TITLE:  Beneco Enterprises, Inc., B-283512, December 3, 1999
BNUMBER:  B-283512
DATE:  December 3, 1999
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Beneco Enterprises, Inc., B-283512, December 3, 1999

Decision

Matter of: Beneco Enterprises, Inc.

File: B-283512

Date: December 3, 1999

Clark B. Fetzer, Esq., Kirton & McConkie, for the protester.

M. Dale Marsh, Esq., Cassady, Fuller & Marsh, for Hammer LGC, Inc., the
intervenor.

Col. Nicholas P. Retson and Capt. Elizabeth G. Eberhart, Department of the
Army, for the agency.

Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency unreasonably evaluated proposals under past performance evaluation
factor where the solicitation contemplated a qualitative assessment of the
quality of performance of contracts relative to the size and complexity of
the job order contract (JOC) for construction services being procured, and
the agency gave the highest possible rating to an offeror with no JOC prime
contractor experience and whose experience was in performing relatively
small dollar construction contracts, and a lower rating to an offeror with
extensive, successful performance of JOCs similar to JOC under
consideration.

DECISION

Beneco Enterprises, Inc. protests the award of a contract to Hammer LGC,
Inc. under request for proposals (RFP) No. DABT01-99-R-0002, issued by the
Department of the Army for construction, repair and maintenance of real
property at Fort Rucker, Alabama.

We sustain the protest.

The RFP, issued March 10, 1999, contemplated the award of a fixed-price,
indefinite-delivery, indefinite-quantity job order contract (JOC) for the
construction services for 1 year with 4 option years. RFP at B-3 to B-6 and
amend. 0002, at C-1. Under the JOC, task orders may be issued in any amount
from $2,000 to $300,000; larger orders to a maximum of $2 million may be
issued, with specific approval, for emergency situations. RFP amend. 0002,
at C-2. The guaranteed minimum contract value per year is $300,000 and the
estimated maximum value per year is $5 million or a maximum total of $25
million for all contract years if the annual estimated maximum value is
exceeded. RFP amend. 0002, at C-1, H-3. There are no other limitations on
the number or value of task orders that may be issued under the JOC. RFP at
I-11.

The RFP stated that award would be based on the best overall value to the
government, considering the technical, past performance, price, cost/price
realism and subcontracting plan evaluation factors. RFP at M-1 and amend.
0002, at M-2. Price was to be offered in coefficient form as a percentage of
unit prices for the various construction tasks listed in the unit price book
(UPB), [1] and was to be evaluated on an estimated contract value of
$3 million for the base period and each of the option years. [2] RFP at B-1,
M-5. The RFP stated the relative significance of the evaluation factors as
follows:

In order to receive consideration for award, the coefficients (price) must
be considered reasonable and realistic, and any large business offeror must
have a satisfactory subcontracting plan. Of the remaining factors set forth
above, technical is somewhat more important than past performance, past
performance is slightly more important than price. Technical and past
performance combined are significantly more important than price.

RFP amend. 0002, at M-2.

The RFP also identified subfactors under the technical and past performance
factors and their relative importance. Among the technical subfactors was
the management

plan, where contractor staff was evaluated. Id. The past performance
subfactors were (a) quality of service, (b) timeliness of performance, (c)
cost control, (d) business relations, and (e) customer satisfaction. RFP
amend. 0002, at M-4. The RFP also stated:

Past performance will be used to conduct a performance risk assessment as it
relates to the probability of successfully accomplishing the proposed
effort.

Id.

The RFP proposal instructions identified the minimum information that
offerors were to provide corresponding to each evaluation factor. Under past
performance, offerors were to list all contracts awarded during the past 3
years from all sources. The RFP stated that the Army would issue past
performance surveys to the sources of these contracts for the purpose of
evaluating offerors under the past performance factor. RFP amend. 0002, at
L-12, L-13. The RFP then stated:

Each offeror will be evaluated on his/her performance under existing and
prior contracts for similar construction work. Performance information will
be used for both responsibility determinations and as an evaluation factor
against which offerors' relative ranking will be compared to assure best
value to the Government. The Government will focus on information that
demonstrates quality of performance relative to the size and complexity of
the procurement under consideration.

RFP amend. 0002, at L-13 (emphasis added).

The agency received six initial proposals. After evaluating these proposals,
the Army established a competitive range of four proposals, including
Beneco's and Hammer's. Beneco's proposal received a technical score of 8,735
out of 10,000 possible points, and Hammer's proposal received a technical
score of 9,553 points. Agency Report, Tab H, Source Selection Evaluation
Board (SSEB) Initial Consensus Evaluation of Beneco's Proposal, at 63, and
Tab I, SSEB Initial Consensus Evaluation of Hammer's Proposal, at 63.

The past performance evaluation was based on surveys that the agency
received from points of contact on six contracts identified in each
offeror's proposal. Past performance ratings were based on a five-place
adjectival scale of unsatisfactory, marginal, satisfactory, good and
exceptional.

Of the six surveys the agency received for Beneco, all concerned Beneco's
performance as the prime contractor on JOC construction contracts or
JOC-type construction task order contracts, which contracts ranged in value
from $11 million to more than $40 million. Agency Report, Tab C, Beneco's
Proposal, Past Performance Record, at 2-5, 12-14, 21-27, 35-37, and Tab E,
Beneco's Past Performance Rating. The written survey comments generally
praised Beneco's performance. Although not every written comment was
positive, all of the surveys rated Beneco's performance as either excellent
or good. Agency Report, Tab E, Beneco's Past Performance Rating.

Hammer's proposal did not identify any contract experience as a prime
contractor on a JOC or JOC-type contract. Agency Report, Tab D, Hammer's
proposal, Past Performance Volume. The proposal indicated that Hammer's
experience with JOCs was as a subcontractor under Beneco's incumbent
contract from 1996 to 1999 in performing a number of task orders for
construction projects ranging from $30,000 to $300,000 in value. [3] Id. at
2-4, 6-9, 16-17, 23. The agency did not survey Beneco concerning Hammer's
performance as a subcontractor, although the Army contract administrator
completed a survey form for this work. [4] Agency Supplemental Report, Oct.
18, 1999, at 4; Agency Supplemental Submission, Oct. 28, 1999, at 2. The
remainder of Hammer's experience involved performing various construction
contracts, with values ranging from $19,365 to $303,459, for Alabama cities
and federal agencies. Agency Report, Tab D, Hammer's Proposal, Past
Performance Volume. The six surveys received from points of contact for
Hammer's contracts rated Hammer's performance as either excellent or good.
Agency Report, Tab F, Hammer's Past Performance Rating. All of the written
comments on Hammer's surveys were laudatory.

The agency's evaluation under the past performance factor rated Hammer
excellent and Beneco good. Agency Report, Tab E, Beneco's Past Performance
Rating, at 1; Tab F, Hammer's Past Performance Rating, at 1. Aside from the
survey responses and these ratings, there is little record of the agency's
past performance evaluation.

The agency conducted discussions, requested and received final proposal
revisions and evaluated them. The technical scores changed slightly.
Beneco's final proposal received a total technical score of 8,794 points and
Hammer's received a score of 9,648 points; Hammer's technical proposal was
rated higher than Beneco's under each of the technical evaluation factors
and subfactors. Agency Report, Tab J, SSEB Report, at 20-21. The past
performance ratings did not change, although the final evaluation report did
provide subfactor ratings for the past performance evaluation. Beneco's five
subfactor ratings consisted of three good ratings and two excellent ratings,
and Hammer's consisted of five excellent ratings. Id. at 14, 18-19. The
final price evaluation was based on the average proposed price coefficient.
See RFP amend. 0002, at M-5. The average price coefficient for Beneco's
proposal was [DELETED] and for Hammer's proposal [DELETED]. Agency Report,
Tab J, SSEB Report, at 38. The average price coefficients translated into
evaluated total prices of $[DELETED] for Beneco (the lowest price) and
$[DELETED] for Hammer (the third-lowest price). [5] Id.

The source selection authority (SSA) selected Hammer's proposal for award
based on the final evaluation results. The SSA's decision document stated
the total technical scores, the overall past performance ratings and the
evaluated prices for all four final revised proposals. The decision stated
that all offerors' prices were determined by the Army to be realistic [6]
and all offerors had submitted acceptable subcontracting plans. The SSA's
justification for awarding a contract to Hammer at a higher price was as
follows:

Hammer LGC scored higher than all other offerors in technical and had the
highest past performance rating. Hammer's proposal as outlined by the source
selection board has several distinctive strengths, which include [DELETED].
Of the past performance survey references received, Hammer's results were
the only ones where all were in the excellent area, [7] with not one
negative comment received.

Hammer LGC has a proven record as an exceptional construction firm that does
quality work. This firm handled many of the most difficult projects as a
subcontractor on Fort Rucker's previous JOC contracts and the proposed
project manager has many years of proven ability managing JOC contracts, the
past three years here at Fort Rucker.

In consideration of the above, the proposal submitted by Hammer LGC is
deemed technically superior with a technical score approximately 10% above
that of the next highest rated proposal. Additionally, with the only
excellent past performance rating, Hammer offers the least risk to the
Government in the accomplishment of the work required by this contract. And
although Hammer's price is approximately [DELETED]% higher than that of the
lowest offeror in this least important evaluation factor, the technical
strengths provided within Hammer's proposal and the excellent past
performance rating equating to zero performance risk are worth the
additional cost.

Agency Report, Tab K, Source Selection Decision, at 1-2.

On August 9, the Army awarded a contract to Hammer. After requesting and
receiving a debriefing, Beneco protested the award to our Office. The Army
subsequently suspended performance of Hammer's contract.

Beneco alleges that, under the past performance factor, the Army
unreasonably evaluated Hammer's proposal as excellent, the highest rating
possible, even though Hammer has no experience as a JOC contractor, nor has
it performed contracts of a value that approaches the estimated value of
this JOC. Protest at 7-11. Beneco also protests the agency's evaluation
under the technical factor and the source selection cost/technical tradeoff
decision. We sustain Beneco's protest of the past performance evaluation.

In reviewing a protest of an agency's evaluation of proposals, we examine
the record to ensure that the agency's evaluation was reasonable and
consistent with the stated evaluation criteria. Ogden Support Servs., Inc.,
B-270012.2, Mar. 19, 1996, 96-1 CPD para. 177 at 5.

The protester has attacked numerous aspects of the technical evaluation,
which ranked Hammer's proposal consistently higher than Beneco's highly
rated proposal. Based on our review of all of these contentions, which were
the subject of a hearing conducted by our Office, and as illustrated by the
following example, the protester has failed to show that the technical
evaluation was unreasonable. For example, the protester alleges that it was
unreasonable for the agency to evaluate Hammer's proposed staff superior to
Beneco's, since much of Hammer's proposed staff were the same individuals
proposed by Beneco. Protester's Supplemental Comments,

Oct. 22, 1999, at 5. While it is true that many of the individuals proposed
by the two offerors are the same, there are some differences which
reasonably support a higher rating for Hammer's proposal. In particular,
Hammer proposed [DELETED]. Tr. at 27-28, 130-35. Hammer also proposed a
senior project manager who used to work for Beneco on the Fort Rucker
incumbent contract and who is highly regarded by the evaluators and the SSA.
Tr. at 24-25, 120; Agency Report, Tab K, Source Selection Decision, at 2.
This individual has 10 years experience on JOCs and has demonstrated an
ability at Fort Rucker to build teams that perform well. Tr. at 25-27;
Agency Report, Tab D, Hammer's Proposal, Management Plan, at 1-3 to 1-5. In
contrast, Beneco does not propose this individual [DELETED]. Agency Report,
Tab C, Beneco's Proposal, Management Plan, at 9. Thus, the agency could find
that Hammer's proposed staff exceeds that offered by Beneco and provides a
reasonable basis for rating Hammer's technical proposal higher than Beneco's
in this respect. Similarly, the protester has not shown Hammer's ratings for
other aspects of the technical evaluation were unreasonably higher than
Beneco's. We thus deny this portion of Beneco's protest.

Turning to the protest of the past performance evaluation, we find that
there is insufficient information and analysis in the record to establish a
reasonable basis for evaluating Hammer's proposal as excellent and a zero
performance risk with a rating higher than Beneco's past performance rating.
The RFP stated that offerors would be evaluated under the past performance
factor based upon their records of performing contracts for similar
construction work and that the evaluation would "focus on information that
demonstrates quality of performance relative to the size and complexity of
the procurement under consideration." RFP amend. 0002, at L-3. Since the RFP
indicated that proposals would be qualitatively evaluated for quality of
performance relative to the size and complexity of the JOC procurement under
consideration, it follows that a proposal reflecting successful past
performance on contracts closer in size and complexity to the procurement
under consideration should be rated higher than a proposal reflecting
successful performance on less similar contracts. See Ogden Support Servs.,
Inc., B-270012.4, Oct. 3, 1996, 96-2 CPD para. 137 at 3; Chem-Services of
Indiana, Inc., B-253905, Oct. 28, 1993, 93-2 CPD para. 262 at 3-4. Here, the
evaluation did not so qualitatively evaluate past performance.

As the RFP makes clear, the JOC under consideration involves more than
simply performing a construction project; it involves managing and
performing multiple construction projects at the same time throughout the
contract term. [8] See RFP amend. 0002, at M-4 (past performance business
relations subfactor--"successfully manage small to medium scale construction
and repair projects simultaneously"), L-10 ("discuss staffing levels
available to scope and negotiate delivery orders simultaneously and
effectively"), L-12 ("coordinating, scheduling and ensuring timeliness of
work execution and completion of multiple projects with multiple
subcontractors"), I-11 ("there is no limit on the number of orders that may
be issued
. . . may issue orders requiring delivery to multiple destinations or
performance at multiple locations"), C-2 to C-3 (stating JOC contractor's
responsibility under contract includes "planning, programming,
administration, and management necessary to provide work as specified . . .
[and] all related administrative services"). The SSEB Chair testified that
the JOC prime contractor, rather than a subcontractor, is the one credited
with and responsible for the management of task orders being performed
simultaneously. Tr. at 329. The management of multiple task orders, which
may be simultaneously performed, is an important aspect of JOCs,
particularly considering the potential size of this kind of contract; for
example, at the end of each year the agency traditionally issues many task
orders requiring simultaneous planning and performance of as many as 40
projects valued at approximately 60 to 70 percent of the annual construction
and repair funds. Tr. at 13-14, 367-68.

As indicated, the record shows that Beneco has an extensive record of
successfully performing as the prime contractor under construction JOCs or
contracts similar to JOCs valued from $11 million to more than $40 million,
for which its past performance has been considered good or excellent. [9] In
contrast, Hammer had no experience as a prime contractor on a JOC or
JOC-type construction contract. Hammer's JOC experience involves performing
construction contracts or task orders as a JOC subcontractor, with
contract/subcontract values ranging from $20,000 to slightly more than
$300,000. Agency Report, Tab D, Hammer's Proposal, Past Performance Volume,
at 3-14.

The agency, in evaluating the past performance references, weighted all of
the offerors' reference surveys equally, without considering their value or
whether they were JOCs. Agency Report at 5-6; Agency's Supplemental Report,
Oct. 18, 1999, at 4-6; Agency's Post-Hearing Comments at 2-4; Tr. at 422-24.
That is, Hammer's performance of a $40,000 contract for an Alabama city was
considered the same as Beneco's performance of a $40 million JOC. Such an
evaluation does not consider the quality of performance "relative to the
size and complexity of the procurement under consideration," which is a JOC
for construction services valued at $3 million per year.

The agency's evaluation record also shows that the highest possible rating
was given to Hammer's proposal because it received the highest total average
survey point scores submitted by its contract references and because it
received no negative written comments. Agency Report, Tab J, SSEB Report, at
25. This basis for awarding Hammer the highest possible rating again
demonstrates that the agency failed to take into account, in its evaluation
of the quality of performance, the size and complexity of the JOC
procurement under consideration, as was contemplated by the RFP.

Since Beneco's evaluated contracts were for highly relevant JOC construction
contracts of similar size and complexity, which it successfully performed
with few negative reference comments, and since Hammer has no experience in
performing JOCs as a prime contractor and its construction experience is on
contracts of a much smaller value (approximately $300,000 or less) and less
complex (contracts for single projects), the record does not support
Hammer's proposal receiving a perfect past performance rating nor a rating
higher than Beneco's. Ogden Support Servs., Inc., supra.

The Army states that it performed a qualitative evaluation consistent with
the terms of the RFP, in that it considered the size and complexity of the
individual task orders to be placed under the contract to be awarded under
this RFP and found all referenced contract experience on projects similar to
these individual task orders to be equal in evaluating past performance.
Agency Report at 6; Contracting Officer's Statement at 4-5; Agency
Post-Hearing Comments at 2-5. This is an unreasonable interpretation of the
terms of the solicitation. The solicitation stated that the evaluation would
consider quality of performance relative to the size and complexity "of the
procurement under consideration." RFP amend. 0002, at L-13. The procurement
under consideration is an entire JOC, not an individual task order, and one
offeror's experience performing a single task order cannot reasonably be
considered comparable to another offeror's experience managing and
performing multiple task orders simultaneously under a JOC. [10]

The agency alternatively argues that Hammer successfully performed several
contracts simultaneously for the city of Elba, Alabama, which were similar
to the type of work required under the RFP. [11] Agency's Post-Hearing
Comments at 3. At best, this experience involved simultaneous performance of
multiple projects over the course of 5 months for a total value of less than
$400,000. It also involves separate contracts, which may give the contractor
much greater flexibility in selecting projects it is capable of performing
and in managing resources than is present in a JOC where an offeror is
expected to perform all task orders as issued. Hammer's experience in this
regard is relevant, but would seem to be limited in relative size and
complexity as compared to the JOC procurement under consideration,
particularly in comparison to Beneco's substantial experience. [12]

Thus, the agency's past performance evaluation was unreasonable. Since the
source selection decision adopts these unreasonable evaluation results and
relies on them in significant part to make the source selection decision,
the flaw in the past performance evaluation makes a new source selection
decision necessary.

The Army argues that, even if we were to conclude that the past performance
evaluation was improper, the source selection would be unaffected, since the
agency would have awarded this contract to Hammer due to its technical
superiority alone. Agency Post-Hearing Comments at 8. This is not at all
apparent from the contemporaneous source selection record. The SSA's
decision document gives great weight to the perceived past performance
superiority of Hammer, so much so as to determine that Hammer's proposal
represented a "zero performance risk," and was a significant consideration
in selecting the proposal at a higher price. Agency Report, Tab K, Source
Selection Statement, at 2. It was only in the heat of the adversarial
process that the agency argued that correcting the past performance
evaluation would not affect the ultimate source selection, and we have
concern that this argument may not represent the fair and considered
judgment of the agency, which is a prerequisite of a rational evaluation and
source selection process; we thus accord this argument little weight. Boeing
Sikorsky Aircraft Support, supra.

We recommend that the agency reevaluate proposals under the past performance
factor consistent with the terms of the RFP and this decision and make a new
source selection decision. [13] If a proposal other than Hammer's is
selected for award, the Army should terminate the contract previously
awarded to that firm. We also recommend that the protester be reimbursed the
reasonable cost of filing and pursuing its protest including attorneys'
fees. 4 C.F.R. sect. 21.8(d)(1). The protester should submit its claim for
costs, detailing and certifying the time expended and costs incurred, with
the contracting agency within 60 days after receipt of this decision. 4
C.F.R. sect.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

Notes

1. For example, a price coefficient of 1.0 would represent a price equal to
the UPB unit prices, a price coefficient of .95 would represent a price 5
percent lower than the UPB unit prices, and a price coefficient of 1.2 would
represent a price 20 percent higher than the UPB unit prices. The JOC UPB
for Fort Rucker was incorporated into the RFP. RFP TE-2, vol. 2.

2. To the extent Beneco alleges that price should be evaluated based on a
higher annual estimated contract value, Protest at 13-14, Protester's
Comments at 14, Protester's Supplemental Comments, Oct. 22, 1999, at 11-13,
the allegation represents an untimely protest of an alleged solicitation
defect apparent on the face of the RFP that was not raised until after
award. To be considered timely, this protest of the terms of the
solicitation should have been filed prior to the time for submitting initial
proposals. 4 C.F.R. sect. 21.2(a)(1) (1999).

3. Beneco actually commenced performance under this JOC in November 1997
pursuant to a novation agreement; Gracon Corporation was the contractor for
which Beneco took over contract performance. Protester's Post-Hearing
Comments, Affidavit of Beneco's General Counsel, Nov. 10, 1999, at 3.
Hammer's proposal also shows that it performed various delivery orders under
the predecessor JOC at Fort Rucker from 1994.

4. The survey form completed by the Army contract administrator on the
Beneco contract regarding Hammer's subcontract performance was eliminated
from the evaluation by the SSEB Chairperson because the contract
administrator was also a member of the SSEB, which the SSEB Chairperson
believed constituted a perceived conflict of interest. Hearing Transcript
(Tr.) at 97-99. Beneco alleges that this survey was not eliminated from
consideration and/or the participation of this individual as a contracting
official on prior government contracts performed by Hammer and as an SSEB
member was a conflict of interest that tainted the SSEB and rendered the
entire evaluation improper. Protester's Comments at 8-9; Protester's
Supplemental Comments, Oct. 22, 1999, at 1-4; Protester's Supplemental
Comments, Nov. 2, 1999, at 2-4. However, the protester states that it
imputes no improper motive to this evaluator, Protester's Supplemental
Comments, Nov. 2, 1999, at 2, and absent a specific showing by the protester
of an act of bias, we do not consider the participation of this SSEB member
a conflict of interest. See Sterling Servs., Inc.; Trim-Flite, Inc.,
B-229926.5, B-229926.6, Oct. 3, 1988, 88-2 CPD para. 306 at 6 (fact that
evaluators also administer government contract with an offeror does not show
bias). Therefore, even if the evaluator's survey had been considered in the
evaluation, it would be unobjectionable.

5. The evaluated prices are based on a single year contract value of $3
million. Although the RFP stated that offerors would be evaluated for award
purposes considering the total price for all options, RFP amend. 0002, at
M-6, the agency's price evaluation considered only the base year.

6. Some of Beneco's initially proposed price coefficients were [DELETED],
which the agency considered below cost and unrealistic. Contracting
Officer's Statement at 2-3. Beneco's final proposal revision increased its
coefficients to what the agency considered an acceptable level. Agency
Report, Tab K, Source Selection Decision, at 1. While Beneco alleges that an
award of a JOC by another Army activity to Beneco at an even lower-priced
coefficient shows that the agency's initial price evaluation was
unreasonable, Protester's Supplemental Submission, Oct. 28, 1999, at 2, this
is not a valid protest basis, because each procurement is a separate
transaction, and action on one procurement does not govern action on another
procurement. See Red John's Stone, Inc., B-280974, Dec. 14, 1998, 98-2 CPD
para. 135
at 7.

7. We note that Hammer's survey ratings were not all in the excellent area.
One respondent's ratings included some average ratings. The ratings on this
survey were not even predominately excellent and, overall, Hammer's
performance was rated good by this reference. Agency Report, Tab F, Hammer's
Past Performance Rating, at 48-55.

8. We have found that the extent of an offeror's experience with JOCs (or a
substantially similar type of contract) is a significant distinguishing
characteristic in a past performance evaluation under a solicitation for a
JOC where the solicitation, either expressly or implicitly, provides for
evaluating the quality of performance of contracts similar to the solicited
procurement. See Volmar Constr., Inc., B-270364, B-270364.2, Mar. 4, 1996,
96-1 CPD para. 139 at 6-7 n.2; SEEMA, Inc., B-277988, Dec. 16, 1997, 98-1 CPD
para. 12 at 4-5.

9. The extent and success of Beneco's record of performing JOCs is not
disputed. Beneco has 13 years experience as a JOC general contractor with an
aggregate contract value of $1 billion and more than 9,000 orders performed.
Protest at 10. It is the incumbent contractor for this Fort Rucker
procurement. Agency Report, Tab C, Beneco's Proposal, Past Performance
Records, at 1. All of the past performance surveys rated Beneco's
performance as either excellent or good. Agency Report, Tab E, Beneco's Past
Performance Rating. Although these surveys provided written comments that
generally praised Beneco's performance and capabilities, the agency's record
of evaluations identifies only the few comments that are less than positive
(i.e., a minor safety violation and an incomplete quote that stated Beneco's
performance "has fallen off somewhat in the past 18 months"). Agency Report,
Tab J, SSEB Report, at 26. The reference who stated Beneco's performance had
fallen off also stated that Beneco's prior performance on that contract had
been "excellent" and rated its overall performance as "good." Agency Report,
Tab E, Beneco's Past Performance Rating, at 35. The agency's evaluation does
not reference any of the more numerous comments that praise Beneco's ability
to do JOCs well. Finally, and most troubling, there is no evidence that the
agency's evaluation focused on the similarity between Beneco's past work and
the size and complexity of the JOC procurement under consideration.

10. While the agency states that distinguishing between offerors in this
manner based on the size and complexity of their past performance presents
an obstacle to competition by small business concerns, Agency's Post-Hearing
Comments at 2, this was the evaluation scheme that the agency stated in the
solicitation.

11. This is an argument that is neither apparent in the contemporaneous
evaluation record, nor presented by the agency in its first response to the
protest. In fact, it is contrary to agency's position that the basis for the
evaluation is that contract experience on projects similar to individual
task orders were considered equal regardless of other factors. Agency Report
at 5-6; Agency Supplemental Report, Oct. 18, 1999, at 4-6; Agency
Post-Hearing Comments at 2-4; Tr. at 422-24. For this reason, we give little
weight to this allegation and its accompanying testimony. Boeing Sikorsky
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at
15.

12. At the hearing, agency witnesses testified that the experience of
Hammer's key personnel was also evaluated as part of the past performance
evaluation, which they stated was consistent with the RFP. Tr. at 370-71,
435. The evaluation record provides no evidence that this was done, and the
agency's written submissions on the protest do not so state. Moreover, the
RFP states only that newly formed entities, without prior contract
experience, may rely on the experience of their key personnel for the past
performance evaluation. RFP amend. 0002, at L-13. Hammer's proposal did not
provide such references for evaluation purposes, and the agency did not
receive past performance surveys for any of Hammer's key personnel.
Considering the lack of evidence to support this argument and the fact that
the agency has not formally presented it in its written submissions, we do
not consider it further.

13. Since we are sustaining the protest and recommending that the agency
perform a new source selection decision, Beneco's protest of the
cost/technical tradeoff decision is academic.