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.