BNUMBER: B-282247
DATE: March 31, 1999
TITLE: Oahu Tree Experts, B-282247, March 31, 1999
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Matter of:Oahu Tree Experts
File: B-282247
Date:March 31, 1999
Nancy O. Dix, Esq., Mary E. Shallman, Esq., Matthew C. Bernstein,
Esq., Gray Cary Ware & Freidenrich, LLP, for the protester.
John E. Lariccia, Esq., Department of the Air Force,, for the agency.
Christine F. Davis, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
1. General Accounting Office dismisses protest that an agency
knowingly relied upon biased past performance information in a
Contractor Performance Assessment Report (CPAR) in evaluating the
protester's past performance, where the underlying issue in the
protest--whether the CPAR was biased--is the subject of litigation
before a court of competent jurisdiction.
2. Protest that an agency assertedly violated a solicitation
requirement that all references be evaluated is legally insufficient,
where the solicitation contains no such requirement.
3. Protest to General Accounting Office that agency failed to
properly distribute answers to questions is untimely when filed more
than 10 days after the denial of an agency-level protest of this same
issue.
DECISION
Oahu Tree Experts protests the award of a contract to Maintenance
Engineers under request for proposals (RFP) No. F64605-98-R-0035,
issued by the Department of the Air Force, for ground maintenance
services at Hickam Air Force Base, Hawaii.
We dismiss the protest.
Oahu was the incumbent contractor for the solicited services. Oahu
listed the incumbent contract and five other relevant contracts as
past performance references.[1] The agency rated Oahu's past
performance as "poor" under a past performance/experience factor. The
agency allegedly based this rating on a Contractor Performance
Assessment Report (CPAR) issued in connection with Oahu's incumbent
contract, without contacting the other past performance references in
Oahu's proposal. The CPAR included "marginal" ratings in two
evaluated areas.
During the proposal evaluation period of the instant procurement, Oahu
challenged the "marginal" ratings in its CPAR in federal district
court. Charles R. Tasker d/b/a Oahu Tree & Stump Removal Experts vs.
United States, No. CV99 00085 (D. Haw., Feb. 2, 1999). In its
complaint, Oahu alleged that the CPAR reviewing official assigned the
"marginal" ratings to retaliate against Oahu, which had reported him
for ethical violations. Id. at 5. Oahu requested various forms of
equitable relief to correct the allegedly improper CPAR. Id. at
12-13. The complaint did not mention the instant procurement.
The agency awarded the instant contract to Maintenance Engineers on
March 1, 1999, and this protest was filed on March 10, five days after
Oahu's debriefing.
Oahu protests the agency's reliance on the CPAR in its past
performance evaluation. According to Oahu, the agency was aware that
the reviewing official responsible for the CPAR was biased and that
the "marginal" ratings were vindictive and did not accurately reflect
Oahu's performance. Protest at 2-3.
We dismiss this allegation because it involves a matter that is the
subject of litigation in federal court. 4 C.F.R. sec. 21.11(b) (1999).
The matter involved in this protest is whether the contracting agency
knew the "marginal" CPAR ratings to be motivated by bias, instead of
an impartial assessment of the protester's performance. To answer
this question, our Office must first determine whether bias did, in
fact, taint the ratings -- the same question posed in Oahu's federal
complaint. While Oahu correctly observes that its federal complaint
does not mention the instant procurement and seeks different relief
(i.e., the correction of the CPAR rather than the termination of the
awardee's contract), these differences do not overcome the fact that
Oahu has placed the same facts in issue before both our Office and the
federal court. Compare Protest at 2-3 with Charles R. Tasker d/b/a
Oahu Tree & Stump Removal Experts, supra at 3-5. We therefore dismiss
Oahu's protest that the agency knowingly relied on biased CPAR
ratings, inasmuch as the ratings have been challenged in federal
district court. See 4 C.F.R. sec. 21.11(b); Robinson Enters.--Request
for Recon., B-238594.2, Apr. 19, 1990, 90-1 CPD para. 402 at 2.
The protester also claims that the agency violated the RFP by failing
to contact all of the other five relevant past performance references
listed in Oahu's proposal. Protest at 2. This protest contention is
based on a mischaracterization of the RFP, which provides:
NOTE: The Government reserves the right to limit the number of
references it decides to contact and to contract references other
than those provided by the offeror.
RFP Attachment 3, Instruction to Offerors. Moreover, there is no
requirement that an agency contact all of an offeror's references.
OMV Medical, Inc.; Saratoga Medical Center, Inc., B-281387 et al.,
Feb. 3, 1999, 99-1 CPD para. at 4. Thus, this protest contention, as
alleged, fails to state a legally sufficient basis for protest. See 4
C.F.R. sec. 21.1(f), 21.5(f). Furthermore, to the extent that Oahu
protests that the agency should have contacted its other references
because the CPAR did not provide an impartial basis for the past
performance evaluation, this argument is another permutation of the
issue before the federal court, and thus not for our consideration.
See 4 C.F.R. sec. 21.11(b).
Oahu also argues that the Air Force should have amended the
solicitation to incorporate the answers to various questions asked by
Oahu. This allegation concerns an alleged solicitation impropriety,
see Texnokpatikh, B-245835.2, Feb. 6, 1992, 92-1 CPD para. 153 at 2, and
was not timely raised at our Office. The record reflects that Oahu
filed a timely agency-level protest of this issue before initial
proposals were due on February 2. See 4 C.F.R. sec. 21.2(a)(1). The
agency denied this protest on February 26. To be timely, this issue
should have been protested to our Office within 10 days of the
agency's denial, or by March 8, but Oahu waited until March 10. See 4
C.F.R. sec. 21.2(a)(3). Although Oahu notes that it protested within 10
days of a requested and required debriefing, the debriefing exception
to our timeliness rules does not apply to protests based upon alleged
solicitation improprieties, such as this one.[2] See 4 C.F.R. sec.
21.2(a)(2).
The protest is dismissed.
Comptroller General
of the United States
1. The RFP listed certain criteria for a contract to be considered
relevant to the past performance evaluation. Protest at 4.
2. We decline Oahu's request to invoke the significant issue exception
to our timeliness rules. This exception is limited to untimely
protests that have not been considered on the merits in a prior
decision and that raise issues of widespread interest to the
procurement community. DynCorp, B-240980.2, Oct. 17, 1990, 90-2 CPD para.
310 at 2-4. The issue presented here--whether the agency's failure to
amend the solicitation kept offerors from competing on a common
basis--has been previously addressed by our Office and is not a
significant issue. See United Telephone Co. of the Northwest,
B-246977, Apr. 20, 1992, 92-1 CPD para. 374 at 7.