TITLE:  Millar Elevator Service Company, B-284870.5; B-284870.6, January 31, 2001
BNUMBER:  B-284870.5; B-284870.6
DATE:  January 31, 2001
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Millar Elevator Service Company, B-284870.5; B-284870.6, January 31, 2001

Decision

Matter of: Millar Elevator Service Company

File: B-284870.5; B-284870.6

Date: January 31, 2001

Susan L. Schor, Esq., McManus, Schor, Asmar & Darden, for the protester.

Jeffrey S. Baird, Esq., Bewley, Lassleben & Miller, for Amtech Elevator
Services, an intervenor.

Robert J. McCall, Esq., General Services Administration, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. During reevaluation of proposals (which was part of corrective action in
response to protest against award), agency's failure to consider negative
information regarding awardee's performance of contract following initial
award is unobjectionable, where performance problem involved only one aspect
of contract, awardee corrected the problem, and references awardee submitted
with its proposal rated its past performance excellent.

2. Protest that awardee's evaluation score included points for items that
were eliminated from the solicitation is denied where record shows that the
agency did not consider these items in the final evaluation and award
decision.

3. Protest that evaluator was biased in favor of awardee is denied where
protester did not present any credible evidence of bias and, in any case,
failed to show that any bias negatively affected the protester's competitive
position.

DECISION

Millar Elevator Service Company protests the award of a contract to Amtech
Elevator Services under solicitation for offers (SFO) No.
GS-03P-00-CDC-0006, issued by the General Services Administration (GSA) for
elevator modernization and maintenance in the Moorhead Federal Building in
Pittsburgh, Pennsylvania. Millar complains that GSA performed an
unreasonable evaluation of its and Amtech's technical proposals, and that
one of the evaluators was biased in favor of Amtech.

We deny the protest.

The SFO, issued on October 29, 1999, contemplated the award of a fixed-price
contract on a best value basis. The evaluation was to be based on the
following technical evaluation criteria, listed in descending order of
importance--design; maintenance and performance history; modernization
experience and past performance; schedule, key personnel and staffing plan;
women-owned business and small disadvantaged business participation in
subcontracting--and price, which was slightly less important than the
technical criteria.

Millar and Amtech were the only two offerors that responded to the
solicitation. A source selection board evaluated the technical proposals and
the contracting officer evaluated the price proposals. After two rounds of
discussions and two rounds of best and final offers (BAFO), GSA performed a
best value analysis and selected Amtech for award. Millar challenged the
award decision in a protest to our Office (B-284870, B-284870.2). As part of
an "outcome prediction" alternative resolution dispute conference conducted
at the request of the parties, the General Accounting Office attorney
handling the matter advised the parties that there appeared to be errors in
GSA's evaluation. Following the conference, GSA proposed corrective action
that led to our dismissing the protest on May 11, 2000. Thereafter, GSA
issued amendment No. 4 to revise the solicitation, requested third BAFOs,
evaluated those BAFOs, and performed a new best value analysis. Contracting
Officer's Statement (COS) at 3, 4. Amtech again was selected for award and
Millar now protests that award decision. [1]

Millar challenges the evaluation on numerous grounds. In reviewing a protest
against a procuring agency's proposal evaluation, our role is limited to
ensuring that the evaluation was reasonable and consistent with the terms of
the solicitation. National Toxicology Labs., Inc., B-281074.2, Jan. 11,
1999, 99-1 CPD para. 5 at 3. We have reviewed the record here and find all of
Millar's arguments to be without merit. We discuss Millar's primary
arguments below.

AMTECH'S PAST PERFORMANCE

Amendment No. 4 requested revised BAFOs, but provided that the agency would
consider an offeror's original proposal if it chose not to submit a BAFO.
Amtech did not submit a revised technical BAFO, and GSA based its award
decision on an evaluation of Amtech's original proposal. Millar asserts
that, during Amtech's performance of the contract (following the original
award), Amtech experienced performance problems in completing the lobby
modernization work (awarded under option 1 of the solicitation). Protest
(B 284870.5) at 3-5. To support this position, Millar relies on a July 3,
2000 e-mail from the GSA project manager to other GSA personnel, and an
August 2, 2000 letter from the GSA project manager to Amtech. [2] According
to Millar, this negative information regarding Amtech's performance should
have been, but was not, considered during the reevaluation and new award
determination.

The agency confirms that there was a problem with Amtech's performance, but
explains that the problem was due to a delay in the award of the contract;
as a result of the delay, Amtech's performance of certain lobby
modernization work had to be accelerated to coordinate with a separate lobby
modernization contract. Agency Report (AR) at 6. GSA states that the
performance problem concerned only the lobby modernization work, and that
Amtech was performing the other portions of the contract well. Id.

We find nothing objectionable in the agency's evaluation of Amtech's past
performance. The e-mail and letter Millar references do show that the agency
was having a problem with Amtech's accelerating its performance to
coordinate with the other lobby modernization contract. However, Millar has
neither asserted nor shown that Amtech's problem extended beyond the lobby
work, and the record shows that Amtech corrected the problem by providing an
additional manager for the lobby work. AR at 11. Further, this one instance
of negative past performance would have been viewed together with the fact
that Amtech's proposal provided 18 references, and that all those contacted
by GSA rated Amtech's performance as excellent. Supplemental Technical
Evaluation and Consensus Report (CR) at 9. In this regard, the August 2
letter shows that Amtech recently very successfully completed a similar high
profile GSA contract (the Byrne/Green Elevator Project). In light of these
considerations, there is no basis to conclude that the problem Amtech
experienced in performing the lobby work would have affected its past
performance rating.

EVALUATION BASED ON ELIMINATED WORK

Millar maintains that, although amendment No. 4 deleted option items 1 and 2
(elevator lobby and telephone equipment) and asbestos abatement work from
the solicitation, Amtech improperly received reevaluation credit related to
the deleted work. Specifically, Millar asserts that, during the original
evaluation, Amtech received credit for its asbestos abatement schedule and
for the telephones it proposed for option 2, and that GSA did not delete any
points from Amtech's evaluation score when it reevaluated the proposals.

GSA responds that, while, during the initial evaluation, one evaluator gave
Amtech points for the telephones it proposed under option 2, AR at 8, these
points were deleted from Amtech's score during the consensus evaluation
because the telephones to be supplied by the offerors were prescribed by the
solicitation and thus were not subject to technical evaluation. Id. Further,
GSA states that, while it did not subtract during the reevaluation any
points Amtech originally received for asbestos abatement, it specifically
eliminated consideration of asbestos abatement during the final evaluation.
Id. at 9; CR at 9.

Whether or not Amtech's point score was adjusted during the reevaluation,
this allegation does not provide a basis for questioning the evaluation or
award decision. Evaluation scores are merely guides for selection officials,
who must use their judgment to determine what the actual technical
difference between competing proposals might mean to contract performance.
SEEMA, Inc., B-277988, Dec. 16, 1997, 98-1 CPD para. 12 at 6. Here, the record
shows that GSA's award decision was based, not on the point scores, but on
the identified strengths and weaknesses of the technical proposals balanced
against the difference in the prices. In the final proposal evaluation and
consensus report, there is no mention of any strength associated with the
telephones Amtech offered in its proposal. The report similarly indicates
that Amtech's original asbestos abatement evaluation was not considered in
the reevaluation, stating that "Amtech's schedule was evaluated prior to
asbestos being deleted in BAFO #3. Strengths and weaknesses associated with
their asbestos abatement schedule will therefore not be discussed." CR at 9.
Nor is either of these items mentioned in the best value and award
determination. We conclude that these items had no effect on the award
decision; they thus do not provide a basis for questioning that decision.

AMTECH'S ENHANCED SCHEDULE

The solicitation originally required offerors to complete performance of the
asbestos abatement work within 100 days, and the entire contract within 850
days, after receiving notice to proceed, SFO, vol. 1, part 2, at 2.4, and
also invited offerors to propose an enhanced schedule. In its proposal,
Amtech offered an enhanced schedule under which it would complete the
asbestos work in [DELETED] days and the entire contract in [DELETED] days.
During the reevaluation, in light of the deletion of the asbestos abatement
work, the agency determined that the new required schedule was 750 days, and
that Amtech's proposed schedule should be evaluated as [DELETED] CR at 9-10.
Millar protests that, because Amtech did not submit a revised BAFO in
response to amendment No. 4, it was improper for the agency to assume that
Amtech still intended to propose--as it had in its original proposal--an
enhanced schedule to complete the contract.

This allegation is untimely. Millar received the CR on November 1, 2000,
together with the agency report responding to Millar's earlier protest
(B-284870.4). The CR put Millar on notice that the agency had considered
Amtech's proposed schedule to be [DELETED] days in the reevaluation. CR at
9-10. Millar's comments in response to the agency report (B-284870.4) show
that Millar also was aware, no later than November 7, that Amtech had not
submitted a revised BAFO, and that the reevaluation of Amtech's proposal was
based on the firm's preexisting proposal. Millar therefore knew, or should
have known, of this alleged evaluation impropriety no later than November 7.
Since this argument was not raised by November 17, that is, 10 days later,
it is untimely and will not be considered. See 4 C.F.R. sect. 21.2(a)(2). [3]

BIAS

Millar asserts that one of the agency evaluators--the project manager who
was administering Amtech's contract during the reevaluation--should have
been disqualified due to bias in favor of Amtech. Specifically, Millar
points to language in the evaluator's August 2 letter to Amtech (discussed
above) alluding to the efforts he personally made to assist Amtech in
receiving the award, and indicating his hope that Amtech would receive the
award following the reevaluation. Protest (B-284870.5), exh. 8, Letter from
GSA to Amtech (Aug. 2, 2000). Millar asserts that these statements indicate
the evaluator's clear preference for Amtech, and that the evaluator thus was
not in a position to provide an unbiased evaluation.

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. RONCO Consulting Corp., B-280113, Aug.
11, 1998, 98-2 CPD para. 41 at 5. Thus, we will sustain a protest allegation of
bias only where the protester produces credible evidence of bias and
demonstrates that the agency bias translated into action that unfairly
affected the protester's competitive position. Id.

We do not agree that the August 2 letter evidences bias in the proposal
evaluation. That letter was written to Amtech by the evaluator in his role
as project manager, not for the purpose of praising Amtech, but to persuade
Amtech to accelerate performance on the lobby work. The favorable comments
about Amtech were part of the project manager/evaluator's attempt to make
Amtech understand that it had a great deal to lose if it did not work to
resolve the lobby modernization problem. While statements in the letter
indicate that the project manager/evaluator was favorably disposed to
Amtech's receiving the award following the reevaluation, it seems clear,
reading the letter as a whole, that those statements reflected the project
manager/evaluator's knowledge of Amtech's exemplary performance under a
prior high profile contract. We do not think the fact that an evaluator has
a favorable opinion of an offeror based on a consideration that was part of
the evaluation scheme--past performance was an evaluation factor under the
RFP--establishes that the evaluator was biased, so as to call the fairness
of the evaluation into question.

There is nothing else in the record to indicate that the evaluator in
question influenced or attempted to influence the award in favor of Amtech.
Specifically, there is no showing by Millar that any bias affected the
protester's competitive position; despite Millar's multiple protests
challenging the procurement on numerous grounds, we have found here, as well
as in our prior decision (Millar Elevator Servs. Co., B-284870.4, Dec. 27,
2000, 2001 CPD para. __), that the evaluation and award decision were
reasonable.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Millar also filed an earlier protest (B-284870.4) against the new award
decision. We denied that protest by decision dated December 27, 2000.

2. In comments submitted on January 17, 2001, Millar supplemented its
argument on this issue with what it believes are additional specific
instances of Amtech's poor performance. However, Millar received the
documents containing this information on November 3, 2000, pursuant to a
Freedom of Information Act request. Since Millar did not raise its specific
argument concerning this information within 10 days after November 3, this
expansion of its original argument is untimely; our Bid Protest Regulations
to not contemplate such a piecemeal presentation or development of protest
issues. See 4 C.F.R. sect. 21.2(a)(2) (2000); OHM Remediation Servs. Corp.,
B-274644 et al., Dec. 23, 1996, 97-1 CPD para. 4 at 9; QualMed, Inc.,
B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13; Cornet, Inc.; Datacomm
Management Servs., Inc., B-270330, B-270330.2, Feb. 28, 1996, 96-1 CPD para. 189
at 2-3.

3. We are aware that the record contains a conflict regarding Amtech's
enhanced schedule: the CR states that Amtech's proposed schedule of
[DELETED] days was reduced by [DELETED] days, to [DELETED] days, while the
agency report states that it was reduced by [DELETED] days, to [DELETED]
days. This inconsistency does not affect our conclusion that the issue was
untimely raised.