BNUMBER:  B-278797 
DATE:  March 16, 1998
TITLE: Rockhill Industries, Inc., B-278797, March 16, 1998
**********************************************************************

Matter of:Rockhill Industries, Inc.

File:     B-278797

Date:March 16, 1998

Martin J. Prenosil and Christopher Zamagias for the protester.
David R. Hazelton, Esq., Latham & Watkins, for Miller-Holzwarth, Inc., 
an intervenor.
Joshua A. Kranzberg, Esq., and Arthur M. Boley, Esq., U.S. Army 
Materiel Command, 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.  Protester alleging bias on the part of agency officials must 
provide credible evidence clearly demonstrating such bias and that the 
bias itself translated into action that unfairly affected the 
protester's competitive position; correspondence that merely repeats 
the allegations and shows only that contracting officials exercised 
their discretion, under other contracts, in denying protester's 
request for progress payments and government-furnished property and in 
approving awardee's request for waiver of first article requirements 
does not meet this burden of proof.

2.  Where record shows that awardee's performance under prior 
contracts was generally timely, while protester had difficulty 
performing whenever it became necessary to order and purchase parts 
from subcontractors, agency's evaluation of past performance, which 
concluded that there was a significantly smaller risk in awarding 
contract to the offeror with the better performance record, was 
reasonable and consistent with the solicitation.

DECISION

Rockhill Industries, Inc. protests the award of a contract to 
Miller-Holzwarth Inc., (MHI) under request for proposals (RFP) No. 
DAAE07-97-R-T011, issued by the Department of the Army for M1 Abrams 
tank periscopes.  Rockhill contends that the Army demonstrated bias in 
its selection of MHI for award and challenges the agency's evaluation 
of past performance.

We deny the protest.

On January 27, 1997, the agency issued the solicitation for a 
fixed-price, indefinite quantity contract for a 3-year period, with 
two 1-year option periods, for production and delivery of up to 3,015 
M1 Abrams tank periscopes, including a first article, with two 1-year 
options for up to 804 additional periscopes in each of the option 
years.  RFP  sec.  A(b)(1), B, and L-5.  The solicitation provided for 
consideration of price and past performance as bases of award, with 
price slightly more important than past performance.  RFP  sec.  M.1.

The solicitation,  sec.  L-16, directed offerors to submit information on 
any contracts in any way relevant to the instant effort, received or 
still in performance during the previous 3 years, including commercial 
contracts, to include, as follows:  contract number; procuring 
contracting officer's name and telephone number, national stock 
number, and contract value.  It warned that the agency would use 
independent data, in addition to that submitted by the offerors, to 
evaluate past performance.

The RFP,  sec.  M.3, provided that the agency would assess the relative 
performance risk, in terms of quality and schedule, of each proposal; 
it distinguished between proposal risk, associated with an offeror's 
proposed approach and which the agency did not intend to evaluate, and 
performance risk, which the agency would evaluate based on past 
performance.  The RFP also provided for six potential ratings, as 
follows:  excellent/very low risk ("Essentially no doubt . . . that 
the offeror will successfully perform . . . ."), good/low risk 
("[l]ittle doubt"), adequate/moderate risk ("[s]ome doubt"), 
marginal/high risk ("[s]ubstantial doubt"), and poor/very high risk 
("[e]xtremely doubtful"), as well as neutral/unknown risk ("No 
meaningfully relevant record of past performance.").  The assessment 
would be based on past performance as it related to the probability of 
successful accomplishment of the required effort, focusing on the 
offerors' past performance as it related to solicitation requirements, 
specifically quality and schedule.  The agency urged offerors to 
include all relevant past efforts, including corrective action, to 
avoid a "neutral/unknown risk" rating, and again warned that the 
agency might consider data obtained from other sources in its 
evaluation.

The agency received four proposals on April 18; Rockhill submitted the 
lowest price, $1,492,469.72 with first article testing and 
$1,472,469.72 without first article testing, versus MHI's second low 
price of $1,599,252 with first article testing and $1,579,257 without 
first article testing.  The evaluators considered MHI's performance 
under three similar contracts as "good/low risk" overall.  The 
evaluators rated Rockhill's performance "poor" overall, or very high 
risk.  Rockhill had performed well on three purchase orders for 
similar items, with much smaller quantities (276 altogether, mostly 
periscopes for the Bradley Fighting Vehicle).  Rockhill had received 
one contract for a similar quantity--approximately 1,800 
periscopes--and was delinquent, despite receiving three delivery 
extensions.  There were indications that Rockhill had performed well 
where the smaller orders did not exceed material already on hand, but 
that the firm's financial difficulties, which prompted the critical 
subcontractor for laser filters to insist on cash payment prior to 
delivery, seriously hampered the protester's ability to perform on 
larger contracts, where it had to order parts.  After considering this 
information, the contracting officer/ source selection official 
determined that there was a significantly heightened probability that 
MHI would deliver on time, and that, in view of the government's 
urgent need for the periscopes, that probability warranted the payment 
of the price premium associated with MHI's offer.

The agency notified the protester of the award on October 21, and 
Rockhill filed a protest with the contracting agency 6 days later.  In 
this protest, Rockhill contended that, as the low-priced offeror, it 
should have received the award, and challenged the evaluation.  After 
receiving a debriefing on October 28, Rockhill supplemented its 
protest to the agency, alleging that the agency should have afforded 
it a waiver of first article testing, as it had done for MHI.  The 
agency responded by letter of November 26, denying the protest, and 
Rockhill filed this protest with our Office.

In its protest to our Office, Rockhill asserts that the agency 
employed ambiguous, selective, and biased factors in selecting an 
awardee.  Specifically, Rockhill asserts that the failure to conduct 
pre-award surveys, the decision to waive first article testing for 
MHI, and the refusal to grant Rockhill progress payments or provide it 
with government-furnished property under its prior contracts, 
constitute evidence of bias.  As explained below, Rockhill has 
provided our Office with nothing to support its contentions.

To the extent that a protester alleges that an agency's actions form 
part of a pattern of bias on the part of agency officials, we do not 
attribute unfair or prejudicial motives to such officials on the basis 
of inference or supposition; a protester must provide credible 
evidence clearly demonstrating such bias and that the bias itself 
translated into action that unfairly affected the protester's 
competitive position.  Dynamic Aviation--Helicopters, B-274122, Nov. 
1, 1996, 96-2 CPD  para.  166 at 4.  As evidence of bias here, Rockhill 
focuses on agency actions taken in connection with the administration 
of its prior contracts.  For example, the record shows that Rockhill 
has attempted unsuccessfully to convince the agency to modify its 
existing contract No. DAAE07-97-C-T439 to provide progress payments 
and to furnish laser filters as government-furnished property, because 
the laser filter subcontractor refuses to extend credit to Rockhill.  
The agency also has refused to waive first article testing under that 
contract, despite Rockhill's passing first article testing in 1996 
under another contract for M1 Abrams periscopes; the agency contends 
that the specifications have been revised since the earlier test.

Although Rockhill asserts that these actions resulted from bias, the 
company documents and statements from Rockhill's officers repeating 
the allegation of bias, supplied in response to our request, simply do 
not constitute the kind of credible evidence necessary to support the 
protester's contentions.  On the contrary, there is no basis in the 
record here to conclude that the agency actions complained of were the 
result of anything but the reasonable exercise of the agency's 
discretion to make decisions--such as whether to allow progress 
payments--during administration of a contract.[1]

Rockhill also contends that the agency's failure to conduct pre-award 
surveys of Rockhill and MHI, and its decision to waive first article 
testing for MHI, demonstrate bias.  This argument is without merit.  
Contracting officials have broad discretion whether to conduct 
pre-award surveys, and the decision not to conduct one does not 
establish an impropriety on the agency's part.  Cinpac, Inc., 
B-243366, July 15, 1991, 91-2 CPD  para.  57 at 4.  With respect to the 
first article waiver for MHI, the record shows that the waiver was not 
a factor in the selection decision, which compared MHI's price without 
first article testing to Rockhill's price without that testing. 

Rockhill also challenges the evaluation under this RFP of its and 
MHI's past performance.  In reviewing an agency's evaluation and 
selection decisions, we examine them to ensure that they were 
reasonable and consistent with the stated criteria.  LTR Training Sys, 
Inc., B-274996, B-274996.2, Jan. 16, 1997, 97-1 CPD  para.  71 at 4.  The 
evaluation of proposals is by its nature often subjective; 
nevertheless, the protester's mere disagreement with the evaluation 
does not demonstrate that the evaluation was unreasonable.  UNICCO 
Gov't Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD  para.  134 at 6-7.  
Here, we find nothing unreasonable or inconsistent with the 
solicitation in the agency's evaluation of proposals.

The agency considered three contracts in its evaluation of MHI's past 
performance.  Contract No. DAAE07-96-C-T136 was for production and 
delivery of 1,404 of the same periscopes as the instant procurement; 
although the awardee was delinquent on the initial deliveries because 
of difficulties with a subcontractor for laser filters, MHI was able 
to develop an alternate source and completed deliveries more than 2 
months early.  Source selection decision memorandum at 3.  Contracts 
No. DAAE07-92-C-0584 and DAAE07-93-C-0691 were for similar periscopes, 
in fairly large quantities of 690 and 600 each, respectively.  Under 
the first, MHI made the initial deliveries ahead of schedule and 
overcame subsequent vendor problems to complete performance within 8 
days of schedule.  Under the second, MHI was nearly a month late, but 
evaluators considered the lead time somewhat unrealistic, and even at 
that, the awardee demonstrated the ability to deliver in accordance 
with the schedule here.  We cannot conclude that the "good" rating for 
MHI's past performance was either unreasonable or contrary to the 
solicitation.

The record shows that Rockhill had four contracts for similar 
items--periscopes for the Bradley and Abrams vehicles--but three of 
these were for much smaller quantities than are at issue here.  Id. at 
2.  Under two (Nos. DAAE20-95-P-0790 and DAAE20-96-P-0195) delivery 
was made on time; under one (No. DAAE20-96-P-0897) delivery was 30 
days late.  However, the evaluators found that the protester had 
serious problems with the most relevant contract, No. 
DAAE20-95-C-0310, for approximately 3,000 Abrams periscopes,[2] for 
which Rockhill was delinquent after four delivery extensions and 18 
months past the original delivery schedule.  Id. at 2-3.  The 
evaluators concluded that whereas Rockhill had parts in-house for the 
smaller contracts, its financial difficulties hampered its efforts on 
larger quantities, when it became necessary to purchase parts from 
suppliers, many of whom declined to deal with the protester on any 
basis other than cash.  Id. at 1, 3.  Although Rockhill asserted that 
it had overcome its financial difficulties, the evaluators found 
nothing to substantiate the claim.  In its initial filing with our 
Office (December 5 protest letter at 2), the protester conceded these 
financial difficulties, although it now claims they are resolved.  In 
any event, as long as the assessment of an offeror's past performance 
is reasonably based and documented, we will not substitute our 
judgment for the agency's, and the protester's disagreement with that 
assessment does not itself render the evaluation unreasonable.  HLC 
Indus., Inc., B-274374, Dec. 6, 1996, 96-2 CPD  para.  214 at 3.  Rockhill 
has submitted nothing to suggest that the agency's evaluation of past 
performance was unreasonable.

The protest is denied.

Comptroller General
of the United States

1. Moreover, given that most of Rockhill's allegations relate to 
Contract No. DAAE07-97-C-T439, which the agency did not consider in 
its evaluation of past performance, Rockhill's arguments lack a clear 
linkage between the alleged bias and the protester's competitive 
position under the instant solicitation. 

2. There are several different national stock numbers for these 
periscopes, for short and tall periscopes, and periscopes for the 
Abrams driver and the Abrams commander, for example.  There is no 
dispute, however, that these are "similar" items.