TITLE:  BioGenesis Pacific, Inc., B-283738, December 14, 1999
BNUMBER:  B-283738
DATE:  December 14, 1999
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BioGenesis Pacific, Inc., B-283738, December 14, 1999

Decision

Matter of: BioGenesis Pacific, Inc.

File: B-283738

Date: December 14, 1999

Gerald N.Y.C. Lam for the protester.

Vicki O'Keefe, Esq., and Jan E. Takamine, Esq., Department of the Navy, for
the agency.

Christine F. Davis, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In evaluating the protester's experience and past performance, an agency was
not required to impute to the protester the totality of its proposed
mentor's experience and past performance, where the mentor was not proposed
to play a major role in the performance of the contract.

DECISION

BioGenesis Pacific, Inc. protests the award of three contracts to Index
Builders, Inc., Alan Shintani, Inc., and Nan, Inc. d/b/a Ocean House
Builders under request for proposals (RFP) No. N62742-98-R-2135, issued by
the Department of the Navy, for repair, alteration, construction and
demolition work at government facilities on Oahu, Hawaii.

We deny the protest.

The RFP was set aside for small disadvantaged businesses under section 8(a)
of the Small Business Act, 15 U.S.C. sect. 637(a) (1994). The solicitation
contemplated the award of one or more indefinite-quantity contracts for a
base year with 4 option years. RFP, Contract Clauses para. 10; Instructions to
Offerors para. 10; amend. 3, Summary of Coefficients. The solicitation advised
that the government would order supplies or services under the contract(s)
by issuing task orders for specific projects. RFP, Contract Clauses para. 8. The
RFP notified offerors that the task orders might entail "multiple trades"
within the construction industry, such as road paving, roofing, welding,
masonry, or asbestos removal. RFP, Summary of Work sect. 1.1.1.

The RFP contemplated award based on a tradeoff between the equally important
price and technical areas. RFP, Evaluation Criteria for Award; Instructions
to Offerors para. 21. The three technical factors were (1) technical capability,
(2) experience, and (3) past performance, each of equal importance. RFP,
Evaluation Criteria for Award sect. II.

Under the experience factor, the government was to evaluate the offeror's
performance qualifications based on its experience in performing "contracts
similar to the solicitation" or, if the offeror lacked such experience, in
performing "other construction projects." Id. sect. II.B.

Under the past performance factor, the government was to evaluate the
quality of the offeror's performance on prior construction contracts,
especially those of similar size and complexity to that solicited. Id.
sect. II.C. If an offeror lacked a relevant past performance record, the RFP
stated that the government would evaluate the relevant past performance of
the offeror's proposed "key personnel who have relevant experience, or
subcontractors that will perform major or critical aspects of the
requirement." Id. sect. II.C(2). If neither the offeror, its key personnel, nor
its subcontractors possessed relevant past performance experience, the RFP
stated that the government would rate the offeror's past performance as
neutral. Id. sect. II.C(3).

The agency received nine proposals and included seven in the competitive
range, including the protester's and the awardees'. Agency Report at 2. The
agency received revised proposals and rejected one proposal as technically
unacceptable. Among the remaining proposals, those submitted by the awardees
had the three lowest evaluated prices (i.e., $15 million, $15.87 million,
and $16.2 million), and the protester's had the highest evaluated price
(i.e., $18 million). Agency Report, Tab 6, Business Clearance Memorandum, at
9.

In its proposal, BioGenesis identified several contracts as the basis for
its experience and past performance evaluation. Virtually all of these
contracts were for environmental remediation work. Agency Report, Tab 2,
BioGenesis's Proposal, Offeror's Experience and Relevant Past Performance.
Although BioGenesis, as a corporate entity, was essentially an environmental
contractor, it offered both key personnel and a mentor with construction
experience. Id., Resumes of Key Personnel, Mentor's Experience and Relevant
Past Performance. In particular, the protester's proposal included a
mentoring agreement with the incumbent contractor for these services. Id.,
Letter from Incumbent Contractor to Protester; see also id., Mentor's
Contractor Performance Survey, Contract No. N62755-96-D-2966; Agency Report,
Tab 6, Business Clearance Memorandum, at 4. This mentoring agreement stated
that BioGenesis would "drive 100% of the Solicitation and Contract," but
that the project manager for the incumbent contractor would be available to
BioGenesis as a "Point of Contact." Agency Report, Tab 2, BioGenesis's
Proposal, Letter from Incumbent Contractor to Protester.

Although BioGenesis was not a construction contractor, the agency rated its
proposal "low risk" under the experience factor based on the construction
experience of its proposed key personnel and its mentor. [1] Agency Report,
Tab 6, Business Clearance Memorandum, Enclosure 10, Summary
Sheet--Experience and Past Performance, at 3. Conversely, under the past
performance factor, the agency disregarded the experience of the protester's
key personnel and mentor, and gave the protester a neutral rating based on
its lack of independent construction experience. Id.

Unlike the protester, each awardee had satisfactorily performed numerous
construction contracts in a variety of trades relevant to the RFP, although
none had performed a multiple trade, task order contract, as had the
protester's mentor. Id. at 4. Nevertheless, in consideration of each
awardees' varied construction experience, the agency rated each awardee's
proposal "low risk" under the experience factor, the same rating assigned
the protester's proposal. Id. at 1-2. Under the past performance factor, the
agency assigned a "satisfactory" rating to one awardee's proposal and "very
good" ratings to the other awardees' proposals, in comparison to
Biogenesis's neutral proposal rating. [2] Id. Under the technical capability
factor, the protester's and awardees' proposals each earned "acceptable/low
risk" ratings. Agency Report, Tab 6, Business Clearance Memorandum, at 7.

At the time of award, the agency concluded that it needed three contracts to
meet its needs. Id. at 10. Because Index's, Ocean's, and Shintani's
proposals received equivalent or better ratings than the other higher
priced, acceptable proposals,
the agency made awards based on these three proposals. Id. at 11-18.

The protester received a written debriefing, at which the agency disclosed
the technical and price evaluation results for the protester's and the
awardees' proposals. BioGenesis responded with an agency-level protest and
argued, among other things, that the agency improperly evaluated its own and
the awardees' past performance and experience. [3] Agency-Level Protest at
5-6. In particular, BioGenesis disputed its neutral past performance rating
because it did not reflect the past performance of its mentor, the incumbent
contractor. Further, BioGenesis argued that its mentor's experience as the
incumbent contractor was more relevant than the awardees' experience and
should have rendered BioGenesis's proposal superior to the awardees'.

In response to the agency-level protest, the agency agreed that the
protester's neutral past performance rating was improper because it did not
reflect the relevant past performance record of the protester's key
personnel and mentor. Agency Report, Tab 19, Agency Response to Agency-Level
Protest, at 2-3. The agency reevaluated the protester's proposal taking this
experience into account and changed the protester's rating to "satisfactory"
under the past performance factor. The agency decided, however, that the
corrected past performance rating did not alter the selection decision. Even
with a "satisfactory" past performance rating, the technical ratings of the
protester's proposal remained the same as or lower than the technical
ratings of the awardees' proposals, which were lower-priced. Id. at 6. The
agency confirmed its selection decisions, and denied and dismissed all other
issues raised in BioGenesis's agency-level protest. This protest followed.

BioGenesis protests that the Navy should have regarded the protester's
experience and past performance as superior to the awardees' because only
the protester's mentor has performed a multiple trade, task order
construction contract similar to this solicitation. The protester observes
that the RFP favored experience in performing "contracts similar to the
solicitation" over general construction experience under the experience and
past performance factors. See RFP, Evaluation Criteria for Award sect.sect. II.B, C.
In view of this preference, the protester argues that its mentor's
performance of the incumbent contract should have received greater credit
under these evaluation factors than the awardees' general construction
experience.

The evaluation of proposals is a matter within the discretion of the
contracting agency. Our Office will question the agency's evaluation only
where it lacks a reasonable basis or conflicts with the stated evaluation
criteria for award. SC&A, Inc., B-270160.2, Apr. 10, 1996, 96-1 CPD para. 197 at
7.

The agency was not required to rate the protester's experience and past
performance as superior to that of the awardees-all of which are established
construction contractors--simply because the protester's mentor performed
the incumbent contract for these services. In this regard, the Navy assigned
the protester's proposal a "satisfactory" past performance rating and a "low
risk" experience rating, despite the fact that the protester is a fledgling
construction contractor. These ratings depended in part upon the experience
and past performance of the protester's mentor, which the Navy evaluated
with particular attention to the mentor's performance of the incumbent
contract. See Agency Report, Tab 21, Memorandum for the Record, attach. A
at 3, encl. 2, at 3. Based on its review, the agency concluded that the
protester's mentor had a solid performance record and had successfully
performed the incumbent contract. Id.

While acknowledging the expertise of the protester's mentor, the agency also
evaluated the degree to which the mentor had agreed to participate in
performing the instant contract. See RFP, Instructions to Offerors
para. 23c(6)(b). Based on its review of the mentoring agreement--which stated
that BioGenesis would "drive 100% of the Solicitation and Contract" with the
mentor's project manager available simply as a point of contact--the agency
reasonably concluded that the mentor would play a relatively limited role in
performing the contract. See Agency Report, Tab 2, BioGenesis's Proposal,
Letter from Incumbent Contractor to Protester; Tab 21, Memorandum for the
Record, attach. A at 3-4. Nevertheless, the Navy concluded that the
mentoring arrangement would provide the protester the necessary expertise to
perform the contract satisfactorily, despite the protester's dearth of
independent construction experience. See Agency Report, Tab 21, Memorandum
for the Record, attach. A at 3, encl. 2, at 3.

We find no basis to object to this evaluation judgment. Although the RFP
permitted inexperienced contractors, such as the protester, to rely upon the
credentials of "subcontractors that will perform major or critical aspects
of the requirement," see RFP, Evaluation Criteria For Award sect. II.C(2), the
RFP did not require the Navy to impute to the protester the totality of its
mentor's experience under the circumstances here. The fact is that the
protester did not perform the incumbent contract, its mentor did, and its
mentor's proposed role in the performance of the instant contract was
relatively limited. In comparison, each awardee possessed varied and
successful construction experience in its own right. We find no basis to
object to the agency's relative evaluation of the protester's and awardees'
proposals under the experience and past performance factors.

BioGenesis also protests that it should receive the award because it
believes that the acceptance period of all proposals but its own expired
during the course of this procurement. In particular, BioGenesis believes
that it was the only offeror which voluntarily extended the 120-day proposal
acceptance period specified by the RFP before its expiration on June 16,
1999. Thereafter, on June 17, the agency issued amendment No. 0004 to extend
the proposal acceptance period of all offers acknowledging the amendment,
among other things. See Agency Report, Tab 10, Letters from Contracting
Officer to Offerors (June 17, 1999). The protester essentially asserts that
the amendment could not properly revive any offers that had already expired.

Our Bid Protest Regulations provide that protests of alleged improprieties
which do not exist in the initial solicitation but which are subsequently
incorporated into the solicitation must be filed not later than the next
closing date for receipt of proposals following the incorporation. 4 C.F.R.
sect. 21.2(a)(1). To be timely, BioGenesis should have protested this issue by
the June 29, 1999 revised proposal receipt established by amendment No.
0004. Instead, BioGenesis waited to raise the issue until its
post-debriefing, agency-level protest filed on August 13. Although the
protester argues that, until its debriefing, it assumed that the agency
issued amendment No. 0004 only to offerors whose proposal acceptance periods
had not expired, the protester admittedly obtained no information at its
debriefing regarding other offerors' proposal acceptance periods. See
Protester's Comments at 4-6. Thus, BioGenesis's protest of this issue is
untimely. [4] See Restrepo Enters., Inc., B-228233.2, Dec. 8, 1988, 88-2 CPD
para. 570 at 3. In any case, this protest contention lacks merit. Even assuming
the other proposals expired before the issuance of amendment No. 0004 and
BioGenesis's unsolicited extension of its offer, a revival of expired offers
(if it occurred here) was not prejudicial to the competitive system, given
that all proposals offered the minimum 120-day proposal acceptance period.
See Krug Life Sciences, Inc., B-258669.2, Feb. 22, 1995, 95-1 CPD para. 111 at
4.

The protest is denied.

Comptroller General
of the United States

Notes

1. The possible experience ratings were "low," "moderate," and "high" risk.
Agency Report, Tab 6, Business Clearance Memorandum, at 7.

2. The possible past performance ratings were "exceptional," "very good,"
"satisfactory," "marginal," "unsatisfactory," and neutral. RFP, Evaluation
Criteria For Award sect.sect. II.C(3), III.

3. BioGenesis's agency-level protest omitted an allegation that later
appeared in its protest to our Office, i.e., that the Navy's price
evaluation methodology improperly deprived BioGenesis's proposal of a price
advantage in the price/technical tradeoff. Protest at 5-6. Although our
review indicates that this allegation lacks merit, we do not address it in
detail because it was untimely raised. BioGenesis obtained from its
debriefing the information needed to raise this issue in its agency-level
protest. See Agency Report, Tab 13, Agency Debriefing Letter, at 1. Because
BioGenesis did not do so, but waited to raise the issue with our Office more
than 10 days after its debriefing, the allegation is untimely. See 4 C.F.R.
sect. 21.2(a)(2) (1999).

4. We similarly decline to consider other alleged defects in amendment No.
0004, for example, the deletion of the requirement for a bid guarantee. See
Protest at 4-5; Agency-Level Protest at 2-5.