BNUMBER: B-276624.2
DATE: July 9, 1997
TITLE: TMI Services, Inc., B-276624.2, July 9, 1997
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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:TMI Services, Inc.
File: B-276624.2
Date:July 9, 1997
Timothy H. Power, Esq., for the protester.
Johnathan M. Bailey, Esq., Theodore M. Bailey, P.C., for Selrico
Services, Inc., an intervenor.
Elizabeth Rivera Bagwell, Esq., Department of the Navy, for the
agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's contention that agency evaluation of past performance is
unreasonable is denied where the agency performed a new past
performance review in response to the initial protest filing, and
protester does not acknowledge the amended review or provide any basis
to conclude that the evaluation is unreasonable.
DECISION
TMI Services, Inc. protests the award of a contract to Selrico
Services, Inc. by the Department of the Navy, pursuant to request for
proposals (RFP) No. N00604-96-R-0052, seeking mess attendant services
to clean the dining halls and serve food at the Navy Submarine Base
Galley, Pearl Harbor, Hawaii. TMI claims, in general, that the Navy's
past performance evaluation was unreasonable, and that TMI, not
Selrico, should have been selected for award.
We deny the protest.
The Navy issued the RFP on September 19, 1996, as a total small
business set-aside. The RFP anticipated award of a fixed-price
contract with a base period and three 1-year options to the offeror
whose technically acceptable proposal presented the best value to the
government, considering past performance and price. The evaluation
scheme stated that past performance would be more important than price
unless the competing proposals were rated equally in the area of past
performance, in which case price would be the determining factor.
The Navy received 17 proposals, and performed several initial
reviews--for reasons not relevant here--before including 5 of the
proposals, including those submitted by TMI and Selrico, in the
competitive range. After the agency amended the solicitation,
requested best and final offers (BAFO), and reevaluated, the
protester's and Selrico's BAFOs were ranked as follows: TMI's
proposal had the lowest price and a past performance rating of
marginal, Selrico's proposal had the second lowest price and a past
performance rating of exceptional.[1] As a result, the contracting
officer concluded that Selrico's proposal offered the best value to
the government, and on March 25, 1997, selected that company for
award. Selrico's performance was to begin on April 1.
On March 28, TMI filed its initial protest of the award to Selrico in
our Office, alleging that the evaluation of past performance was
unreasonable. After the agency decided to reopen discussions with the
offerors whose proposals were in the competitive range and request a
second round of BAFOs, TMI withdrew its initial protest on April 11.
Because TMI's initial protest resulted in a stay of Selrico's
performance, and because the Navy had an ongoing need for these mess
services, the agency held an expedited competition limited to the
competitive range offerors to procure the services for the month of
April only. TMI won this competition, and since it was the incumbent,
TMI returned to the facility on April 2, after only 1 full day of
performance by Selrico. As discussed in greater detail below, certain
issues regarding TMI's past performance score raised in the current
protest arise from events that took place on April 2 when TMI began
performance of the interim contract.
After the agency held discussions, requested and received a second
round of BAFOs, and completed its evaluation, it raised TMI's past
performance rating from marginal to acceptable; TMI's proposal
continued to have the lowest price of any offer in the competitive
range. As before, the second lowest-priced proposal was Selrico's,
which retained its exceptional rating under the past performance
factor. Thus, the contracting officer based her best value decision
on the following information:
OFFEROR PRICE PAST PERFORMANCE
RATING
TMI $ 1,723,862.27 Acceptable
Selrico $ 1,911,776.23 Exceptional
By memorandum dated April 30, the contracting officer determined that
Selrico's highly rated past performance outweighed the price benefit
offered by TMI, and
concluded again that Selrico's proposal offered the best value to the
government. On the same day, Selrico's stop-work order was canceled,
and TMI was advised by letter that Selrico remained the awardee.
After TMI received a debriefing on May 7, it filed its current bid
protest on May 13. TMI supplemented its protest on May 16 after
receiving the written debriefing materials from the agency.
In its current protest, TMI argues that the agency unreasonably
evaluated past performance by basing its assessment on events that
took place during the first week of April when TMI turned the mess
facility over to Selrico for a day and a half, and then returned to
perform the mess services for the remainder of the month of April.[2]
TMI also argues that the past performance evaluation was unfair
because TMI was reevaluated in April 1997, while Selrico's earlier
past performance assessment was not revisited. In addition, TMI
argues that the Navy unreasonably performed a cost realism review
despite the fact that the agency was awarding a fixed-price contract,
and argues that the evaluators' stated concerns about TMI's low price
were, in fact, a negative responsibility determination that should
have been referred to the Small Business Administration (SBA) for
review.
With respect to the evaluation of past performance, the Navy's
response to the protest concedes that the agency initially included
information for TMI generated during the first week of April. Given
the protester's contentions that this approach was unreasonable and
unfairly subjected only TMI, not Selrico, to reevaluation, the Navy
revisited its review of TMI's past performance. This reevaluation
deleted all past performance information related to events after March
30, 1997--the last day of TMI's performance under the earlier
contract--and was provided to TMI in the agency report. In its
comments, TMI fails to acknowledge the reevaluation performed in
response to the May 7 and May 16 protest filings, and offers no
challenge to that review. Instead, TMI merely elaborates on the
complaints set forth in its initial protest filing. In addition, TMI
argues in its comments, for the first time, that the Navy violated the
requirements set forth in Federal Acquisition Regulation sec.
15.610(c)(6) by failing to provide TMI an opportunity to respond
during discussions to adverse information reflected in the past
performance review which resulted in less than the highest possible
score.
Our review of the Navy's approach to reevaluating TMI's past
performance leads us to conclude that the Navy has reasonably
addressed TMI's concerns about the impact of the information TMI
complained about in its initial protest. By failing to acknowledge
the Navy's subsequent review, and by offering no further substantive
rebuttal to the evaluation conclusions set forth therein, TMI's
challenge to the past performance evaluation is unsupported and
provides no basis to reject the Navy's selection decision.[3]
Datacomm Management Sciences, Inc., B-261089, Aug. 8, 1995, 95-2 CPD para.
259 at 4.
With respect to the argument in TMI's comments that the Navy failed to
raise these issues during discussions, TMI's complaint is untimely at
this juncture. In the oral debriefing, and in the written materials
provided afterwards, TMI was expressly advised that its lower-priced
proposal was not selected because the proposal was rated acceptable
under the past performance evaluation factor, while Selrico's proposal
received a rating of exceptional. If TMI wanted to challenge the
adequacy of discussions on this point, it was required to do so within
10 days of the debriefing. 4 C.F.R. sec. 21.2(a)(2) (1997).
As a final matter, TMI's comments allege that the agency record
supports a conclusion that the Navy engaged in improper discussions
with Selrico about its manning requirements. In this regard, TMI
points to a statement included in the April 18, 1997, cover letter
submitted with Selrico's second BAFO which states:
After discussions with [the] Senior Chief and Master Chief, I was
made aware that the manning hours Selrico proposes would be an
advantage to the employees by allowing [a] sufficient amount of
time to perform their job[s] properly, effectively and
thoroughly. With this in mind, Selrico Services, Inc. is proud
to resubmit our [BAFO] without any revisions.
In anticipation of a possible complaint about this statement, the
contracting officer explained that the "discussions" referenced in the
letter were in the context of meetings between Selrico and Navy
representatives that took place after the initial award to Selrico and
as part of the start-up of its performance. Contracting Officer's
Statement, June 6, 1997, at 10-11. In addition, both individuals
provided sworn statements submitted with the agency report addressing
those meetings with Selrico. One of the individuals admitted stating
that he expected Selrico to comply with the manning hours proposed;
the other admitted stating that he expected Selrico to comply with the
terms of the contract; neither admitted advising Selrico that its
proposed manning hours were advantageous to the employees. Affidavit
of Senior Chief Mess Management Specialist, June 5, 1997, at 2;
Affidavit of Master Chief Mess Management Specialist, June 5, 1997, at
2. Based on these statements, the contracting officer concluded that
Selrico did not receive an unfair advantage in preparing its second
BAFO.
Although TMI offers no supporting arguments or explanations about how
or why Selrico might have been aided by these alleged discussions, it
claims that our Office should not accept these explanations because
the agency personnel have a motive to be untruthful--i.e., to avoid a
finding by our Office that the agency violated the requirement that
offerors be treated fairly and equally. TMI's contention in this
regard is, in essence, a claim that these individuals acted in bad
faith in submitting untruthful affidavits. Without strong evidence to
support such a conclusion, we will not assume that agency employees
act in bad faith. Indian Affiliates, Inc., B-243420, Aug. 1, 1991,
91-2 CPD para. 109 at 5. In addition, given the reasonable explanation
set forth by the Navy officials--with no conflicting evidence provided
by the protester other than its general belief that they have a motive
to be untruthful--we have no basis to conclude that the Navy has acted
improperly or unreasonably in its reevaluation of these proposals.
Kelsey-Seybold Clinic, P.A., B-218451, Aug. 7, 1985, 85-2 CPD para. 139 at
2-3.
The protest is denied.
Comptroller General
of the United States
1. Past performance was rated as unacceptable, marginal, acceptable,
or exceptional.
2. Specifically, TMI claims that after leaving the facilities in good
order, it returned after a day and a half of performance by Selrico to
find the facilities unclean and in disarray. Also, TMI says that
within 3 hours of its return, the facilities were inspected by senior
officials who unfairly attributed the conditions there to TMI.
3. Likewise, the two other issues raised in TMI's initial filing--that
the Navy unreasonably performed a cost realism review of these
fixed-price proposals, and that the concerns about TMI's low price
should have been referred to the SBA--were addressed by the agency in
its report, but were not answered by the protester in its comments.
As a result, we consider these two issues to be abandoned.
Appalachian Council, Inc., B-256179, May 20, 1994, 94-1 CPD para. 319 at 8
n.8.