BNUMBER: B-276860
DATE: July 28, 1997
TITLE: Food Services of America, B-276860, July 28, 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:Food Services of America
File: B-276860
Date:July 28, 1997
Martin P. Willard, Esq., and Richard W. Oehler, Esq., Perkins Coie,
for the protester.
Lynne E. Georges, Esq., Defense Logistics Agency, for the agency.
Susan McAuliffe, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that solicitation's relevant experience/past performance
requirement is a definitive responsibility criterion is denied where
the requirement was an evaluation factor, not a definitive
responsibility criterion.
2. Protest that contracting agency's evaluation of awardee's proposal
improperly considered the experience and past performance of the
awardee's proposed subcontractors is denied where, given the proposed
relationship of the firms, the strength of the experience cited, and
the terms of the solicitation (which did not expressly prohibit
consideration of the experience), there is no basis to conclude that
the agency acted unreasonably in giving awardee credit for the
combined experience.
DECISION
Food Services of America (FSA) protests the award of a contract to
Sunshine Dairy Inc. under request for proposals (RFP) No.
SPO300-96-R-M068, issued by the Defense Logistics Agency (DLA),
Defense Personnel Support Center, Philadelphia, Pennsylvania, for the
acquisition of full line food distribution services for various
delivery sites at five installations in the Spokane, Washington area.
The protester contends that the awardee failed to meet a mandatory
definitive responsibility criterion of the RFP and that the agency
improperly evaluated the awardee's proposal.[1]
We deny the protest.
The RFP, issued on July 23, 1996, contemplated the award of an
indefinite quantity contract to the offeror determined to have
submitted the conforming offer most advantageous to the government.
The RFP provided that in evaluating offers for award, technical
quality was significantly more important than price. The RFP listed,
in descending order of importance, the following six technical
evaluation factors for award (with all subfactors being of equal
importance): distribution/
delivery system/location/site visits (for which the RFP provided five
subfactors, including product sourcing); corporate experience (which
included two subfactors--past performance/experience and
organizational support); quality program; socioeconomic
considerations; procurement/pricing plan; and DLA Mentoring Business
Agreements (MBA) program (however, since no offeror provided an MBA
plan, this factor was not applied in the evaluation for award). The
RFP advised offerors that each technical proposal "must demonstrate
the offeror's ability to meet the government's requirements as set
forth in this solicitation." Regarding the technical evaluation
factor for corporate experience, the RFP provided:
The Government will assess the offeror's performance record, as a
regular dealer/prime vendor, in providing full line food service
with similar food dollar/volume as required on this solicitation.
This assessment will be applied to any entity performing on this
contract, although experience provided that does not directly
pertain to the offeror will not receive as much consideration.
The RFP's proposal submission instructions were tailored to each of
the evaluation criteria listed in the solicitation and, basically
mirroring the solicitation terms for evaluation of corporate
experience, provided:
Offeror must show evidence of experience in providing full line
food service as a prime vendor/regular dealer for customers with
similar food dollar/volume requirements as those of this
solicitation. . . . The offeror must also show that they and
their parent corporation, partners, subcontractors, and the like
who would be performing on the proposed contract have experience
in handling the proposed number of customers upon which
submitting a proposal. . . . Experience information provided
that does not directly pertain to the commercial entity
represented in this proposal will not receive as much
consideration.
Proposals were received from three offerors--including FSA and
Sunshine--and discussions were conducted. Best and final offers were
received and evaluated. Sunshine's proposal offered both Sunshine's
substantial vendor/dealer experience (in the dairy product market and
as a retail grocer) and that of two proposed subcontractors, SuperValu
Inc., a large national grocery provider, and Hathaway Meats Inc., a
local meat distributor--both with extensive food service experience in
the Spokane area. The proposal explained how the joint experience of
the firms would benefit the agency and meet the corporate requirements
of the RFP. The agency, in its evaluation of Sunshine's proposal,
noted that Sunshine did not present evidence of its own full line food
service experience, but concluded that together the proposed team
possessed an acceptable level of corporate experience, as required by
the RFP.
All three offerors' proposals were rated as acceptable overall; of the
three proposals, Sunshine's was considered to be the highest rated
technically. The third offeror submitted the lowest evaluated price
[deleted].[2] FSA's proposal offered the highest cost [deleted]. In
comparison to the awardee's proposal, the FSA proposal received the
following [deleted] ratings: [deleted] under the evaluation factor
for distribution/delivery/location/site visits (compared to the
Sunshine proposal's rating of [deleted]); [deleted] under the
evaluation factor for quality program (compared to the Sunshine
proposal's rating of [deleted]); and [deleted] under the evaluation
factor for procurement/pricing plan/rebates/discounts (compared to the
Sunshine proposal's rating of [deleted]). The agency determined that
the technically superior Sunshine proposal (at $2,365,241.18)
represented the overall best value to the government and awarded a
contract to Sunshine on April 7. Subsequent to a debriefing held with
the firm, FSA filed this protest.
FSA first protests that the above-quoted RFP proposal submission
instruction for each offeror to show evidence of experience in
providing full line food service as a prime vendor/regular dealer is a
mandatory definitive responsibility criterion which Sunshine cannot
meet since Sunshine is primarily a dairy product vendor and has not
performed full line food services, and that the firm was therefore
ineligible for award. However, where, as here, responsibility-type
factors such as experience are set forth as evaluation criteria in a
negotiated procurement and are to be used by technical evaluators to
make a comparative evaluation of the technical merits of each offer,
we do not regard them as definitive responsibility criteria.
Commercial Bldg. Serv., Inc., B-237865.2, B-237865.3, May 16, 1990,
90-1 CPD para. 473 at 5.[3] In
such cases, as with any other evaluation factor, an agency's
assessment and scoring of experience must be reasonable and in accord
with the RFP's evaluation scheme. Id.; Supreme Automation Corp.; Clay
Bernard Sys. Int'l, B-224158, B-224158.2,
Jan. 23, 1987, 87-1 CPD para. 83 at 8.
The protester also contends that the RFP mandated that the offeror
itself (i.e., Sunshine) must show full line food service experience,
without consideration of any proposed subcontractor's experience,
because the proposal submission requirement references the term
"offeror" regarding the need for a showing of full line food service
experience. We do not read the RFP as restrictively as the protester,
however, since the experience of a proposed subcontractor properly may
be considered in determining whether an offeror meets an experience
requirement in the solicitation where it is not expressly prohibited
by the RFP.[4] AeroVironment, Inc., B-233712, Apr. 3, 1989, 89-1 CPD para.
343 at 4. Here, despite the language cited by the protester, the RFP
in no way expressly prohibited consideration of proposed
subcontractors' experience in the evaluation of proposals. In fact,
as quoted above, the RFP advised offerors that such experience may be
considered, but that it will be given less weight in the evaluation
than would be given to demonstrated experience attained by the
commercial entity offeror itself.
FSA also states that it was improper for the agency to consider
Sunshine's proposed subcontractors' experience without a firm
commitment from those entities. Offerors need not possess written
subcontracting agreements for subcontractors identified in their
proposals prior to an agency's evaluation of the proposals.
Commercial Bldg. Serv., Inc., supra, at 6; National Biomedical
Research Found.,
B-208214, Sept. 23, 1983, 83-2 CPD para. 363 at 9. Here, the Sunshine
proposal described both firms as proposed subcontractors of Sunshine
and stated that Sunshine had discussed with each firm (and obtained
agreement from each firm regarding) its supplier role in performing
the contract, appropriate contact persons were provided for each
proposed subcontractor, the firms are represented in the offeror's
proposed organizational structure, and business information about
these firms was included in the proposal. In our view, although the
agency initially questioned the awardee about the terms of the
relationship among the proposed firms, given the substantial role of
these firms in the proposal, the proposal's showing of informed,
substantial involvement by these subcontractors in Sunshine's proposed
performance of the contract (confirmed through the agency's site
visits), and the subcontractors' substantial food distribution service
experience, it was reasonable for the agency to consider their
experience as submitted.
FSA next contends that, even if the agency could consider the Sunshine
team's combined experience under the RFP's terms, the evaluation was
improper because the agency failed to give less weight to experience
not attained by the offeror (Sunshine) itself, as required by the
RFP's evaluation scheme. The agency evaluated the Sunshine proposal
as acceptable for corporate experience (with ratings of acceptable for
both subfactors, past performance/experience and organizational
support). The evaluation record does not show whether Sunshine's
proposal was specifically downgraded or given less weight for its
offer of the combined experience of the firm and its subcontractors to
show full line food service capabilities. However, as explained
below, in evaluating full line food service capability, even giving
less weight to the Sunshine suppliers' substantial experience, the
rating of acceptable for the overall corporate experience factor is
otherwise reasonable and supported by the record.
First, the past performance/experience subfactor in fact included
three distinct areas of evaluation: assessing the offeror's
experience in providing a full line food service as a prime
vendor/regular dealer; the offeror's previous efforts toward prompt
resolution of discrepancies and customer complaints; and certain
experience/past performance data (such as years as a prime
vendor/regular dealer, annual sales, number of customers, fill rates
and number of items delivered). The record shows that for the last
two of these areas, as stated in the RFP and evaluation plan, the
evaluation was to be focused more generally on prime vendor/regular
dealer experience (since the evaluation plan did not expressly require
full line food service experience under the latter two areas, as was
specifically required to be considered under the first of the three
past performance/experience subfactor evaluation areas). In this
regard, Sunshine's own substantial experience as a large volume
regular vendor/dealer of dairy products and as a retail grocer (in
conjunction with its subcontractors' substantial qualifications in
these areas), is directly relevant and, we believe, otherwise supports
the acceptable rating received for the past performance/experience
subfactor.
Second, even assuming that the agency improperly failed to downgrade
Sunshine's proposal under the subfactor for past
performance/experience, the record shows that any such downgrade would
have had no (or only a minor) effect on the proposal's overall
corporate experience factor rating, given the strong organizational
support presentation of the Sunshine proposal, whose evaluation under
the other equally weighted subfactor of the corporate experience
factor has not been challenged. Thus, the awardee's proposal would
still reasonably support the overall rating of acceptable under the
corporate experience factor. In sum, given the strength of the
experience of each firm represented in the Sunshine proposal, which
combined reasonably conveys full line food service capabilities, we
find no basis in the record for concluding that the agency acted other
than properly in crediting Sunshine's proposal with the experience of
SuperValu and Hathaway, or for concluding that the combined past
performance/experience and the strong organizational support shown in
the proposal warranted a rating of acceptable under the overall
corporate experience evaluation factor.[5] See Commercial Bldg.
Serv., Inc., supra, at 5.
The protest is denied.
Comptroller General
of the United States
1. FSA also alleges that the agency's issuance of amendment No. 3,
which eliminated various required food items from the solicitation,
was an improper relaxation of solicitation requirements for Sunshine.
FSA contends that the issuance of the amendment after the receipt of
Sunshine's initial proposal (which failed to comply with some of those
food item requirements) was improper and unfairly benefitted
Sunshine's proposal's subsequent evaluation rating. The record shows,
however, that these products were reasonably and legitimately
eliminated from the RFP for all offerors. The elimination was
justified, as the agency explains, since it involved either
military-unique (Navy) items not required by any user serviced under
the contract or the users' identification of approved alternate
products, which alternates included items proposed by the protester
and the other offerors in their initial proposals. Accordingly, the
record shows that the issuance of the amendment was a proper action by
the agency to better define its actual needs and thus provides no
basis to challenge the award.
2. Since the third offeror's proposal is not relevant to FSA's protest
contentions, it is not discussed further in this decision.
3. In order to be a definitive responsibility criterion (a specific
and objective standard, qualitative or quantitative, that is
established by a contracting agency in a solicitation to measure an
offeror's ability to perform a contract), the solicitation provision
must reasonably inform offerors that they must demonstrate compliance
with the standard as a precondition to receiving award. AT&T Corp.,
B-260447.4, Mar. 4, 1996, 96-1 CPD para. 200 at 5. The RFP did not do so
here.
4. Further, contrary to the protester's contention, a subcontractor's
experience may be considered, unless expressly prohibited, even where
the nature of the experience required is that of a prime contractor.
See, e.g., Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., and
O&G Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD para.
223 at 5.
5. FSA also protests the evaluation of the Sunshine proposal under the
product sourcing subfactor of the distribution/delivery
system/location/site visits evaluation factor. We agree with the
protester that the record appears to show that, in accordance with the
criteria set forth in the evaluation plan for the evaluation of
proposed product sourcing, the awardee's proposal should have received
a rating of acceptable (rather than highly acceptable) for the
subfactor, due to the finding that the offeror had failed to provide
two of the "top items." Product sourcing, however, was only one of
five equally weighted subfactors and the Sunshine proposal received
higher ratings (of highly acceptable) than the FSA proposal did (where
FSA's proposal was rated acceptable) under two of the remaining
subfactors. Therefore, even correcting the apparently erroneous
subfactor rating, the awardee's proposal remains technically superior
to the FSA proposal under the most important overall technical
evaluation factor for award (i.e., distribution/delivery
system/location/site visits).