BNUMBER:  B-280154.2 
DATE:  November 16, 1998
TITLE: Rohmann Services, Inc., B-280154.2, November 16, 1998
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Rohmann Services, Inc.

File:     B-280154.2

Date:November 16, 1998

David F. Barton, Esq., The Gardner Law Firm, for the protester.
John E. Lariccia, Esq., and Daniel R. Petersen, Esq., Department of 
Air Force, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of the evaluation of protester's past performance is denied 
where the contracting agency reasonably assigned a moderate risk 
rating to the protester's past performance as a result of customer 
complaints about the protester's performance and staff and manager 
turnover on the incumbent contract.

DECISION

Rohmann Services, Inc. protests the award of a contract to WP 
Photographic Services, Inc. under request for proposals (RFP) No. 
F41650-98-R-0002, issued by the Department of Air Force for visual 
information services at Kelly Air Force Base.  Rohmann argues that the 
agency improperly evaluated its past performance and failed to 
communicate to the firm the agency's concerns about its performance of 
the incumbent contract.

We deny the protest.

BACKGROUND   

The solicited services include advice and assistance on visual 
information materials, methods, equipment and facilities, graphics 
services, studio and location  photography, film processing, visual 
information library services, and equipment maintenance.  RFP  sec.  C-5.  
The RFP stated that the agency would evaluate offers on the basis of 
past performance and price and contemplated award to the offeror whose 
proposal met the terms of the solicitation and contained the best 
overall value to the government.  Id. at 21.  According to the RFP, 
the agency was to consider past performance significantly more 
important than price and evaluate offerors' past performance for the 
same or similar work assigning performance risk ratings of high, 
moderate, low, or not applicable.[1]  Id.  The RFP advised that, 
although the agency reserved the right to conduct discussions if 
necessary, the agency planned to award on the basis of initial 
proposals, without discussions.  Federal Acquisition Regulation (FAR)  sec.  
52.212-1 (April 1998) (incorporated by reference).  RFP at 1.

The agency received six proposals.  Rohmann, the incumbent contractor, 
submitted the lowest-priced proposal, at $1,291,649.40, and WP's 
proposal was the third lowest priced, at $1,351,302.27.  Agency 
Report, Enclosure 5 at 1, 3.  Based on information submitted by the 
offerors and information provided by references contacted by the 
agency, Rohmann was assigned a moderate past performance risk rating 
and WP was assigned a low rating.  Rohmann's moderate rating primarily 
was due to concerns about Rohmann's performance on the incumbent 
contract.  Supplemental Agency Report at 2; Agency Report, Enclosure 
11 at 21-55.  Award was made to WP based on the conclusion that WP's 
offer was the most advantageous to the government.  Agency Report, 
Enclosure 5 at 5.

PROTEST ALLEGATIONS

Rohmann primarily argues that the agency improperly evaluated its 
performance on the incumbent contract.  According to Rohmann, the 
marginal rating which it received for its performance as the incumbent 
is not supported by the record and is a result of the bias of the 
agency's quality assurance evaluator (QAE) on that contract.  Comments 
at  para.  9, 27 and 39-40.  Rohmann argues that the QAE solicited 
complaints against Rohmann and, as a member or the evaluation panel, 
manipulated the past performance evaluation and influenced other 
evaluators to harm Rohmann.  Id. at  para.  40.  Rohmann also argues that 
the agency's record of its performance is poorly organized, with 
duplicate copies of some documents, partial documentation of some 
events, and many documents that have no bearing on the determination 
that Rohmann performed poorly at Kelly and, in some cases, show 
acceptable performance.  Id. at  para.  36.

Rohmann also argues that the agency failed to communicate to the firm 
the agency's concerns about its performance of the incumbent contract.  
Comments at  para.  23, 26, and 30; Supplemental Comments at  para.  25-28.  
According to Rohmann, during the evaluation, it was entitled to an 
explanation of the agency's concerns about the firm's performance on 
the incumbent contract and an opportunity to respond to those 
concerns.  Comments at  para.  23, 26, and 30.

ANALYSIS

Evaluation of an offeror's past performance is a matter within the 
discretion of the contracting agency, and we will not substitute our 
judgment for a reasonably based past performance rating.  PMT Servs., 
Inc., B-270538.2, Apr. 1, 1996, 96-2 CPD  para.  98 at 6.  An agency's 
evaluation of past performance may be based upon the procuring 
agency's reasonable perception of inadequate prior performance, even 
where the contractor disputes the agency's interpretation of the 
facts.  Quality Fabricators, Inc., B-271431, B-271431.3, June 25, 
1996, 96-2 CPD  para.  22 at 7.  However, we will question such a conclusion 
where it is not reasonably based or is undocumented.  Ashland Sales & 
Serv., Inc., B-255159, Feb. 14, 1994, 94-1 CPD  para.  108 at 4; SDA Inc., 
B-248528.2, Apr. 14, 1993, 93-1 CPD  para.  320 at 10-12.

Here, a price negotiation memorandum that served as the source 
selection document indicates that Rohmann's overall moderate risk 
rating was based on its performance on the incumbent contract.  Agency 
Report, Exhibit 5 at 3.  In that memorandum, the contracting officer 
stated:

     Incumbent[] shows documented adverse performance at Kelly [Air 
     Force Base] for the past year.  The documentation, not following 
     [contracting officer] direction, non-compliance with contract 
     requirements, customer complaints and fraudulent work orders, 
     [is] attached to the past performance questionnaire.  Has had 
     ample time to remedy the situation.  The incumbent's contract 
     performance at Kelly Air Force [Base] has been rated as marginal 
     by the QAE and the Contract Administrator.

The record of Rohmann's performance as the incumbent includes four 
separately tabbed sets of documents which correspond to the four 
concerns raised in the above-quoted statement of the contracting 
officer:  not following the contracting officer's advice, 
non-compliance with contract requirements, customer complaints and 
fraudulent work orders.  While each of those sets of documents raises 
concerns about Rohmann's performance, each of those sets also includes 
material that reflects positively upon Rohmann and other material the 
significance of which is simply unclear and which is not otherwise 
explained by the Air Force.  

For example, under the "Not Following CO Advice" tab, the record 
includes two letters from Rohmann to Air Force officials concerning a 
plan by Rohmann to move part of its operation under the contract.  In 
those letters, Rohmann requests information concerning local 
regulations that it may need to be aware of concerning the move and 
requests a "safety impact be performed prior to the move."  Agency 
Report, Enclosure 12, Apr. 9, 1997.  Each of those letters includes a 
handwritten notation by the Air Force's contract administrator stating 
that Rohmann is not to send letters directly to the addressee offices 
and that all such letters should go through the contracting office.  
While this may be a violation of some provision of Rohmann's contract 
and Rohmann may have been advised of this problem previously, this is 
not clear from the evaluation record and the Air Force has not 
otherwise explained these notations.  Thus, we have no basis to 
conclude that these letters, or the notations on these letters, 
establish that Rohmann violated a provision of the contract or failed 
to follow contracting officer advice.[2]

Nonetheless, in spite of some anomalies in the record, based on our 
review, we conclude that,  the marginal rating assigned to Rohmann's 
performance as the incumbent, and the overall moderate risk rating 
assigned to Rohmann, were supported by the record.  Among other 
problems, the record includes customer complaints that support the 
ratings assigned to Rohmann's performance.  In a May 12, 1997 
complaint, Rohmann's photo lab manager is described as 
"discourteous/rude" during a call to inform a customer that no order 
had been submitted for a requested photographer.  Although, in his 
contemporaneous response to the complaint, the manager denied being 
rude, he conceded that he "may have been abrupt.  I will attempt to be 
less abrupt in the future."  Agency Report, Enclosure 12, Customer 
Complaint Record, May 12, 1997.  

In another complaint, dated April 7, 1998, a customer stated that the 
Rohmann audio-visual library failed to provide adequate customer 
service because a Rohmann employee informed the customer that he would 
have to return a projector early and that the customer may not be able 
to use the projector on dates that previously had been approved.  
Agency Report, Enclosure 12, Customer Complaint Record, April 7, 1998.  
In a subsequent memorandum, the Air Force's QAE stated that Rohmann's 
employee had been uncooperative and discourteous and that the customer 
had been treated in an unprofessional manner.  Id., Attachment 2.  

A customer complaint dated April 22, 1998, states that a Rohmann 
employee was "non-supportive and non-customer oriented but also very 
rude." Id., Attachment 1.  The Air Force's QAE concluded that the 
complaint showed a "lack of concern for good customer relations at the 
film library" and that "[c]ustomer service at the film library has 
been a problem for some time."  Id., Attachment 2.  In addition, the 
QAE concludes that "[t]his incident clearly shows a lack of adequate 
interpersonal skills and an attitude of indifference which is very 
detrimental to effective customer service." Id.

Finally, concerning a customer complaint dated May 11, 1998, the QAE 
concludes:

     This is the third customer complaint against the [Rohmann] 
     contract manager for verbal abuse in about a month.  [Visual 
     information services] customers should not have to accept this 
     type of service from anyone.  His unwillingness to provide 
     customer service in a courteous manner is incomprehensible, 
     especially after the two recent customers who complained about 
     his abusive behavior and his lack of concern for customer needs.  

             .               .               .                .               
.                          
     There is a disturbing pattern of the [Rohmann] contract managers 
     negative behavior towards [visual information services] 
     customers, civilian and military, here at Kelly [Air Force Base].  
     Some customers who have encountered this type of abusive behavior 
     have complained orally but have been reluctant to submit a formal 
     complaint for fear of some type of retaliation.  Unfortunately, 
     many customers have been conditioned to accept mediocre or even 
     poor service as the norm.  Since 1995 three out of four [Rohmann] 
     contract managers have had complaints submitted against them for 
     verbal abuse or unsatisfactory customer services.  Having four 
     contract managers in less than three years is an area of concern.  
     The employee turn-over is also of equal concern.  In the last two 
     and a half years the [visual information services] contractor has 
     lost six employees and has replaced only two of the six who quit 
     or resigned.

Agency Report, Enclosure 12, Customer Complaint Record, May 11, 1998, 
Attachment 1.

The documents under the heading "Not Complying With Contract 
Requirements," include records of Rohmann opening the film library 
late, failing to vacate the graphics shop on time, using equipment for 
nongovernment work, and using an unauthorized entrance during a base 
exercise.  Agency Report, Enclosure 12, Memorandum, March 14, 1997 and 
Memorandum, April 26, 1998.  Also under the heading "Not Complying 
With Contract Requirements," the record of Rohmann's performance 
includes a May 2, 1997, memorandum prepared by the contract 
administrator concerning Rohmann's failure to provide notice that it 
was relocating the graphic shop to the visual information library.  
Agency Report, Enclosure 12, Memorandum, May 2, 1997.  That memorandum 
notes that Rohmann had already relocated a large piece of equipment 
without the permission of government representatives and that Rohmann 
had failed to provide proof, in the form of a receipt, that certain 
property it had moved belonged to the contractor.  Id.

We conclude that these performance problems, combined with the 
customer complaints described above and the staff and manager turnover 
on the contract, provide support for the moderate risk rating assigned 
to Rohmann.  While Rohmann offers explanations and interpretations of 
the record that provide a more favorable picture of its performance 
history than drawn by the agency, the protester has not addressed many 
of the agency's allegations concerning the firm's performance, and we 
conclude that the evaluation was based on the Air Force's reasonable 
perception of inadequate prior performance.[3]

Rohmann contends that the QAE was biased against the firm and 
attempted to influence the other evaluators to think that Rohmann was 
a poor performer.  Comments at  para.  11, 39-40.   According to Rohmann, 
the marginal rating which it received for its performance as the 
incumbent at Kelly is not supported by the record and is a result of 
the bias of the agency's QAE on that contract.  Comments  para.  8, 27.  In 
addition to conducting an unfair evaluation, Rohmann argues that the 
QAE solicited complaints against Rohmann, and, as a member or the 
evaluation panel, manipulated the past performance evaluation process 
and influenced other evaluators to harm Rohmann.  Comments at  para.  40-1.  

Because government officials are presumed to act in good faith, we do 
not attribute unfair or prejudicial motives to them on the basis of 
mere inference or supposition.  Lancaster & Co., B-254418, Dec. 14, 
1993, 93-2 CPD  para.  319 at 7.  Where, as here, a protester alleges bias 
or bad faith on the part of a procurement official, our focus is on 
whether the official exerted improper influence in the procurement on 
behalf of the awardee or against the protester.  Prose, Inc., 
B-259016, Feb. 28, 1995, 95-1 CPD  para.  123 at 3.  To show bad faith, a 
protester must show that the contracting agency directed its actions 
with the specific and malicious intent to injure the protester.  
Robertson Leasing Corp., B-275152, Jan. 27, 1997, 97-1 CPD  para.  49 at 4.

Here, the record does not support Rohmann's allegation of bias.  While 
the QAE's criticisms of Rohmann's performance on the incumbent 
contract are stated in strong terms and the QAE indicated that he 
would not do business with Rohmann again, see Agency Report, 
Attachment 11, Request For Past Performance Evaluation Information 
Questionnaire at 2, we do not assume, as Rohmann apparently does, that 
the QAE's judgment was based on unfair or prejudicial motives.  
Rather, we conclude that his opinion was based on his experience as an 
agency official responsible for oversight of Rohmann's performance on 
the incumbent contract.  Moreover, although Rohmann focuses on the 
QAE's involvement in the evaluation, the record shows that a number of 
other agency officials, including customers and contracting officials, 
expressed concerns about Rohmann's performance.  In fact, contrary to 
Rohmann's contention that the QAE negatively influenced the views of 
other agency officials, in many cases, the QAE's negative view of 
Rohmann was directly based on the input of these other officials.[4]

Rohmann also argues that it should have been given an opportunity, 
either through discussions or clarifications, to respond to the Air 
Force's concerns about its performance at Kelly Air Force Base.  
Comments at  para.  23, 26, 30, 33, and 59.   According to Rohmann, since 
it was not given such an opportunity, the records of these alleged 
performance problems should not have been considered in the 
evaluation.  Comments at  para.  33, 35, 38, 45, 54, and 61.

There generally is no obligation that a contracting agency conduct 
discussions where, as here, the RFP specifically instructs offerors of 
the agency's intent to award a contract on the basis of initial 
proposals.  Robotic Sys. Tech., B-278195.2, Jan. 7, 1998, 98-1 CPD  para.  
20 at 11.  While the contracting officer's discretion in deciding not 
to hold discussions is not unfettered, it is quite broad and has been 
expanded in recent years.  Id.  Our Office will review the exercise of 
such discretion to ensure that it was reasonably based on the 
particular circumstances of the procurement.  Id. 

Here, the agency had received several other technically acceptable 
proposals from firms with better past performance records than 
Rohmann.  Although Rohmann argues that it should have been given the 
opportunity to respond to agency concerns about its performance 
record, the concerns related to the predecessor contract, where 
Rohmann was the incumbent, and agency officials were therefore 
directly aware of the performance history.  Under the  circumstances, 
the decision to award on the basis of initial proposals, without 
discussions, was reasonable.  

Rohmann also argues that the Air Force should have communicated with 
the firm concerning its performance, even without conducting 
discussions.  Supplemental Comments at  para.  25-27.  In this regard, 
Rohmann refers to FAR  sec.  15.306(a), which was amended by the Federal 
Acquisition Circular No. 97-02, which includes the Part 15 rewrite.  
FAR  sec.  15.306(a)(2) which concerns "Clarifications and award without 
discussions," states:

     If award will be made without conducting discussions, offerors 
     may be given the opportunity to clarify certain aspects of 
     proposals (e.g., the relevance of an offeror's past performance 
     information and adverse past performance information to which the 
     offeror has not previously had an opportunity to respond) or to 
     resolve minor or clerical errors.

Apparently, it is Rohmann's position that this provision requires a 
contracting officer to conduct "clarifications" with any offeror where 
the agency intends to rely on adverse past performance information on 
which the offeror has not previously had an opportunity to respond.  
Supplemental Comments at  para.  27.  

We read no such "requirement" into FAR  sec.  15.306(a)(2), which states 
that "offerors may be given the opportunity to clarify certain aspects 
of proposals" including past performance information (emphasis added).  
Similar to the decision whether or not to hold discussions, under the 
above-quoted language, we think a contracting officer has broad 
discretion to decide whether to communicate with a firm concerning its 
performance history.  We will review the exercise of such discretion 
to ensure that it was reasonably based on the particular circumstances 
of the procurement.

In this case, since the adverse past performance information concerned 
Rohmann's  incumbent contract, there is no question the information 
was relevant.  Although Rohmann argues that it has not had the 
opportunity to respond to the adverse information concerning its 
performance, the record indicates that Rohmann was aware of much of 
that information, including customer complaints and some of the 
allegations that it had failed to comply with contract requirements.  
Under the circumstances, since past performance was significantly more 
important than price under the RFP and Rohmann's price was not so low 
as to be considered advantageous, the contracting officer's decision 
not to communicate with Rohmann during the evaluation concerning the 
firm's performance history was reasonable.

Rohmann also notes that the contracting officer acknowledged that 
Rohmann "can satisfactorily perform the requirement," Agency Report, 
Enclosure 13 at 1, and argues that, under the circumstances, it is 
unreasonable to award to WP at a five percent premium over an award to 
Rohmann.  Comments at  para.  10-11.  In a negotiated procurement, the 
government is not required to make award to the lowest cost, 
technically acceptable offeror unless the RFP specifies that cost will 
be the determinative factor for award.  General Servs. Eng'g, Inc., 
B-245458, Jan. 9, 1992, 92-1 CPD  para.  44 at 9.  Award to offerors with 
higher-rated proposals and higher prices are unobjectionable, so long 
as the result is consistent with the evaluation criteria, and the 
agency has determined that the technical difference is sufficiently 
significant to outweigh the cost difference.  Id.  Consistent with 
that standard, the agency concluded that WP, with its superior 
performance history, represented the best value despite its higher 
price.  We see nothing unreasonable with that conclusion.

Finally, Rohmann challenges the agency's evaluation of its alternate 
proposal under which Rohmann offered a lower price that would be 
achieved by consolidating services under the contract into one 
building, allowing the firm to streamline its operation and personnel, 
while returning cost savings to the government.  Agency Report, 
Enclosure 9 at 1.  Rohmann notes that its alternate proposal was 
evaluated by the QAE and argues that the QAE did not consider the 
merits of the proposal but instead merely repeated the charges of 
adverse performance by Rohmann on the incumbent contract.  Comments at  para.  
47-52.  

In an April 22 memorandum, the QAE concluded that Rohmann's alternate 
proposal was unacceptable and should not be considered.  Agency 
Report, Enclosure 10.  That memorandum states that the alternate 
proposal would involve electrical work in an historical building, 
which may have to be performed by government personnel and at 
government expense and that the move might not result in any cost 
savings to the agency.  Agency Report, Enclosure 10.  The memorandum 
also questions Rohmann's performance on the incumbent contract and, 
noting that two complaints had recently been submitted concerning 
Rohmann's performance, argues that the agency is already not receiving 
the service that it needs from Rohmann.  Id.  We have reviewed the 
record, including the agency's evaluation materials and the 
protester's submissions in this regard.  The record shows that the 
agency was not convinced that Rohmann's alternate proposal would offer 
any advantages to the government, even with its lower price.  Based on 
our review, we find no basis to question the agency's decision to 
award to WP.  Rohmann's mere disagreement with the agency does not 
render the evaluation of its alternate proposal unreasonable.  Cessna 
Aircraft Co., B-261953.5, Feb. 5, 1996, 96-1 CPD  para.  132 at 13, n.19.

The protest is denied.

Comptroller General 
of the United States

1. The RFP defined these ratings as follows:

            High:  Significant doubt exists, based on the offeror's 
            performance record, that the offeror can satisfactorily 
            perform the work.

            Moderate:  Some doubt exists, based on the offeror's 
            performance record, that the offeror can satisfactorily 
            perform the work.

            Low:  Little doubt exists, based on the offeror's 
            performance record, that the offeror can satisfactorily 
            perform the work.

            Not Applicable:  The offeror has no record of relevant 
            past performance, or information on the offeror's past 
            performance is not available.  The offeror will not be 
            evaluated favorably of unfavorably on past performance.

2. In another example, although the contracting officer's statement 
refers to "fraudulent work orders" under the heading "Work Orders," 
the record does not demonstrate that "fraudulent" is a fair 
characterization of the orders presented.  Among the documents under 
that heading are a number of orders which have handwritten notations 
indicating that Rohmann produced more photographs or slides than were 
ordered.  Although the Air Force argues that these documents show that 
Rohmann "overcharged" the agency, Agency Report, Memorandum of Law at 
2, as Rohmann points out, this was a fixed-price contract under which 
Rohmann was paid a fixed amount each month.  Comments at  para.  14.  
Rohmann also notes that there are only 44 extra units in the 
questioned work orders--an insignificant number in relation to the 
total contract, Supplemental Comments at  para.  35--and that many of the 
additional photographs are explained by the fact that the camera used 
for passport photographs takes four photographs simultaneously.  
Comments at  para.  19.  We note that the agency may have had legitimate 
concerns about these orders since the incumbent contract provided for 
a price adjustment based on workload fluctuations and since 
negotiation of future contracts was to be based on the agency's 
experience under that contract.  Supplemental Agency Report, 
Attachment 1.  The characterization of these orders as "fraudulent," 
however, is not supported by the record.

3. Rohmann argues that it cannot respond to the record of its 
performance on the incumbent contract because, as Rohmann's counsel 
states, the firm cannot see much of that record since it is subject to 
the protective order issued in this protest.  Comments at  para.  8.  Upon 
the request of an attorney admitted to a protective order, we 
frequently have permitted information subject to the order to be 
released from the order so that such information can be reviewed by a 
protesting firm.  The information in question here, which concerned 
Rohmann's performance of the incumbent contract, would have been 
appropriate for release from the protective order.  We received no 
such request in this case.  

4. Rohmann notes that the selection decision stated: "In addition, WP 
was the low offeror (best price)."  Agency Report, Enclosure 5 at 5.  
Rohmann argues that, based on this statement, it is not clear what the 
contracting officer understood the prices to be.  We do not agree.  
The document referenced by Rohmann included the prices of Rohmann, WP, 
and all other offerors.  Of the five offerors that received "Low" risk 
ratings, WP's price was the lowest.  Read in context, we have no basis 
to conclude that the contracting officer's statement indicated that 
she misunderstood the prices offered.