Philadelphia Produce Market Wholesalers, LLC
B-298751.5, May 1, 2007
Philadelphia Produce Market Wholesalers, LLC protests the award of a contract to Military Produce Group, LLC (MPG) under request for proposals (RFP) No. HDEC02-06-R-0005, issued by the Defense Commissary Agency (DeCA) for fresh fruits and vegetables for resale at commissaries in its eastern region; Philadelphia protests the Area 3, Group 2 award. The protester contends that the agency should have excluded MPG from the competition based on an organizational conflict of interest; according to Philadelphia, MPG's performance of essentially the same work for the agency in another geographical region served as the basis for the current RFP's performance requirements. Philadelphia also contends that the past performance evaluations were unreasonable and generally challenges the reasonableness of the agency's determination that MPG's higher-rated technical proposal and lower proposed cost savings offered the best value to the agency.
We deny the protest.
B-298751.5, Philadelphia Produce Market Wholesalers, LLC, May 1, 2007
1. Protest that awardee has an organizational conflict of interest arising from performance of contracts for similar work is denied where there is no support in the record for allegation that the awardee participated in drafting the performance requirements for the current procurement.
Philadelphia Produce Market Wholesalers, LLC protests the award of a contract to Military Produce Group, LLC (MPG) under request for proposals (RFP) No. HDEC02-06-R-0005, issued by the Defense Commissary Agency (DeCA) for fresh fruits and vegetables for resale at commissaries in its eastern region;
The RFP was issued as a small business set-aside on
Twelve proposals were received under the RFP for Area 3, Group 2; all but one were included in the competitive range for discussions and revised proposals were received and evaluated. An initial award to Four Seasons Produce, Inc. was terminated by the agency due to a determination by the Small Business Administration that the firm was other than a small business. Upon reevaluation of the proposals for a new source selection, the agency determined that the MPG proposal's superior technical capability and higher-rated past performance represented the best value to the agency, despite its lower offered cost savings; consequently, an award was made to that firm. This protest followed.
As an initial matter, the protester contends that the agency should have excluded MPG from the competition due to an organizational conflict of interest arising from the awardee's performance of other contracts at other DeCA commissaries. As explained below, there is no support in the record for this allegation.
Contracting officers are required to avoid, neutralize, or mitigate potential significant conflicts of interest so as to prevent unfair competitive advantage or the existence of conflicting roles that might impair a contractor's objectivity. Federal Acquisition Regulation (FAR) sections 9.504, 9.505; Operational Resource Consultants, Inc., B-299131, B-299131.2, Feb. 16, 2007, 2007 CPD para. 38. The situations in which organizational conflicts of interest arise can be broadly categorized into three groups: biased ground rules, unequal access to non-public information, and impaired objectivity. As relevant to the protester's claim in this case, a biased ground rules conflict of interest arises where a firm, as part of its performance of a government contract, has in some sense set the ground rules for the competition for another government contract by, for example, writing the statement of work. In these cases, the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. FAR sections 9.505-1, 9.505-2.
Here, according to
Our review of the record confirms the agency's position that MPG did not assist in the development of the performance requirements here, and we see no other support in the record for the protester's allegation of a conflict of interest by the firm. While MPG has performed work at other DeCA commissaries, the existence of a prior or current contractual relationship between a contracting agency and a contractor does not create an unfair competitive advantage unless the alleged advantage was created by an improper preference or unfair action by the procuring agency. See Optimum Tech., Inc., B-266339.2,
In response to the protest, the agency provided a detailed report including a comprehensive evaluation record and source selection decision analyzing the benefits of the proposals. The record supports the reasonableness of the evaluation and award. Specifically, while Philadelphia's proposal was rated very good for past performance due to its teaming members' experience and customer service, the awardee's proposal was rated exceptional, due mainly to its successful performance of essentially the same work as is required here at 22 other DeCA commissaries, along with several more favorable responses received from references for the firm and its teaming partners. On the other hand, while
With regard to the protester's challenge to the selection decision, our review of the full evaluation record confirms the reasonableness of the agency's determination that MPG's proposal offered the best value to the agency. Specifically, given the MPG proposal's higher rating of exceptional for technical capability, the RFP's most important evaluation factor, compared to the protester's proposal's rating of very good for the factor (reflecting the agency's finding that Philadelphia's proposal lacked detail regarding its proposed quality programs and procedures), as well as MPG's higher past performance rating, the record provides no basis to question the reasonableness of the agency's determination that the technical superiority of the MPG proposal outweighed the lower cost savings it proposed.
The protest is denied.
Gary L. Kepplinger
 The protester was not represented by counsel that could be admitted to a protective order and, therefore, did not have access to source selection sensitive and proprietary information. Accordingly, our discussion is necessarily general. Our conclusions, however, are based on our review of the entire record.