Philadelphia Produce Market Wholesalers, LLC
B-298751: Dec 8, 2006
Philadelphia Produce Market Wholesalers, LLC protests the award of a contract to Four Seasons Produce, Inc. under request for proposals (RFP) No. HDEC02-06-R-0005, issued by the Defense Commissary Agency (DeCA) for fresh fruits and vegetables (produce) for resale at commissaries located in DeCA's East Region (Area 2, Group 2). Philadelphia contends that the agency improperly failed to give its technical proposal additional credit, and unreasonably determined that Four Seasons' higher technically rated, higher-priced proposal offered the best value to the government. Philadelphia also contends that the awardee received an unfair competitive advantage by hiring a former DeCA commissary produce manager as a consultant.
We deny the protest.
B-298751, Philadelphia Produce Market Wholesalers, LLC, December 8, 2006
1. Protest challenging proposal evaluation and source selection is denied where record shows evaluation and award decision were reasonable and consistent with solicitation; protester's mere disagreement with agency's determination that a lack of detail in the firm's proposal did not warrant assigning full evaluation credit to the proposal is insufficient to show that the evaluation was unreasonable.
2. Protest that awardee obtained an unfair competitive advantage by hiring as a consultant a former government employee who had served as a technical evaluator for a previous procurement is denied where record shows that the individual did not assist in the preparation of the current solicitation and that there is no reason to believe inside information was shared with awardee.
Philadelphia Produce Market Wholesalers, LLC protests the award of a contract to Four Seasons Produce, Inc. under request for proposals (RFP) No. HDEC02-06-R-0005, issued by the Defense Commissary Agency (DeCA) for fresh fruits and vegetables (produce) for resale at commissaries located in DeCA's East Region (Area 3, Group 2). Philadelphia contends that the agency improperly failed to give its technical proposal additional credit, and unreasonably determined that Four Seasons' higher technically rated, higher-priced proposal offered the best value to the government.
The RFP, issued as a small business set-aside on
The RFP provided technical specifications and performance requirements for the provision of produce, and emphasized that offerors' technical proposals were to detail the firms' capabilities, including all quality control procedures and back-up plans (regarding, for example, food safety, product recalls, sanitation, and pest management). Id. at 15-27. For the evaluation of price, offerors were to propose a minimum percentage of patron savings, defined in the RFP as:
the average amount the contractor will save the commissary patron on all core items over the selling price of the same or similar items from comparable commercial operations within the local commuting area and/or geographical area within a 25-mile radius of the commissary location (excluding membership clubs and convenience type stores).
Each offeror was to propose unit prices for core and non-core produce items reflecting application of its proposed patron savings percentage. Unit prices were to be reviewed for reasonableness, realism, and to assess the offeror's understanding of the use of the minimum patron savings percentage; the evaluated total price of the offer was to serve as the estimated dollar amount of the contract.
Twelve proposals were received under the RFP for Area 3, Group 2; all but one were included in the competitive range for discussions. Revised proposals were received and evaluated. Four Seasons' proposal was rated excellent under both the technical capability and past performance factors, and received the highest overall technical score. The firm offered the third highest patron savings percentage.
Philadephia contends that the agency unreasonably found a lack of detail in the firm's proposal regarding its quality control program procedures. The protester also generally challenges the decision to award the contract to a higher technically rated, higher-priced offeror.
In reviewing protests of alleged improper evaluations and source selection decisions, it is not our role to reevaluate proposals. Rather, we will examine the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. See Abt Assocs., Inc., B-237060.2,
Our review of the record confirms the reasonableness of the agency's evaluation. Specifically, while Philadelphia's proposal was rated very good and was ranked fourth highest of the 11 proposals for technical merit, in light of its relative lack of detail and the associated increase in performance risk, the record provides no support for the protester's general contention that its proposal warrants a higher evaluation rating. In addition to the lack of detail regarding the firm's quality control program, the evaluation record reveals other areas of the proposal that similarly failed to receive higher evaluation credit due to a lack of detail regarding specific approaches to be used. While both firms' proposals had noted technical strengths, Four Seasons' proposal was cited as having additional strengths; some of those strengths were attributed to the proposal's substantial detail regarding the firm's established business operations and practices, successes achieved from those practices, and how its proposed approaches would benefit the commissary patrons.
While the protester does not challenge the evaluators' findings that its proposal lacked detail in several other areas,
Given the RFP's emphasis on the need for each offeror to provide details about its technical capability and approach, and the reasonableness of the ratings assigned to the two firms' proposals for the level of detail provided, we see no basis to question the propriety of the evaluation. The protester's mere disagreement with the evaluation is insufficient to render it unreasonable. See id. With regard to the selection decision, the agency identified various strengths in the Four Seasons proposal, mostly attributable to its detailed methodologies and solid demonstration of its experience, facilities, and distribution capabilities; regarding its quality control program, for instance, the awardee included a detailed discussion of staff responsibilities, training, procedures to be followed, the analysis of recorded findings, and contingency/back-up plans. Given the importance of technical merit under the RFP's evaluation terms, we cannot find unreasonable the agency's determination that the awardee's technically superior, higher-priced proposal presented the best value to the agency.
The protester next contends that the awardee obtained an unfair competitve advantage by hiring a consultant who is a former DeCA employee. Prior to his recent retirement, the consultant served as the produce category manager responsible for store support and merchandising produce, and was a spokesperson for the agency at two industry roundtables held to solicit industry views and suggestions regarding the conversion of commissary produce operations, the consideration of commercial business practices, and the appropriate grouping of commissaries. He also served as an evaluator reviewing two technical proposals (but not price proposals) submitted for a follow-on contract to a short-term test contract awarded for the provision of produce to the Area 1 commissaries.
As an initial matter, we note that the interpretation and enforcement of post-employment conflict of interest restrictions are primarily matters for the procuring agency and the Department of Justice, not our Office. See Medical Dev. Int'l, B'281484.2,
Here, the record shows that, while he worked for DeCA, the consultant participated in preliminary market research and strategy planning with his supervisors who were coordinating the conversion of operations from DSC-P, and that he was an agency spokesperson for the agency's two industry roundtables. However, it is clear that those roundtables were held for the purpose of releasing to the public for industry comment, at least in summary form, research and planning information gathered by the agency. Specifically, the agency not only discussed its market research and its plan to change its produce business model, but also released to the substantial number of vendors in attendance the terms of its recent test program and follow-on procurement for the provision of produce to Area 1 commissaries. The record thus shows that at least much of the preliminary research known to the consultant was in fact shared with other vendors and thus cannot be characterized as inside information.
As for the current solicitation, the agency reports that the individual did not assist in the preparation or development of the source selection plan or the solicitation, which was issued almost 4 months after his retirement from the government. Additionally, the agency points out that there are differences in the terms of the solicitation compared to the prior procurement the former government employee participated in as an evaluator (where he reviewed two initial technical proposals, but had no access to price proposals). For instance, the previous solicitation included a requirement for port delivery of produce for commissaries in
In any event, even assuming that the consultant's participation in the prior procurement gave him access to inside information, the consultant signed a non-disclosure agreement certifying that he would not disclose contractor or source-selection information that he may have learned as an evaluator, and we see no basis in the record here to conclude that the Four Seasons proposal was prepared based on such information. Rather, the record shows that upon his retirement, the consultant was advised by the agency ethics officer that offering his services as a commissary produce consultant would be unobjectionable as long as inside information was not used; that he relayed that information to his client, Four Seasons; that Four Seasons confirmed the accuracy of the restriction with the DeCA ethics officer; and that both the consultant and the awardee deny that any communication involving inside information took place. Our conclusion is further supported by the responses received to our inquiries as to the type of assistance rendered by the consultant. The record shows that Four Seasons, a commercial produce vendor with limited experience in contracting with the federal government, specifically hired another consultant (a professional federal government contract proposal writer)--not the consultant at issue in the protest--to work closely with the firm to prepare its proposal. The role of the consultant at issue here was limited to the review of that proposal; the record shows, for instance, that he made suggestions of editorial and style changes to the proposal related to achieving clarity and compliance with the RFP instructions calling for offerors to provide details regarding their capabilities, approaches, and accomplishments; this advice suggests no use of inside information.
Our review of the evaluation record confirms that the awardee's favorable evaluation clearly was based on the strength of the firm's established business operations and experience, described in its well-written, detailed technical proposal. In short, there has been no showing that the consultant's involvement gave the awardee an unfair competitive advantage, and, on this record, we have no reason to question the propriety of the award.
The protest is denied.
Gary L. Kepplinger
 DeCA recently took over procurement responsibility for the provision of produce to its military commissaries from the Defense Supply Center-Philadelphia (DSC'P) and generally is seeking to utilize a new business model, considering commercial industry practices, for its commissaries' produce operations in an effort to obtain a good selection of high quality produce offered at a savings to commissary patrons. The agency has organized its commissaries, for produce procurement purposes, by regional area and group. This RFP, for example, serves commissaries in Area 3, Groups 1 and 2, and Area 5, Groups 1 and 2. Since Philadephia only submitted a proposal in response to the Area 3, Group 2 requirement, this decision is limited to the award of a contract for that group.
 The protester proceeded with its protest pro se and therefore did not have an attorney who could obtain access to nonpublic information pursuant to the terms of a protective order. Accordingly, our discussion of the evaluation, source selection, and use of a consultant by a competitor is necessarily general in nature to avoid reference to nonpublic information. Our conclusions, however, are based on our review of the entire record, including nonpublic information.
 In its comments,
 In December 2004, a joint test program was held with DSC-P and DeCA personnel to validate the use of a new business model at 20 commissaries (Area 1) and to confirm the produce industry's capability to meet the commissaries' produce service needs. In May 2005, DeCA announced its satisfaction with the test program and subsequently issued the follow-on procurement for Area 1.
 The agency also reports that the consultant did not have access to any of the arguably procurement-sensitive industry responses received for consideration by the agency after the roundtables.