BNUMBER:  B-275066
DATE:  January 17, 1997
TITLE:  Neal R. Gross & Co., Inc.

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Matter of:Neal R. Gross & Co., Inc.

File:     B-275066

Date:January 17, 1997

Ronald S. Perlman, Esq., Porter, Wright, Morris & Arthur, for the 
protester.
Mary L. Johnson, Esq., National Mediation Board, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Where agency point of contact for evaluation of past performance, 
listed as a reference by both offerors, provided positive reference 
for the awardee and negative reference for protester, there is no 
basis for concluding that contracting officer's reliance upon the one 
reference in selection of an offeror was unreasonable, absent any 
basis for concluding that additional references listed by protester 
would have provided information outweighing the negative reference 
provided by the agency's own personnel.

2.  Protester's assertion that its subcontractor bore responsibility 
for poor performance under its prior prime contract with the agency 
presents no basis for concluding that the agency unreasonably 
determined that the protester's performance under that contract was 
poor; the prime contractor under a government contract is generally 
responsible for the performance of its subcontractors. 

3.  Where solicitation for fixed-price requirements contract contained 
no estimated quantities and provided no method for evaluating price 
beyond advising that each line item would be given equal weight, 
post-award protest that solicitation failed to provide for adequate 
evaluation of price is untimely. 

DECISION

Neal R. Gross & Co., Inc. protests the award of a contract to Ann 
Riley & Associates under a request for proposals (RFP) issued by the 
National Mediation Board for court reporting services.  Gross contends 
that the selection decision was unreasonable and contrary to the 
selection criteria announced in the RFP.

We deny the protest.

On August 15, 1996, the Board issued the RFP for a fixed-price 
requirements contract for services during fiscal year 1997.  The 
solicitation sought prices per page for same-day, next-day, and 
standard (5-day) delivery for original and additional copies of 
transcripts.  The schedule also allowed separate pricing for delivery 
within the Washington, D.C. area and elsewhere, 12 line items in all.  
The solicitation contained no estimated quantities and provided no 
method for evaluating price, beyond advising offerors that each line 
item would "be given equal weight."  Section M of the RFP provided 
that the agency would make its selection decision based on "lowest 
overall [price] to the [g]overnment and past performance."

The record indicates that the agency expected potential contractors to 
provide the Board with original copies of transcripts for free.  Past 
contractors had done so (and the competitors here offered to do so), 
in the expectation of a profit from selling additional copies to the 
public.  The agency would therefore pay only for any additional copies 
that it needed.  The record shows that the agency has generally paid 
$20,000 to $25,000 under past contracts; presumably most of this 
expense resulted from proceedings where the Board required more than 
one copy of a transcript.  In this regard, the RFP advised offerors 
that 60 to 75 percent of transcripts would involve presidential 
emergency boards, requiring delivery of an original and three copies.  
Arbitration proceedings, approximately 5 percent of transcripts, 
required an original and one copy.  The remainder (mediation boards) 
would require only an original.  (The RFP provided that the contractor 
would charge the public the same price for transcripts as it charged 
the agency for additional copies.)

The RFP, as issued, contained no instructions for the submission of 
proposals.  Five offerors submitted proposals, but only one of them 
provided any information on past performance with its initial 
proposal.  The agency established a competitive range consisting of 
the three low offers, including those from Gross and Riley.  By 
letters dated September 18, it requested the three offerors to provide 
past performance referrals by September 25.  In response, Gross 
provided a list of seven references, including a prior contract with 
the Board.  The awardee, Riley, also referenced a Board contract.  
Both offerors listed the same Board attorney as a point of contact.

On September 27, the agency asked the Board attorney listed as the 
point of contact to provide a reference for Gross and Riley.  The 
attorney reported that Gross had used a subcontractor for work in the 
New York area, that the subcontractor was inefficient, and that the 
transcripts contained numerous mistakes, and that the reporter for 
Gross' subcontractor had disrupted Board proceedings with arguments 
over the responsibility for transcript errors.  By contrast, the 
attorney reported that experiences with Riley had been "pleasant, 
professional and efficient," citing several instances of excellent 
performance in transcribing Board proceedings.  As a consequence of 
this report, and without contacting the other references listed by the 
two offerors, the agency awarded a contract to Riley on October 1.  
After receiving a debriefing on October 7, Gross filed this protest.

Gross contends that the selection decision was inconsistent with the 
solicitation.  Gross contends that by requesting past performance 
information in its September 18 letter, the agency was advising 
offerors either that it would not consider their performance under 
Board contracts, or that it considered all offerors' performance under 
Board contracts essentially equal in quality.  Otherwise, Gross 
argues, there was no reason to request information on past 
performance.  In addition, Gross argues, by failing to consider six of 
seven references that the protester provided with its proposal, the 
agency failed to evaluate past performance in accordance with the 
solicitation, which implied that the agency would consider all 
references in its evaluation.

We see no implication in the agency's request for information on past 
performance that the agency would either consider all references or 
not consider the offerors' past performance under Board contracts.  
Agencies evaluating proposals may properly consider their own 
experience with an offeror's performance where the solicitation 
contains past performance as an evaluation factor.  George A. and 
Peter A. Palivos, B-245878.2; B-245878.3, Mar. 16, 1992, 92-1 CPD  para.  
286.  Contrary to Gross' assertions of how it understood the September 
18 letter, the record shows that Gross itself specifically referenced 
its Board contract in its response to that letter.  We see nothing 
unreasonable or improper in the agency's consideration of past 
performance under Board contracts for the purpose of evaluating past 
performance.

With regard to the agency's reliance on past performance under one 
Board contract,  there is no legal requirement that all references 
listed in a proposal be checked.  Questech, Inc., B-236028, Nov. 1, 
1989, 89-2 CPD  para.  407.   In the absence of any argument or evidence 
that contacting other references would have made a difference in light 
of the negative report from the Board attorney, we do not find the 
contracting officer's reliance upon the one reference unreasonable.  
That is, presuming that all other references would have reported 
favorably on Gross' performance, and absent evidence that Riley's 
references would have provided negative information, we can only 
conclude that the contracting officer would have relied upon the only 
meaningful discriminator available to her--the negative reference for 
Gross provided by the staff attorney, as opposed to that same 
attorney's positive reference for Riley.

Gross also disputes the adverse information provided by the Board 
attorney on its recent performance.  Gross argues variously that the 
problems were not recent; were undocumented; were not brought to its 
attention; and were the fault of its subcontractor, in any event.  In 
fact, the record shows that the events were recent, transpiring under 
Gross' fiscal year 1995 contract.  On the other hand, we agree with 
Gross that the ten random pages of marked transcript provided by the 
agency are not convincing evidence of overall poor performance by a 
reporting service.  Still, we cannot conclude that the Board 
attorney's apparent exasperation with the subcontractor's disruption 
and distraction from her duties as hearing officer was unreasonable.  
Gross' attempt to place responsibility solely on its subcontractor, 
and to point out that Riley uses the same subcontractor at times, is 
unavailing.  The general rule is that a prime contractor under a 
government contract is responsible for the performance of its 
subcontractors.  See Logicon Inc., Armed Services Board of Contract 
Appeals No. 37130, Sept. 8, 1995, 95-2 BCA  para.  27921.  Gross provides no 
basis for departing from that general rule here. 

In its comments on the agency report, Gross for the first time asserts 
that the agency did not properly evaluate price.  The solicitation 
stated that each line item would "be given equal weight."  The agency 
therefore added the price of an original page, same-day delivery, to 
the price of an additional copy of that page, same-day delivery, to 
the prices for next-day delivery and the prices for standard delivery.  
Further, each offeror provided a price for delivery within 30 miles of 
Washington, D.C. and a price for delivery elsewhere, for 12 line items 
in all.  Six of these line items represented the free originals, and 
neither offeror provided a price for delivery within the Washington 
area different from that for delivery elsewhere, so that only three 
prices (each one doubled) were actually involved.[1]  Gross' total, 
$11.40 for the six line items, was 10 cents less than Riley's price.  
Gross argues that the agency's determination that the offerors were 
essentially equal in price was unreasonable.

As a preliminary matter, we think any failure of the price evaluation 
scheme to provide meaningful distinctions in price was inevitable 
given the lack of any specific provisions in the RFP regarding how 
price was to be evaluated.  Such defects, however, must be protested 
prior to the time set for receipt of initial offers, not, as here, 
after award.  Bid Protest Regulations,  sec.  21.2(a)(1), 61 Fed. Reg. 
39039, 39043 (1996) (to be codified at 4 C.F.R.  sec.  21.2(a)(1)); 
District Moving & Storage, Inc.; Todd Van & Storage, Inc.; Eureka Van 
& Storage Co., Inc., B-240321 et al., Nov. 7, 1990, 90-2 CPD  para.  373.  
In this regard, given the lack of price evaluation provisions in the 
RFP, we do not find reasonable Gross' assertion that, until it 
received the agency report, it had no idea that the agency would be 
unable to find any meaningful difference in price among the offerors.  
Thus, if Gross believed that the solicitation did not provide for an 
adequate evaluation of price, it should have raised the issue prior to 
the receipt of initial proposals on September 15, rather than waiting 
until October 9, after Riley had already won the award, to file its 
protest.[2]  

Further, Gross provides no basis for us to conclude that there was a 
real difference in price that the agency ignored in finding the offers 
equal in price.  Although, as noted above, the RFP contains some 
information on how often the Board will require additional copies, it 
provides nothing from which one can estimate how often it will require 
the transcripts on a same-day, next-day, or standard delivery basis.  
The record shows only that Gross' price for same-day delivery--$2.20 
per page for additional copies (within the D.C. area and elsewhere) 
versus Riley's $2.75 per page--was significantly (20 percent) lower 
than that of the other competitive range offerors, while its price for 
standard delivery--$1.50 per page for additional copies (within the 
D.C. area and elsewhere) versus the other offerors' $1.00 a page--was 
significantly higher.  While Gross asserts that its pricing is truly 
the lowest, Gross makes no assertion and provides no evidence that 
same-day delivery is more common than standard delivery, or whether it 
is common at all.[3]  Under these circumstances, and given the 
solicitation here, we see no basis to conclude that the agency was 
unreasonable in treating the competitive range offerors as essentially 
equal in price.

The protest is denied.

Comptroller General
of the United States

1. Gross offered to provide additional copies as follows:  same-day 
delivery, $2.20 a page in Washington; $2.20 a page elsewhere; next-day 
delivery, $2.00 a page in Washington and $2.00 a page elsewhere; 
standard delivery, $1.50 a page in Washington and $1.50 elsewhere.  
These prices total $11.40, which was Gross' evaluated price.  Riley 
offered the same price for next-day delivery, with same-day delivery 
for $2.75 per page and standard delivery for $1.00 a page, or $11.50.

2. This presumes that Gross raised the issue in its initial protest, 
where it stated only that the selection decision was inconsistent with 
the solicitation and did not represent the best value for the 
procuring agency.  It was not until its comments on the agency report, 
filed with our Office on November 26, that Gross for the first time 
alleged that the agency's determination to treat the offerors as 
essentially equal in price was unreasonable, because it had offered a 
lower price.  If we consider the issue as raised in the November 26 
comments, it is far too late, considering that Gross received a 
debriefing on October 9.

3. Gross performed the services here under contracts for fiscal years 
1994 and 1995.