BNUMBER:  B-275725 
DATE:  March 19, 1997
TITLE: Matter of:ST Aerospace Engines Pte. Ltd. 

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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:ST Aerospace Engines Pte. Ltd.

File:     B-275725

Date:March 19, 1997

Arthur I. Leaderman, Esq., Smith, Pachter, McWhorter & D'Ambrosio, 
P.L.C., for the protester.
Steven V. Hagberg, Esq., Mark W. Peery, Esq., and Karl A. Oliver, 
Esq., Mahoney, Hagberg & Rice, for Standard Aero Ltd., an intervenor.
B. J. Braun, Esq., U.S. Coast Guard, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

Agency erred in downgrading protester on the basis of negative past 
performance information pertaining to its affiliate where record does 
not establish relevance of affiliate's past performance to likelihood 
of successful performance by protester; because the affiliate's 
negative past performance was the determinative factor in the decision 
not to award to protester, agency was required to raise the issue with 
the protester during discussions.

DECISION

ST Aerospace Engines Pte. Ltd. (STA Engines) protests the award of a 
contract to Standard Aero Ltd. under request for proposals (RFP) No. 
DTCG38-94-R-30006, issued by the U. S. Coast Guard, Department of 
Transportation, for the overhaul and repair of C-130 T56 engine 
reduction gearboxes and torquemeters.  The protester contends that its 
proposal was improperly downgraded based on negative past performance 
information pertaining to one of its affiliates that had not been 
discussed with it.

We sustain the protest.

The RFP sought offers for the overhaul and repair of the reduction 
gearboxes and torquemeters used in the T56 engines aboard Coast Guard 
C-130 aircraft.  The solicitation provided for award to the 
responsible offeror whose combination of technical merit and proposed 
price represented the greatest value to the government, with the 
former carrying greater weight in the selection process than the 
latter.  Technical proposals were to be evaluated on the basis of the 
following five factors, listed in descending order of importance:  
past performance, certification, industrial capacity/capability, 
warranty, and engineering and support capability.  To permit 
evaluation of their past performance, offerors were instructed to 
furnish references regarding their performance of the same or similar 
work, data concerning any quality deficiency problems encountered 
under earlier related contracts, and data concerning their percentage 
of on-time deliveries under the earlier contracts.

Nine offerors submitted proposals.  The proposals of six firms, 
including STA Engines, were included in the competitive range, and the 
agency conducted two rounds of discussions with each of the six.  Upon 
completion of the discussions, the source evaluation board (SEB) 
concluded that Standard Aero's proposal, which was [DELETED] in price 
and which had received a technical rating of [DELETED] and a risk 
assessment of [DELETED], represented the best value to the government.  
The agency then awarded a contract to Standard Aero.

In selecting Standard Aero's proposal for award, the Coast Guard 
concluded that its combination of technical merit and price 
represented a better value to the government than STA Engines's 
proposal, which was [DELETED] in price and had received a technical 
rating of [DELETED] and a risk assessment of [DELETED].[1]  The 
evaluators explained that they had not selected STA Engines for award 
primarily due to concerns regarding the firm's past record for on-time 
delivery.  In this connection, the SEB noted that although STA 
Engines's past performance "was for the most part considered good," 
the offeror had been consistently and significantly late on delivery 
of overhauled material under a separate ongoing Coast Guard contract 
for propeller overhaul and repair.

The protester contends that it was improper for the agency to 
attribute this negative performance data to it, because it had no 
involvement in the contract in question, which was being performed by 
one of its affiliates, ST Aerospace Systems (STA Systems).  In this 
regard, the protester maintains that although STA Engines and STA 
Systems are owned by the same parent holding company, ST Aerospace, 
they are distinct entities with completely separate facilities, 
management, and work forces.  The protester further argues that by 
failing to bring this negative information pertaining to its 
affiliate's past performance to its attention during discussions, the 
agency violated Federal Acquisition Regulation (FAR)  sec.  15.610(c)(6), 
which requires that an offeror be given an opportunity to discuss any 
negative past performance information obtained from references on 
which the offeror has not had a previous opportunity to comment.[2]

The agency argues in response that it was appropriate for it to 
attribute STA Systems's negative performance to STA Engines because 
the protester held out the two as affiliated by listing STA Systems's 
propeller contract as a reference and otherwise emphasizing the 
cohesiveness of the ST Aerospace group of companies in its proposal 
and by using the same individuals to represent both companies in 
meetings with agency contracting personnel.  Further, the agency 
asserts that it was not required under FAR  sec.  15.610(c)(6) to raise the 
matter with STA Engines.

In determining whether one company's performance should be attributed 
to another, the agency must consider not simply whether the two 
companies are affiliated, but the nature and extent of the 
relationship between the two--in particular, whether the workforce, 
management, facilities, or other resources of one may affect contract 
performance by the other.  In this regard, while it would be 
appropriate to consider an affiliate's performance record where it 
will be involved in the contract effort or where it shares management 
with the offeror, Fluor Daniel, Inc., B-262051, B-262051.2, Nov. 21, 
1995, 95-2 CPD  para.  241; Macon Apparel Corp., B-253008, Aug. 11, 1993, 
93-2 CPD  para.  93, it would be inappropriate to consider the affiliate's 
record where that record does not bear on the likelihood of successful 
performance by the offeror.  Cf.  Contract Servs. Co., Inc., 
B-246604.2 et al., June 11, 1992, 92-1 CPD  para.  508.  As explained below, 
in this case we conclude that it was not reasonable for the agency, 
based on the evidence before it, to attribute the past performance of 
the affiliate to the protester without inquiring further into the 
relationship between the two companies and giving the protester an 
opportunity to address the issue during discussions.

While STA Engines represented in its proposal that it was affiliated 
with STA Systems, it did not represent--nor was there other evidence 
in the record indicating--that the past performance of STA Systems is 
of any relevance to the likelihood of successful performance by STA 
Engines.  With regard to the agency's assertion that by virtue of 
being owned by the same parent holding company the two affiliates 
clearly shared the same top level management, there is no indication 
in STA Engines's proposal that the parent company or its management 
was to be involved in any aspect of contract performance.  Rather, the 
proposal stated that "overall responsibility for this program is [in] 
the SVP/GM [Senior Vice President/General Manager] of ST Aerospace 
Engines . . . ."  (Emphasis added.)

Regarding the agency's argument that it reasonably understood that 
other companies in the ST Aerospace group would be involved in 
performance, the proposal clearly identified STA Engines--and not the 
ST Aerospace group--as the offeror.  In addition, required 
certifications (submitted with the proposal) from the original 
equipment manufacturer, Allison, and from the Federal Aviation 
Administration were in the name Singapore Aerospace Engines;[3] and 
the proposal outlined a management structure headed by the Senior Vice 
President/General Manager for STA Engines.  The protester did 
emphasize the strength and diversity of the ST Aerospace Group in the 
introductory paragraph of its proposal and the protester listed 
contracts performed by other affiliates within the ST Aerospace Group, 
presumably with the goal of enhancing its rating under the past 
performance criterion.  However, we do not think an agency can 
automatically rely on such a listing without some additional basis for 
viewing the affiliate's past performance as relevant to the offeror's 
performance.
 
In support of its argument that it was led to believe that the parent 
corporation, ST Aerospace, would be involved in management of the 
engine overhaul contract by the fact that employees of the parent 
corporation represented the offeror in meetings with agency personnel, 
the agency cites only one example of a meeting held on October 17, 
1996, concerning the engine overhaul solicitation (other than the 
debriefing) in which employees of the parent company are alleged to 
have represented STA Engines.  The protester denies that a substantive 
meeting concerning the engine overhaul solicitation took place on 
October 17, however; what did happen on that date, according to the 
protester, is that representatives of the parent company's North 
American administrative office, who were visiting the contracting 
office on other business, encountered and engaged in a brief 
conversation with the contracting specialist responsible for the 
engine overhaul solicitation, during the course of which they 
exchanged pleasantries and inquired about the projected contract award 
date, but did nothing more.  The agency does not dispute the 
protester's explanation of what occurred on October 17, and has 
offered no other examples of pre-award meetings in which STA Engines 
was represented by employees of the parent company.  We do not think 
that it was reasonable for the agency to conclude, on the basis of 
this single exchange, that the parent company's North American 
administrative staff represented STA Engines with regard to the engine 
overhaul solicitation.

In sum, the record before the agency lacked evidence establishing the 
nature of the relationship between the companies for purposes of this 
procurement.  Given the potential for variations in the extent and 
nature of the relationship between two companies that are affiliated, 
it is not reasonable for an agency simply to accept, without more, an 
offeror's representation that the performance of an affiliated 
company--positive or negative--should be attributed to that offeror.  
Such representations are essentially self-serving in nature, and, for 
reliance on them to be reasonable, there must be some actual or 
potential relationship to contract performance.[4]  

Verifying the relationship between two companies before attributing 
the past performance of one to the other is particularly important 
given the current emphasis on evaluation of an offeror's past 
performance as a prominent feature of all evaluations in negotiated 
procurements.  FAR  sec.  15.605(b)(1)(ii).  In this case, before the 
agency properly could attribute STA Systems's past performance to STA 
Engines, it should have determined the planned relationship between 
the companies on the contract at issue.  Once that relationship was 
known, the agency then could make an informed decision as to whether 
attribution was proper.  See Fluor Daniel, Inc., supra; Contract 
Servs. Co., Inc., supra.

The agency was also required to raise the issue of the affiliate's 
relationship with STA Engines during discussions with the firm.  For 
discussions to be meaningful, an agency must point out significant 
weaknesses in a proposal, that unless corrected, would prevent the 
offeror from having a reasonable chance for award.  Department of the 
Navy--Recon., 72 Comp. Gen 221 (1993), 93-1 CPD  para.  422; Alliant 
Techsystems, Inc.; Olin Corp., B-260215.4; B-260215.5, Aug. 4, 1995, 
95-2 CPD  para.  79.  Here, the affiliate's negative past performance was 
the determinative factor in the decision not to award to STA Engines.  
Since the agency's decision to attribute the affiliate's performance 
to STA Engines was the foundation for this dispositive determination, 
we think the agency was required to raise the issue with the protester 
during discussions and give it an opportunity to respond.[5]

We conclude that the agency improperly downgraded STA Engines's 
proposal on the basis of past performance information pertaining to 
its affiliate, STA Systems, without clarifying the relationship 
between the companies and without affording STA Engines an opportunity 
to comment on the information during discussions.[6]  It is clear from 
the record (i.e., the evaluators' statement that they had not selected 
STA Engines for award primarily due to concerns regarding the firm's 
past record for on-time delivery; [DELETED]; and the change in the 
evaluators' past performance rating from [DELETED] to [DELETED] upon 
consideration of the propeller overhaul late deliveries) that STA 
Engines was prejudiced[7] by the attribution of STA Systems's negative 
past performance to it.  Accordingly, we sustain the protest.

We recommend that the agency reopen discussions to clarify the extent 
of involvement of STA Systems in STA Engines's proposed effort. This 
is the only topic that STA Engines should be permitted to address 
during discussions and the protester should not be allowed to revise 
other aspects of its technical proposal or its price.  Once the 
discussions have been completed and STA Engines has submitted a new 
limited best and final offer (BAFO), the agency should reevaluate the 
offers to determine which represents the best combination of technical 
merit and price.[8]  If it determines that the proposal of an offeror 
other than Standard Aero represents the best value, it should 
terminate the award to Standard Aero and make award to the firm that 
it has now selected.  We also recommend that the agency pay the 
protester the costs of filing and pursuing its protest, including 
attorneys' fees.  Bid Protest Regulations, section 21.8(d)(1), 61 Fed. 
Reg. 39039, 39046 (1996) (to be codified at 4 C.F.R.  sec.  21.8(d)(1)).  
In accordance with section 21.8(f)(1) of our Regulations, STA 
Engines's certified claim for such costs, detailing the time expended 
and the costs incurred, must be submitted directly to the agency 
within 60 days after receipt of the decision.

The protest is sustained.

Comptroller General
of the United States

1. Of the remaining four proposals in the competitive range, three 
were considered not to represent the best value to the government 
because [DELETED].  The fourth proposal, which was [DELETED], was 
considered not to represent the best value because it had received 
[DELETED] and the [DELETED], leading the SEB to conclude that the 
potential cost savings to the government did not justify the 
performance risks.

2. To the extent that the protester also argues that the Coast Guard 
violated its own evaluation plan by failing to discuss with STA 
Engines its affiliate's negative past performance data, this does not 
provide a separate basis for protest since internal agency 
instructions do not give outside parties any rights.  Burnside-Ott 
Aviation Training Ctr., Inc.; Reflectone Training Sys., Inc., 
B-233113; B-233113.2, Feb. 15, 1989, 89-1 CPD  para.  158.

3. As the agency was aware, Singapore Aerospace Engines changed its 
name to ST Aerospace Engines in 1995.

4. A potential relationship might exist where, for example, a parent 
corporation has a history of marshalling corporate-wide resources to 
assist a subsidiary encountering performance difficulties.

5. The agency contends that it was not required to discuss the 
information because it was historical in nature and therefore not 
subject to change and because it had already discussed it with 
representatives of STA Systems, who had not denied responsibility for 
it.  Both of these arguments miss the point.  The issue is not whether 
STA Systems was correctly held responsible for its lateness under the 
propeller contract; the protester has never denied STA Systems's 
responsibility for its own performance deficiencies.  What the 
protester has denied is that this negative performance by one of its 
affiliates should have been attributed to it--and that is the issue 
that the agency could, and should, have allowed the protester to 
address during discussions.

6. Because we conclude that the agency had an obligation to raise the 
matter of nature of the affiliation between the two companies during 
discussions, we need not address the issue of whether the agency had a 
separate obligation to discuss the negative performance information 
under FAR  sec.  15.610(c)(6).

7. Competitive prejudice is an essential element of a viable protest.  
Lithos Restoration, Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD  para.  379.

8. This recommendation differs from the one made in the original 
protected version of this decision.  We originally recommended that 
after discussions with STA Engines had been completed, another round 
of BAFOs be solicited.  After issuance of the protected decision, the 
protester requested that we modify our decision to delete the 
recommendation for another round of BAFOs.  The protester argued that 
a reopening of the price competition would create the risk of an 
auction since offerors' prices have been disclosed by the agency, and 
that the defect in the process may otherwise be remedied without 
impairment to the integrity of the procurement process by limiting the 
scope of the reopened negotiations.  We agree with the protester, and, 
accordingly, have modified our decision as noted.  See URS Int'l, 
Inc., and Fischer Eng'g & Maintenance Co., Inc.; Global-Knight, Inc., 
B-232500;
B-232500.2, Jan. 10, 1989, 89-1 CPD  para.  21, recon. den., Pacific 
Architects and Eng'rs, Inc.--Request for Recon., B-232500.4, Mar. 3, 
1989, 89-1 CPD  para.  231.