BNUMBER: B-279379.2
DATE: June 22, 1998
TITLE: TEAM Support Services, Inc., B-279379.2, June 22, 1998
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Matter of:TEAM Support Services, Inc.
File:B-279379.2
Date:June 22, 1998
Jeanene K. Louden for the protester.
Karen J. Carroll, Esq., Environmental Protection Agency, for the
agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that evaluator was biased against the protester and
improperly downgraded the protester on past performance based upon the
evaluator's opinion of the protester's work as incumbent contractor is
denied where the record contains no evidence of bias, the evaluator's
opinion of the protester's prior work was relevant since the evaluator
was the project officer during the several years that the protester
performed as incumbent contractor, and the record shows that the
evaluation of the protester's proposal was balanced, with the
protester receiving high ratings on several aspects of its proposal
and very low ratings on others.
2. Evaluation of the protester's work on a contract for another
agency was proper even though that contract was not listed as a
reference in the protester's proposal, where the agency was aware of
the protester's prior contract with another agency, the solicitation
specifically stated that the agency might contact sources that were
not listed as references in an offeror's proposal, and the information
regarding the protester's prior work for another agency clearly was
relevant to evaluation of the protester's past performance.
3. Protest that agency evaluator was biased against the protester and
the evaluation therefore tainted is denied where the record contains
no evidence to support the bias allegation and the record shows that
the evaluation was reasonable.
4. Technically unacceptable proposal cannot be considered for award
regardless of its low proposed price.
DECISION
TEAM Support Services, Inc. protests the Environmental Protection
Agency's (EPA) award of a support services contract to
Transcontinental Enterprises, Inc. (TEI) pursuant to request for
proposals (RFP) No. PR-NC-97-10730. TEAM alleges that the agency
employee who evaluated proposals was biased against TEAM and
unreasonably downgraded TEAM's proposal. TEAM also contends that it
should have been awarded the contract because its proposed price was
less than TEI's. TEAM Protest, Enclosure 1 at 1-3.
We deny the protest.
Issued on December 1, 1997, the RFP solicited proposals for operation
and maintenance (O&M) support services at several agency facilities in
Corvallis and Newport, Oregon, for a basic contract period of 1 year
with options for 4 additional years.[1] RFP Attachment 1 at 1-3; RFP sec.
B.1. The RFP contemplated that the services would be provided on a
fixed-price basis and that the contractor would be reimbursed the
costs of materials. RFP sec. B.1.
The RFP stated that the contract would be awarded to the offeror whose
proposal was most advantageous to the government after consideration
of technical factors and price, and that technical quality was
considered more important than price. RFP sec. M.3. The technical
evaluation factors were: (1) past performance; (2) qualifications,
work experience, availability, and other demonstrated ability of
proposed personnel; (3) management approach, management structure,
corporate resources; and (4) transition plan. Id. The RFP stated
that the agency intended to award the contract without holding
discussions. RFP sec. L.1.
Eight proposals were received by the January 8, 1998 closing date. As
the anticipated dollar value of the contract was less than $5 million,
EPA conducted the procurement using "fast track" procedures.
Contracting Officer's Statement, Apr. 8, 1998, at 3. The project
officer alone evaluated all proposals, while the contracting officer,
acting as the source selection official, selected the winning offer
for award. After evaluating technical proposals and contacting
references as part of the past performance evaluation, the project
officer concluded that six of the eight proposals, including TEAM's
proposal, were technically unacceptable. The project officer prepared
a technical evaluation report which discussed the strengths,
weaknesses and technical scores. After reviewing the evaluation
report, the contracting officer determined that, of the two
technically acceptable proposals, TEI's proposal was superior in
technical quality and lower in price. The contracting officer also
determined, after comparing the prices and the staffing levels of the
various proposals and after comparing TEI's proposed price to the
government estimate, that TEI's price was fair and reasonable. Source
Selection Decision, Feb. 20, 1998, at 20-22. Accordingly, the
contracting officer concluded that TEI's proposal represented the best
value to the government, and, on February 20, 1998, awarded the
contract to TEI. Id.; Contracting Officer's Statement, Apr. 8, 1998,
at 7. After a debriefing, TEAM filed this protest in our Office.[2]
The protester primarily alleges that the project officer was biased
against TEAM and, acting in bad faith, unfairly downgraded TEAM's
proposal. The protester asserts that the project officer's dislike
for TEAM primarily grew out of two cost allowability disputes that
arose when TEAM was the incumbent contractor under the Corvallis
contract. TEAM alleges that, because the project officer was biased
against TEAM, he used his position as the sole evaluator to ensure
that negative information was included in the information used to
evaluate TEAM's past performance and then downgraded TEAM on the past
performance evaluation factor. TEAM Protest, Enclosure 1 at 1-3.
The agency responds that the project officer evaluated TEAM's proposal
fairly and in good faith. Agency Report at 12. In support, the
agency submitted complete copies of the project officer's technical
evaluation report, two declarations from the project officer, and the
contracting officer's source selection decision, which the EPA
believes show that the evaluation was unbiased and that the agency
reasonably determined that TEAM's proposal was technically
unacceptable. In addition, the project officer specifically denies
bias against TEAM and states that he evaluated each proposal in a fair
and even-handed manner, consistent with the RFP's evaluation scheme.
Project Officer's Declaration, Apr. 8, 1998, at 1.
Government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on
the basis of inference or supposition. Trataros/Basil, Inc.,
B-260321, May 30, 1995, 95-1 CPD para. 265 at 3. Where, as here, a
protester alleges bias or bad faith on the part of a procurement
official, the protester must present evidence that the official acted
with the intent to injure the protester. Science & Tech., Inc.;
Madison Servs., Inc., B-272748 et al., Oct. 25, 1996, 97-1 CPD para. 121
at 6. In addition to producing credible evidence showing bias, the
protester must demonstrate that the alleged bias translated into
action that unfairly affected the protester's competitive position.
Pearl Properties, Inc., B-277250.2, Sept. 18, 1997, 97-2 CPD para. 80 at
5. Our review of the record reveals no evidence that the project
officer was biased against the protester or that he improperly
downgraded the protester's proposal.
TEAM asserts that its strained relationship with the project officer
was caused in part by a funding dispute and in part by a disagreement
with the project officer (concerning the number and type of TEAM
personnel that were allowed access to the Corvallis facility during a
government furlough) that arose while TEAM was performing the
Corvallis contract. The disagreements that arose under the Corvallis
contract are matters of contract administration and are not properly
before us for resolution. Bid Protest Regulations, 4 C.F.R. sec. 21.5(a)
(1998). However, we examined the entire record, including the
parties' disparate versions of the facts associated with these
matters, in light of the bias allegation, and we found no support for
the protest allegation. Rather, the agency actions about which TEAM
complains appear to be the result of the reasonable exercise of the
project officer's discretion to make decisions during the
administration of a contract. Certainly, the project officer's
disagreement with TEAM over these and any other contract
administration matters provides no evidence that the project officer
acted with the intent to injure TEAM during his evaluation of TEAM's
proposal in the current procurement. Furthermore, in two sworn
statements, the project officer disputed much of the protester's
anecdotal support for the allegation and specifically denied any bias.
Even if we assume for the sake of argument that the project officer
was hostile towards TEAM as a result of his previous dealings with the
firm, as discussed below, there is no evidence of bias in the
evaluation record and, therefore, we have no basis to object to the
project officer's evaluation of TEAM's proposal.
The protester contends that the project officer included certain
negative information concerning TEAM's past performance in the
evaluation record and improperly used that information to downgrade
TEAM's proposal on past performance, the most important evaluation
factor. Specifically, TEAM alleges that the project officer used his
personal knowledge and opinion of TEAM's performance as the incumbent
under the EPA Corvallis facility contract to downgrade TEAM's
evaluation score. TEAM also alleges that the project officer
improperly solicited a past performance questionnaire from a
knowledgeable National Aeronautics and Space Administration (NASA)
contracting official regarding TEAM's performance on a contract that
TEAM had performed previously for that agency and used that
information to further downgrade TEAM's proposal. TEAM asserts that
the project officer's asking NASA for a reference was "the work of a
malicious saboteur manipulating what should be an impartial process to
get his way." TEAM Protest, Enclosure 1 at 2. Our review of the
evaluation record, however, reveals that the project officer's
evaluation of TEAM's proposal was both reasonable and proper.
We see nothing wrong with the project officer's evaluating TEAM's
previous performance on the EPA Corvallis contract and incorporating
his own opinion of and experiences with TEAM into that evaluation.
See, e.g., National Med. Seminars Tempharmacists, B-233452, Feb. 22,
1989, 89-1 CPD para. 191 at 2. The RFP stated that offerors would be
evaluated on demonstrated successful past performance as evidenced by
information gathered concerning contracts for similar work completed
in the last 3 years or currently being performed, and TEAM's proposal
highlighted the fact that TEAM had been performing the EPA Corvallis
contract for the last 3 years and specifically listed the project
officer as a reference. RFP sec. M.3(b)1; TEAM Proposal, Jan. 6, 1998,
Past Performance, at 1. As the prior EPA Corvallis requirement was
one of two contracts (the other being the EPA Newport contract) that
had been combined to create the present requirement, this clearly was
a relevant contract for evaluating TEAM's past performance on similar
work. See G. Marine Diesel, B-232619.3, Aug. 3, 1989, 89-2 CPD para. 101
at 6. Moreover, the project officer's opinion of TEAM's working
relationship (i.e., the level of TEAM's cooperation in resolving the
cost disputes) with EPA personnel clearly was relevant to evaluation
of TEAM's past performance. See Young Enters., Inc., B-256851.2, Aug.
11, 1994, 94-2 CPD para. 159 at 6.
The project officer's past performance questionnaire for the Corvallis
contract contains no evidence that the project officer was biased
against TEAM or that he unreasonably downgraded TEAM. Overall, the
project officer's appraisal appears to be balanced with the project
officer rating TEAM from satisfactory to excellent on some aspects of
past performance and unsatisfactory on others. For example, TEAM's
proposal emphasized that EPA management had given it "outstanding
marks" concerning its performance on the EPA Corvallis contract during
semi-annual management reviews, TEAM Proposal, Jan. 6, 1998, Past
Performance, at 1, and, consistent with the proposal's statement, the
project officer rated TEAM very high on several areas of past
performance, including: (1) the project officer stated that TEAM's
on-site management was "excellent" and he was "very satisfied" with
TEAM's on-site support; (2) the project officer rated TEAM as "very
satisfactory" on initiative in meeting the requirements, response to
technical direction, and customer satisfaction; (3) the project
officer also rated TEAM as "satisfactory" on quality of service,
timeliness of performance, and responsiveness to performance problems.
However, the project officer also downgraded TEAM because, in his
opinion, TEAM's corporate management had been "difficult to work with"
in connection with the dispute over the accidental overpayment and the
claim for payment for nonessential employees during the government
furlough, and the project officer indicated that he would not choose
to work with TEAM again. Accordingly, the project officer rated
TEAM's on-site management as "very satisfactory" overall, while he
rated its corporate management as "unsatisfactory" overall because he
believed TEAM's corporate management to be uncooperative. Project
Officer's Past Performance Questionnaire on TEAM. While TEAM does not
agree that its corporate management was uncooperative or difficult to
work with, we have no basis to find unreasonable the project officer's
contrary opinion, and we think that the negative statements made by
the project officer reflect dissatisfaction with TEAM management
rather than bias against the firm. See Trataros/Basil, Inc., supra,
at 4.
Likewise, we see nothing wrong with the project officer's sending a
past performance questionnaire to NASA. The project officer explains
that he was aware of the NASA contract from his conversations with
TEAM managers. He also explains that he solicited the NASA reference
even though the contract was not listed in TEAM's proposal, because he
had been able to contact only one TEAM reference for a prior non-EPA
contract, and that one reference was for a very small contract. The
project officer states that he sent a questionnaire about TEAM's
performance of the NASA contract to the NASA contracting officer's
technical representative (COTR), because the NASA contract was closer
in size, complexity and dollar value to the estimated value of the
present procurement than most of the other contracts that TEAM listed
as references. Project Officer's Declaration, Apr. 8, 1998, at 4.
The information garnered from the NASA COTR was largely negative
concerning TEAM's performance. For example, the NASA COTR reported
that the TEAM corporate staff was not effective in selecting or
managing the on-site staff; TEAM's corporate staff was "adversarial,
would not let NASA staff see own records"; and that she would not
choose to contract with TEAM again. NASA COTR's Past Performance
Questionnaire on TEAM. The project officer, in our view, reasonably
downgraded TEAM on past performance based in part on this negative
information.
In evaluating proposals, the agency may properly consider evidence
from sources that are not listed in the proposal, Pearl Properties;
DNL Properties, Inc., B-253614.6, B-253614.7, May 23, 1994, 94-1 CPD para.
357 at 7; G. Marine Diesel, supra, at 6. Here, the RFP specifically
stated that the agency might contact past contract sources that were
not listed as references in an offeror's proposal, and the project
officer specifically sought the contracting officer's advice and
received permission to contact the NASA reference before sending NASA
a questionnaire. RFP sec. L.12(g); Contracting Officer's Statement, Apr.
8, 1998, at 5. We will not, as the protester suggests, attribute
improper motives to the project officer for obtaining information
concerning TEAM's past performance on the NASA contract simply because
the information received from that source was, in large part,
detrimental to TEAM's past performance evaluation. Insofar as TEAM
contends that its performance of the NASA contract should not have
been considered because the scope of work under the NASA contract was
not similar in nature to the present requirement, the protest fails
because the record shows that, for the most part, the negative
information contained in the NASA reference questionnaire related not
so much to the technical aspects of TEAM's performance as to TEAM's
corporate management's effectiveness in selecting and managing on-site
personnel and to TEAM's working relationship with NASA, information
that clearly was relevant to evaluation of TEAM's past performance
regardless of the type of work to be performed. See Young Enters.,
Inc., supra, at 6.
The protester also contends generally that the entire evaluation was
tainted by the project officer's bias against TEAM. The protester
states that it cannot understand how it received such a low score, and
asserts that the answer must lie in a prejudicial evaluation by the
project officer. Other than the past performance allegations,
discussed above, TEAM's protest does not allege any specific
evaluation flaws.
In reviewing an agency's evaluation of proposals, our Office will
question the evaluation only where it lacks a reasonable basis or is
inconsistent with the RFP's stated evaluation criteria. DAE Corp.,
Ltd., B-257185, Sept. 6, 1994, 94-2 CPD para. 95 at 4. A protester's mere
disagreement with the agency over its evaluation does not establish
that the evaluation was unreasonable. Id. We reviewed all of the
evaluation documents in light of the protester's general bias
allegation, and we find no evidence that EPA's evaluation was tainted
or otherwise unreasonable.[3]
On the past performance factor, the evaluator reasonably rated TEAM's
proposal overall as satisfactory. He based this rating on information
contained in questionnaires received from three of the references
listed in TEAM's proposal (including his own questionnaire for the
EPA's predecessor Corvallis contract), as well as the NASA
questionnaire. In response to questions contained in those four
questionnaires, two of the references gave TEAM adjectival ratings
ranging from satisfactory to outstanding, and two of the references
(discussed in detail above) gave TEAM ratings ranging from
unsatisfactory to excellent. In fact, the NASA reference indicated
that for the most part she was not satisfied with TEAM's performance.
Two of the four references stated that they would choose to contract
with TEAM again, while the two others stated that they would not.
Faced with this wide range of ratings, the evaluator reasonably
determined that TEAM's collective past performances merited an overall
rating of adequate. While TEAM obviously disagrees with the
evaluator's assessment, the protester's mere disagreement with the
agency over its evaluation does not establish that the evaluation was
unreasonable. DAE Corp., Ltd., supra, at 4. Moreover, in view of the
fact that the evaluator gave TEAM a satisfactory rating in spite of
his own negative opinion of TEAM's corporate management, we see no
evidence that he was biased against TEAM or unreasonably downgraded
the protester on this factor.
On the qualifications, work experience, availability, and other
demonstrated ability of proposed personnel, the evaluator reasonably
rated TEAM's proposal overall as superior. This rating was primarily
based upon the fact that all of TEAM's key personnel were qualified
for their respective positions and all had worked for EPA on the
predecessor contracts. The high rating that the evaluator gave TEAM
on this factor undercuts the allegation that the evaluator was
prejudiced against TEAM.
The evaluator did downgrade TEAM's proposal on the management approach
subfactor of the management approach, management structure, and
corporate resources evaluation factor because he found several flaws
in TEAM's proposed management approach. For example, TEAM proposed no
permanent employees for general on-site labor for such tasks as
hanging bulletin boards or moving furniture; instead, TEAM proposed to
use small, local subcontracts to do that type of work. The evaluator
believed that TEAM's approach created the risk that maintenance and
operation tasks would be unacceptably delayed, because the local
construction industry would be competing for the same laborers and the
evaluator believed it unlikely that TEAM could obtain local labor in a
timely manner. Project Officer's Declaration, Apr. 8, 1998, at 3.
Another weakness was TEAM's proposed use of an unstaffed "trouble
desk" that would be monitored by a recording device; the evaluator
opined that this was an ineffective way to respond to unplanned work
activities. Technical Evaluation Report, Jan. 29, 1998, at 30.
Because of these and other flaws that the evaluator found in TEAM's
approach--the most notable being the conclusion that TEAM's reliance
on other than on-site staff was a "serious weakness"--the evaluator
rated TEAM's proposal as inadequate. Agency Report at 5-7; Technical
Evaluation Report, Jan. 29, 1998, at 30.
On the management structure subfactor of the management approach,
management structure, and corporate resources evaluation factor, the
evaluator rated TEAM's proposal as deficient. While the evaluator
found a number of deficiencies in TEAM's proposed management and
staffing, the primary deficiency was that TEAM's proposal was
understaffed. TEAM proposed a staff of only 9.3 people to do the work
for both the Corvallis and Newport facilities, even though the two
predecessor contracts had employed 21.5 people (15 for Corvallis and
6.5 for Newport). TEAM designated only two employees to service the
Newport facilities, seven to service the Corvallis facilities, and 0.3
off-site employees for engineering support. Agency Report at 8;
Technical Evaluation Report, Jan. 29, 1998, at 31. The evaluator knew
from past experience at the sites that the daily maintenance
requirements were substantial, requiring performance of at least 400
preventative maintenance tasks each month. The evaluator concluded
that TEAM's proposal was understaffed and that the proposal failed to
demonstrate how TEAM would be able to perform the required work in a
timely manner with crews at each site that were less than half of the
previous crews that had been used to perform the work. Project
Officer's Declaration, Apr. 8, 1998, at 2-3; Project Officer's
Declaration, Apr. 24, 1998, at 1-2.
The agency reports that TEAM's proposed staffing level was
substantially lower than the awardee's proposed staffing and the
average staffing level proposed by the other offerors and that TEAM's
proposal was determined to be technically unacceptable chiefly because
TEAM proposed too few on-site staff and failed to demonstrate that it
could provide a timely response to work requirements. Agency Report
at 10-12. In its comments on the agency report, TEAM contends that,
as an incumbent contractor, it was better able to determine the
correct staffing level than the project officer/evaluator. We note
that, even during the development of the protest record, TEAM provided
no information to refute the evaluator's determination that more staff
would be needed, and TEAM did not explain how it would be able to
perform properly with its reduced staff. TEAM simply disagrees with
EPA's evaluation of its proposal and determination that the proposal
was technically unacceptable. TEAM's mere disagreement provides no
basis for finding the evaluation unreasonable, and the evaluation
record is devoid of any evidence that the evaluation and determination
of technical unacceptability was the result of bias against TEAM.[4]
See Atlantic Coast Contracting, Inc., B-259082.3, July 17, 1995, 95-2
CPD para. 21 at 5.
In sum, the record shows that the evaluation of TEAM's proposal was
reasonable and contains no evidence to support the allegation that the
evaluation was tainted by prejudice against TEAM. In view of the fact
that TEAM's proposal was reasonably determined to be technically
unacceptable, TEAM's contention that it should have been awarded the
contract on the basis of its lower proposed price is without merit as
it is well settled that a technically unacceptable proposal cannot be
considered for award, notwithstanding its low proposed price.
Spectrum Controls Sys., Inc., B-275505, Feb. 27, 1997, 97-1 CPD para. 89
at 3-4.
The protest is denied.
Comptroller General
of the United States
1. Previously, the O&M requirements for EPA facilities in Corvallis
and Newport were performed under two separate contracts, one for
Corvallis and one for Newport. TEAM had been the incumbent contractor
for the Corvallis facilities continuously since 1988 and for the
Newport facilities from 1990 through 1994.
2. Because TEAM was not represented by counsel, we did not issue a
protective order and TEAM was provided only redacted versions of the
agency report and supporting documents. However, in resolving the
protest, we reviewed in camera unredacted copies of all evaluation and
source selection documents in light of the protest arguments raised by
TEAM. As much of the information reviewed by our Office is source
selection sensitive and proprietary in nature, our discussion of the
evaluation will necessarily be limited.
3. Because the protester has not provided specific reasons why it
believes its proposal was unreasonably downgraded, we will not discuss
every aspect of the evaluation, but rather, will provide a few
examples to show why the TEAM proposal received a low evaluation score
and was determined to be technically unacceptable and to illustrate
that the evaluation was not biased against TEAM.
4. As previously noted, our discussion above contains only examples of
both the strengths and weaknesses that were reasonably found to exist
in TEAM's proposal. Although EPA found a number of additional
weaknesses in the TEAM proposal, we believe that the agency's
rejection of TEAM's proposal as technically unacceptable was justified
on the basis of the low proposed staffing level alone.