TITLE:  Clean Venture, Inc., B-284176, March 6, 2000
BNUMBER:  B-284176
DATE:  March 6, 2000
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Clean Venture, Inc., B-284176, March 6, 2000

Decision

Matter of: Clean Venture, Inc.

File: B-284176

Date: March 6, 2000

Michael Persico and Michael Lancos for the protester.

William E. Hughes III, Esq., Whyte, Hirschboeck, Dudek, for Safety-Kleen,
Inc., an intervenor.

Reba M. Harrington, Esq., Defense Logistics Agency, for the agency.

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

DIGEST

Agency reasonably evaluated protester's past performance as "fair" under a
solicitation for a hazardous waste disposal contract based on the
protester's "good" performance on its prior contracts that did not require
the handling of the large quantities and the numerous varieties of waste at
a large number of performance locations as required by the solicitation, as
compared to the awardee's "good" past performance on contracts very similar
in size and scope to the solicited work.

DECISION

Clean Venture, Inc. protests the award of a contract to Safety-Kleen, Inc.,
under request for proposals (RFP) No. SP4400-99-R-0004, issued by the
Defense Logistics Agency (DLA), Defense Reutilization and Marketing Service
(DRMS), for hazardous waste disposal services at various military
facilities. Clean Venture protests the evaluation of its past performance.

We deny the protest.

The RFP contemplated the award of a fixed-price requirements contract for an
18-month base period with 3 option years. RFP sect. L.2, amend. 11 at 2. The RFP
required the contractor to dispose of approximately 5.1 million pounds of
waste during the base period and approximately 3.1 million pounds of waste
during each option period. RFP Bid Schedule, as amended, at 22-89. The RFP
required the contractor to pick up waste from 263 locations in the District
of Columbia, Maryland, Pennsylvania, Delaware, New York and New Jersey. RFP,
Pick-Up Point Locations, as amended, at 4-21. The locations represented
various agencies within the Department of Defense, including components of
the Army, Navy, Air Force, Marines and National Guard, and the Coast Guard.
Id.

The RFP described the anticipated waste stream based upon 10 general
categories of hazardous waste. RFP Bid Schedule, as amended, at 22-89. Each
category of waste contained multiple contract line items (CLIN) that further
described the form of the waste, e.g., whether the waste was "aerosol,"
"small container" waste (stored in containers less than 5 gallons),
"containerized" waste (stored in containers greater than 5 gallons), or
"bulk" waste (stored in containers greater than 119 gallons or not stored in
containers). Id.; RFP sect. H.8, amend. 5, attach. 4, Waste Code CLIN Selection
Criteria. The RFP also included CLINs requiring special hazardous waste
support services, such as the removal of bulk waste using "roll-off" storage
containers. RFP Bid Schedule, CLINs 6615DA-6615DE, amend. 11 sect. C.50.

The RFP provided for award based on a tradeoff between past performance,
price and other factors. [1] RFP sect. M.13(a). The solicitation stated that, as
between past performance and price, price was a less important, but still
significant factor. RFP sect. M.13(c). With regard to the past performance
evaluation, the RFP provided that the government would evaluate offerors'
"[p]ast performance on references that are of a similar nature to the
subject solicitation." RFP sect. M.13(d)(1)(i). For purposes of this evaluation,
the RFP asked each offeror to provide information about its performance
under contracts "for the same or similar services" during the past 2 years.
RFP sect. L.15(a). For each project submitted as a past performance reference in
its proposal, the offeror was to list the waste streams serviced, the
corresponding quantity removed, any related support services provided (such
as roll-off services), and the annual cost of the work, and was to discuss
its qualifications and experience relative to each project. [2] RFP
sect. L.15(a)(1), (b); Agency Report, Tab 9, Protester's Past Performance
Proposal, DRMS Form 1989.

The agency received initial proposals from eight firms and conducted a round
of discussions with the six firms whose proposals were included in the
competitive range, including Safety-Kleen and Clean Venture. The agency then
received final revised proposals from the six firms. Agency Report, Tab 4,
Prenegotiation Briefing Memorandum, sect. IIc., d., and Tab 16, Price
Negotiation Memorandum, at 2-4.

Clean Venture's proposal offered the lowest price for the total requirement,
including options, in the amount of $6,157,300, which was 7 percent less
than Safety-Kleen's next-lowest $6,619,806. Agency Report, Tab 16, Price
Negotiation Memorandum, at 4. In terms of past performance, Safety-Kleen
received a "good" rating, while Clean Venture received a "fair" rating. [3]
Id.

Three contracts formed the basis for Clean Venture's "fair" past performance
rating. These contracts were with the Food and Drug Administration (FDA),
the Smithsonian Institution, and the Washington Metropolitan Area
Transportation Authority (WMATA). [4] DRMS evaluated Clean Venture's
proposal information for each contract and conducted telephone interviews
with the corresponding contract reference using a standard DRMS past
performance questionnaire. Agency Report, Tab 10, Protester's Initial Past
Performance Evaluation, and Tab 12, Protester's Final Past Performance
Evaluation. While each contract reference rated the protester's performance
as good or very good, see Agency Report, Tabs 10 and 12, Questionnaires for
Offerors' Past Performance, the contracting officer concluded that each
contract was relatively small and simpler to perform than this RFP work. In
particular, the contracting officer found that the protester lacked
experience handling the large quantities and numerous varieties of waste at
a large number of performance locations required by this RFP. He believed
that a "fair" rating appropriately credited the protester for having
performed well on its prior contracts, while accounting for the fact that
none of the contracts was nearly as demanding as the instant solicitation.
Agency Report, Tab 16, Source Selection Decision Document, at 3; Video
Transcript (VT) at 9:19:25; 9:44:44; 11:28:34.

In contrast, Safety-Kleen's performance record evidenced several complex
contracts requiring the removal of large quantities and numerous varieties
of waste at multiple pick-up locations (including the incumbent contract for
part of the RFP requirements), each of which Safety-Kleen had performed at a
"good" level. See Safety-Kleen's Past Performance Proposal; Agency Report,
Tab 13, Awardee's Past Performance Evaluation. At the hearing, the
contracting officer noted that Safety-Kleen received overall good ratings on
12 current DRMS hazardous waste contracts worth between $30 million to $40
million overall. VT at 11:26:50; 11:27:30. Because Clean Venture lacked such
experience, the contracting officer concluded that Safety-Kleen had a
greater probability of success in performing the contract than Clean
Venture, and that this superiority was worth the relatively small price
premium. Agency Report, Tab 16, Source Selection Decision Document, at 3.

Through an award notice and subsequent debriefing, DRMS apprised Clean
Venture of the protester's and awardee's price and past performance ratings,
and the basis for the protester's past performance evaluation. Protest at 1;
Protester's Comments, attach. 3, Debriefing Notes; Agency Report, Tab 17,
Debriefing Notes (Nov. 16 and 17, 1999). Within 10 days of its debriefing,
Clean Venture protested its "fair" past performance rating. [5]

It is not the function of our Office to evaluate past performance
information de novo. Rather, we will examine an agency's evaluation only to
ensure that it was reasonable and consistent with the stated evaluation
criteria and applicable statutes and regulations, since determining the
relative merits of offerors' past performance is primarily a matter within
the contracting agency's discretion. Pacific Ship Repair and Fabrication,
Inc., B-279793, July 23, 1998, 98-2 CPD para. 29 at 3-4.

As noted above, the RFP informed offerors that the agency would evaluate
information provided by each offeror concerning contracts for "the same or
similar services" performed within the last 2 years. Consistent with this
advice, the agency evaluated the degree of similarity between the offerors'
prior contracts and the RFP requirements. Based on this analysis, the agency
found that the protester's contracts were smaller and less difficult than
the RFP work, but that the protester's successful performance of these
contracts gave it a fair chance of successfully meeting the greater demands
of the RFP. Our review of the record, including the hearing testimony, shows
that the agency had a reasonable basis for its findings in this regard. [6]

As indicated above, the RFP required the disposal of 3.2 million pounds of
waste at an award price of $1.47 million on an average, annual basis. See
RFP Bid Schedule, as amended, at 22-89. The contracting officer estimated
that the protester's largest contract (the FDA contract worth $500,000 per
year) entailed between 500,000 to 600,000 pounds of waste annually, and that
far less waste was involved under the protester's other
contracts–approximately 96,000 pounds of waste annually under the
WMATA contract and an insignificant amount of waste under the Smithsonian
contract (valued at $65,000 per year). VT at 9:20:32, 9:49:18 to 9:50:28,
10:03:12. The contracting officer testified that he did not consider the
quantity of waste under the FDA contract commensurate with the quantity of
waste under the RFP; indeed, the contracting officer noted that some
individual CLINs under the RFP entailed nearly as much waste as the total
annual requirement under the FDA contract. See, e.g., RFP amend. 11, Bid
Schedule CLINs 9902DD, 9904DD; VT at 9:22:33, 9:48:18. The contracting
officer testified that smaller contracts, such as Clean Venture's, are not
as indicative as large contracts in predicting performance under this RFP;
this is so, he explained, because contractors experienced in handling large
quantities of waste generally have more expertise, management, staff,
equipment, and facilities, which increases the likelihood of success in
performing a contract as large as the one solicited here. VT at 9:21:29,
9:33:50, 9:46:22.

The contracting officer further testified that, as is often the case with
smaller contracts, the protester's contracts were less diverse and thus less
demanding than the solicitation in terms of the waste streams to be served.
VT at 9:21:29, 9:22:58. In particular, the protester's contracts reflected
experience with containerized waste (waste contained in 5 to 85 gallon
drums), whereas the RFP involved a significant number of waste streams not
contained in 5 to 85 gallon drums, such as "small container" waste, aerosol
waste, bulk waste, and roll-offs. VT at 9:25:14, 9:27:24 to 9:27:40,
10:00:52; Agency Report, Tab 9, Protester's Past Performance Proposal, FDA
and WMATA References. The contracting officer testified that removing
containerized waste is much easier than sorting, organizing and packing
non-containerized waste in accordance with environmental regulations.
Because the protester's contracts did not reflect significant experience
with other than containerized waste, the contracting officer viewed Clean
Venture's performance record as relatively narrow compared to the
solicitation requirements. VT at 9:27:57 to 9:30:30.

In addition, the contracting officer stated that the number and variety of
performance locations to be served under the RFP far exceeded the number and
variety served under the protester's prior contracts. As noted above, the
RFP required waste disposal from 263 performance locations in several
states. The contracting officer explained that each performance location
corresponded with different generators, each governed by unique requirements
specific to the activity and the base involved. According to the contracting
officer, in terms of performance risk, a contractor without experience
serving such a large number and variety of geographically diverse
performance locations might not appreciate the complexity of serving
multiple generators with unique requirements and might not be equipped to
handle multi-state, simultaneous pick-ups. VT at 9:31:18 to 9:32:03,
9:56:40, 10:54:50, 10:56:27, 11:13:17.

The contracting officer found that Clean Venture's past performance record
did not reflect that the firm had served multiple performance locations to
the extent required by the RFP, which he felt increased the risk of
performance problems in handling a contract of this magnitude. Id. For
example, Clean Venture's FDA contract, although a multi-state contract,
involved only nine FDA performance locations, which was considered much
simpler than the RFP requirement. Agency Report, Tab 9, Protester's Past
Performance Proposal, FDA Reference; VT at 11:07:22, 11:07:42. Similarly,
under its WMATA contract, Clean Venture served 23 neighboring sites,
accepting waste from what appeared to be a single WMATA generator, which, in
the contracting officer's opinion, did not approach the number, variety, and
geographic diversity of performance locations covered by the RFP. [7] See
Agency Report, Tab 9, Protester's Past Performance Proposal, WMATA
Reference, and Tab 10, Questionnaire for Offerors' Past Performance,
Question 6; VT at 11:11:16 to 11:12:00, 11:12:40.

In summary, the contracting officer concluded that the protester's prior
contracts did not entail the volume and diversity of waste, nor the number
and diversity of performance locations contemplated by the RFP. As a result,
the contracting officer concluded that the protester's good performance of
these contracts did not necessarily presage good performance of a much
larger and more complex contract, as required by this solicitation, and so
rated the protester's past performance as "fair." [8] Based on our review,
we conclude that the agency reasonably found the protester's past
performance was significantly less desirable than the awardee's good
performance on very similar contracts and that the awardee's advantage was
worth the price premium.

In support of its contentions that the agency unreasonably downgraded its
past performance, Clean Venture cites our decision in PMT Servs., Inc.,
B-270538.2, Apr. 1, 1996, 96-2 CPD para. 98. In that case, we found that DRMS
improperly determined that the protester had a poor record of past
performance, notwithstanding its successful performance of 15 hazardous
waste disposal contracts, where the record did not reflect that the contract
contemplated by the RFP was more complex than the protester's prior
contracts, apart from the larger quantity of waste involved under the RFP.
Here, there is sufficient evidence that the contract contemplated by the RFP
is more complex than the protester's prior contracts, comparing such things
as performance locations, waste streams, as well as the quantities involved
under the respective contracts. Furthermore, our Office recognized in PMT
that a contract's size may be relevant to its complexity, see id. at 6, and
it was not inappropriate for the contracting officer to consider that the
protester's contracts involved far less waste than will be required under
this contract. See Chem Servs. of Indiana, Inc., B-253905, Oct. 28, 1993,
93-2 CPD para. 262 at 3. We also note that the quantity of waste under some
individual CLINs in this RFP approximated the total annual requirements of
the protester's largest contract, which the contracting officer reasonably
viewed as significant. See PMT Servs., Inc., supra, at 8; VT at 9:22:33.

Clean Venture protests that DRMS judged the complexity of its contracts
without conducting adequate interviews with its past performance references.
The protester claims that the contract specialist, who conducted the
interviews, did not sufficiently question references concerning Clean
Venture's contract experience, especially with regard to waste streams,
quantities, and performance locations. Protester's
Post-Hearing Comments at 4.

The record shows that, while the contract specialist's interviews were
brief, he strictly adhered to the questions listed on the past performance
questionnaires, which gave references an opportunity to discuss waste
streams, quantities, performance locations, and other contract requirements
relevant to the solicitation; to appraise the contractor's performance; and
to offer any other comments that the reference desired. See VT at 13:16:13,
13:22:42, 13:33:02; Agency Report, Tabs 10 and 12, Questionnaires for
Offerors' Past Performance.

In a statement submitted to our Office, the FDA reference said that, while
answering the contract specialist's questions concerning the types and
amounts of waste generated by the FDA, he "was cut off and not allowed to
give a full evaluation of [Clean Venture] or the services that they
provide." Letter from FDA Reference to Protester (Jan. 28, 2000). The
contract specialist disputed this allegation at the hearing. He testified
that he did not cut off the reference and that the reference never indicated
that he felt cut off or rushed by the contract specialist at any point
during the interview. VT at 13:33:02 to 13:35:55, 13:51:40 to 13:52:24.
Whereas the contract specialist gave detailed testimony describing the
interview, the FDA reference has not revealed what the contract specialist
allegedly said to stifle the conversation and, more importantly, has not
stated what information he intended to supply but for the contract
specialist's alleged interruption. Without such evidence--which we invited
the protester to present--we fail to see how the protester was prejudiced by
the contract specialist's conduct of the interview, even assuming any
impropriety occurred. See Pacific Ship Repair and Fabrication, Inc., supra,
at 5-6.

In any case, it was not the agency's obligation to ascertain through past
performance interviews the requirements under the protester's contracts, as
the offeror has the burden of submitting an adequately written proposal. See
SC&A, Inc., B-270160.2, Apr. 10, 1996, 96-1 CPD para. 197 at 5. Here, the
agency's depiction of the quantities, waste streams, and performance
locations served under the protester's prior contracts primarily derived
from information contained in Clean Venture's proposal. Clean Venture has
not alleged that the agency misinterpreted its proposal information in these
areas, so as to affect its "fair" rating. [9] Nor has Clean Venture alleged
that its prior contract experience differed from what was depicted in its
proposal and relied upon by the agency; however, to the extent that it did,
Clean Venture was responsible for any inaccuracies in its proposal.

The protest is denied.

Comptroller General
of the United States

Notes

1. The other factors identified in the RFP--socioeconomic plan and DLA
mentoring business agreements-were significantly less important than past
performance or price and had no bearing on the selection decision in this
case. RFP sect. M.13(c).

2. The RFP did not provide for the evaluation of experience unless the
proposal established that the offeror gained the experience during the
performance of a project submitted as a reference to be evaluated under the
past performance factor. See RFP sect.sect. L.15(b), M.13(d)(1)(i). Thus, the agency
did not evaluate the information contained in the experience section of
Clean Venture's past performance proposal, which discussed the firm's
experience generically and did not tie the experience to specific projects
to be evaluated under the past performance factor, as contemplated by the
RFP. See Agency Report, Tab 9, Protester's Past Performance Proposal,
Experience.

3. The possible past performance ratings were "unsatisfactory," "poor,"
"fair," "good," and "excellent." Agency Report, Tab 16, Standardized
Adjective Ratings and Definitions of Past Performance for DRMS Contracts.

4. The agency did not evaluate a contract completed by Clean Venture 4 years
earlier. Clean Venture abandoned its protest of this omission by failing to
rebut the agency's defense of its actions in its comments. See TMI Servs.,
Inc., B-276624.2, July 9, 1997, 97-2 CPD para. 24 at 4 n.3.

5. More than 10 days after its debriefing, Clean Venture protested that
Safety-Kleen did not have a reputation for "good" past performance; that the
contracting officer improperly deemed Clean Venture's contract with the
United States Geological Survey irrelevant to the past performance
evaluation because it was worth only $40,000 per year; and that the agency
should have informed the protester during discussions that it could improve
its proposal by providing additional references. See Protester's Comments at
2, 5; Protester's Post-Hearing Correspondence, Jan. 20, 2000. The agency
disclosed at Clean Venture's debriefing the basis for each of these protest
issues, i.e., it discussed Safety-Kleen's rating, the exclusion of the
Geological Survey contract from Clean Venture's past performance evaluation,
and the agency's position that Clean Venture received an opportunity during
discussions to provide additional past performance references. See
Protester's Comments, attach. 3, Debriefing Notes. Because Clean Venture's
protests of these issues stem from information obtained at its debriefing,
Clean Venture's failure to raise the allegations within 10 days of the
debriefing renders them untimely and not for our consideration. 4 C.F.R.
sect. 21.2(a)(2) (1999).

6. We conducted the hearing because the documentation supporting the
agency's evaluation was sparse and, in some instances, inconsistent.

7. Clean Venture argues that the agency misinterpreted its WMATA experience
in one respect. The protester argues that its proposal and its past
performance reference mentioned that other Maryland and Virginia counties,
municipalities, and schools "add-on" to the WMATA contract, which allegedly
establishes that Clean Venture has served diverse generators, just as
contemplated by the RFP and contrary to the findings of the contracting
officer. See Protester's Post-Hearing Comments at 3-4; Agency Report, Tab 9,
Protester's Past Performance Proposal, WMATA Reference, and Tab 10,
Questionnaire for Offerors' Past Performance, Question 10. The protester has
never identified, either here or in its proposal, how many additional
generators it has served. The information provided in the protester's
proposal and by its reference reasonably supports the contracting officer's
conclusion that the WMATA contract does not involve nearly the same number
or variety of performance locations as required by the RFP.

8. The contracting officer's testimony is consistent with the
contemporaneous evaluation.

9. The record reflects that the agency did misread Clean Venture's proposal
in several minor respects. For example, the contracting officer believed
that Clean Venture had not performed some of the special waste handling
services required by the RFP, such as grouping compatible chemicals into
"labpack" containers, even though Clean Venture listed labpacking services
in describing its FDA contract. See RFP sect. C.52; Contracting Officer's Report
para. 17; VT at 10:17:20, 10:17:27; Agency Report, Tab 9, Protester's Past
Performance Proposal, FDA Reference. However, the contemporaneous record and
hearing testimony make clear that the protester's perceived inexperience in
performing special waste handling services was peripheral to its "fair"
rating, which stemmed from the smaller scope of its prior contracts in terms
of waste streams, quantities, and performance locations. Agency Report,
Tab 16, Source Selection Decision Document, at 3; VT at 10:11:17, 10:18:00.