BNUMBER: B-280872.2; B-280872.3
DATE: December 9, 1998
TITLE: Venture Productions, B-280872.2; B-280872.3, December 9, 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:Venture Productions
File: B-280872.2; B-280872.3
Date:December 9, 1998
Andrew J. Mohr, Esq., and John J. O'Brien, Esq., Cohen Mohr, for the
protester.
Jed. L. Babbin, Esq., and Sharon L. Babbin, Esq., Tighe, Patton,
Tabackman & Babbin, for Film House, Inc., an intervenor.
Mary E. Clark, Esq., Defense Logistics Agency, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency assessment of past performance is denied
where the record shows that the evaluators performed a reasonable
assessment of proposals in accordance with the solicitation's
evaluation scheme, and did not deviate from the solicitation's scheme
by using a past performance rating plan different from the rating plan
used for the other evaluation factors.
DECISION
Venture Productions protests the award of a contract to Film House,
Inc. by the Television-Audio Support Activity, Defense Logistics
Agency, pursuant to request for proposals (RFP) No. MDA113-97-R-0018,
issued to purchase creative development, scripting, and production
services associated with brief informational radio and television
segments, known as "spot announcements," for use by the Armed Forces
Radio and Television Service (AFRTS). Venture argues that the
agency's evaluation of past performance was unreasonable.
We deny the protest.
The RFP, issued on February 5, 1998, anticipates award of a 1-year
indefinite-delivery, indefinite-quantity contract with four 1-year
option periods, to the offeror whose proposal represents the best
value to the government. The RFP sets forth five evaluation factors:
(1) organizational experience; (2) organizational past performance;
(3) ability as demonstrated by samples of recent spot announcements;
(4) ability as demonstrated by a creative proposal for two mock spot
announcements; and (5) price proposal for the mock spot announcements.
RFP, amend. 0001, sec. M.2.
The first four factors are approximately equal in importance, and
collectively are significantly more important than the price factor.
Id. at sec. M.3. For each year of the contract, the RFP anticipates
ordering a minimum of $3.5 million and a maximum of $5 million of spot
announcements. RFP sec. B.
In evaluating proposals, the agency used a source selection plan that
assigned 200 points to each of the four non-price evaluation factors.
Although the total number of points assigned to each factor was the
same, the agency used two different assessment schemes for assigning
the points.
For all of the evaluation factors except organizational past
performance (including the price proposal factor), the 200 available
points were allocated equally to the two subfactors under each
factor.[1] Under each subfactor, the evaluators assigned adjectival
ratings and point scores in five-point increments as set forth below:
Rating Point Range
Excellent 85/90/95/100 points
Very Good 65/70/75/80 points
Good 45/50/55/60 points
Fair 25/30/35/40 points
Poor 0/5/10/15/20 points
For the organizational past performance factor, however, no subfactors
were evaluated, and the 200 available points were allocated as
follows:
Rating Points
Excellent 200 points
Good 150 points
Inconclusive 100 points
Marginal 50 points
Poor 0 points
Evaluation Plan at 5-7.
At the conclusion of the evaluation, the proposals of Venture and Film
House were the most highly rated. The results of their evaluations[2]
are shown below:
EVALUATION FACTOR VENTURE FILM HOUSE
Organizational
Experience Excellent
200 points Excellent
197.5 points
Organizational
Past Performance Good
150 points Excellent
200 points
Ability as Demonstrated by Samples of Recent Spot AnnouncementsExcellent
171.25 points Excellent
176.25 points
Ability as Demonstrated by Two Mock Spot AnnouncementsExcellent
178.75 points Excellent
173.75 points
Price Proposal for Mock Spot AnnouncementsExcellent
200 points Excellent
185 points
TOTAL SCORE Excellent
900 points Excellent
932.5 points
Based on these results, the agency awarded to Film House after
concluding that its proposal offered the best value to the government.
This protest followed.
Venture's challenge to the evaluation here focuses entirely on the
agency's assessment of past performance[3]--the only area where
Venture, the incumbent for these services, did not receive a rating of
excellent. Venture argues that the rating plan used to rate past
performance deviated from the evaluation scheme by scoring this factor
differently from the other evaluation factors; that the evaluation
wrongly elevated criticisms of its past performance as the incumbent
by various AFRTS users over the more favorable comments of its other
past performance references; and that the agency improperly allowed
only one member of the evaluation team to prepare the past performance
rating until immediately prior to award, when the remaining evaluators
were asked to review and verify the earlier rating.
Venture's contention that the source selection plan used here violated
the evaluation scheme ignores the distinction between an evaluation
scheme included in the RFP, and a source selection plan provided to
evaluators as a guideline. As between these two documents, it is the
RFP--and the evaluation scheme set forth therein--that forms the
compact between the agency and the offerors about how proposals will
be evaluated. Loral Aeronutronic, B-259857.2, B-259858.2, July 5,
1995, 95-2 CPD para. 213 at 9. Source selection plans are internal agency
instructions and do not give rights to outside parties. Id. at 9-10.
Instead, when a protester challenges an evaluation of its past
performance and experience, we examine the record to determine whether
the agency's judgment was reasonable and consistent with the stated
evaluation criteria and with applicable statutes and regulations.
IGIT, Inc., B-275299.2, June 23, 1997, 97-2 CPD para. 7 at 5; ESCO, Inc.,
B-225565, Apr. 29, 1987, 87-1 CPD para. 450 at 7.
The RFP here advised offerors that each of the five evaluation factors
would be approximately equal in importance. The record shows that the
organizational past performance evaluation factor, like each of the
other evaluation factors, was worth 200 points. Despite the
protester's arguments to the contrary, there is no evidence that this
factor was weighted more heavily than any other factor.
The protester also argues that the stated evaluation scheme was
violated by the agency's decision to use a separate rating scale for
the organizational past performance factor than was used for the other
evaluation factors. The protester argues that since there are fewer
degrees of gradation in the rating scale for this factor, slight
variations in an offeror's past performance were translated into large
point differences; however, the protester offers no precedent to
support its view that this kind of evaluation approach is improper, or
results in an unreasonable result. In fact, we have upheld an
agency's use of a different scheme for assessing past performance than
was used for assessing other evaluation factors. See Pan Am World
Servs., Inc., B-235976, Sept. 28, 1989, 89-2 CPD para. 283 at 3-4
(complaint that agency failed to assign a color rating to the past
performance evaluation, as it did in other areas of the evaluation,
was denied where the agency used a different method for assessing past
performance but the method nonetheless reached a rational result). As
set forth below, our review finds nothing unreasonable or irrational
about the agency's rating of Venture's proposal in the area of past
performance.
The record here--and in particular, the past performance survey sheets
completed by Venture's references, including AFRTS users--shows that,
other than AFRTS, all of Venture's references gave very favorable
reviews of Venture's past performance. However, our review of the
four past performance survey sheets completed by AFRTS users of
Venture's services under the prior contract reveal significant
concerns about Venture's past performance as the incumbent here.
Specifically, the evaluation summary report explains that the AFRTS
respondents identified [deleted]. Evaluation Summary, June 12, 1998,
at 2. These responses do not support Venture's claim that it should
have received an "excellent" rating in the area of past
performance.[4]
While Venture argues that the agency wrongly treated the past
performance assessments prepared by several AFRTS users as separate
references, even though the evaluation panel was directed not to do so
by the contracting officer, we need not reach the issue of whether the
AFRTS assessments were considered collectively or separately.
Regardless of whether the agency considered these assessments
collectively as the response of one reference--AFRTS--or whether the
agency considered each of the AFRTS users as a separate reference and
balanced their assessments against those of Venture's other
references, we conclude that the rating was reasonable. In fact, it
is hard to imagine information more germane to the agency's assessment
of Venture's past performance than Venture's problems performing these
same services as the incumbent; based on our review of the record, we
find the rating of "good" consistent with the overall feedback
received and consistent with the stated evaluation scheme. IGIT,
Inc., supra, at 6.
Finally, we turn to Venture's complaint that only one member of the
evaluation panel prepared the past performance rating, and the entire
evaluation panel only verified the assessment immediately prior to
award. While the facts of Venture's allegation are correct, we fail
to see how this approach was improper, or how Venture was harmed in
this regard. All of the evaluation team members were eventually given
an opportunity to verify the assessment, and to make any changes they
thought appropriate, and eventually, all of the evaluation panel
members signed a memorandum agreeing to the past performance rating
awarded earlier. Memorandum from the Evaluation Panel to the
Contracting Office (Aug. 17, 1998). We see nothing unreasonable or
improper about the agency's method of preparing this assessment.
The protest is denied.
Comptroller General
of the United States
1. The evaluation subfactors are not set forth here as they are not
relevant to this decision.
2. The information here is compiled from the Contracting Officer's
Report, undated, at 7-8, where it was presented in a slightly
different format.
3. Initially, and in two supplemental protests, Venture raised other
issues which were subsequently withdrawn or effectively
abandoned--i.e., Venture expressly withdrew its allegations of
evaluator bias, and elected not to reply in its comments to the
agency's detailed response to Venture's claims that the agency held
discussions with only one offeror, and violated government-wide
guidance promulgated by the Office of Federal Procurement Policy.
Accordingly, Venture has provided our Office with no basis to reject
the agency's explanations of its actions in these areas. Appalachian
Council, Inc., B-256179, May 20, 1994, 94-1 CPD para. 319 at 8 n.8.
4. While Venture also contends that the AFRTS responses were
unreasonable and should be discounted, we disagree. These responses
are consistent with concerns set forth in contemporaneous materials
discussed with Venture in Management Review Conferences in both 1996
and 1997. Venture was advised of these concerns at the time, and was
permitted to respond. These materials are set forth in the Agency
Report at Tab 11, and include Department of Defense Letters to Venture
dated Sept. 3, 1997, and June 6, 1996, and Venture's responses
thereto. These materials lead us to conclude that the AFRTS
assessments reasonably relate to the agency's documented experience
with Venture.