Protest of Trogon Group Services LLC - FA441725R0012.pdf

1001 G St. NW, Suite 1100

Washington, DC 20001 www.pilieromazza.com

Telephone: (202) 857-1000

Fax: (202) 857-0200

April 16, 2025

VIA EPDS

Office of the General Counsel

U.S. Government Accountability Office (“GAO”)

441 G Street NW

Washington, DC 20548

Attn: Procurement Law Group

Re: Pre-Award Protest of Trogon Group Services, LLC

U.S. Department of the Air Force, Air Force Special Operations Command

Solicitation No. FA441725R0012

Dear Sir or Madam:

Trogon Group Services, LLC (“Trogon”), by and through its undersigned counsel, and pursuant to 4 C.F.R. Part 21, protests the U.S. Department of the Air Force, Air Force Special

Operation Command’s (“Air Force” or the “Agency”) application of the Randolph-Sheppard Act

(“RSA”), 34 C.F.R. § 395.33(d), to Request for Proposals No. FA441725R0012 (“RFP”) for the procurement of Mess Attendant Services at Hurlburt Field, Florida.

This pre-award protest is filed prior to the April 25, 2025, 1:30 PM CDT deadline for submission of proposals and, as such, is timely pursuant to 4 C.F.R. § 21.2(a). Thus, the

Agency is required to withhold contract award pending resolution of this pre-award protest, as required by Federal Acquisition Regulation (“FAR”) 33.104(b).

The Agency’s determination that the procurement is subject to the RSA is unreasonable and Trogon is a prospective offeror whose direct economic interest is affected by that unreasonable determination. As detailed below, the RSA gives blind persons licensed by a state agency priority in the “operation of” vending facilities on federal property. 20 U.S.C. § 107. Here, the RFP requires a contractor to perform mess attendant services at a federal dining facility, but Agency personnel are clearly responsible for the operation of the facility—this remains true despite the recent amendment’s wordsmithing in the performance work statement (“PWS”) to add contractor

“operations” throughout. Both originally and as amended, this RFP should not include RSA priority and Trogon respectfully requests that GAO sustain this protest and grant the requested relief.

PILIERO

AZZA

General Counsel

REQUIRED INFORMATION

PROTESTER CONTACT INFORMATION: Trogon is an SBA-Certified 8(a) Joint Venture1 located at 302 Sydnor St., Houston, Texas 77020-6043. The President & Owner of Trogon’s

Managing Venturer, Ms. Jenna C. Norwood, can be contacted via the company’s mailing address at 670 Williamson Circle, Smithville, Tennessee 37166.

AGENCY AND CONTRACT: The contracting agency is the Air Force. On March 14, 2025, the

Air Force issued the initial RFP for the procurement of mess attendant services subject to the RSA.

The Air Force updated the RFP several times, with the most recent amendment published on April

10, 2025.

TIMELINESS: Pursuant to 4 C.F.R. § 21.2(a)(1), this pre-award protest is timely because it is filed prior to April 25, 2025, the deadline for submission of proposals in response to the RFP.

Therefore, the Agency may not award a contract during this protest. FAR 33.104(b)(1).

INTERESTED PARTY: Trogon is an interested party because it is a prospective bidder whose direct economic interest is adversely affected by the Agency’s determination that the procurement is subject to the RSA. But for the Agency’s improper actions, there is a substantial chance that

Trogon will receive the contract award.

RULING SOUGHT: Trogon requests a ruling by the Comptroller General of the United States that (i) this procurement for mess attendant services is not subject to the RSA; and (ii) recommending the Agency amend the RFP to remove the RSA preference from the RFP. In the alternative, Trogon requests a ruling that (i) the Agency improperly applied the RSA because the

RFP fails to require that the evaluation determine the State Licensing Authority’s (“SLA”) proposal provides services as a reasonable cost, as explicitly required by the RSA; and (ii), alternatively, if GAO does decide the RSA applies (it should not), recommend the Agency amend the RFP to require the SLA be determined to provide services at a reasonable cost before being afforded priority.

RELIEF SOUGHT: Trogon requests the Comptroller General of the United States recommend that the Agency: (i) find that this procurement of mess attendant services is not subject to the RSA;

(ii) pursue a competitive acquisition set aside for 8(a) participants, not subject to the RSA, for this procurement of mess attendant services; (iii) amend the RFP to remove application of the RSA;

(iv) award Trogon its costs and expenses, including legal fees, incurred in the preparation and pursuit of this protest; and (v) award any such other recommendations as deemed necessary and proper under 4 C.F.R. § 21.8. In the alternative, Trogon requests the Comptroller General of the

1 Trogon is a joint venture between J. Caye Premier Dining, Inc., a certified 8(a) program participant, and The HP Group, LLC.

MAZZA

United States recommend that the Agency: (i) amend the RFP to require the SLA be determined to provide services at a reasonable cost before being afforded priority; (ii) award Trogon its costs and expenses, including legal fees, incurred in the preparation and pursuit of this protest; and (iii) award any such other recommendations as deemed necessary and proper under 4 C.F.R. § 21.8.

JURISDICTION: GAO has jurisdiction over this protest, which alleges a violation of a procurement statute or regulation by a federal agency. See 31 U.S.C. §§ 3551–3556; see also 48

C.F.R. § 33.104. GAO’s regulations require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient. 4 C.F.R.

§§ 21.1(c)(4), (f). These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action. CACI Techs., Inc., B-408858.2, at 4

(Dec. 5, 2013). This protest meets those standards.

COPY OF PROTEST TO CONTRACTING OFFICER: In accordance with 4 C.F.R. 21.1(e), Trogon will serve a complete copy of this protest, including all attachments, within one day of its filing at GAO on the Contracting Officer via email:

Ms. Miranda Wiygul miranda.wiygul.1@us.af.mil

LEGAL AND FACTUAL GROUNDS FOR PROTEST,

INCLUDING PREJUDICE TO PROTESTER

I. FACTS

A. Original Request for Proposals

The RFP was posted to SAM.gov on March 14, 2025, with minor amendments on March

25, 2025, and was set-aside 100% for 8(a) businesses. RFP at 1 (attached hereto as Exhibit A).

The Performance Work Statement (“PWS”) issued on March 25, 2025, stated that the Agency sought to award a services contract to provide mess attendant services (namely food operation and support services for a primary dining facility and a grab-and-go kiosk) for Air Force dining facilities located in Hurlburt Field, Florida. PWS at 3 (attached hereto as Exhibit B). Importantly, RFP §§ L.1.1.10 and M.9 stated that the Agency intended to make award by applying RSA priority.

Per PWS § 1.3, the mess attendant services requested under the RFP included limited food preparation; service of food at a specified guest flow rate; replenishment of food serving containers; cleaning, sanitation, and custodial Services, as well as waste management; equipment maintenance and repair; cashier services; transportation of prepared food to to-go kiosk in government-provided vehicles; and special functions, such as decorating dining areas with government-provided material for holidays. PWS at 4–9. The PWS defined these services as follows:

1.3. Specific Tasks.

1.3.1. Food Preparation. The Contractor shall perform limited food preparation for each meal. The Contractor shall obtain required food items from the Government shift leader for the salad and deli bar. The Contractor shall prepare salad and deli bar food items as required by the Food Service Production Log (or similar computer-generated product) and/or Government shift leader. Receipt and preparation of salad and deli bar food items include, but are not limited to, vegetables, fruits, sandwich meats, and cheeses. The Contractor shall prepare sandwiches and wraps to order from the Riptide DFAC’s deli bar. Additionally, the contractors shall prepare the pre-made sandwiches and wraps for the Reef-2-Go Kiosk, utilizing the Air Force Automated Recipe Service. Preparation for the Kiosk’s sandwiches and wraps include, but are not limited to, storing sandwiches and wraps in appropriate containers and/or wrapping material (e.g. cellophane, paper, etc.) as well as labeling said items per Air Force Manual (AFMAN) 48-147, Tri-Service Food Code, requirements.

1.3.2. Service of Food. The Contractor shall serve food in standard portions at both facilities, as listed on the Food Service Production Log (or similar computer-generated product) and the Air Force Automated Recipe Service, unless smaller portions are requested by the patron. The Contractor shall serve sandwiches and wraps prepared to order at the Riptide DFAC’s deli bar.

1.3.3. Guest Flow Rate. The Contractor shall provide sufficient personnel to ensure that patrons at the Riptide DFAC are served at a rate of 5 customers per minute on the main serving line, 3 customers per minute on the deli bar, and 3 customers per minute on the short order serving line. The Contractor shall provide sufficient personnel to ensure that patrons at the Reef-2-Go Kiosk are served at a rate of 3 customers per minute at the hot food serving line.

1.3.4. Replenishment. At both APF food operations, the Contractor shall replenish, replace, and remove food serving containers. The Contractor shall move full serving containers (pans, trays, etc.) to the serving lines, remove partially used containers to the kitchen areas and give partially used containers to the Government shift leader. The Contractor shall perform standard cross panning procedures and ensure that no food items are transferred from one line container to another while on the serving line. The Contractor shall maintain proper temperature of food containers in the serving lines. The Contractor shall set up, replenish, and breakdown the salad bar. The Contractor shall set up, replenish, and break down display merchandisers. The Contractor shall not remove food from the serving line until 15 minutes after the end of the posted meal periods, allowing time for patrons to have additional servings. For Riptide DFAC only, the Contractor shall set up, replenish, and break down the ice cream and pastry bar.

1.3.5. Cleaning, Sanitation, and Custodial Services. The Contractor shall comply with all federal and Department of the Air Force (DAF) mandated sanitation requirements and in accordance with Department of the Air Force Instruction (DAFI) 48-116, Food Protection Program, AFMAN 48-147, and DAFMAN 34-131.

1.3.6. Waste Management.

1.3.7. Equipment Maintenance and Repair. At both APF food operations, the Contractor shall perform preventative maintenance in accordance with manufacturer’s instructions on all equipment to include but not limited to, cleaning, adjusting, oiling and greasing equipment, tightening nuts and bolts, and other maintenance as recommended by the manufacturer. The Contractor is responsible for the maintenance methods that are necessary to perform this service. Additionally, the Contractor shall calibrate all scales and deep fat fryer thermostats.

1.3.8. Cashier Services. At both APF food operations, the Contractor shall perform cashier duties in accordance with DAFMAN 34-131 for each meal period, maintaining a minimum flow rate of 3 customers per minute.

1.3.9. The Contractor shall transport all prepared food for the Reef-2-Go Kiosk from the Riptide DFAC to the Reef-2-Go Kiosk in a covered, temperature-controlled government provided vehicle. Additionally, the Contractor shall transport all used and partially used serving line containers back to the Riptide DFAC for cleaning.

1.3.10. Special Functions. The Contractor shall decorate the Riptide DFAC with Government provided decorative materials for holidays and special occasions. Decorative areas include but are not limited to entryways, dining area, and serving line areas.

Id. Notably, under the RFP, only Air Force personnel were to prepare food. Id. at 3–4. The RFP at PWS § 1.3.1. explicitly tasked the contractor with only “limited food preparation” such as fruit, the salad and deli bar, and pre-made sandwiches. Id. at 4.

Additionally, the RFP required the following managerial services:

3.1. Contractor Personnel.

3.1.1. The Contractor shall provide an on-site contract manager who shall be responsible for the performance of the work at both APF food operations.

The name of this person, as well as an alternate or alternates who shall act for the Contractor when the manager is absent shall be designated in writing to the Contracting Officer. The contract manager or alternate(s) shall have full authority to act for the Contractor on all contract matters relating to the daily operation of this contract. The contract manager or alternate(s) shall be available during normal duty hours to meet at Hurlburt Field with government personnel to discuss any problems or issues. After normal duty hours, the contract manager or alternate(s) shall be available within 1 hour.

The contract manager and alternate(s), as well as contract shift supervisors, must be able to read, write, speak, and understand English.

3.1.5. Training. The Contractor shall provide necessary training to

Contractor personnel to meet the requirement of this contract….The contract manager shall schedule this training with the Fire Department annually.

Id. at 11–12. Importantly, these managerial services were limited to oversight of contractor personnel and contractor responsibilities—they were not managerial services for the entire vending operation—as is consistent with the scope of work at PWS § 1.1, which explicitly stated that “the operations are entirely managed by United States Air Force personnel” and that the Air Force

“will retain all management responsibilities, functions, and oversight, as well as day-to-day decision-making authority, for both facilities’ operations.” Id. at 4 (emphases added).

B. Trogon’s Letter to Contracting Officer and Offeror Questions &

Answers (Q&A)

On March 31, 2025, Trogon’s counsel sent the Contracting Officer a letter (attached hereto as Exhibit C) expressing concern about the Agency’s use of RSA priority given the fact that the

RFP does not require the contractor to take operational control of the dining facility; in fact, Trogon noted that the RFP explicitly stated operations would be “entirely managed” by Agency personnel.

Trogon noted its intention to challenge the terms of the RFP should the Agency choose not to remediate the improper use of RSA priority. The Agency did not respond.

Additionally, a second Q&A (attached hereto as Exhibit D) was posted to SAM.gov on

April 10, 2025. This second Q&A contained the following question: “This solicitation clearly states the government will maintain control of all operational duties of the dining facility. Has the

RSA regulation changed since GAO's decision in regard to "Mess Attendant" contracts in 2022?”

Q&A at 5. The Agency responded that it had amended the solicitation effective April 10, 2025.

Id.

C. Amended Request for Proposals

The Amended RFP that the Agency referenced in its Q&A was posted to SAM.gov on

April 10, 2025. Like the original, it is set-aside 100% for 8(a) businesses. Amended RFP at 1

(attached hereto as Exhibit E). Like the original PWS, the Amended PWS states that the Agency seeks to award a services contract to provide mess attendant services (again, namely food operation and support services for a primary dining facility and a grab-and-go kiosk) for Air Force dining facilities located in Hurlburt Field, Florida. PWS at 3 (attached hereto as Exhibit B). The period of performance is a base period of ten months, with four twelve-month option years.2 RFP at 3–

10. Per Amended RFP §§ L.1.1.10 and Original M.9 (which was not modified), the Agency intends to make award by applying RSA priority:

1.1.10 Proposals may only be submitted by 8(a) Program Small Businesses and the State Licensing Authority (SLA) under the Randolph

Sheppard Act (20 U.S.C 107, et. Seq). At the time of initial contract offer and at time of award, each business must be in the 8(a) Program or a FL

State's SLA (see paragraph 1.1.10.1 below). In order to submit an offer on a solicitation, each business concern (with exception of a SLA) in a teaming agreement must be an 8(a) under the designated NAICS size standard, and must also be small when combined in the aggregate of all teaming affiliates.

1.1.10.1 SLA Requirements -In accordance with 34 C.F.R. (S) 395.2 and

Florida Statute413.011(3)(f), the FL State's SLA, in coordination with the selected blind vendor and his/her teaming partner, submits one bid on behalf of the state. The SLA proposal must be from an approved blind vendor that was selected by the State of FL's SLA.

2 CLIN 0001 (“Mess Attendant Services”) has an initial ten-month award from June 1, 2025, to March

31, 2026, and four twelve-month option periods at CLINs 1001 (April 1, 2026–March 31, 2027), 2001 (April 1, 2027–

March 31, 2028), 3001 (April 1, 2028–March 31, 2029), and 4001 (April 1, 2029–March 31, 2030). Other CLINS and option CLINs for extended hours, supplies, contingency cooks, etc., vary in quantity and units, but the period of performance remains consistent with those periods outlined for CLIN 0001 and its corresponding option CLINs. RFP at 3–10.

General Counsel April 16, 2025

Amended RFP at 3 (emphases added). The RFP also provides:

9.0. If the SLA offer has been determined technically acceptable, is judged to have a Substantial Confidence rating, is determined to be within the competitive range, and is determined responsible, it will be deemed the presumptive awardee of the contract in accordance with Randolph Sheppard Act (20 U.S.C.(S)107, et. seq.), and the evaluation process stops at this point. If the SLA offeror is technically unacceptable or is not judged to have a Substantial Confidence rating or not deemed to meet the responsibility criteria at FAR 9 .104, the evaluation process will proceed with evaluation of the other offerers as identified below.

All offerers (SLA and 8(a) Businesses) will be ranked in order of price. If the lowest priced evaluated offer has been detennined technically acceptable, is judged to have a Substantial Confidence rating, is detennined to be within the competitive range and is detennined responsible, that offer represents the best value for the government and the evaluation process stops at this point. Award shall be made to that offeror without fmther consideration of any other offers. If the lowest priced offeror, that is technically acceptable, is not judged to have a Substantial Confidence rating or not deemed to meet the responsibility criteria at FAR 9.104, the next lowest priced offeror will be evaluated and the process will continue in order by price until an offeror is judged to have a Substantial Confidence rating and meets the responsibility criteria or all offerers are evaluated. The Source Selection Authority shall then make an integrated assessment best value award decision based on all evaluated offerers, to include the SLA.

RFP at 36 (emphasis added).

The Amended PWS includes surface-level edits attempting to downplay the role of Agency personnel and pmpo1tedly bolstering the role of the contractor. Impo1tantly, none of these edits changed the contract requirements and duties of either patty. The following is a summaiy of the changes, with strikethroughs indicating phrases the Agency deleted in the Amended PWS, and bold font indicating words the Agency added to the Amended PWS:

Ori inal PWS § 1. 1. Scope of Work. This contract is for mess attendant services and other support services for two appropriated funded (APF) food o erations, com rised of one rimai dinin

AmendedPWS § 1.1. Scope of Work. This contract is for mess attendant services and other suppo1t services for two appropriated funded (APF) food o erations, com rised of one rimai dinin facility (DFAC) and one expanded grab & go kiosk, at Hurlburt Field, Florida. The operations are entirely managed by United

States Air Force personnel assigned to the 1st

Special Operations Force Support Squadron (1

SOFSS). Under the contract, Air Force personnel will retain all management responsibilities, functions, and oversight, as well as day-to-day decision-making authority, for both facilities’ operations. Air Force personnel perform the following management functions: establishing hours of operation, opening and closing the facilities, planning the meal selection, recordkeeping, budgeting, accounting, controlling cash and meal payments, verifying receipt of all funds, managing the storeroom, and controlling hazardous materials.

facility (DFAC) and one expanded grab & go kiosk, at Hurlburt Field, Florida. The operations are entirely managed by United

States Air Force personnel assigned to the 1st

Special Operations Force Support Squadron (1

SOFSS). Under the contract, Air Force personnel will retain all management responsibilities, functions, and oversight, as well as day to day decision making authority, for both facilities’ operations. Air Force personnel perform the following management will perform food supply, meal planning, and facility access and control duties. Air

Force personnel will also perform the following functions: establishing hours of operation, opening and closing the facilities, planning the meal selection, recordkeeping, budgeting, accounting, controlling cash and meal payments, verifying receipt of all funds, managing the storeroom, and controlling hazardous materials.

§ 1.1.1. The Contractor shall, except as specified in this Performance Work Statement

(PWS), provide all personnel, supervision, transportation, and any items and services necessary to perform mess attendant services in support of the APF food operation facilities at Hurlburt Field, Florida. The Contractor shall perform the requirements in this PWS and conform to the professional standards identified in this contract. Furthermore, the

Contractor shall perform in accordance with commercial standards and comply with all applicable federal, state, and local laws, regulations, instructions, and directives identified in this PWS.

§ 1.1.1. The Contractor operations shall include, except as specified in this

Performance Work Statement (PWS), provide providing all personnel, supervision, transportation, and any items and services necessary to perform mess attendant services in support of the APF food operation facilities at Hurlburt Field, Florida. The Contractor shall perform the requirements in this PWS and conform to the professional standards identified in this contract. Furthermore, the

Contractor shall perform in accordance with commercial standards and comply with all applicable federal, state, and local laws, regulations, instructions, and directives identified in this PWS.

§ 1.1.1.1. Contractor tasks across both facilities (unless otherwise noted) include serving and replenishing food and beverage

§ 1.1.1.1. Contractor tasks across At both facilities (unless otherwise noted), Contractor operations shall include serving and items, preparing fruits and vegetables, preparing sandwiches and wraps, replenishing dining areas with condiments, performing cashier services, cleaning tableware, utensils and equipment, performing housekeeping and custodial services, maintaining and repairing equipment, and maintaining grounds. In special situations such as mobilization, surges, and deployments, the Contractor shall provide contingency cooks as directed by the

Contracting Officer. During times of crisis, the

Contractor shall continue to perform all required tasks to include cooking as directed by the Contracting Officer.

replenishing food and beverage items, preparing fruits and vegetables, preparing sandwiches and wraps, replenishing dining areas with condiments, performing cashier services, cleaning tableware, utensils and equipment, performing housekeeping and custodial services, maintaining and repairing equipment, and maintaining grounds. In special situations such as mobilization, surges, and deployments, the Contractor shall provide contingency cooks as directed by the

Contracting Officer. During times of crisis, the

Contractor shall continue to perform all required tasks to include cooking as directed by the Contracting Officer.

§ 1.3. Specific Tasks. § 1.3. Specific Contractor Operations.

§ 1.3.6. Waste Management. § 1.3.6. Waste Management Operations.

§ 1.3.8. Cashier Services. At both APF food operations, the Contractor shall perform cashier duties in accordance with DAFMAN

34-131 for each meal period, maintaining a minimum flow rate of 3 customers per minute.

§ 1.3.8. Cashier Services Operations. At both

APF food operations, the Contractor shall perform cashier duties in accordance with

DAFMAN 34-131 for each meal period, maintaining a minimum flow rate of 3 customers per minute

§ 1.4. Contingency Workload for Contract

Cooks. In special situations such as mobilization, surge requirements, and deployments, the Contracting Officer may direct the Contractor to provide cooks in addition to mess attendant personnel to supplement shortages in Air Force personnel.

However, even under these special circumstances, Air Force personnel will still retain all management responsibilities and day-to-day decision-making authority for the overall operation of the dining facility. This service shall be provided at the hourly rate shown in CLIN X003 for contingency cooks and may include weekends and holidays. The

Contracting Officer will notify the Contractor of the dates and duty hours Contingency Cooks

§ 1.4. Contingency Workload for Contract

Cooks. In special situations such as mobilization, surge requirements, and deployments, the Contracting Officer may direct the Contractor to provide cooks in addition to mess attendant personnel to supplement shortages in Air Force personnel.

However, even under these special circumstances, Air Force personnel will still retain all management responsibilities and day to day decision making authority for the overall operation of the dining facility. This service shall be provided at the hourly rate shown in CLIN X003 for contingency cooks and may include weekends and holidays. The

Contracting Officer will notify the Contractor of the dates and duty hours Contingency Cooks will be required and will provide the

Contractor a minimum of 14 calendar days of notice. The notice will include a specific number of contingency cooks and the expected duration of the requirement, which typically ranges from 3 to 194 days. The Contractor shall only perform the number of hours the

Contracting Officer approves for contingency cook services. Additionally, the Contractor shall provide qualified personnel to prepare food in accordance with the Air Force

Automated Recipe Service, Food Service

Production Log (or similar computer-generated product), or Government shift leader instructions. Lastly, the Government may augment surge requirements beyond the capability of the Contractor when the

Government perceives that mission accomplishment is endangered.

will be required and will provide the

Contractor a minimum of 14 calendar days of notice. The notice will include a specific number of contingency cooks and the expected duration of the requirement, which typically ranges from 3 to 194 days. The Contractor shall only perform the number of hours the

Contracting Officer approves for contingency cook services. Additionally, the Contractor shall provide qualified personnel to prepare food in accordance with the Air Force

Automated Recipe Service, Food Service

Production Log (or similar computer-generated product), or Government shift leader instructions. Lastly, the Government may augment surge requirements beyond the capability of the Contractor when the

Government perceives that mission accomplishment is endangered.

§ 3.1.1. The Contractor shall provide an on-site contract manager who shall be responsible for the performance of the work at both APF food operations. The name of this person, as well as an alternate or alternates who shall act for the

Contractor when the manager is absent shall be designated in writing to the Contracting

Officer. The contract manager or alternate(s) shall have full authority to act for the

Contractor on all contract matters relating to the daily operation of this contract. The contract manager or alternate(s) shall be available during normal duty hours to meet at

Hurlburt Field with government personnel to discuss any problems or issues. After normal duty hours, the contract manager or alternate(s) shall be available within 1 hour.

The contract manager and alternate(s), as well as contract shift supervisors, must be able to read, write, speak, and understand English.

§ 3.1.1. The Contractor shall provide an on-site contract manager who shall be responsible for the performance of the work Contractor operations at both APF food operations locations. The name of this person, as well as an alternate or alternates who shall act for the

Contractor when the manager is absent shall be designated in writing to the Contracting

Officer. The contract manager or alternate(s) shall have full authority to act for the

Contractor on all contract matters relating to the daily operation of this contract. The contract manager or alternate(s) shall be available during normal duty hours to meet at

Hurlburt Field with government personnel to discuss any problems or issues. After normal duty hours, the contract manager or alternate(s) shall be available within 1 hour.

The contract manager and alternate(s), as well as contract shift supervisors, must be able to read, write, speak, and understand English.

§ 5.2. Quality Control. Quality control is the

Contractor’s responsibility. The Contractor shall develop and maintain a quality control program to ensure mess attendant and other support services are performed in accordance with commonly accepted commercial practices and this PWS. The Contractor shall develop and implement a Quality Control Plan that contains procedures to identify, prevent, and ensure non-recurrence of defective services.

The plan shall contain procedures addressing each Services Summary item identified in

Table 2. The plan shall also contain procedures for keeping the contract manager and corporate office aware of issues affecting quality. The plan shall define responsibilities, authorities, and organizational freedom for the Contractor personnel conducting quality control functions to identify and evaluate quality problems as well as proposing solutions to said problems.

The plan will be submitted for acceptance at the Post Award Conference; any changes shall be submitted to the Contracting Officer prior to implementation. The Contractor shall maintain records of all Contractor quality control audits and inspections. The records shall indicate the nature and number of observations, the number and type of deficiencies, and the nature of the corrective action taken.

§ 5.2. Quality Control Operations. Quality control operations are is the Contractor’s responsibility. The Contractor shall develop and maintain a quality control program to ensure mess attendant and other support services are performed in accordance with commonly accepted commercial practices and this PWS. The Contractor shall develop and implement a Quality Control Plan that contains procedures to identify, prevent, and ensure non-recurrence of defective services. The plan shall contain procedures addressing each

Services Summary item identified in Table 2.

The plan shall also contain procedures for keeping the contract manager and corporate office aware of issues affecting quality. The plan shall define responsibilities, authorities, and organizational freedom for the Contractor personnel conducting quality control functions to identify and evaluate quality problems as well as proposing solutions to said problems.

The plan will be submitted for acceptance at the Post Award Conference; any changes shall be submitted to the Contracting Officer prior to implementation. The Contractor shall maintain records of all Contractor quality control audits and inspections. The records shall indicate the nature and number of observations, the number and type of deficiencies, and the nature of the corrective action taken.

PWS at 4-16; Amended PWS at 4–16 (formatting shown in bold and deletions shown with strikethrough do not appear in the Amended PWS).

To reiterate, none of the duties of the contractor or the Agency personnel have changed based on the revisions to the PWS. The contractor’s work is still limited food preparation; service of food at a specified guest flow rate; replenishment of food serving containers; cleaning, sanitation, and custodial services, as well as waste management (now referred to as “waste management operations”); equipment maintenance and repair; cashier services (now referred to as

“cashier operations”); transportation of prepared food to to-go kiosk in government-provided vehicles; and special functions, such as decorating dining areas with government-provided material for holidays. Id. at 4–9. While the PWS no longer states that the “operations are entirely managed by” United States Air Force personnel, none of the numerous and wide-ranging duties assigned to Agency personnel in the original PWS have changed. Id. at 3.

II. THE RANDOLPH-SHEPPARD ACT

In 1936, the RSA was enacted to create a vending facility program “to provide blind individuals with more job opportunities and to encourage their self-support. The program trains and employs blind individuals to operate vending facilities on federal property.” Contracting for

Military Food Services Under the Randolph-Sheppard and Javits-Wagner O’Day Programs, GAO-

08-03 at 4 (Oct. 30, 2007) (citing Pub. L. No. 74-732 (1936)). In 1974, the RSA was amended to expand the scope of the program to include cafeterias on federal property. Id. According to a

DOD official, “when DOD began turning increasingly to private contractors rather than using its own military staff to fulfill food service functions in the 1990s, state licensing agencies under the

Randolph-Sheppard program began to compete for the same full-food services contracts for which

[the Javits-Wagner-O’Day Act (“JWOD”)] traditionally qualified.” Id.

Under the RSA, SLAs, either through direct negotiation or competitive acquisition, are afforded a priority in the award of food service contracts and are responsible for contracting with and training blind vendors to operate cafeterias on Federal property. Under the RSA controlling regulation:

(a) Priority in the operation of cafeterias by blind vendors on

Federal property shall be afforded when the Secretary determines, on an individual basis, . . . that such operation can be provided at a reasonable cost, with food of a high quality comparable to that currently provided employees, whether by contract or otherwise. Such operation shall be expected to provide maximum employment opportunities to blind vendors to the greatest extent possible.

(b) In order to establish the ability of blind vendors to operate a cafeteria in such a manner as to provide food service at comparable cost and of comparable high quality as that available from other providers of cafeteria services, the appropriate State licensing agency shall be invited to respond to solicitations for offers when a cafeteria contract is contemplated

Such solicitations for offers shall establish criteria under which all responses will be judged. Such criteria may include sanitation practices, personnel, staffing, menu pricing and portion sizes, menu variety, budget and accounting practices. If the proposal received from the State licensing agency is judged to be within a competitive range and has been ranked among those proposals which have a reasonable chance of being selected for final award, the . . . agency . . shall consult with the Secretary as required under the provisions of § 395.37

(c) All contracts or other existing arrangements pertaining to the operation of cafeterias on Federal property not covered by contract with, or by permits issued to, State licensing agencies shall be renegotiated subsequent to the effective date of this part on or before the expiration of such contracts

(d) Notwithstanding the requirements of paragraphs (a) and (b) of this section, Federal property managing departments, agencies, and instrumentalities may afford priority in the operation of cafeterias by blind vendors on Federal property through direct negotiations with State licensing agencies whenever such department, agency, or instrumentality determines, on an individual basis, that such operation can be provided at a reasonable cost, with food of a high quality comparable to that currently provided employees: Provided, however, That the provisions of paragraphs

(a) and (b) of this section shall apply in the event that the negotiations authorized by this paragraph do not result in a contract.

34 C.F.R. § 395.33 (bold emphases added; italicized emphasis in original).

III. GROUNDS FOR PROTEST

A. The Agency’s Application of the RSA Is Unreasonable

Simply stated, the Agency improperly issued the RFP with an RSA priority. Under the

RSA, blind persons licensed by a state agency have a priority in the operation of vending facilities on federal property. 20 U.S.C. § 107 (emphasis added). The phrase “operation of” is important, as not all contracts pertaining to a dining facility necessarily involve operation of the facility. As detailed above and in the plain language of the PWS, the subject RFP does not contemplate the operation of dining facilities/cafeterias. As such, issuing the RFP with an RSA priority is inconsistent with the RSA and established GAO caselaw on this issue.

GAO’s “analysis begins with the interpretation of the relevant statute.” JW Mills Mgmt., LLC, B-420416 (Mar. 24, 2022) (citation omitted). First, GAO determines whether the language is plain and unambiguous. Id. In reviewing it, GAO assumed that the language’s ordinary meaning expresses Congress’s legislative purposes accurately. Id. Then, if the language is clear and unambiguous, GAO ends its inquiry with the plain meaning of the statute in dispute. Id.

GAO’s decision in JW Mills, supra, is particularly instructive. In that decision, GAO sustained a protest where the contracting officer applied RSA priority to a procurement requiring the contractor to provide “cashier, food service attendant, scullery, and housekeeping services.”

Id. GAO emphasized that the food service officer (“FSO”)—a military service member—would maintain operational control of the dining facility. Id. Given the nature of the services and the

FSO’s reservation of operational control, GAO found “that the Navy’s inclusion of the RSA preference in the solicitation was improper . . . .” Id. GAO then directed the Navy to remove the

RSA preference from the solicitation. Id.

The same reasoning applies here. The subject RFP seeks mess attendant services, including limited food preparation, housekeeping, and custodial services—strikingly similar to those described in the solicitation at issue in JW Mills, supra. 3 Also, like in JW Mills, the subject RFP indicates that Agency personnel will be responsible for the operation of the facilities. With or without an explicit statement that Agency personnel are entirely managing operations, the duties attributed to Agency personnel throughout the Amended PWS clearly indicate that Agency personnel are tasked with the operation of the dining facilities. These duties include but are not limited to:

• Performing food supply, meal planning, and facility access and control duties;

• Establishing hours of operation;

• Opening and closing the facilities;

• Planning the meal selection;

• Recordkeeping;

• Budgeting;

• Accounting;

• Controlling cash and meal payments;

• Verifying receipt of all funds;

3 It is worth noting that the scope of work plainly states: “This contract is for mess attendant services and other support services for two appropriated funded (APF) food operations, comprised of one primary dining facility (DFAC) and one expanded grab & go kiosk, at Hurlburt Field, Florida.” Amended PWS at 3 (emphasis added).

The fact that the two facilities (DFAC and grab & go) are referred to as “food operations” does not mean that a contractor providing “mess attendant services and other support services” for those operations is necessarily tasked with “operation of” a dining facility as required for RSA priority. In general, the Agency’s overuse of the word

“operation(s)” throughout the Amended PWS does nothing to meet the requirements for RSA priority as the Agency failed to (and, given the importance of nutrition and base operations to military readiness, likely does not actually want to) shift more significant duties to the contractor such that it would be tasked with operation of the facilities instead of Agency personnel.

• Managing the storeroom;

• Controlling hazardous materials;

• Managing the flight line kitchen (including preparing, cooking, and issuing flight meals, as well as cleaning and sanitizing the kitchen if activated outside of DFAC’s regular hours);

• Managing the contractor’s limited food preparation tasks under PWS § 1.3.1., via provision of a Government shift leader4 and the Air Force Automated Recipe Service for the contractor to follow;

• Providing the facilities, equipment, materials, and food;

• Providing the removal of any equipment condemned or replaced from the food service facility;

• Providing utilities for the facility;

• Providing maintenance services for the refrigeration units;

• Providing the cleaning, maintenance, and repair of exhaust systems for the facility;

• Providing on-base telephone and mail;

• Providing facility maintenance, repairs, and alterations;

• Collecting refuse;

• Providing security, fire protection, and medical services.

Amended PWS at 3-4; 9-11.

In short, the instant procurement does not require the contractor to operate the vending/dining facilities. On the contrary, when compared to the duties of the contractor, Air

Force personnel’s significant duties ensure that it retains all operational control, regardless of the wordsmithing employed in the PWS. See id. As such, the RSA simply does not apply. The ancillary tasks called for under the RFP are not management services, and the PWS is entirely consistent with a contract for ancillary support services at a facility operated by the Government;

the RSA does not apply to that type of contract.

Further, even if RSA priority did apply here—it does not—the Agency’s application of the

RSA is improper as written in the RFP and GAO should, at minimum, instruct the Agency to amend its RFP to comply with the plain language of the RSA. See RFP at 36. Specifically, RFP

§ 9.0 states that an SLA’s proposal must be determined to be both within the competitive range and responsible for it to take priority over all other offerors; however, the RSA regulations explicitly state that the SLA must be determined to provide its services at a “reasonable cost” to be afforded priority. See id.; see also 34 C.F.R. § 395.33(a), (d). Here, the RFP simply provides

4 The existence of a “Government shift leader” (whose role is mentioned numerous times throughout the PWS in relation to oversight of the contractor’s limited food preparation, replenishment duties, and cashier

“operations” among other things) implies that the contractor will not even be entirely in charge of the operation of its own tasks under this contract, let alone operation of the facilities. See Amended PWS at 4, 5, 8, and 9.

that if the SLA is deemed acceptable and responsible, it will receive award. RFP at 36. This does not comport with the regulation. The Agency’s failure to include the reasonableness of the SLA’s proposed cost in its evaluation criteria is inconsistent with the RSA and will prejudice the other offerors, whose proposals may otherwise be evaluated and selected should the SLA fail to meet the requirement.

B. The Agency’s Actions Prejudice Trogon

The Agency’s application of the RSA priority is unreasonable and places Trogon at a competitive disadvantage. “In the context of a protest challenging the terms of a solicitation, competitive prejudice occurs where the challenged terms place the protester at a competitive disadvantage or otherwise affect the protester’s ability to compete.” Pond Sec. Group Italia JV–

Costs, B–400149.2, at 4 (Mar. 19, 2009); Crane & Co., Inc., B–297398, at 9 (Jan. 18, 2006). Here, Trogon will timely submit a proposal in response to the RFP, and it has the knowledge, personnel, performance history, and understanding of the performance requirements to put itself in a better position for contract award than any other prospective offeror. Trogon is prejudiced because application of the RSA gives priority to the SLA offeror, which will be the “presumptive awardee” and stop the evaluation process in its tracks if the SLA offeror’s proposal is determined to be both within the competitive range and responsible. See RFP at 36.

But for the Agency’s unreasonable and legally unsupported application of the RSA to this procurement, including the failure to account for evaluating the reasonableness of the SLA’s costs

(detailed above), Trogon would likely win the contract. See id. At the very least, but for the application of the RSA, Trogon would have a chance to be fairly evaluated by the Agency, rather than immediately excluded from competition if the SLA offeror’s proposal is determined to be both within the competitive range and responsible, as the RFP presently details. See id.

GAO should find that the RSA does not apply and, therefore, direct the Agency to amend the RFP accordingly.

REQUEST FOR DOCUMENTS

Trogon requests the following specific documents that are relevant to the issues raised in this protest:

(1) Copies of “all relevant documents,” as are required to be produced in accordance with 4 C.F.R. section 21.3(d).

(2) Copies of all documents related to the RFP for mess attendant services.

(3) Copies of all communications between the Agency and the Department of

Education regarding the application of the RSA to the RFP.

(4) Copies of all internal Agency communications or documents related to the decision to apply the RSA to the RFP.

REQUEST FOR HEARING

Trogon reserves the right to request a hearing on all factual issues in dispute that may arise during the protest. See 4 C.F.R. § 21.7.

CONCLUSION

For the reasons stated above, GAO should sustain the protest and, pursuant to 4 C.F.R.

21.8(d), (e) and (f), recommend that the Agency pay Trogon’s applicable costs, including but not limited to its attorneys’ fees, and costs.

Respectfully submitted, Katherine B. Burrows

Meghan F. Leemon

Timothy F. Valley

Josephine R. Farinelli

Counsel for Trogon Group Services, LLC

Exhibits:

A – RFP

B – PWS

C – Letter to CO

D – Second Q&A

E – Amended RFP

F – Amended PWS