TITLE:  TMI Services, Inc., B-283677.3, May 17, 2000
BNUMBER:  B-283677.3
DATE:  May 17, 2000
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TMI Services, Inc., B-283677.3, May 17, 2000

Decision

Matter of: TMI Services, Inc.

File: B-283677.3

Date: May 17, 2000

Timothy H. Power, Esq., for the protester.

Sam Z. Gdanski, Esq., and Jeffrey Gdanski, Esq., for MCS Management, Inc.,
an intervenor.

Julius Rothlein, Esq., Theresa M. Young, Esq., and Rachel B. Thompson, Esq.,
United States Marine Corps, for the agency.

Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest of agency's evaluation of proposals is denied where the record
shows that the evaluation was reasonable and consistent with the applicable
evaluation factors.

2. Selection of technically superior, higher-priced proposal is
unobjectionable where the solicitation provided that technical
considerations were more important than price and the agency reasonably
concluded that the technical superiority of the awardee's proposal warranted
payment of the associated price premium.

DECISION

TMI Services, Inc. protests the award of a contract to MCS Management, Inc.
(MCS) under request for proposals (RFP) No. M00681-99-R-0004, issued by the
Marine Corps Base Camp Pendleton for full food services and mess attendant
services for various messhalls at Camp Pendleton. TMI principally contends
that the agency's evaluation was unreasonable and that TMI should have been
selected for award.

We deny the protest.

The solicitation, issued February 1, 1999 as a total small business
set-aside, commercial-item procurement, contemplated the award of a
fixed-price contract to provide full food and mess attendant services at
Camp Pendleton for a base year with option periods of 3 months not to exceed
12 months. RFP sect. A.1. The RFP provided for award to the responsible offeror
whose conforming offer provided the best value to the government, price and
other factors considered. RFP sect. A.10.3.a. The RFP called for the evaluation
of the proposals under the criteria of experience/ past performance, resumes
of key personnel, understanding the work, compliance with RFP instructions
and price. Id. The RFP stated that a proposal would be evaluated and
considered acceptable if it manifests the offeror's unconditional assent to
the terms and conditions of the RFP, and that the capability of offerors
that submitted acceptable offers would be evaluated. RFP sect. A.10.3.b.
Capability was to be evaluated on the basis of experience, past performance,
understanding the work, price and compliance with RFP instructions. RFP
sect. A.10.3.b.2. Under experience, the RFP provided for an assessment of an
offeror's work records to determine whether, during the past 3 years, the
offeror had the opportunity to learn about relevant work processes and
procedures and about the nature, difficulties, uncertainties and risks
associated with performing the work required by the solicitation. RFP
sect. A.10.3.b.2.i. Under past performance, the RFP called for offerors to
furnish a total combination of five references for each present government
contract. RFP sect. A.10.3.b.2.ii. If five government references were not
available, then offerors could provide references from private industry. Id.
The RFP also provided that references not identified by the offeors could be
contacted by the government with respect to information used in the
evaluation of the offeror's past performance.

In determining the best overall value, the RFP stated that the government
would consider an offeror's capability and the government's level of
confidence in the offeror to be significantly more important than price. RFP
sect. A.10.3.c. An offeror's capability was to be the basis for developing the
government's level of confidence. When assessing offeror capability, the RFP
provided that the government would consider experience, past performance and
understanding the work to be more important than compliance with the RFP
instructions.

In reaching the best overall value determination, the RFP provided that the
agency would make a series of paired comparisons among those offerors that
submitted acceptable offers. RFP sect. A.10.3.d. In this regard, the RFP
specifically provided that if, in a paired comparison, the offeror with the
higher expected value had the higher price, then the agency would decide
whether the difference in expected value was worth the difference in price.
Id.

Twelve proposals were received, including those of TMI and MCS. TMI
currently has a contract at Camp Pendleton for mess attendant services only.
The technical proposals were evaluated by the technical evaluation team. The
contracting officer reviewed the technical evaluation team's findings and
the proposals, and independently determined that award should be made to MCS
on the basis that it offered the best value to the government. Agency
Report, Tab 10. On September 7, 1999, a notice of intent to award to MCS was
sent to all offerors. Agency Report, Tab 11. On September 10, TMI was
provided an oral debriefing at which TMI was informed that it had been
eliminated because its proposal had received an overall rating of good while
the proposed awardee's proposal had received an overall rating of excellent.
Agency Report, Tab 13.

On September 16, TMI filed a protest with our Office alleging that the
agency had failed to follow the evaluation criteria. While reviewing TMI's
protest, the agency discovered that the resumes of key personnel erroneously
had been evaluated as part of the experience factor. Consequently, the
agency decided to retract its notice of award to MCS, and to reevaluate the
proposals, whereupon TMI withdrew its protest.

The proposals were subsequently reevaluated by the technical evaluation
team. Agency Report, Tabs 16-18. The contracting officer again reviewed the
evaluations and proposals, and determined that MCS offered the best value to
the government. Agency Report, Tab 20. TMI received an overall rating of
good and proposed a price of $12,579,284.24. MCS received an overall rating
of excellent with a price of $14,196,290. MCS was the only offeror with an
overall excellent technical proposal and received high ratings for past
performance, resumes of key personnel and quality control plan. Agency
Report, Tab 20. MCS had demonstrated experience in full volume food service
work in a military environment, realistic staffing charts and relevant
experience with the Marine Corps on a contract that is very similar in size
and scope to Camp Pendleton's. Id. Consequently, the contracting officer
determined that MCS's technically superior proposal was worth the associated
additional cost. On February 2, 2000, the contract was awarded to MCS on the
basis of initial proposals without discussions. On February 8, TMI received
a written debriefing detailing the rationale for selecting MCS as the best
value to the government. TMI subsequently filed this protest with our Office
on February 14.

TMI primarily objects to the evaluation on the grounds that the agency's
rating of its proposal as "good" rather than "excellent" in the categories
of past performance and experience was inconsistent with the solicitation
criteria. TMI maintains that had its proposal been evaluated in accordance
with the solicitation, it would have been rated "excellent" and that TMI
would have received the award based on its low price.

The evaluation of technical proposals, including the evaluation of past
performance, is primarily the responsibility of the contracting agency since
the agency is responsible for defining its needs and the best method of
accommodating them, and it must bear the burden of any difficulties
resulting from a defective evaluation. Federal Envtl. Servs., Inc.,
B-260289, B-260490, May 24, 1995, 95-1 CPD para. 261 at 3. In reviewing protests
challenging an agency's evaluation of proposals, we will not substitute our
judgment for that of the agency regarding the merits of proposals; rather,
we will examine the agency's evaluation to ensure that it was reasonable and
consistent with the solicitation's evaluation criteria and the applicable
procurement statutes and regulations. Honolulu Marine, Inc., B-245329, Dec.
27, 1991, 91-2 CPD
para. 586 at 3. A protester's mere disagreement with the agency's evaluation
does not render it unreasonable. CORVAC, Inc., B-244766, Nov. 13, 1991, 91-2
CPD para. 454 at 5.

TMI challenges the agency's rating of its proposal as "good" rather than
"excellent" in the categories of past performance and experience. With
respect to past performance, TMI maintains that certain evaluators misstated
its past performance references. Specifically, TMI asserts that one
evaluator improperly stated that TMI had established a reputation as being
not pro-active and another stated that its past performance references were
marginal and from his past experience with TMI, that TMI was not cooperative
with the government and did just enough to get by. TMI contends that there
is no documentation to support the finding that TMI has established a
reputation for not being pro-active and that although evaluators can
consider their own personal experience, they cannot use their personal
experience to override references from other contracts.

Notwithstanding TMI's assertions that statements made by individual
evaluators concerning its past performance are inaccurate, the record shows
that TMI's proposal was reasonably evaluated with respect to past
performance. As previously noted, the contracting officer reviewed the
evaluators' individual scoring sheets, the matrix and the evaluators' oral
recommendation. Agency Report, Tabs 16, 17, 20. The agency received two past
performance surveys from TMI's references. Agency Report, Tab 18. One of the
references rated TMI as "very good" and the other rated TMI as
"satisfactory." Based on these references, there is no reason to question
the agency's assignment to TMI of a rating of "good" for past performance.

While TMI maintains that it had excellent past performance history on
similar contracts and was the incumbent on this procurement and has an
excellent record of performance, the record shows that TMI performed only
the mess attendant services contract at Camp Pendleton, which does not
include full food services. The documentation also shows that
notwithstanding some individual evaluators' concerns about TMI's past
performance, the contracting officer independently reviewed the record and
concluded that while TMI was only a participant in the majority of its
contracts, TMI appeared to have had a more successful and cooperative
experience on other contracts than was indicated by the evaluators' negative
assessments of TMI's performance. Agency Report, Tab 16. On this basis, the
contracting officer rated TMI "good" under past performance. The
documentation supports this rating, and TMI has provided no evidence to
establish that it should have been rated "excellent" under this evaluation
factor.

Next, TMI contends that it was improperly evaluated under the experience
factor. Specifically, TMI maintains that the evaluators focused on what they
believed were overstatements of TMI's current responsibilities at Camp
Pendleton. TMI also

contends that the agency improperly applied the evaluation criteria under
experience because the RFP was concerned about the number of past contracts
and the opportunity to experience the difficulties in managing such
contracts, not how well the offeror had performed.

As previously indicated, the contracting officer reviewed each proposal and
the individual evaluation scoring sheets. With respect to experience, the
contracting officer found discrepancies under the evaluation of TMI's
proposal. The contracting officer felt that the evaluators placed too much
emphasis on TMI's exaggeration of its description of the work it currently
performs at Camp Pendleton, and that the evaluators had failed to give
adequate consideration to TMI's other government contracts and years in
business. While the contracting officer concluded that TMI did exaggerate,
she did not feel a marginal rating for experience was appropriate when all
factors applicable to experience were taken into consideration. Agency
Report, Tab 20. Based on the contracting officer's review, she increased
TMI's rating in experience from marginal to good. In doing so, the
contracting officer recognized that TMI's previous contract experiences were
much smaller than the type of work effort required by this RFP. Agency
Report, Tab 16. Consequently, she did not feel a rating of excellent was
warranted since it could not be determined from TMI's experience on previous
contracts that TMI had the clear cut ability to assume responsibility for
the volume of work under this RFP. Id. While TMI disagrees with the
contracting officer and maintains that it deserved an excellent rating for
experience, the record shows that the contracting officer's evaluation here
was thorough and reasonable. In sum, the agency's evaluation of TMI's
proposal was unobjectionable.

TMI also asserts that the agency should have rejected MCS's proposal as
unacceptable because it did not constitute an unconditional promise to
perform in accordance with the RFP. In this regard, TMI asserts that MCS's
proposal reflects a combination of two allegedly incomplete proposals dated
years apart for two different contracts with different scopes of work.

The agency takes the position that MCS's proposal was well organized and
notes that it included a properly executed standard form 1449 which clearly
stated the correct solicitation number and thus indicated MCS's promise to
perform in accordance with the terms of the solicitation. The contracting
officer states that she noticed certain references to another solicitation
number but did not feel it created a basis to reject the proposal since it
is not unusual for offerors to cut and paste from prior solicitations. The
record does show that MCS's key personnel resumes are either dated 1997 or
undated and reference a different solicitation number, and that its proposal
contained an organizational chart with no names provided for any of the
positions besides president. We see nothing improper with an offeror using
resumes of personnel it has used under prior solicitations, and the
solicitation here did not require the production of an organizational chart.
In our view, the fact that Moore's proposal obviously contained some pages
from a prior solicitation does not call into question its promise to perform
in accordance with the current RFP.

Contrary to TMI's argument that it is unclear who MCS is proposing for any
of the positions under the contract and what resumes, if any, go with any of
the key positions, MCS's proposal clearly provides resumes for the
president, contract manager and alternate contract manager. Agency Report,
Tab 5, Resume of Key Personnel. While TMI argues that MCS's proposed
alternate contract manager does not demonstrate experience with food
services for military mess halls, the record shows that MCS proposed a
contract manager with extensive experience in providing food services for
mess halls at Camp Lejeune, and MCS provided two additional resumes of
personnel with extensive experience in providing food services for mess
halls. Id. In this regard, TMI has simply failed to show that the agency's
evaluation of MCS's proposal was unreasonable.

TMI also asserts that the evaluations were inconsistent in that TMI had an
equal number of very good and satisfactory references, yet the evaluators
wanted to rate TMI as satisfactory (which the contracting officer raised to
good), while MCS's proposal had more ratings of satisfactory and good than
it did excellent, yet the contracting officer rated MCS's as excellent. As
explained above, one of TMI's references contained satisfactory ratings in
each category, with one marginal rating, while the other reference provided
all very good ratings. On this basis, the agency reasonably rated this
combination of past performance reports as good. On the other hand, MCS
provided two references from a contract almost identical in size and scope
to this solicitation. One reference rated MCS mostly very good with some
satisfactory ratings. The other reference gave MCS's a combination of
exceptional and very good ratings. Based on these ratings along with
supporting narratives that contained numerous notations about MCS's meeting
and exceeding the contract requirements, the contracting officer had a
reasonable basis to rate MCS's proposal as excellent under past performance.

Finally, to the extent that TMI argues that the agency did not perform a
proper best value determination, the record shows that the source selection
authority made extensive paired comparisons. First, an offeror who received
a rating of marginal from all evaluators in a single category was eliminated
from the best value analysis. Next four offerors, including TMI, were
eliminated because of low technical scores. Although these offerors were
rated good overall, they contained some ratings of marginal in the areas of
experience and/or understanding the work, which tended to downgrade the
government's level of confidence. Agency Report, Tab 20. The next comparison
consisted of offerors receiving only ratings of good or ratings of good with
some individual ratings of excellent, all of which were rated lower
technically than MCS and offered higher prices. MCS was the only offeror to
receive a rating of excellent. This rating was based on high ratings for
past performance, resumes of personnel and quality control plan; experience
in full volume food service work in a military environment; very realistic
staffing charts; and relevant experience with the Marine Corps on a contract
that is very similar in size and scope to Camp Pendleton's contract.

The price offered by MCS was considered reasonable in comparison with the
other offerors and the government estimate. While TMI offered a lower price,
the agency concluded that because TMI received two marginal ratings for the
understanding the work factor, coupled with concerns about TMI's key
personnel, MCS's overall excellent proposal was worth the relatively small
associated additional cost. The record provides no basis to question the
reasonableness of this award determination. [1]

The protest is denied.

Comptroller General

of the United States

Notes

1. TMI also speculates that the agency did not actually select MCS because
it represented the best value, but rather because Camp Lejeune personnel
liked MCS, so that Camp Pendleton preferred to contract with MCS as well.
Government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or supposition. Triton Marine Constr. Corp., B-250856,
Feb. 23, 1993, 93-1 CPD para. 171 at 6. Accordingly, TMI's speculation in this
regard provides no basis to question the award.