TITLE:   U. S. Constructors, Inc., B-282776, July 21, 1999
BNUMBER:  B-282776
DATE:  July 21, 1999
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U. S. Constructors, Inc., B-282776, July 21, 1999

Decision

Matter of: U. S. Constructors, Inc.

File: B-282776

Date: July 21, 1999

Johnathan M. Bailey, Esq., Law Office of Theodore M. Bailey, for the
protester.

Lee W. Crook, III, Esq., General Services Administration, for the agency.

Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where the solicitation provided for award on the basis of initial proposals
without conducting discussions and expressly required offerors to furnish
with their initial proposals three completed past performance reference
questionnaires, agency reasonably determined not to communicate with the
protester regarding its performance history where the protester failed to
provide completed questionnaires in its initial proposal.

DECISION

U.S. Constructors, Inc. (USC) protests the award of a contract to Dover
Elevator Company under request for proposals (RFP) No. GS-07P-99-UWC-0005,
issued by the General Services Administration for elevator modernization at
the Federal Building/Courthouse, Tyler, Texas. USC challenges the agency's
decision not to communicate with it concerning its performance history.

We deny the protest.

The RFP contemplated the award of a fixed-price contract to the offeror
whose proposal was most advantageous to the government, technical evaluation
factors and price considered. RFP at 1. The RFP included the following
technical evaluation factors: (1) experience and past performance; (2)
number of similar/comparable projects completed; (3) quality of references;
and (4) percentage of work to be performed by offeror. Id. at 5-6. The
experience and past performance factor was weighted at 40 percent and the
other three factors were each weighted at 20 percent. Each technical
evaluation factor could receive a maximum raw score of 7 points, which then
would be multiplied by the assigned factor weight. Under this evaluation
scheme, an offeror's proposal could receive a maximum technical score of
700 points. Id. The RFP advised that award could be made without
discussions. Id. at 1.

As relevant here, the RFP advised that prior to the submission of proposals,
offerors were responsible for obtaining past performance and experience
information for similar/comparable projects performed. Id. at 4. The RFP
instructed that past performance and experience questionnaires, copies of
which were included in the solicitation package, were to be completed by
references and submitted to the offeror in sealed envelopes; the offeror was
required to submit the sealed envelopes with its technical proposal. Id. The
agency's evaluation of proposals for technical evaluation factors 1 through
3 would be dependent upon information provided by the references.
Contracting Officer's (CO) Statement at 3. For example, for the experience
and past performance factor, the agency would review the references to
determine whether an offeror's performance on the majority of similar
contracts was satisfactory or better, and whether the majority of contract
references indicated that they would contract with the offeror again for the
same services. RFP at 5. Similarly, the agency would review the references
for the similarity/comparability of three projects completed within the past
5 years and to ensure that reference data was concurrent with information
provided in the offeror's technical proposal. Id.

Four firms, including USC and Dover, submitted initial proposals by the
closing time on May 7, 1999. Only Dover submitted completed reference
questionnaires in accordance with the terms of the RFP. Dover received one
"excellent" and two "very good" ratings from its references. Agency Report,
Tab 6C, at 1-3. In addition, two references commented that "[Dover] is very
professional in [its] approach to this type work," and "[t]he ability to
conform to the building schedules and the willingness to perform made Dover
the clear choice for this project. Follow up to date has been great." Id. at
1-2.

In contrast, USC listed its references, including a brief description of the
project and work performed, but told the agency that "[y]ou can check with
them [i.e., the references]." Agency Report, Tab 5A, USC Technical Proposal
Cover Letter, May 6, 1999. USC stated that all of its projects in the last
few years were government jobs, and "[the government references] will only
give a rating to another government agency." Id. Although not required by
the solicitation to do so, the contracting officer called USC's three listed
references. The first reference from a Veterans Affairs medical center rated
USC "poor," stating "Scheduling: poor compliance with contract schedule.
Project Management: poor-do[es] not adhere to contract
requirements-difficult to manage contractor . . . ." Agency Report, Tab 5C,
at 1-2. The contracting officer left a message for the second reference at
the Naval Air Station in Corpus Christi, Texas; this reference did not
return the call prior to award. Id. at 4. Finally, the contracting officer
reported that the telephone service message twice indicated that the
telephone number for the third reference was no longer a working number, and
the contracting officer, therefore, was unable to speak to, or to leave a
message for, this reference. Id. at 6.

The agency determined that USC appeared to have similar/comparable
experience in elevator work, but noted that not only did USC fail to submit
completed past performance reference questionnaires, but the only reference
responding to the contracting officer on USC's behalf reported the firm's
performance was poor in the areas of compliance with contract schedule and
contract requirements. Agency Report, Tab 10, Source Selection Evaluation
Board Final Report and Source Selection Decision, at 2. Accordingly, while
USC's proposal, which received a total score of 400 points, was given
maximum credit for the similar/comparable projects evaluation factor, it was
downgraded for the experience and past performance factor and it received no
credit for the quality of references factor. Id. at 2-3. On the other hand,
Dover's proposal received maximum credit for each technical evaluation
factor, for a total score of 700 points, as Dover submitted completed
reference questionnaires which demonstrated the firm's excellent or very
good experience and past performance, the firm's completion of
similar/comparable projects, and the references' familiarity and
satisfaction with Dover's work. Id. at 3-4.

Despite the fact that USC submitted the low priced proposal, its price being
approximately 8 percent ($29,954) lower than Dover's second-low priced
proposal, CO Statement at 5, the agency did not consider USC's proposal for
award because the firm failed to submit completed past performance reference
questionnaires and the limited information available to the contracting
officer prior to award indicated poor performance by USC. Agency Report, Tab
10, at 5. On May 14, the agency awarded a contract without discussions to
Dover, which submitted a technically superior proposal. (The agency made its
tradeoff decision between Dover and Offeror A, a firm whose third-low priced
proposal received 560 points.) Id. at 3-5. [1]

USC, which does not meaningfully challenge the underlying evaluation of its
proposal, [2] complains that the contracting officer abused her discretion
by not affording the firm an opportunity to address its past performance
history prior to the agency's award on the basis of initial proposals.

Federal Acquisition Regulation (FAR) sect. 15.306(a)(2), which addresses
clarifications and award without discussions, states in relevant part that
"[i]f award will be made without conducting discussions, offerors may be
given the opportunity to clarify certain aspects of proposals (e.g., the
relevance of an offeror's past performance information and adverse past
performance information to which the offeror has not previously had an
opportunity to respond)." Pursuant to this provision, a contracting officer
has broad discretion to decide whether to communicate with a firm concerning
its performance history. We will review the exercise of such discretion to
ensure that it was reasonably based on the particular circumstances of the
procurement. Rohmann Servs., Inc., B-280154.2, Nov. 16, 1998, 98-2 CPD para. 134
at 8-9.

Applying this standard to the circumstances of this procurement, we believe
the contracting officer reasonably exercised her discretion in deciding not
to communicate with USC concerning its performance history. In this regard,
USC does not dispute that it failed to comply with the RFP requirement to
submit completed past performance reference questionnaires in its initial
proposal. USC also does not dispute that the contracting officer did more
than was required by the terms of the solicitation by calling each of the
firm's listed references. The record shows that the contracting officer
reached one reference, who reported poor schedule compliance and project
management for USC; she left a message for another USC reference that went
unanswered prior to award; and she was unable to reach the last reference
because the phone number provided by USC for this individual was no longer a
working number. On this record, we think that in the first instance, it was
incumbent upon USC to comply with the RFP requirement to furnish completed
past performance reference questionnaires in its initial proposal before it
could credibly argue that it was entitled to communications regarding its
performance history.

Where an offeror like USC fails to satisfy its burden to submit a proposal
adequate for evaluation, and where the offeror is on notice that the agency
intends to make award based on initial proposals without discussions, we
have no basis to object to a contracting officer's decision not to
communicate with the firm regarding its performance history. See, e.g.,
Booz-Allen & Hamilton, Inc., B-275934.2, May 29, 1997, 97-1 CPD para. 222 at 8.
Moreover, since under the RFP the technical evaluation factors were more
important than price, and USC's price was not so low as to be considered
advantageous, and where two reasonably priced proposals remained in the
competition, the contracting officer's decision not to communicate with USC
during the evaluation concerning the firm's performance history was
reasonable. Rohmann, supra, at 9. [3]

Finally, USC is not an interested party to challenge the agency's decision
to award to Dover, which submitted a technically superior, higher priced
proposal. Under our Bid Protest Regulations, a party is not interested to
maintain a protest if it would not be in line for award if the protest were
sustained. 4 C.F.R. sect. 21.0(a) (1999). Here, since the agency reasonably
eliminated USC's proposal from consideration for award, and since, in
addition to Dover's proposal, the proposal of Offeror A remained eligible
for award, USC is not an interested party to challenge the agency's tradeoff
decision which resulted in an award to Dover because, even if its protest
were sustained, Offeror A, not USC, would be in line for award. See, e.g.,
Marine Pollution Control Corp., B-270172, Feb. 13, 1996, 96-1 CPD para. 73 at
3-4; Dick Young Prods. Ltd., B-246837, Apr. 1, 1992, 92-1 CPD para.  336 at 8.

The protest is denied.

Comptroller General of the United States

Notes

1. Only after award, on May 26, did USC's second reference indicate to the
contracting officer that USC did "good work." Agency Report, Tab 5C, at 4.

2. We have no basis to object to the agency's decision to assign no credit
to USC's proposal for the quality of references evaluation factor since the
firm did not return any completed questionnaires with its initial proposal
and the limited information available to the contracting officer prior to
award reflected poor past performance for USC.

3. Although it attempted to do so, USC has failed to meaningfully
distinguish the facts of this case from those in Rohmann. For example, USC
persistently argues that the agency ignored positive performance information
from its second reference. However, the record clearly shows that the second
reference reported favorably on USC's performance only after the award was
made under this RFP.