BNUMBER:  B-280774.2           
DATE:  November 24, 1998
TITLE: R.C.O. Reforesting, B-280774.2, November 24, 1998
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Matter of:R.C.O. Reforesting

File:B-280774.2          

Date:November 24, 1998

Roberto C. Ochoa for the protester. 
Alan D. Groesbeck, Esq., Department of Agriculture, 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.  Source selection official is not bound by the recommendations or 
evaluation judgments of lower-level evaluators, and notwithstanding 
protester's appeal of termination for default, contracting officer's 
reevaluation of proposal as acceptable rather than exceptional, based 
on termination for default, was reasonable and consistent with 
solicitation providing for consideration of past performance.

2.  Where agency determined that it had only enough inspectors to 
administer two contracts and that there would be no value in awarding 
a third contract, with an additional minimum quantity guarantee, it 
had a reasonable basis for awarding only two contracts, rather than 
three, under solicitation providing for multiple awards.

DECISION

R.C.O. Reforesting protests the award of 5-year multitask contracts 
for reforesting work to Summitt Forests, Inc., and Redding Tree 
Growers Corp. under request for proposals (RFP) No. R5-14-98-039, 
issued by the Forest Service.  R.C.O. alleges that the evaluation of 
proposals was improper and that the agency unreasonably declined to 
award a third contract, to the protester.

We deny the protest.

The agency issued the RFP for award of fixed-price 
indefinite-delivery, indefinite-quantity contracts for silviculture 
services--including tree planting, seeding, and precommercial 
thinning--within Six Rivers and Klamath National Forests.  RFP  sec.  
C.1(a), L.4; Determination for Award at 1.  The RFP,  sec.  M.8, M.9, 
provided for consideration of technical factors, as well as price, 
which was to be "secondary to technical factors" in the selection 
decision.  Technical factors included the following:  record of past 
performance; technical approach; production capability and capacity; 
and organization/management.  RFP  sec.  M.8(b).  For the evaluation of 
past performance, section M.8(b)(1) of the solicitation required 
offerors to list all contracts or work experience, completed in the 
last 5 years, with references which they felt qualified them to be 
successful in performance of the required effort.

Twelve firms submitted offers on June 11, 1998.  An evaluation panel 
assigned a rating of "exceptional" to the proposals submitted by 
Summitt, Redding, and R.C.O.  These three "exceptional" proposals were 
second (Summitt), third (Redding), and fourth (R.C.O.) low in price.  
The contracting officer reviewed the evaluation and ascertained that 
the evaluators had not considered the recent default termination of 
one of R.C.O.'s contracts.  Determination for Award at 1.  Taking the 
termination into account as part of the evaluation of R.C.O.'s 
proposal under the past performance factor, the contracting officer 
reduced the rating of R.C.O.'s technical proposal from "exceptional" 
to "acceptable."  Id.  Since Redding and Summitt had received the 
highest technical ratings and had submitted the lowest prices (except 
for one offeror not at issue here), she awarded them contracts on 
August 5, 1998.  Id.  R.C.O. received a debriefing on August 17 and 
filed this protest with our Office 2 days later.

The protester asserts that the agency discriminated against it by 
changing its technical rating from "exceptional" to "acceptable" and 
by awarding only two contracts under the RFP, instead of three.  The 
protester asserts that the agency should not have considered the 
termination of a prior contract for default in the past performance 
evaluation, since R.C.O.'s appeal of the termination action is still 
pending; further, the protester asserts that the awardees are 
"presently involved in serious legal disputes," which the agency 
should have considered in its evaluation of the proposals of Redding 
and Summitt.  Protest at 3.

The record here indicates that, on May 14, 1997, the agency terminated 
for default R.C.O.'s contract No. 52-9JNE-7-13, involving tree 
planting in the Sierra Cascade Province; the agency found that many of 
the trees to be planted had disappeared and that the protester had 
apparently buried some of them in holes next to trees actually 
planted.  Forest Service letter, May 14, 1997 at 1.  R.C.O. made 
reference to the termination in its proposal, noting that it had 
brought a challenge to the agency's action, which was still pending.  
The contracting officer here participated in an investigation 
conducted prior to the termination and, based on her personal 
knowledge of the default, considered it under the past performance 
evaluation of R.C.O.'s proposal.  We find nothing improper or 
unreasonable in this; the recommendations or evaluation judgments of 
lower-level evaluators, who did not here take the default into 
account, are not binding on source selection officials, who may make 
their own judgments, subject to the tests of rationality and 
consistency with the stated evaluation factors.  Jason Assocs. Corp., 
B-278689 et al., Mar. 2, 1998, 98-1 CPD  para.  67 at 5-6.  Further, 
consideration of the default was proper, notwithstanding the 
protester's pending appeal, since an agency may rely upon its 
reasonable perception of inadequate past performance even where the 
contractor disputes the agency's position.  MAC's Gen. Contractor, 
B-276755, July 24, 1997, 97-2 CPD  para.  29 at 3-4.

The protester alleges that Redding was debarred from contracting in 
1993 and that Summitt "has had several [Immigration and Naturalization 
Service (INS)] violations."  Protester comments, Sept. 25, 1998 at 1.  
R.C.O. does not identify the contracts involved, or in the case of 
Summitt, whether government contracts were involved.  There is no 
evidence of improper performance under any of the contracts referenced 
in the awardees' proposals, and no basis for concluding that the 
evaluation was improper, given that it was based on the contracts 
referenced in the proposal.  See Morrison Knudsen Corp., B-280261, 
Sept. 9, 1998, 98-2 CPD  para.  63 (apart from instances where information 
is so "close at hand" that it is unreasonable to ignore it, an agency 
may limit its past performance evaluation to contracts identified in 
the offeror's proposal).  Redding and Summitt have submitted 
statements denying R.C.O.'s allegations--in the one case, that Redding 
was ever debarred, and in the other, that Summitt has ever been cited 
by the INS.  Based upon our review of the record, we find the 
evaluations here reasonable and consistent with the provisions of the 
RFP.[1]

In selecting the two awardees, the contracting officer determined that 
Redding and Summitt had sufficient capacity to meet the agency's 
needs, and that the agency would not have sufficient staff to 
administer any more crews than Redding and Summitt jointly employed.  
The contracting officer therefore concluded that there would be no 
value in a third award, with a guarantee of $10,000 per year to a 
third contractor and additional administrative costs to the agency.  
Determination for Award at 2.  While Federal Acquisition Regulation 
(FAR)  sec.  16.504(c) contains a general preference for making multiple 
awards of indefinite-quantity contracts under a single solicitation 
for the same or similar supplies, it contains no preference for any 
particular number of awards.  The FAR requires only that, in making a 
determination as to whether multiple awards are appropriate, the 
contracting officer exercise sound business judgment; where the 
contracting officer determines that the cost of administration of 
multiple contracts may outweigh any potential benefits or that 
multiple awards would not be in the best interests of the government, 
the agency should not make multiple awards.  FAR  sec.  16.504(c)(1)(iii).  
Similarly, we see no basis for objection to the decision to make only 
two, rather than three, awards here.  While R.C.O. disagrees with the 
contracting officer's decision, we see no basis to question her 
conclusion that there would be no benefit to the government from 
making more than two awards.[2]

The protest is denied.

Comptroller General
of the United States

1. Given our conclusion that the agency properly evaluated the Redding 
and Summitt proposals, R.C.O.'s allegation that the agency conducted a 
biased evaluation fails to state a valid basis of protest, since the 
same two lower-priced proposals would have been selected for award 
even if the agency had given R.C.O.'s proposal an "exceptional" 
rating.  See Dynamic Aviation--Helicopters, B-274122, Nov. 1, 1996, 
96-2 CPD  para.  166 at 4 (protester alleging bias must demonstrate that the 
alleged bias translated into action that unfairly affected the 
protester's competitive position).

2. R.C.O. argues that the two offerors do not have the capacity to 
meet all of the agency's requirements, given their commitment to other 
contracts.  The determination whether offerors are capable of 
performing a contract concerns the contracting officer's affirmative 
determination of those offerors' responsibility, which our Office will 
not review absent a showing of possible bad faith on the part of 
government officials or that definitive responsibility criteria in the 
solicitation were not met.  4 C.F.R.  sec.  21.5(c) (1998); King-Fisher 
Co., B-236687.2, Feb. 12, 1990, 90-1 CPD  para.  177 at 2.  There is nothing 
in the record to indicate that either of these exceptions is 
applicable here.