BNUMBER:  B-271754; B-271754.2
DATE:  July 30, 1996
TITLE:  Continental Service Company

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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Continental Service Company

File:     B-271754; B-271754.2

Date:July 30, 1996

Ronald H. Uscher, Esq., Bastianelli, Brown, Touhey & Kelley, for the 
protester.
Kim N. Haris, Esq., Defense Logistics Agency, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester was not prejudiced by any errors that may have occurred 
during discussions where the record shows that even accepting the 
protester's contentions, and based on the protester's own calculations 
of the ratings it would have received following adequate discussions, 
its proposal's overall rating would not surpass the awardee's 
higher-rated, slightly lower-priced proposal.

DECISION

Continental Service Company protests the award of a contract to 
Management Engineering Associates, Inc. (MEA) under request for 
proposals (RFP) No. SP0600-96-R-0006, issued by the Defense Fuel 
Supply Center (DFSC), Defense Logistics Agency, for operation, 
maintenance, security, and protection services at the Defense Fuel 
Support Point (DFSP), Charleston, South Carolina.  The protester 
argues that the agency failed to provide Continental with a meaningful 
opportunity to discuss unfavorable ratings it received related to its 
past performance--the only factor evaluated by the agency besides 
price--resulting in a flawed evaluation.

We deny the protest.

BACKGROUND

The RFP was issued on October 27, 1995, as a total small business 
set-aside, and contemplated the award of a fixed-price contract with 
cost reimbursement provisions for a 3-year period.  Section M of the 
RFP stated that proposals would be evaluated based on past performance 
and price.  Offerors were required to submit references on three 
recent contracts for similar services.  In evaluating past 
performance, the RFP stated that the agency would contact the 
references provided by the offerors and that the agency reserved the 
right also to consider any additional information it obtained on the 
offerors' performance by other means.  The RFP explained that the 
agency was more interested in obtaining superior performance than low 
price.  Award was to be made to the offeror whose proposal was deemed 
to represent the best value to the government considering past 
performance and price.  

Seven offerors, including the protester and the awardee, responded to 
the RFP by the time set on December 12 for receipt of initial 
proposals.  As required by the RFP, Continental submitted references 
on three DFSC contracts the firm is currently performing at DFSP 
facilities in Cincinnati, Ohio; Charleston, South Carolina; and 
Searsport, Maine.  After receipt of initial proposals, the contracting 
officer forwarded past performance surveys to each of Continental's 
three references.

Each survey consisted of a series of items grouped into two parts.  
Part I required respondents to rate the offeror on each of 13 
different statements on a numerical scale ranging from 1 to 5 
(1=unsatisfactory; 2=marginal; 3=satisfactory; 4=good; 5=excellent; or 
"N/A").  Part II required respondents to answer either "yes" or "no" 
to nine questions and to explain any "yes" answer under this section.

The contracting officer then calculated a point score for each offeror 
based on the survey responses.  For each of the 13 items in part I, 
the contracting officer adopted the numerical rating assigned each 
response (e.g., a "marginal" rating on any item was worth 2 points; a 
"satisfactory" rating was worth 3 points, etc.).  In calculating a 
score for part II of the survey (except for question No. 9), the 
contracting officer assigned a numerical rating of 2 points to any 
"no" response and -2 points to any "yes" response.  For question No. 9 
("WOULD YOU AWARD SIMILAR CONTRACTS TO THIS CONTRACTOR?"), the 
contracting officer assigned a rating of 4 points for a "yes" 
response, and -4 points for a "no" response. The contracting officer 
then calculated a total score and divided that score by three to 
obtain an average past performance rating for each offeror.[1]  By 
letter dated March 11, 1996, the contracting officer forwarded to the 
protester a document showing its proposal's numerical ratings on each 
survey item, on each of the three DFSC contracts reviewed.

Continental submitted its comments on the ratings in a letter dated 
March 12.  Subsequently, the agency granted an extension of time in 
which to file comments on the survey responses; Continental amended 
its initial comments by letters dated March 14 and 22.  The 
contracting officer then reviewed Continental's comments and DFSC's 
contract files for each of the contracts reviewed.  She also contacted 
the survey respondents to clarify and resolve matters that remained 
unclear after her review of the surveys and the contract files.

In a memorandum to the file dated March 27, the contracting officer 
discussed each item in which the respondents assigned an unfavorable 
or "negative" score to Continental's performance.[2]  Based on her 
review of the survey responses, the protester's comments, the contract 
file, and the additional information obtained from the references she 
contacted, the contracting officer concluded that (with one exception 
not relevant here) Continental's past performance score did not 
warrant any adjustments.

The contracting officer then ranked the offerors' proposals based on 
their past performance scores and proposed monthly prices with the 
following results:

                 Offeror    Rating   Price

                A             76     $35,265

                B             68      42,460

                MEA           [DEL]   30,618

                C             61      43,999

                D             60      37,886

                Cont.         [DEL]   30,700

                E             45      30,776
Based on these results, the contracting officer concluded that MEA's 
proposal represented the best value to the government, and awarded the 
contract to that firm on April 1.  This protest to our Office followed 
a debriefing by the agency.

DISCUSSION

Continental argues that the agency failed to provide the firm with a 
meaningful opportunity to discuss the "negative" ratings it received 
in response to the past performance surveys in contravention of 
Federal Acquisition Regulation (FAR)  sec.  15.610(c)(6) (FAC # 90-31), 
resulting in a flawed evaluation under the only factor considered by 
the agency (besides price)--past performance.  Specifically, 
Continental argues that if the agency's discussion questions had been 
more specific with respect to the findings underlying the numerical 
ratings, Continental could have provided explanations that could have 
changed the ratings its proposal received. 

The contracting officer's March 11, 1996 letter to Continental 
contained a listing of the survey items and the corresponding 
numerical ratings assigned by the respective respondents for each of 
the three contracts reviewed.  In addition, that letter explained the 
rating scale used by the respondents to assess the contractor's 
performance.  The record shows that Continental realized, as evidenced 
in its comments in response to the contracting officer's letter, that 
the [DELETED] ratings reflected performance problems in the specific 
areas covered by the surveys.

We recognize that more specific discussion questions often will yield 
more specific--and therefore more useful--responses.  An agency is not 
required to "spoon-feed" offerors, however.  See Research Analysis and 
Maintenance, Inc., B-242836.4, Oct. 29, 1991, 91-2 CPD  para.  387.  In 
evaluating whether there has been sufficient disclosure during 
discussions, the focus is not on whether the agency described its 
concerns in such detail that there could be no doubt as to their 
identification and nature, but whether the agency imparted enough 
information to the offeror to afford it a fair and reasonable 
opportunity in the context of the procurement to respond to the areas 
of weakness in its proposal.  Aydin Computer and Monitor Div., Aydin 
Corp., B-249539, Dec. 2, 1992, 93-1 CPD  para.  135.

In this case, however, we need not decide whether the discussions 
should have been more specific because it is clear that even if such 
discussions had resulted in the higher past performance rating that 
Continental says it should have received (with the one exception 
discussed below), it would still not be in line for award.  In this 
respect, Continental contends that its proposal should have been rated 
[DELETED] in the pollution prevention area, for an additional 
[DELETED] points; [DELETED] with respect to compliance with terms and 
conditions and personnel training at Searsport, for an additional 
[DELETED] points; and [DELETED] in overall safety, for [DELETED].  
Thus, Continental asserts that its proposal would have received a 
total of [DELETED] more "raw" points.

Based on the protester's own calculations of the ratings that would 
have resulted from more specific discussions (not including question 
no. 9 in part II of the survey), Continental's "raw" score from the 
three surveys combined would be [DELETED] points.  Applying the 
formula used by the contracting officer to calculate final past 
performance ratings, that score would yield an overall performance 
rating for Continental of [DELETED] points.  However, that rating 
would not surpass MEA's proposal's overall rating of [DELETED] points.

With respect to the only other survey item at issue--the Searsport 
respondent's negative answer to item no. [DELETED] of the survey 
[DELETED] Continental suggests that had it been given more precise 
information during discussions and had its scores improved in the 
evaluation areas discussed above, its score would have changed for 
item no. [DELETED] from [DELETED].  However, this question appears to 
be an attempt to capture the respondent's impression of his or her 
overall experience with the contractor.  In this case, the 
respondent's opinion was based on his negative experiences with 
several aspects of Continental's performance (as reflected in the 
[DELETED] ratings assigned the individual survey items), which led to 
his opinion that he [DELETED].  While Continental takes issue with the 
significance and severity of the events in question, maintaining that 
it resolved the problems to the agency's satisfaction, the record is 
clear that the perceived problems did occur.  In this connection, we 
note, for instance, that Continental does not dispute that CARs were 
issued to correct performance problems.  The fact that Continental may 
have responded adequately to CARs is no basis to discount 
automatically the fact that CARs were necessary to address performance 
problems, or that the contractor required close monitoring and 
supervision to ensure contract compliance.

While there may be circumstances under which a respondent's negative 
answer would nonetheless not warrant a [DELETED] rating--perhaps where 
a contractor is rated "excellent" in all past performance 
categories--those circumstances clearly are not present here.  
Accordingly, we see no basis for concluding that under the evaluation 
scheme used here for this item Continental's score would have changed.

Competitive prejudice is an essential element of a viable protest.  
Lithos Restoration Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD  para.  379.  
Where no prejudice is shown, or is otherwise evident, our Office will 
not disturb an award, even if some technical deficiency in the award 
process arguably may have occurred.  Merrick Eng'g, Inc., B-238706.3, 
Aug. 16, 1990, 90-2 CPD  para.  130, aff'd, B-238706.4, Dec. 3, 1990, 90-2 
CPD  para.  444.  In order to establish prejudice, Continental, at a 
minimum, had to present credible evidence that had discussions 
concerning its past performance been more specific, its proposal 
reasonably could be found sufficiently superior to that of MEA's 
lower-priced proposal such that Continental could have been selected 
for award.  As explained above, however, even accepting the 
protester's contentions, Continental's past performance rating would 
not surpass MEA's overall rating.  Accordingly, on this record, we 
have no basis to sustain the protest.[3]

The protest is denied.

Comptroller General
of the United States

1. Based on this approach, and assuming no respondent assigned a 
rating of "N/A" on any survey item, the maximum number of points 
available on each survey was 85 points.

2. The contracting officer defined a "negative" score as a response of 
"2" (marginal) or "1" (unsatisfactory) in any of the items in part I 
of the surveys, and a "yes" response to any question in part II.  No 
respondent considered Continental's performance [DELETED] on any 
survey item.

3. Since we conclude that the protester was not prejudiced by any 
improprieties that may have occurred during discussions, we need not 
address the protester's contentions that the improper discussions led 
to a flawed evaluation of its past performance.