TITLE:   Buckeye Park Services, Inc., B-282082, June 1, 1999
BNUMBER:  B-282082
DATE:  June 1, 1999
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Buckeye Park Services, Inc., B-282082, June 1, 1999

Decision

Matter of: Buckeye Park Services, Inc.

File: B-282082

Date: June 1, 1999

Charles F. Merz, Esq., for the protester.

Capt. Sandra K. Whittington and John E. Lariccia, Esq., Department of the
Air Force, for the agency.

C. Douglas McArthur, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Exclusion of the protester's proposal from the competitive range was
reasonable and consistent with solicitation that provided for a performance
risk assessment of proposals, where record shows that, on prior contracts,
agencies issued contract deficiency reports, made deductions for substandard
performance, and reported problems with the firm's management of the
contracts; the prior performance problems were brought to the protester's
attention during discussions, although the protester failed to present an
explanation that the agency found satisfactory.

DECISION

Buckeye Park Services, Inc. protests the award of a contract under request
for proposals (RFP) No. F22600-99-R-0036, issued by the Department of the
Air Force for ground maintenance at Keesler Air Force Base (AFB). Buckeye
contends that the agency improperly evaluated its proposal.

We deny the protest.

On November 2, 1998, the agency issued the RFP for a fixed-price contract
for an initial 6 ï¿½-month contract, with four 1-year options. RFP at 2-16.
The RFP required a contractor to provide all labor, materials, equipment,
transportation, supervision, and other items and services necessary to
perform grounds maintenance at Keesler in accordance with the performance
work statement (PWS). RFP at  2, 5, 8, 11, 14.

The agency advised offerors that it intended to award a contract to the
responsible offeror whose proposal was most advantageous to the Government,
considering price and technical factors. RFP attach. 4, at 3. The RFP also
provided for assessments of proposal risk and performance risk. The agency
would first assess the risk associated with each proposal (proposal risk)
with regard to accomplishment of the RFP requirements. Evaluators would then
consider performance risk, "by identifying and reviewing relevant present
and past performance and making an overall risk assessment of the offeror's
ability to perform the proposed effort." RFP attach. 4, at 4. This
assessment would represent evaluators' judgment of the probability of the
offeror performing successfully, considering its demonstrated present and
past performance. Evaluators would base their assessment of performance risk
upon information submitted by offerors, regarding performance of comparable
contracts in the prior 3 years. The agency cautioned offerors that the
government would also use data obtained from other sources. Id.

The Air Force had received 15 proposals by December 3, the date set for
receipt of initial proposals. Agency Report, Tab 12, Source Selection
Authority's Approval of and Contracting Officer's Determination of
Competitive Range, at 2nd - 3rd unnumbered pages. Buckeye's received a low
proposal risk assessment. Id. at 3rd unnumbered page.

With regard to the assessment of performance risk, evaluators ascertained
that two of the protester's five references fell outside the RFP's 3-year
timeframe, and that the references at Cherry Point Naval Air Station and
Keesler provided negative performance assessments. Buckeye was assigned high
performance risk. Agency Report, Tab 8, Evaluation of Buckeye Parks
Services, Inc., at 3-4; Agency Report, Tab 9, Notice of Adverse Performance
Assessment, at 1.

The agency notified Buckeye of the negative performance comments and
requested that Buckeye respond to these comments. Buckeye responded by
facsimile, with a memorandum dated January 17, generally challenging the
negative assessments. Agency Report, Tab 10, Memorandum from Buckeye Park
Services, Inc. to the Contracting Officer (Jan. 17, 1999). The agency
discussed the evaluation and Buckeye's response with the references,
conducting a teleconference with personnel at Cherry Point on January 20.
Contracting Officer's Statement of Facts and Findings at 1. Cherry Point and
Keesler confirmed their initial negative assessments. Agency Report, Tab 8,
at 4-5. The agency's reevaluation of Buckeye's past performance, based on
the additional information, did not result in any change in the original
assessment of Buckeye as a high performance risk. Id. at 5.

There were three contracts at issue, the Cherry Point contract and two at
Keesler for the same work as the instant solicitation. [1] The first Keesler
contract had been awarded to Hubbard Commercial Mowing, Inc. (HCM); the
protester purchased HCM and performed the final 6 months of the contract.
Agency Report, Tab 8 at 3-4; Agency Report, Tab 12 at 3rd unnumbered page.
The protester then received a 3-month bridge contract to perform the
services, pending award of the protested contract. Agency Report, Tab 12 at
3rd - 4th unnumbered pages. As noted above, all references were negative,
even after consideration of the protester's January 17 response. On January
22, the contracting officer advised the source selection authority (SSA) of
the evaluators' assessment that the past performance information resulted in
a determination of high performance risk. Id. The contracting officer
determined that there was significant doubt that Buckeye could or would
perform, if awarded a contract. Id. at 4th unnumbered page. The SSA accepted
the contracting officer's determination that Buckeye and nine other offerors
had no reasonable chance for award and approved a competitive range
consisting of the five remaining proposals. Id. at 1st unnumbered page.
Buckeye requested and received a debriefing on February 17, and this protest
followed.

Federal Acquisition Regulation (FAR) sect.sect. 15.305(a) and 15.306(c) require
agencies to evaluate proposals by assessing their relative qualities based
solely on the factors and subfactors stated in the solicitation and, if
discussions are to be conducted, establish a competitive range. Our Office
does not independently reevaluate proposals but only reviews the agency's
evaluation of proposals and determination to exclude a proposal from the
competitive range for reasonableness and consistency with the criteria and
language of the solicitation. SDS Petroleum Prods., Inc., B-280430, Sept. 1,
1998, 98-2 CPD para. 59 at 4; WP Photographic Servs., B-278897.4, May 12, 1998,
98-1 CPD para. 151 at 3. An agency may base its evaluation of past performance
upon it reasonable perception of inadequate prior performance, regardless of
whether 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. Buckeye presents nothing to show that the agency's evaluation of
past performance and its consequent determination to exclude the protester
from the competitive range was either unreasonable or inconsistent with
solicitation criteria.

In its initial response to the Cherry Point report, Buckeye characterized
the contract deficiency reports (CDR) as "minimal in nature." Agency Report,
Tab 10 at 1. The protester generally attributed its performance problems to
errors in government maps and contended that it had sufficiently responded
to the CDRs by submitting a claim for equitable adjustment. Id. While
admitting some errors in its maps, personnel at Cherry Point generally
reported that these errors had nothing to do with the protester's failure to
perform in accordance with the contract, or, in some cases, to perform at
all. Agency Report, Tab 11, Marine Corps Air Station Cherry Point Written
Reply to Rebuttal. Cherry Point personnel characterized the protester's
performance as the worst of any contractor in the installation's 25-year
history, and attributed Buckeye's performance problems to Buckeye's lack of
direct management attention and lack of project management at the
installation. Agency Report, Tab 8 at  4. Cherry Point also noted the
protester's failure to perform during the last 3 months of the contract.
Keesler similarly confirmed its negative assessment. Id. at  4-5.

The record specifically shows that Cherry Point issued several CDRs, to
which the protester did not respond: for raking clippings rather than
dispersing them uniformly as required by contract; for failure to complete
work on two runways, for waiting 3-4 days to trim after mowing (where the
contract required the work be done concurrently); for failure to complete
the semi-annual cut of the airfield (work still undone 6 weeks after the
required completion date); and for safety violations. Buckeye admitted that
it "did not respond to the CDRs but did however send a request for
additional compensation." Agency Report, Tab 10 at 1. Cherry Point also
pointed out that, regardless of the merits of the protester's claim for
equitable adjustment, there was a lack of project management personnel on
the installation to address the agency's concerns, and the protester had
failed to perform at all during the last 3 months of the contract. Agency
Report, Tab 8 at 4. Additionally, at Cherry Point, local law enforcement
officials had seized some of the protester's grounds equipment because of
late payments to subcontractors. Agency Report, Tab 8 at  3. In our view,
consideration of the reported deficiencies and the overall negative
assessment of Buckeye's performance at Cherry Point was proper,
notwithstanding the protester's pending claim for additional compensation.
See R.C.O. Reforesting, B-280774.2, Nov.  24, 1998, 98-2 CPD para. 119 at 2-3
(agency may base evaluation upon its own reasonable perception of inadequate
past performance, notwithstanding the protester's pending appeal under the
Contract Disputes Act of 1978, 41 U.S.C. sect.sect. 601-13 (1994).

While Buckeye argues that it was improper to consider this information
without allowing it a chance to respond, the record contains both a
memorandum in which the agency advises the protester of the negative
assessment from Cherry Point and a memorandum from Buckeye responding to the
assessment. We think Buckeye was given a reasonable opportunity to rebut the
negative assessments but offered no persuasive evidence that Cherry Point's
negative assessment was not supported.

The references at Keesler reported issuing CDRs during the 6 months where
Buckeye succeeded HCM, as well as identifying unsatisfactory performance
during the current, 3-month bridge contract. Agency Report, Tab 8 at 4.
Keesler also reported that Buckeye's management was generally unavailable,
making it difficult to achieve a timely resolution of problems. Id. at 3-4.
In its response, Buckeye attributes problems under the initial, 6-month
contract to having to address HCM's poor management and work ethic.
Protester's Comments on Agency Report, Apr. 5, 1999, at 2. It attributes its
problems on the 3-month bridge contract to the agency's insistence on
performance in accordance with requirements not enforced during the initial
6-month contract. Id. at 6-8. The protester attributed communication
problems to poor telephone service at Keesler. Agency Report, Tab 10 at  2.
Buckeye also explains that it was unable to perform certain work because it
did not have the necessary license to spray herbicide and insecticide as
required by the contract. Protester's Comments on Agency Report, Apr. 5,
1999, at 3. In general, Buckeye represents that its performance at Keesler
was frustrated by the need to bring HCM personnel up to speed, and that the
agency is unfairly insisting upon performance that it did not require of HCM
(or of Buckeye under the 6-month contract). Id. at 2, 6-8. References at
Keesler report issuing 22 CDRs and deducting $26,100 for substandard
performance. Agency Report, Tab 9 at 1. The record appears clear that,
notwithstanding its criticism of HCM, Buckeye was reasonably viewed as
responsible for the problems in its own performance of the contracts at
Keesler, including admittedly not performing to contract requirements, lack
of a license, and poor communications.

Although Buckeye provided some excuses for its poor performance at Cherry
Point and Keesler, the record supports the agency's negative assessment of
Buckeye's past performance and its conclusions that, because of Buckeye's
contract management problems and failure to meet performance obligations,
the protester should receive a high performance risk rating. Since we find
no basis to question Buckeye's rating in this regard, we have no basis to
conclude that the Air Force improperly excluded Buckeye's proposal from the
competitive range. [2]

The protest is denied.

Comptroller General

of the United States

Notes

1. As noted above, Buckeye identified five contracts in its proposal, and
two were outside the 3-year period. The agency did not give significant
consideration to a listed contract at Homestead AFB, which was apparently
performed by another firm, with Buckeye taking over at close out. Evaluators
instead considered the 6-month period where Buckeye took over services at
Keesler from HCM, although the protester did not reference that contract in
its proposal. Agency Report, Tab 8 at 3-4.

2. Buckeye has subsequently challenged the responsibility of the offerors
remaining in the competitive range. The protester provides details on only
one of these offerors. It contends that Metcalfe Grounds Maintenance, which
is performing under a 3-month bridge contract pending the resolution of this
protest, does not have the mandatory state licenses to apply herbicide and
pesticide and does not have a licensed tree surgeon on its payroll. We
previously addressed these identical contract requirements under a protest
filed by Buckeye against the award to Metcalfe under the bridge contract. We
concluded that these requirements are general performance requirements that
the successful offeror may address after award. Buckeye Park Servs., Inc.,
B-282282, Apr. 27, 1999, 99-1 CPD para. at 2.