TITLE:  Gray Personnel Services, Inc., B-285002; B-285002.2, June 26, 2000
BNUMBER:  B-285002; B-285002.2
DATE:  June 26, 2000
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Gray Personnel Services, Inc., B-285002; B-285002.2, June 26, 2000

Decision

Matter of: Gray Personnel Services, Inc.

File: B-285002; B-285002.2

Date: June 26, 2000

Andrew P. Hallowell, Esq., and Antonio R. Franco, Esq., Piliero, Mazza &
Pargament, for the protester.

Cpt. David J. Goetz and Col. Nicholas P. Retson, Department of the Army, for
the agency.

Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging agency's past performance evaluation is denied where the
record shows that the evaluation was reasonable and consistent with the
solicitation's evaluation scheme.

DECISION

Gray Personnel Services, Inc. protests the Army's award of a contract to RGB
Group, Inc. pursuant to request for proposals (RFP) No. DADA15-99-R-0023.
The protester alleges that the Army misevaluated proposals on past
performance.

We deny the protest.

Issued on August 16, 1999, by the Walter Reed Army Medical Center (WRAMC),
the RFP solicited offerors for providing health care services at Kimbrough
Ambulatory Care Center, Fort Meade, Maryland, and at two other locations.
RFP amend. 2, sect. C.1. The RFP contemplated award of an indefinite-quantity
contract (for a basic period of 6 months, with options for 4 additional
years), under which the contractor would provide, on the basis of fixed
per-hour prices, the health care services of a number of different types of
health care professionals. RFP at 47; RFP amend. 2, at 2-54.

The RFP stated that the contract would be awarded to the offeror whose offer
was the most advantageous to the government after consideration of price and
other factors. RFP at 49. The RFP stated that proposals would be evaluated
on three factors: past performance, technical (including contract
administration and recruiting qualified personnel subfactors), and price.
Id. The RFP explained that past performance was significantly more important
than technical and that the two technical subfactors were equal in
importance and, when combined, were more important than price. Id. The RFP
advised that it was highly likely that the contract would be awarded on the
basis of initial proposals. RFP amend. 2, at 1.

Concerning past performance, offerors were required to submit information,
including references, on contracts performed within the past 3 years, which
were similar in scope and complexity to the present requirement. The RFP
stated that past performance would be evaluated on the offeror's ability to
comply with contract terms and conditions, provide quality
service/personnel, maintain schedules, and exercise management control. RFP
at 45. The RFP stated that past performance would not be numerically rated,
but would be evaluated for risk (i.e., probability of success) and briefly
defined the three possible ratings (i.e., "high," "medium," or "low" risk)
that the agency would assign a proposal after evaluating an offeror's past
performance. Id. at 49-50.

[Deleted] offers were received and evaluated, and [deleted] were found
technically acceptable. The evaluations of RGB's and Gray's proposals are
summarized as follows:

 Offeror    Past Performance   Technical Score/   Total Price
            (Risk)             Qualitative
                               Rating

 RGB        Low                [deleted]          $14,932,722

 Gray       Medium             [deleted]          $[deleted]

Agency Report, Tab K, Negotiation Memorandum, at 8. Based upon RGB's low
past performance risk, [deleted] technical rating, and lowest total price,
the contracting officer determined that it was in the best interest of the
government to award the contract, without conducting discussions, to RGB.
Id. at 8-10. Accordingly, the contract was awarded to RGB. After a
debriefing, Gray protested.

The protester contends that it was unreasonably downgraded on past
performance based solely upon a negative comment made by a WRAMC contract
administrator concerning Gray's low "fill rate"--i.e., ability to provide
nursing staff when requested--under a prior contract. Gray asserts that
there is nothing in the instant RFP that states that "fill rates" under
prior contracts will be evaluated. Gray also asserts that there was a
[deleted] in the Washington, D.C. area; that the number [deleted] that it
was required to provide had [deleted] over the life of that contract; and
that it was unable to provide [deleted] as requested by WRAMC. Thus, Gray
contends that its "fill rate" was excellent "under the circumstances," and
therefore it should have been given a better risk rating on the past
performance evaluation. Protest at 4.

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 merit of offerors' past performance information 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. Agencies
are required to evaluate proposals consistent with the RFP's stated
evaluation criteria, including considerations reasonably and logically
encompassed by the stated factors. F2M-WSCI, B-278281, Jan. 14, 1998, 98-1
CPD para. 16 at 7.

Consideration of Gray's "fill rate" under a prior contract was consistent
with the RFP. The basic requirement of the instant RFP is for the contractor
to provide qualified health care professionals for routine work schedules,
as well as for additions to and surges in work requirements as required
under delivery orders, and to provide competent substitutes as needed. RFP
amend. 2, sect.sect. C.1, C.2. As noted above, the RFP specifically stated that the
agency would consider an offeror's ability to provide quality
service/personnel and to maintain schedules as part of the past performance
evaluation. RFP at 45. Moreover, in defining each of the three risk ratings
that the agency might give offerors, the RFP specifically referred to the
offerors' meeting schedules, ability to provide requested services, and
meeting contract requirements. [1] RFP at 49-50. Clearly, consideration of
Gray's ability to provide nursing staff when requested under a prior
contract was encompassed within the RFP's evaluation scheme.

In evaluating Gray's past performance, the contracting officer considered
questionnaires on three prior contracts listed in Gray's proposal. With one
exception, discussed below, the questionnaires were generally favorable to
Gray. The contracting officer also considered a fourth "highly favorable
report" that the agency had in its files, even though that contract was not
listed in Gray's proposal. Contracting Officer's Supplemental Statement
at 3; Agency Report, Tab H, Past Performance Information (Gray), at 1-9.
Since the "medium risk" rating assigned to Gray is primarily attributable to
a prior contract Gray had with WRAMC for providing licensed practical nurses
to the hospital's intensive care unit (ICU), we will briefly discuss the
record of Gray's performance under the WRAMC contract and the conclusions
the contracting officer drew from it.

The administering contracting officer (ACO) for the WRAMC contract gave Gray
a "[deleted]" rating of [deleted] for "adherence to scheduling requirements"
and he commented that Gray's fill rate for [deleted] had been poor. [2]
Contracting Officer's Statement at 4. The contracting officer also was aware
that the ACO for the WRAMC contract had sent two letters of concern (one
each in the [deleted]) to Gray, about Gray's low fill rate. Contracting
Officer's Supplemental Statement at 4, 5. In the summer of 1999, the WRAMC
ACO wrote to Gray, stating:

[deleted]

Agency Report, Tab I, Letter from ACO to Gray 1 (Aug. 25, 1999). Four months
later, the WRAMC ACO again wrote to Gray, stating: "Based on the above fill
rate, I feel Gray Personnel is [deleted] of the above contract." Agency
Report, Tab I, Letter from ACO to Gray 1 (Dec. 21, 1999).

Based upon the negative comments in the ACO's past performance questionnaire
and letters regarding Gray's performance on the WRAMC contract, the
contracting officer reasonably concluded that Gray had exhibited problems
meeting scheduling requirements. [3] Agency Report, Tab K, Negotiation
Memorandum, at 3. In this regard, the contracting officer states her belief
that Gray's past performance problems under the WRAMC contract were
significant, especially since they occurred in two separate time periods.
Contracting Officer's Supplemental Statement at 4, 5. Gray concedes that
there were times when it was unable to [deleted] as requested by WRAMC but
argues that there were extenuating circumstances. Protest at 4. In these
circumstances, Gray's past performance would appear to fall squarely within
the RFP's definition of "medium risk," quoted above, since Gray occasionally
was unable to provide the requested [deleted] services and had had a few
reported failures in meeting the terms of the WRAMC contract. Accordingly,
we find that the contracting officer reasonably determined that Gray's past
performance merited a "medium risk rating."

Gray also contends that RGB was rated unreasonably high (i.e., low risk) on
past performance, because RGB has very little experience in providing
on-site health care services and has not performed any work of the same
scope and complexity as the instant requirement. Protest at 5. Gray states
that, with the exception of one contract for providing dentists, RGB has
never contracted to provide more than two physicians or nurses. Supplemental
Protest at 2. After reviewing the record, we find that the contracting
officer reasonably evaluated RGB's past performance.

RGB's proposal listed 14 prior contracts and included a brief description of
each, including, among other things, the type of services and the number and
type of workers that RGB provided under each. RGB Proposal, vol. II, Past
and Present Performance, at 1-15. RGB's proposal also included more than 40
quality assessment reports (signed by government officials) that were
apparently completed at RGB's request and then submitted to RGB. Contracting
Officer's Supplemental Statement at 8. Some of the quality assessment
reports were evaluations of the performance of RGB's management, while
others were evaluations of the performance of personnel RGB had provided
under various contracts. RGB Proposal, vol. III, Technical/Management,
attachs. F, F1.

In her past performance evaluation, the contracting officer considered all
of the information included in RGB's proposal, information received from
other government officials in response to questionnaires sent out by the
contracting officer, and relevant information that the contracting agency
had in its files. [4] Contracting Officer's Statement at 6; Contracting
Officer's Supplemental Statement at 3. The contracting officer's evaluation
focused on 4 of the 14 contracts listed in RGB's proposal. Contracting
Officer's Supplemental Statement at 3. For one of these contracts, the
contracting officer reviewed a completed past performance questionnaire that
the contracting officer had sent to and had received back from the
contracting activity (the Kimbrough Ambulatory Care Center at Fort Meade).
On another contract, the contracting officer reviewed a past performance
evaluation that had been completed by a United States Coast Guard
contracting official and which was included in RGB's proposal. On a third
contract, the contracting officer relied upon a past performance evaluation
that was already in her files since it had been completed and submitted by a
Defense Logistics Agency official in an earlier procurement. For the fourth
contract, the contracting officer reviewed information contained in RGB's
proposal, including a large number of quality assessment reports on RGB
management and the personnel that RGB had provided to various government
agencies under a health care provider services contract with the Army's
MEDCOM contracting center, because the contracting officer did not receive a
response to the questionnaire she had sent to MEDCOM. Contracting Officer's
Supplemental Statement at 3, 5-8.

After reviewing all the above-described past performance information, the
contracting officer determined that RGB deserved a "low risk" past
performance rating. [5] Specifically, in deciding upon this rating the
contracting officer considered the fact that past performance questionnaires
received for RGB's prior contracts gave RGB ratings ranging from "highly
acceptable" to "superior" and indicated that RGB met the definition of low
risk performance. The contracting officer also considered the information
provided in RGB's proposal, including management quality assessments and
employee evaluations completed by government officials, regarding a dental
services contract worth $26 million under which RGB provided approximately
24 full-time dentists, 27 part-time dentists, 50 full-time dental
assistants, and 23 part-time dental assistants to Air Force facilities
throughout the United States. The contracting officer states that she
determined that the dental services contract was similar in scope to the
present requirement because the dental services contract included the
complex tasks unique to providing health care personnel, including
determining qualifications, maintaining current licenses and certifications,
and providing qualified replacement personnel. Contracting Officer's
Supplemental Statement at 7, 8. According to the contracting officer, after
reviewing these reports and evaluations of RGB's performance under other
contracts, she determined that RGB consistently complied with contract terms
and conditions, provided quality service and personnel, maintained
schedules, and exercised management control. Contracting Officer's Statement
at 6-7.

Based upon the above record, we think that the contracting officer
reasonably concluded that RGB had a record of relevant past performance
providing services that were similar in nature and requiring the same
abilities that would be required to perform the present contract--that is,
providing services from a number of different types of health care
professionals. Contracting Officer's Supplemental Statement at 9. Our review
of the past performance record finds that it is replete with very positive
comments concerning RGB's past performance and, therefore, confirms the
reasonableness of the contracting officer's evaluation. [6]

The protest is denied.

Comptroller General
of the United States

Notes

1. For example, the RFP defined "medium risk", the rating given Gray's
offer, as:

Equates to a reasonable expectation of success. Verification of Past
Performance shows that offeror occasionally has not met work schedules or
other obligations, on occasion has been unable to provide requested
services, or met contract terms with only a few reported failures . . . .

RFP at 50.

2. The questionnaire asked references to rate the contractor on a scale of 1
to 5 in several areas, indicating that a "5" represented superior
performance while a "1" represented unacceptable performance. See, e.g.,
Agency Report, Tab H, Past Performance Information (Gray), at 1.

3. In drawing this conclusion, the contracting officer also noted that, in a
questionnaire submitted on another contract listed as a reference in Gray's
proposal, Gray received only a "[deleted]" rating of [deleted] for
"adherence to scheduling requirements." Agency Report, Tab K, Negotiation
Memorandum, at 3; Contracting Officer's Statement at 5.

4. Gray also contends that the agency improperly considered management
quality assessments and individual employee performance reviews that were
included in RGB's proposal "without verification." Supplemental Protest
at 2, 8. However, the RFP did not state that the agency would evaluate only
information obtained directly from references listed in the proposals, it
contained no restriction on the type of past performance information that
could be included in offers and evaluated by the agency, and it did not
state that all past performance information submitted by the offeror or
received from other sources had to be verified. Federal Acquisition
Regulation sect. 15.305(a)(2)(ii) specifically states that agencies shall
evaluate past performance information obtained from other sources than the
protester and that the source selection authority shall determine the
relevance of similar past performance information. The agency points out
that the management quality assessments and employee evaluations were
completed and signed by cognizant government contracting officials.
Supplemental Agency Report at 3. Therefore, we think that the contracting
officer reasonably considered the additional information. See TEAM Support
Servs., Inc., B-279379.2, June 22, 1998, 98-1 CPD para. 167 at 4-5.

5. The RFP defined "low risk" as:

Equates to a substantial probability of success. Verification of Past
Performance shows that offeror consistently meets work schedules, provides
specified services, meets contract terms without failure . . . .

RFP at 50.

6. The protester contends that the evaluation is not adequately documented
because the Negotiation Memorandum contains no discussion of RGB's past
performance and, therefore, Gray cannot decipher how the evaluation was
conducted. Supplemental Protest at 2. While the Negotiation Memorandum
merely states that RGB's past performance is rated "low risk" without
explanation, as discussed above, the record contains ample documentation to
support the low risk rating, and the contracting officer has adequately
explained her rationale for giving RGB that low risk rating consistent with
and based upon the abundant documentation in her possession.