TITLE:  Universal Fabric Structures, Inc., B-284032, February 10, 2000
BNUMBER:  B-284032
DATE:  February 10, 2000
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Universal Fabric Structures, Inc., B-284032, February 10, 2000

Decision

Matter of: Universal Fabric Structures, Inc.

File: B-284032

Date: February 10, 2000

Robert Fryling, Esq., and Edward J. Hoffman, Esq., Blank, Rome, Comisky &
McCauley, for the protester.

John E. Lariccia, Esq., Department of the Air Force, for the agency.

Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against agency's evaluation of awardee's past performance is denied
where record shows that agency had a reasonable basis for assigning an
overall excellent rating to the firm's past performance.

DECISION

Universal Fabric Structures, Inc. protests the award of a contract to
American Spaceframe Fabricators, Inc. (ASFI) under request for proposals
(RFP) No. F08635-99-R-0077, issued by the Department of the Air Force for
portable B-2 bomber shelter systems. Universal argues that the agency
misevaluated ASFI's past performance. [1]

We deny the protest.

The RFP sought fixed-price offers for both a single unit for qualification
testing and several additional optional production units. The shelters are
essentially portable metal frame and fabric membrane structures that will be
used to create a climate-controlled environment for performing maintenance
on the B-2 bomber. According to the agency report, these devices are
necessary because the Air Force currently has no climate-controlled hangars
at sites other than the home base for the aircraft, and the agency requires
a transportable, easily erected shelter system that will enable it to
perform aircraft maintenance anywhere in the world. Air Force Legal
Memorandum at 1-2.

The RFP provided that the Air Force would award a contract to the firm
submitting the proposal deemed to offer the best overall value to the
government considering cost/price and several non-cost/price factors. RFP at
M-1. The evaluation factors were past performance, mission capability,
cost/price and proposal risk, with past performance and mission capability
being equal in importance, and past performance, mission capability and
proposal risk being, in combination, significantly more important than
cost/price. RFP at M-2. The RFP stated that, for purposes of evaluating past
performance, the agency would consider current and past contracts of the
offeror and predecessor concerns, as well as key employee and subcontractor
relevant experience. RFP at M-3. Current contracts were those performed
within the last 5 years that had a dollar value of at least $500,000. RFP
at L-6.

The agency received several proposals, four of which were included in the
competitive range. Detailed discussions were conducted with the competitive
range offerors, after which the agency solicited two final proposal
revisions (FPR). The record shows that after the second FPR, ASFI's proposal
was the lowest priced and Universal's the second lowest priced. Proposal
Analysis Report at 17. As for the past performance evaluation of ASFI's
proposal--the subject of the protest--the record shows that ASFI received an
exceptional rating; the agency also found that there was a high probability
that the firm would successfully complete the contract. The Air Force based
ASFI's rating on a review of four prior contracts. The record shows that the
firm had provided information on five prior contracts, and that the agency
was able to gather complete information relating to four of them. Agency
Report, Exh. 16. On the basis of ASFI's past performance rating, the ratings
assigned to ASFI's proposal for the remainder of the technical evaluation
criteria, and ASFI's low price, the agency made award to it as having
submitted the proposal offering the best overall value to the government.

Universal contends that the agency improperly rated ASFI exceptional/high
for past performance. In its original protest, Universal argued that the
agency improperly failed to consider the performance of a predecessor
concern to ASFI on a previous relevant Air Force contract. According to
Universal, the predecessor concern, American Space Frame, Inc. (which filed
for bankruptcy in July 1997), performed poorly on a 1997 contract for the
construction of a hangar for the C-130 aircraft. Subsequent to receiving the
agency report, Universal also argued that the agency improperly relied on
contracts performed by American Space Frame, Inc. in assessing the past
performance of ASFI; according to the protester, since the record shows that
ASFI was incorporated only in March 1998, there was no reasonable basis for
attributing American Space Frame, Inc.'s past performance to ASFI. Finally,
the protester takes issue with the agency's rating on a substantive basis,
maintaining that the information relied on by the agency could not
reasonably have been interpreted as meriting the exceptional/high rating.

In reviewing an agency's evaluation of past performance, our Office
considers whether the evaluation was reasonable and consistent with the
solicitation's evaluation criteria and applicable statutes and regulations.
Pacific Ship Repair and Fabrication, Inc., B-279793, July 23, 1998, 98-2 CPD
para. 29 at 3-4.

The evaluation of ASFI's proposal under the past performance factor was
reasonable and consistent with applicable statutes and regulations. As to
the protester's original assertion--that the agency improperly failed to
consider the contract performed by American Space Frame, Inc. in 1997--the
record shows that, although the agency did not consider the information as
part of its past performance evaluation, the agency did research the matter
once Universal filed its protest. [2] That research showed that the contract
in question had been for the construction of an aircraft shelter for the
Idaho National Guard; that American Space Frame, Inc. had been a
subcontractor on that effort; that there was no default on the part of the
prime contractor; and that the structure in question is acceptable and
currently in operation. Contracting Officer's Statement at 5-6. The
cognizant Idaho National Guard personnel further advised that the prime
contractor and American Space Frame, Inc. apparently had had a dispute
relating to the performance and payment obligations of the parties, and that
this dispute had resulted in American Space Frame, Inc.'s holding up
deliveries at some point during the contract. Id. This version of events was
corroborated by ASFI's president who, the agency reports, stated that there
had been payment problems with the prime contractor and that American Space
Frame, Inc. had delayed shipments on account of those problems. Id. Since
the agency's research shows nothing more than a business dispute between
American Space Frame, Inc. and its prime contractor, which had no apparent
effect on the buyer's satisfaction, and since there is no evidence that
American Space Frame, Inc.'s performance was otherwise problematic, there is
no basis to conclude that American Space Frame, Inc.'s performance on that
contract should have had a negative impact on ASFI's past performance
rating.

Universal's second argument--that the agency improperly gave consideration
to contracts performed by American Space Frame, Inc. in assessing ASFI's
past performance--is similarly without merit. The Air Force represents--and
the protester has submitted no evidence to the contrary--that ASFI has the
same management and employees as American Space Frame, Inc. and operates out
of the same location. Air Force Supplemental Submission at 3. There thus is
no basis to question ASFI's status as the successor firm to American Space
Frame, Inc. [3] Moreover, even if we agreed that the agency should not have
considered contracts performed by American Space Frame, Inc. in evaluating
ASFI's past performance, there would be no material impact on the
evaluation. [4] In this regard, the record shows that, of the four contracts
considered by the agency in its review, only one was performed prior to the
establishment of ASFI. [5] Since there was no requirement that the agency
review a particular number of contracts, the agency properly could have
excluded this contract from its consideration based on the conclusion that
the two firms were distinct. The record shows that, although the firm's
performance on that contract was rated favorably, it was nonetheless
assigned the lowest relative past performance ratings among those contracts
reviewed by the Air Force. It follows that if the agency eliminated this
contract from consideration, the effect, if any, would be to improve ASFI's
rating. Under these circumstances, there is no basis to question ASFI's
exceptional/high past performance rating. See NAHB Research Ctr., Inc.,
B-278876.2, May 4, 1998, 98-1 CPD para. 150 at 5.

Universal's final argument is that the agency's review improperly was based
on contracts that had not yet been completed or involved only partial work
on the part of ASFI. This argument also is without merit. Of the three
contracts that were performed by ASFI, all appear extremely relevant, and
the agency received overwhelmingly positive feedback regarding ASFI's
performance. Two of the three contracts--which were being performed at the
time of the agency's evaluation--involved the design and fabrication of
similar structures (one is for the erection of an airplane hangar and one is
for the erection of a sports and convention center dome) and met the dollar
value threshold established by the solicitation (the project values are
$932,000 and $3.5 million respectively). In both instances, the cognizant
points of contact assigned ratings of excellent to ASFI's performance.
Considering these ratings and the relevance of the contract work, the agency
reasonably could conclude that these contracts weighed in favor of an
exceptional/high past performance rating, notwithstanding that performance
had not yet been completed.

The third contract was for the design and fabrication of a large exhibition
center structure in New York City. The record shows that the cognizant point
of contact assigned ratings of excellent and good to ASFI's past performance
on that contract. Universal suggests that this project was not a valid
measure of ASFI's past performance because ASFI did not actually perform the
installation, but merely designed and fabricated the structure. However,
since the B-2 shelters are to be portable--and thus will not require
installation--the agency reasonably concluded that this contract supported
ASFI's exceptional/high past performance rating.

The protest is denied.

Comptroller General
of the United States

Notes

1. In its initial protest, Universal also argued that the agency improperly
misled it during discussions and misevaluated its technical proposal. The
agency provided its detailed response to these assertions, and Universal
made no mention of the allegations in its comments responding to the agency
report. We deem these arguments abandoned. Ventura Petroleum Servs., Inc.,
B-281278, Jan. 21, 1999, 99-1 CPD para. 15 at 4 n 1.

2. We note that the information relating to the Idaho National Guard
contract was not so close at hand that the agency was required to
independently uncover and consider it during the evaluation. See TRW, Inc.,
B-282162, B-282162.2, June 9, 1999, 99-2 CPD para. 12.

3. We also question how Universal logically can assert that the two firms
should be considered interchangeable for purposes of considering the Idaho
National Guard contract, but not for the other contracts where there were no
alleged performance problems.

4. Universal's pleadings tend to suggest that the RFP required 5 years of
experience in the field; this is simply incorrect. The RFP specified the
period of time that the agency was using to define "current" contracts
(those performed within the last 5 years) but did not require offerors to
have 5 years of experience. RFP at L-6.

5. ASFI's proposal referenced five contracts, two of which were performed
prior to the establishment of ASFI. Of those two, only one was reviewed by
the agency in its past performance evaluation.