the argument would not be timely because Olympus knew at its debriefing that its inclusion of costs for escorts was not regarded as a deficiency. Second, Olympus' technical proposal received a rating of "Excellent." Accordingly, while DIA could have downgraded Olympus for being overly dependent on escorts, failure to labe! Olympus' inclusion of escort costs as a serious weakness or deficiency did not prejudice Olympus. In any event, contrary to its arguments in the Second Supplemental Protest, Olympus offered fewer janitorial employees than did Rowe. ~ Rowe's price proposal for the Base Year and Option Years has separate pages for the DIAC and Expansion Building. The Total Annual Labor Hours includes janitorial staff and management staff, The first number in the parenthesis is for the DIAC and the second is for the expansion building. The total FTEs were calculated by dividing the total annual productive hours by 2000--the figure used by Rowe in its proposal.

259

Case 1:07-cv-00243-LMB

Document 15-49

Filed 05/12/2007

Page 30 of 30

PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Mary G. Curcio, Esq. February 28, 2007 Page 8

Olympus' Proposed Manpower Pr,bposal (Janitorial
and Management) for the DIAC arid the Expansion

|

Building
Contract Period 7 Month Base Period ~3ption I Option 2 Option 3 Total Total Annual LabOr Hours Total FTEs

Olympus argument that It

41 more mployees than Rowe offer over

the term of the contract is wrong. The proper way to compare the number of FTE s or

productive hours offered by Rowe and Olympus is to compare the hours offered by Rowe with the shows that Rowe offered

productive

8 "productive" hours offered by Olympus? This more productive ho=rs than did Olympus over the

course of the contract. That obviously was a benefit tthe Government, as was found by DIA. Therefore, the SSA's analysis noting that Olympus was correct. ~e had proposed more FTEs fhan

Olympus' price proposal presents hours for janitorial s aft and management on separate pages for each contract period. The Total Annual Labor Hours Include~s anitorial staff and management staff (excluding escort hours). The first number in the parenthesis is fc~r janitorial staff and the second s for management staff. The total FTEs were calculated by dividing the total annual productive hours by 2080 -~ the figure used by Olympus i 4 As discussed above, For purposes of this comparison, Rowe used the higher total for OI npus, which included non-productive hours,

Prot~l:cd'.48 ] v I

1260