BNUMBER: B-280767.2
DATE: December 28, 1998
TITLE: Wilderness Mountain Catering, B-280767.2, December 28, 1998
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Matter of:Wilderness Mountain Catering
File: B-280767.2
Date:December 28, 1998
R. Wade Curtis, Esq., Belnap, Curtis & Drozda, for the protester.
Alan D. Groesbeck, Esq., Department of Agriculture, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Settlement agreement resolving prior contract dispute did not preclude
agency, in its evaluation of protester's past performance, from
considering protester's performance under the contract that was the
subject of the dispute where the settlement agreement did not require
agency to disregard contractor's performance; a condition to a
settlement agreement that is not clearly set out in the language of
the agreement will not be inferred.
DECISION
Wilderness Mountain Catering protests the exclusion of its proposal
from the competitive range under request for proposals (RFP) No.
49-98-10, issued by the Forest Service, Department of Agriculture, for
mobile food services.
We deny the protest.
The RFP, issued on March 11, 1998, provided for multiple awards of
fixed-price, indefinite-delivery, indefinite-quantity, requirements
contracts with 1-year base periods and four 1-year options. RFP at 2.
The successful contractors under the RFP will be required to provide
hot and cold meals and supplemental items at various locations during
wildland fires and other activities throughout the contiguous western
United States. RFP at 12.
The RFP stated that awards would be made to the offerors submitting
the proposals determined to be most advantageous to the government,
and listed the following evaluation factors in descending order of
importance: (a) Past Performance, (b) Equipment, (c) Ability to
Understand and Perform the Work, and (d) Experience.[1] RFP at 151.
The RFP added that these "non-price factors" as a whole would be
considered more important than price in determining which proposals
represented the best overall values. Id.
The RFP included detailed instructions for the preparation of
proposals, and requested that the offerors' technical proposals
consist of two parts. Part A was to address the equipment and ability
to understand and perform the work evaluation factors, and part B was
to address the past performance and experience factors. RFP at
139-41. With regard to past performance, the RFP specified that each
offeror was to prepare a "Past Performance Chart." RFP at 141. The
RFP required that each offeror's chart include "a brief description of
their company's overall past performance in relation to the contract
requirements and specifications," and stated that "the information
must be presented so that the Agency may verify it." Id.
The agency received a number of proposals, including Wilderness's, by
the April 24, 1998 due date. The proposals were forwarded to a
technical evaluation team (TET). Upon completion of the TET's review,
the proposals which failed to meet certain minimum requirements set
forth in the solicitation were eliminated from the competition. The
remaining proposals were subject to additional evaluation, which
included "site visits to inspect the equipment offered." Contracting
Officer's Report at 1.
The TET evaluated Wilderness's proposal as marginal overall, with
ratings of red/unacceptable under the past performance factor,
green/acceptable under the equipment factor, yellow/marginal under the
ability to understand and perform the work factor, and
green/acceptable under the experience factor. Agency Report (Tab O)
Memorandum of Law at 25. The TET forwarded its conclusions to the
contracting officer, who determined that Wilderness's proposal should
be excluded from the competitive range as it was not among the most
highly rated. Agency Report (Tab P5, Attachment 5) Mobile Food
Service Solicitation Technical Consensus Summary at 7.
Wilderness was informed by letter dated July 17 that its proposal had
been excluded from the competitive range. Agency Report (Tab I)
Contracting Officer's notification to Wilderness of its exclusion from
the competitive range. Wilderness requested a debriefing, and
received an oral debriefing on July 30. Wilderness filed an
agency-level protest on August 3. Agency Report (Tab M) Wilderness's
protest to the Department of Agriculture. The agency denied
Wilderness's agency-level protest on September 4, Agency Report (Tab
L) Contracting Officer's response to Wilderness's agency-level
protest, and Wilderness filed its protest with our Office on September
17.
Wilderness first argues that the agency improperly considered in the
evaluation certain information regarding the protester's performance
"prior to 1996." Wilderness's Protest, Exhibit A, Wilderness's August
3 protest to the Department of Agriculture at 2. The protester bases
this argument on its understanding of the terms of a settlement
agreement, entered into by it and the agency, to resolve claims filed
by the protester with the Department of Agriculture Board of Contract
Appeals (AGBCA) in response to its suspension from, and termination
of, a predecessor contract to those contemplated by this RFP.[2] Id.
The settlement agreement provided, among other things, that the
protester would enter into a new contract with the agency "on
substantially the same terms" as the terminated contract, and would
"not pursue a claim for attorneys fees or for payment of money or
interest of any kind before the [AGBCA]." Id., Exhibit A, Settlement
Agreement Between Agency and Protester at 1. The agreement also
included the following language:
It is the express understanding and agreement between the parties
that they will deal with each other in good faith and that the
[Forest Service] will administer and [the protester] will perform
under the contract according to its terms and conditions of the
contract. [The Forest Service] agrees that it will not act in
bad faith in exercising its rights under the Termination for
Convenience clause, and in exercising its options to renew the
contract after the initial contract period.
Id.
Wilderness contends that the language in the settlement agreement
providing that the parties "will deal with each other in good faith"
precluded the agency from considering "any of the accusations and
allegations upon which the underlying suspension action was
presented." Wilderness Protest, Exhibit A, Wilderness's August 3
protest to the Department of Agriculture at 2. Wilderness concludes
that the settlement agreement precluded the agency from considering
any of Wilderness's past performance information which resulted in its
suspension from and termination of its prior contract.
Our bid protest jurisdiction is limited to deciding protests
"concerning an alleged
violation of a procurement statute or regulation." 31 U.S.C. sec. 3552
(Supp. II 1996). Thus, we will not consider a protest concerning the
enforceability of a settlement agreement unless it alleges that the
agreement, if followed or breached, would result in a prejudicial
violation of procurement law or regulation. Geonex Corp., B-274390.2,
June 13, 1997, 97-1 CPD para. 225 at 5. Nor will our Office infer a
condition to a settlement that is not clearly set out in the language
of the settlement agreement. L & M Mercadeo Internacional, S.A.,
B-250637, Feb. 11, 1993, 93-1 CPD para. 124 at 3; see Automaker, Inc.,
B-249477, Nov. 24, 1992, 92-2 CPD para. 372 at 4.
Here, the agreement settling the dispute between the agency and the
protester provided, in relevant part, that the parties would enter
into a new contract on substantially the same terms as the terminated
contract, and that during this "new" contract, the parties would deal
with each other in good faith and adhere to the contract's terms and
conditions. The agreement, as indicated above, does not require the
agency to disregard the protester's performance under the terminated
contract. Moreover, as argued by the agency, the written
correspondence of the protester and agency, exchanged prior to the
parties' acceptance of the agreement, does not indicate or otherwise
provide that it was the intent of the parties that the agreement
preclude the agency from considering the protester's performance under
the terminated contract in a subsequent procurement, such as the
action contemplated by this RFP. See Wilderness Comments, Tabs 10,
12-15. Therefore, we do not find that the agency was precluded from
considering the protester's performance under the predecessor contract
prior to 1996 (that is, prior to the execution of the settlement
agreement).
Wilderness also asserts that the agency failed in its obligation to
properly debrief Wilderness because the agency excluded Wilderness's
attorney from the July 30 debriefing. According to the record, the
agency excluded Wilderness's attorney from the debriefing on the basis
that the attorney had participated, earlier that day, in the preaward
debriefing of another offeror.[3] Because the conduct of debriefings
is a procedural matter which has no effect on the evaluation of
proposals or the validity of the agency's determinations, this basis
of protest will not be considered.[4] See Continental Technical
Servs. of Georgia, Inc., B-259681, B-259681.2, Apr. 19, 1995, 95-1 CPD para.
204 at 8.
In its protest to our Office, Wilderness argues for the first time
that "the RFP unfairly and arbitrarily discriminated against
[Wilderness]" because it provided that offerors who had no past
performance would receive a neutral rating, contending that "[s]uch a
practice gives an unfair competitive advantage to offerors who have
never come under the scrutiny of the [contracting officer]."
Wilderness Protest at 5-6. Wilderness also contends for the first
time in its protest to our Office that the agency should have held
discussions to allow Wilderness "to rebut or explain the alleged
adverse information regarding past performance," and that the agency's
evaluation of its past performance was unreasonable. Wilderness
Protest at 6.
The agency contends that these arguments are untimely. The agency
points out here that the protester's argument regarding the
availability of a neutral rating for past performance involves an
alleged solicitation impropriety, and that the remainder of
Wilderness's arguments raised for the first time in its protest to our
Office could have been but were not raised in Wilderness's
agency-level protest. We agree.
Wilderness's contention that the RFP was defective because it provided
that offerors without a record of past performance would receive a
neutral rating involves an alleged solicitation impropriety that the
protester should have raised prior to the closing date for receipt of
proposals.[5] Bid Protest Regulations, 4 C.F.R. sec. 21.2(a)(1) (1998).
With regard to the remainder of the protester's assertions, our Bid
Protest Regulations provide that where, as here, a protest has been
filed initially with the contracting agency, we will consider a
subsequent protest if the initial protest to the agency was timely
filed. 4 C.F.R. sec. 21.2(a)(3). Since our Regulations do not
contemplate the unwarranted piecemeal presentation of protest issues,
where a protester initially files a timely agency-level protest, and
subsequently files a protest with our Office which includes additional
grounds, the additional grounds must independently satisfy our
timeliness requirements. Research Tech. Int'l, B-243844, Aug. 19,
1991, 91-2 CPD para. 165 at 2-3; Armstrong Motorcycles Ltd., B-238436,
B-238436.2, June 5, 1990, 90-1 CPD para. 531 at 3-4.
The record reflects that Wilderness was informed at its oral
debriefing that its proposal was evaluated as being "very weak" under
the past performance and ability to understand and perform the work
evaluation factors, and "weak" under the equipment factor. Agency
Report (Tab J), Wilderness Preaward Debriefing Summary at 2. The
agency explained, among other things, that the past performance
information considered by the agency was from 1994 forward. Id. The
agency added that in its view Wilderness's proposal included limited
information addressing the ability to understand and perform the work
evaluation factor, and that certain issues regarding the protester's
personnel and financial capability were unclear or confusing. Id.
The agency also explained that it had evaluated Wilderness's proposal
as "weak" under the equipment evaluation factor because it was unclear
from the proposal what was being offered. Id. The agency finally
summarized the results of its evaluation of Wilderness's proposal.
Wilderness should have been aware from the debriefing of the
evaluation factors under which the agency had concluded that
Wilderness's proposal was weak or very weak as well as the general
reasons why the agency had reached these conclusions. Thus,
Wilderness's protest that the agency's evaluation of its proposal was
unreasonable, or that the agency should have held discussions with
Wilderness to allow it explain the information regarding its past
performance, was required to be filed within 10 days of the
debriefing.[6] 4 C.F.R. sec. 21.2(a)(2). Since Wilderness did not raise
these issues in its agency-level protest, its protest to our Office of
these matters is untimely.
Wilderness also raises various additional arguments in its comments on
the agency report concerning the agency's evaluation of its proposal
and contends that they should be considered timely because, for
example, it was not until Wilderness received the agency's report that
it was aware that its proposal was actually rated as "unacceptable" or
"marginal," rather than "very weak" or "weak." As stated previously,
the agency's debriefing put Wilderness on notice of the areas in its
proposal which were not evaluated favorably by the agency, regardless
of the exact terms used, as well as the agency's reasons for the less
than favorable evaluations. As such, the arguments raised by
Wilderness for the first time in its comments regarding the evaluation
of its proposal are untimely.
The protester also argues in its comments on the report that it was
unaware until the receipt of the agency's report that its proposal was
excluded from the competitive range because it "was not highly rated
and for purposes of efficiency," even though the RFP did not inform
offerors that "efficiency" would be considered in establishing the
competitive range. Wilderness points out here that, while FAR sec.
15.306(c)(1) authorizes the agency to exclude "highly rated proposals"
from the competitive range "for purposes of efficiency," FAR sec.
15.306(c)(2) requires that offerors be notified in the solicitation
that the agency may do this.
The contracting officer's July 17 letter to Wilderness informing it
that its proposal had been excluded from the competitive range cited
to FAR sec. 15.306(c), and specifically quoted the portion of this
regulation which refers to the exclusion of highly rated proposals
from the competitive range for purposes of efficiency. Agency Report
(Tab I) Contracting Officer's notification to Wilderness of its
exclusion from the competitive range. As such, Wilderness knew or
should have known of this basis of protest upon its receipt of the
July 17 letter. Accordingly, its protest on this basis, raised for
the first time in its November 3 comments on the agency report, is
untimely.[7] 4 C.F.R. sec. 21.2(a)(2).
The protest is denied.
Comptroller General
of the United States
1. The "ability to understand and perform the work" evaluation factor
included the following subfactors: organization, personnel, and
capacity.
2. The settlement agreement was entered into by the protester's
predecessor entity, Western Catering, and is undated. It appears from
a letter forwarding a signed copy of the agreement to the protester
that the agreement was accepted by the parties in late November or
early December 1995. Protester's Comments (Tab 18) Letter from Forest
Service to the protester.
3. The agency explains that it was "concerned about the release of
procurement sensitive information to the attorney who had learned
sensitive procurement information at the debriefing of the
competitor," and the possibility of the attorney's "conflict of
interest." Agency Report (Tab O) Memorandum of Law at 11-12.
4. As the contracting agency points out, there does not appear to be
any statute or regulation that expressly grants a right to have an
attorney present at an oral debriefing or one that authorizes the
exclusion of an attorney from an oral debriefing.
5. In any event, the agency's approach here is consistent with Federal
Acquisition Regulation (FAR) sec. 15.305(a)(2)(iv), which expressly
provides that "[i]n the case of an offeror without a record of
relevant past performance or for whom information on past performance
is not available, the offeror may not be evaluated favorably or
unfavorably on past performance."
6. Wilderness requests that we consider the untimely aspects of its
protest under the "good cause" exception to our timeliness
requirements. Under that exception, we may consider an otherwise
untimely protest where some compelling reason beyond the protester's
control prevents it from timely submitting its protest. 4 C.F.R. sec.
21.2(c); Cornet, Inc.; Datacomm Management Servs., Inc., B-270330,
B-270330.2, Feb. 28, 1996, 96-1 CPD para. 189 at 10 n.13. The agency
informed Wilderness at the debriefing of the factual bases and
reasoning underlying its evaluation and determination to exclude
Wilderness's proposal from the competitive range. Accordingly, the
matter of whether to raise protest issues regarding the agency's
evaluation and related actions was entirely within Wilderness's
control, and there is no basis to invoke the good cause exception.
7. In any event, the record reflects that Wilderness's proposal was
excluded from the competitive range because it was not among the most
highly rated proposals, not for reasons of efficiency. Agency Report
(Tab P5, Attachment 5) Mobile Food Service Solicitation Technical
Consensus Summary at 7.