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.