TITLE:   J. A. Jones Grupo de Servicios, SA, B-283234, October 25, 1999
BNUMBER:  B-283234
DATE:  October 25, 1999
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J. A. Jones Grupo de Servicios, SA, B-283234, October 25, 1999

Decision

Matter of: J. A. Jones Grupo de Servicios, SA

File: B-283234

Date: October 25, 1999

Douglas L. Patin, Esq., and Peter J. Skalaban, Jr., Esq., Spriggs &
Hollingsworth, for the protester.

James G. McLaren, Esq., Naval Supply Systems Command, 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

1. Message--sent before submission of initial offers--reminding incumbent
contractor to follow solicitation instructions for submitting information
for evaluation, rather than rely upon the agency's familiarity with
incumbent's capabilities, is not evidence of bias where apparent purpose of
message was to enhance competition under the procurement, and the message
would have been inapplicable to other potential offerors, who were not the
incumbent.

2. There is no basis for sustaining protest allegation that evaluation was
unreasonable because incumbent received "outstanding" ratings, where
protester fails to raise specific challenges to the evaluation of the
incumbent's proposal.

3. Where section of solicitation providing instructions on preparation of
offers asked for information about past performance on "directly related or
similar" contracts "similar in scope, magnitude and complexity" to the
instant effort, agency reasonably considered similarity of contracts
involved in its past performance evaluation, despite statement in section M
that agency would base its past performance evaluation on customer
satisfaction.

DECISION

J.A. Jones Grupo de Servicios, SA, protests the award of a contract to
InterjetServe under request for proposals (RFP) No. N68171-99-R-0024, issued
by the Naval Regional Contracting Center in Naples, Italy, for air terminal
services at Rota, Spain.

The protester asserts that the agency was biased in favor of Interjet, that
the evaluation of proposals was unreasonable and inconsistent with the
solicitation criteria and that the selection of Interjet was unjustified.

We deny the protest.

BACKGROUND

On April 12, 1999, the agency issued the RFP for a fixed-price contract for
all personnel, equipment, computers, tools, materials, supervision,
consumables and supplies necessary to perform air terminal and ground
handling services at Rota. The RFP established an 8-month base period of
performance, with nine 1-year option periods and a tenth option period of
4 months. The agency had earlier--on February 17--issued a draft
solicitation, with a cutoff date of March 25, 1999 for comment.

The solicitation contained a statement of work (SOW) that required a
contractor to provide all personnel, equipment, materials, and services to
perform air terminal and ground handling services for United States
military, North Atlantic Treaty Organization and Air Mobility Command (AMC)
military and commercial contract aircraft at Rota, 24 hours a day, 7 days a
week. RFP amend. 1, para. 1, at 10. It required a capability for simultaneous
service of five aircraft--three wide bodied (C-17, C-5, DC-10, or larger)
and two narrow body aircraft (C-130, C-9, C-12/C-21), as well the capability
of responding to unforeseen increases in workload (seven aircraft--four wide
body and three narrow body--simultaneously). The SOW provided detailed
information on specific services, among them: Air Terminal Operations Center
operations (ATOC) (Id. para. 1.1, at 10) involving information control, load
planning, capability forecasting, and ramp coordination; cargo services (Id.
para. 1.2, at 12); fleet services involving the loading and unloading of
equipment involved in maintaining lavatories and galleys and cleaning the
aircraft (Id. para. 1.3, at 15); aircraft services including positioning the
aircraft for ground maintenance and marshalling chocks, boarding ladders,
and maintenance stands (Id. para. 1.3.3, at 16); passenger services (Id. para. 1.4,
at 17); communications and management of information systems (Id. para. 1.6,
at 21); and transportation, including aircrew transportation to nearby
hotels and dining (two 20-member crews, within a 50-kilometer radius) and
base transportation (on-base quarters) for up to 40 personnel (Id. para. 1.15,
at 27-28). The SOW also contained requirements for personnel management,
safety, record maintenance, training, security, and quality control.

The solicitation provided for award based on best value, considering
technical acceptability, evaluated on a pass/fail basis, price, and relative
capability. Id. at 98. The agency would determine relative capability on the
basis of past performance and understanding of government requirements. Id.
The RFP stated that the agency would contact each offeror's customers for
information on past performance, defined as "a measure of the degree to
which an offeror satisfied its customers in the past." Id. It directed
offerors to "describe your company's past performance on directly related or
similar Government or commercial contracts and subcontracts that are similar
in scope, magnitude and complexity to that required by the RFP," including
current contracts and those completed within the prior 5 years. Id. at 97.

The solicitation provided that the agency would evaluate each offeror's
relative understanding of the government's requirements and its ability to
perform on the basis of an oral presentation. Id. at 99. This portion of the
evaluation included five factors, as follows: understanding and approach;
management of the operation and key personnel; staffing; phase-in plan; and
risk analysis. Id. The first three factors were equal in importance; the
combined weight of the fourth and fifth factors, which were equal in weight
to each other, was equal to that of each of the first three factors. Id. The
RFP advised offerors what information to provide at their oral presentation.

Prior to the receipt of offers on May 24, the contracting officer and the
incumbent contractor, Interjet, exchanged several electronic mail messages,
chiefly related to the release of information concerning Interjet's existing
labor agreements. In one of these, dated May 6, the contracting officer
addressed and advised the incumbent as follows:

Buon giorno[.] This is just a little gentle advice. When it comes to oral
presentations, don't make the mistake of thinking the customer already knows
you and how well you understand the requirement - so you don't need to
prepare/present as good a case as a "newcomer". The oral presentations will
be evaluated on what the panel hears that day. I only offer this as good
advice, for I have seen incumbents who went into the process with a "you
know me"and in the process were not very convincing.

Copy of Electronic Mail Message, Subject: Sending E:mail to NRCC, from the
Contracting Officer to Interjet (May 6, 1999).

The incumbent expressed its gratitude--"Muchisimas gracias"--by return
electronic mail on the next day. Copy of Electronic Mail Message, Subject:
Sending E:mail to NRCC, from Interjet to the Contracting Officer (May 7,
1999). The agency received three offers, including those of Jones and
Interjet. Interjet made its oral presentation on June 9, and Jones made its
presentation on June 11. Evaluators assigned an overall "better" rating to
Jones's proposal and an overall "outstanding" rating to Interjet's proposal.
[1] On June 16, the contracting officer established a competitive range,
eliminating one of the three proposals received; she noted a need for
discussions with the two remaining offerors. In the case of Jones, the major
issues involved Jones's [Deleted] on the Navy's price estimate. [2] In the
case of Interjet, one issue involved the incumbent's separate pricing of
start up costs, which the RFP required offerors to include in their base
year prices. At a meeting on June 28, Interjet provided the contracting
officer with a corrected pricing schedule that conformed to the RFP
instructions.

As a result of discussions, the contracting officer, who performed the past
performance evaluations, rated Jones as "better" for past performance and
Interjet as "outstanding." On June 30, she provided Jones and Interjet with
the "opportunity to submit a final proposal revision (pricing)." Copy of
Electronic Mail Messages, Subject: Final Proposal Revisions-N68171-99-R-0024
(June 30, 1999). Jones attempted to submit new proposed staffing, but the
agency, consistent with the solicitation and its June 30 message, declined
to consider any supplement to the oral presentation, except as support for
the protester's final pricing. Interjet submitted an untimely final offer,
but the contracting officer used the schedule submitted during discussions
on June 28 to evaluate Interjet's final offer. On July 6, contracting
personnel prepared a business clearance memorandum (BCM), which noted
Jones's lower price but concluded that "a 5.96% differential ($290,000 a
year) is a modest and marginal differential to pay for the higher
(outstanding) capability of Interjet, a contractor who, from every
indicator, will perform in an outstanding, quality, timely manner, with the
highest customer satisfaction, for the next 10 years." Agency Report,
Post-Negotiations BCM, at 11. The agency's Contract Review Board endorsed
this recommendation on July 9, and the contracting officer, acting as the
source selection authority, selected Interjet as the "best value."

By letter dated July 12, the agency notified Jones of its selection decision
and offered to provide the unsuccessful offeror with a debriefing, an offer
immediately accepted. During the debriefing, by telephone on July 13, Jones
questioned some of the agency's conclusions. This protest followed.

INTERJET EVALUATION

The protester contends that the contracting officer, who performed the past
performance evaluation, drafted and essentially controlled the written form
of the evaluators' findings, and made the selection decision, which the
contract review board approved, was biased in favor of the awardee. [3]
Jones essentially contends that the "outstanding" ratings received by
Interjet were irrational, considering the merits of the two proposals, and
that there was no basis to pay a premium for the awardee's proposal.

Where a protester alleges bias on the part of government officials, the
protester must provide credible evidence clearly demonstrating a bias
against the protester or for the awardee and showing that the agency's bias
translated into action that unfairly affected the protester's competitive
position. Dynamic Aviation--Helicopters, B-274122, Nov. 1, 1996, 96-2 CPD
para. 166 at 4. Here, we find nothing in the record, including a hearing in
which the contracting officer testified, to show that the contracting
officer was biased, or that the evaluation or source selection decision was
unreasonable.

As evidence of bias, Jones points to the generally "playful" tone of the
message exchanges between the contracting officer and the awardee, quoted
above, and asserts that her May 6 message, warning the incumbent against
complacency based on the agency's knowledge of its capabilities, was
improper coaching and should have been shared with the other offerors. We
see nothing improper in the exchange, which occurred prior to submission of
initial offers; rather, the advice provided by the contracting officer
appears to have been no more than a conscientious effort to enhance
competition by ensuring that a significant competitor--the incumbent
contractor--avoid a mistake often made by incumbents, which is failing to
provide information needed for the evaluation, in the belief that the agency
already has that information. The message here, in fact, refers to the
contracting officer's past experience with such problems. We have no basis
to object to the contracting officer's "gentle advice," apparently given for
the purpose of enhancing competition. Cf. Fort Biscuit Co., B-247319, May
12, 1992, 92-1 CPD para. 440 at 3 (extending time for submission of best and
final offers to accommodate an offeror who failed to submit a timely offer
unobjectionable, where purpose is to enhance competition). Moreover, since
the advice related to incumbency and therefore was applicable only to
Interjet, we see no benefit to be served by sharing the exchange with other
offerors, who were not incumbents.

Similarly, we see no merit to the protester's assertion that bias was
evident in the fact that the agency accepted untimely comments on the draft
RFP from Interjet. Such comments are for the benefit of the agency. Further,
the comments of the incumbent contractor are particularly valuable in
defining what a draft solicitation may have added or left out of the SOW. In
any event, Jones makes no showing that the agency's consideration of those
comments resulted in a competitive advantage for Interjet or unfairly
affected Jones's competitive position, nor is it at all clear how such a
result could occur merely by considering the incumbent's comments.

Jones contends that it was unreasonable for Interjet to receive so many
ratings of "outstanding," as compared to Jones's "better," and that the only
explanation for this difference is the incumbency of Interjet, and that
Interjet's incumbency improperly influenced the selection decision. In
reviewing an agency's evaluation of proposals, our Office will question the
evaluation only where it lacks a reasonable basis or is inconsistent with
the RFP's stated evaluation criteria. TEAM Support Servs., Inc., supra, at
7.

The SSEB report, which we have reviewed, identifies specific strengths in
the Interjet proposal, as compared with the Jones proposal, to support the
higher ratings assigned to the Interjet proposal as reasonable and
consistent with the stated criteria. The record shows that the evaluators
rated the incumbent's proposal "outstanding" for all five factors of the
oral presentation--understanding and approach, management of the operation
and key personnel, staffing, phase-in plan, and risk analysis--and
"outstanding" on the oral presentation overall. It contains detailed
information that supports these ratings, and the board's findings
consistently follow the stated evaluation criteria. Except in one instance,
as noted below, Jones raises no specific challenge to any of the
"outstanding" ratings that Interjet received, or to the findings of
evaluators that formed the foundation for those ratings.

The only specific objection to the evaluation of the awardee's proposal
raised by Jones relates to the risk analysis. Jones points out that the
evaluators noted that Jones's proposal, which received a "better" rating for
risk analysis, might have received a higher rating if its contract at
[Deleted]. Specifically, the record shows that, to mitigate the risk of
equipment failure, the protester had indicated that [Deleted]. While Jones
argues that Interjet, by contrast, had no other contract from which it might
transfer assets in the event of equipment failure, and therefore should not
have received an "outstanding" rating. Interjet proposed to purchase new
equipment to reduce breakdowns and represented that it had arranged to rent
or borrow vehicles in the case of breakdown. In short, [Deleted] while
Interjet's proposal did not. Therefore, in our view, it was not unreasonable
for evaluators to rate the one proposal as "outstanding," while rating the
protester as only "better," given the different strategies that they
proposed for addressing equipment failure risk.

Other than the challenge to the risk analysis evaluation, which we conclude
has no merit, Jones makes no specific challenge to any of the "outstanding"
ratings received by Interjet. Based on the record, we cannot conclude that
the "outstanding" ratings assigned to Interjet's proposal were unreasonable
in any area, or that the overall "outstanding" rating was either
unreasonable or inconsistent with the RFP.

JONES EVALUATION

Jones contends that the RFP provided for an evaluation of past performance
based on "customer satisfaction," rather than on performance of similar
contracts. It was therefore improper, the protester asserts, for the agency
to consider the size of its prior contracts during the past performance
evaluation.

As noted above, the RFP defined past performance as "a measure of the degree
to which an offeror satisfied its customers in the past." RFP amend. 1,
at 98. However, it also asked offerors to submit information on contracts
"similar in scope, magnitude and complexity to that required by the RFP."
Id. at 97. We note, further, that whatever language an RFP may use, Federal
Acquisition Regulation (FAR) sect. 15.305(a)(2) requires that contracting
officers at least consider the relevance of past performance information in
their evaluations. While we have held that the RFP must advise offerors of
the criteria by which the agency will judge the merit of their proposals, an
agency may consider specific, albeit not expressly identified, matters
logically encompassed by or related to the stated criteria. Science
Management Corp., B-207670, Sept. 23, 1983, 83-2 CPD para. 362 at 5. Indeed, we
consider it both illogical and unreasonable to presume that an agency will
pay no attention to the size and similarity of past contracts in its
evaluation, factors that are germane to the relevance of the past
performance information, especially where, as here, the RFP requires
offerors to submit such information, and we cannot find the agency's
evaluation of past performance here unreasonable.

Jones also objects to certain of the agency's evaluation findings regarding
its proposal. For instance, evaluators, who rated the protester as "better"
for understanding of communication/management of information systems, noted
that [Deleted]. Jones argues that the RFP did not require such a commitment.
The record, however, does not show that evaluators treated a commitment from
the systems administrator as a requirement. Rather, the evaluators believed
only that such a commitment would have strengthened a proposal that
essentially offered that individual as a means of meeting RFP requirements
[Deleted]. We cannot find the evaluation unreasonable in this regard.

Evaluators also rated the protester's proposal as "better" for understanding
of transportation services. In assigning this rating, evaluators concluded
that the protester may have assumed that the solicitation overstated
requirements, in terms of the number of people who would require
transportation at any given time; however, they concluded that the backup
capabilities proposed would be sufficient to meet requirements. Jones
contends that it was inconsistent to conclude that it had underestimated
requirements, while also concluding that it had proposed sufficient capacity
to meet those requirements. The evaluators concluded that Jones had
sufficient capability if they factored in the proposed backup resources
capability. It was not unreasonable, as here, for the agency not to give the
Jones proposal the highest rating, where the proposal offers resources that
provide sufficient capacity in normal operations, only if its "backup"
resources are used.

As noted above, the agency's request for final proposal revisions was an
invitation for revised pricing, and the agency declined to consider Jones's
proposed staffing revisions. Jones protests this refusal. We consider the
refusal to consider these changes, however, consistent not only with the
request for final revisions but with the initial RFP, which provided for an
evaluation based on the offeror's oral presentation. [4]

SOURCE SELECTION

With regard to the selection decision, the solicitation provided for award
on a best value basis, with relative capability of equal importance with
price in the selection decision. The selection decision here, came down to
whether the "'marginal' difference in capability is worth the
‘marginal' difference in price." Post-Negotiation BCM at 7. As quoted
above, the contracting officer concluded that the awardee's "outstanding"
proposal was worth the 5.96 percent premium compared with Jones proposal. We
have no basis to find that it was unreasonable to select Interjet
considering the differential here and the RFP provisions for award based on
best value.

To the extent the protester argues that the agency could not take into
consideration that the incumbent contract "required little attention and
management," Protester Hearing Comments at 1, we think it was entirely
appropriate for the evaluators and contracting officer to consider this
favorable past performance. This is precisely the type of information that
should be considered in a source selection. TEAM Support Servs., Inc.,
supra.

The protest is denied.

Comptroller General
of the United States

Notes

1. Jones's presentation received "better" ratings for all criteria except
phase-in plan, for which it received a "satisfactory" rating, and Interjet
received "outstanding" ratings for all criteria.

2. The agency initially provided a price estimate, using the existing
contract as a baseline, inviting offerors to identify areas where
solicitation requirements were driving prices up, so that the agency might
revise its requirements to gain a price advantage. Jones's comments
indicated that the agency had underestimated inflation; the agency increased
the rate. [Deleted.]

3. The protester appears to suggest that it was improper for the contracting
officer here to have multiple roles in the procurement. We see nothing
inherently wrong with the contracting officer's multiple roles in this
procurement, nor does the protester identify any impropriety. See TEAM
Support Servs., Inc., B-279379.2, June 22, 1998, 98-1 CPD para. 167 at 3-6.

4. At a hearing conducted for the purpose of resolving the bias issues,
Jones asserted, for the first time, that, while the agency evaluated past
performance for similarity of past contracts, there was no basis to rate
Interjet's past performance as "outstanding," since the ATOC operation had
never been performed by Interjet under its prior contracts. In this regard,
although the contracting officer testified that the ATOC operation was only
a "little" part of the operation, she also inconsistently referred to it as
the "heart" of the operation. Jones Post-Hearing Comments at 3-4. We note
that the record here shows that, although Interjet was never responsible for
ATOC operations under its current contract, it was intimately familiar with
the overall operation and that its technical proposal showed "outstanding"
understanding of the requirement. Ultimately, however, this challenge to the
past performance evaluation, first raised at the hearing on September 14,
4 weeks after the protester received the complete record from the agency, is
untimely. 4 C.F.R. sect. 21.2(a)(2) (1999).