TITLE:  SWR Inc., B-286044.2; B-286044.3, November 1, 2000
BNUMBER:  B-286044.2; B-286044.3
DATE:  November 1, 2000
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SWR Inc., B-286044.2; B-286044.3, November 1, 2000

Decision

Matter of: SWR Inc.

File: B-286044.2; B-286044.3

Date: November 1, 2000

Benjamin M. Bowden, Esq., Albrittons, Clifton, Alverson & Moody, for the
protester.

Jacob B. Pompan, Esq., and Gerald H. Werfel, Esq., Pompan, Murray & Werfel,
for Pentad Corporation, an intervenor.

Sharon A. Jenks, Esq., Department of the Air Force, for the agency.

Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Past performance evaluation is unobjectionable where it was conducted in
accordance with stated evaluation criteria and is supported by the record;
protester's proposal was reasonably rated neutral under past performance
factor where it showed no relevant prior performance by offeror and,
although protester argues that the relevant experience of its proposed
project manager should have been attributed to the protester, agency
reasonably declined to do so where the individual was not currently employed
by the protester, and the proposal did not contain a firm commitment by the
individual to work for the protester.

DECISION

SWR, Inc. protests the award of a contract to Pentad Corporation under
request for proposals (RFP) No. F09607-00-R0003, issued by the Department of
the Air Force for mess attendant services at Moody AFB, Valdosta, Georgia.
SWR challenges the evaluation of the proposals.

We deny the protest.

Under the statement of work, the contractor was to to provide all personnel,
supervision, and any items and services necessary to perform food service
attendant services. RFP attach. 2 at 3. The RFP, a total small business
set-aside, contemplated the award of a fixed-price contract for a 5-month
base period, with three 1-year options. RFP attach. 3 at 3. The RFP provided
for a best value evaluation based on past performance and price, with past
performance being significantly more important than price. RFP attach. 5 at
1. The past performance factor included the following subfactors: quality of
service, management, and compliance with contract requirements. Id. at 3.
Offerors were required to submit relevant past performance information,
including a list of their last 5 contracts performed within the last
5 years, and all contracts currently in progress. RFP attach. 4 at 3. The
RFP provided that past performance would be considered relevant "if the
services provided are of a similar nature and scope as the requirements
contained in this solicitation . . . . Past performance, for the purpose of
satisfying this requirement, means quality and quantity and level of work
essentially comparable to this acquisition." Id. Following the evaluation,
proposals would be assigned a "Confidence Assessment Rating," based on an
assessment of performance risk. RFP attach. 5 at 2. Offers having no
relevant past performance would be given a neutral rating for past
performance. Id. at 3. The RFP warned that, although price would be
evaluated, the government might award to other than the low-priced offeror.
Id. at 1.

Several proposals were received and evaluated. Although all seven past
performance references provided by SWR rated the firm exceptional or very
good under each past performance subfactor, the agency found that the prior
contracts were not similar in nature and scope to the RFP requirement, and
therefore were not relevant; SWR's proposal thus was rated neutral overall
for past performance. Agency Report (AR), sect. 10, at 2. Pentad's proposal
referenced three current food service contracts at defense installations,
all of which were deemed relevant. For two of the contracts, Pentad's
performance was rated exceptional, and for the third it was rated very good;
this resulted in an overall exceptional rating under the past performance
factor. Id. at 4. Pentad's price, $1,829,979.81, was the lowest among four
proposals rated exceptional; SWR's proposal was one of five rated neutral,
and was the lowest-priced overall at $1,644,542.80. Id. at 7, 8. The source
selection authority (SSA) compared Pentad's proposal to the one proposal
rated satisfactory (which was the second lowest-priced overall at
$1,649,817.90), and determined the premium was reasonable given the superior
quality reflected in Pentad's exceptional past performance rating. Thus,
Pentad's offer was determined to represent the best value to the government,
and award was made to that firm. Id. at 8, 9. Following a debriefing, SWR
filed this protest. AR, Memorandum of Law, at 1.

SWR objects to its neutral past performance rating. SWR acknowledges that it
has no history of providing the identical services required here, but
maintains that the agency was required--under the terms of the RFP and the
Federal Acquisition Regulation (FAR)--to consider the experience of its
proposed project manager, a key employee, who has worked in the same
capacity for the incumbent contractor for
3 years. SWR concludes that, had the agency considered its project manager's
past performance, SWR would have received a higher rating and, based on its
lowest price, its proposal would have been determined the best value to the
government.

We will review a proposal evaluation to ensure that it was reasonable and
consistent with the solicitation and applicable statutes and regulations.
JRS Management.,
B-278182, Nov. 10, 1997, 97-2 CPD para. 137 at 2. A protester's mere
disagreement with the agency's evaluation does not render the evaluation
unreasonable. Command Technology, Inc., B-277538.2, Apr. 28, 1998, 98-1 CPD
para. 123 at 4.

SWR is correct--and the agency does not dispute--that the RFP indicated that
the past performance evaluation would include key personnel. In this regard,
the RFP stated under the heading "Past Performance Procedures," that
"[i]nformation will also be considered regarding any significant
subcontractors, and key personnel records." RFP attach. 5 at 2 (emphasis
added). The RFP also referenced FAR sect. 15.305(a)(2), id. at 3, which states,
in relevant part, that the agency should consider past performance
information concerning "key personnel who have relevant experience
. . . when such information is relevant to the instant acquisition."

SWR's proposal indicated that the individual it was proposing as project
manager was not a current SWR employee, but was employed as the project
manager for the incumbent contractor. SWR Proposal at 2, 18. In order to
establish that the individual intended to be employed by SWR, the firm
included in its proposal a letter, purportedly from the individual, that
reads as follows:

If upon successful Award of the Food Service contract with your Company and
Moody Air Force Base, Valdosta Georgia. Please accept this letter as my
intent to continue employment as Project Manager at that facility for as
long as the contract is in force.

SWR Proposal at 19. The typed name of the project manager appears in the
signature block, but the letter is unsigned. The letter is addressed to "To
Whom this may concern," and there is no reference in the letter to SWR or
any SWR employee.

The agency takes the position that the letter from the proposed individual
did not reliably convey that she would, in fact, perform as project manager
for SWR, and that it therefore reasonably did not attribute her experience
to SWR. We agree. The possibility that, due to unforeseen circumstances, a
proposed key individual may not be hired by the offeror, is an appropriate
consideration for an agency in deciding whether the individual's experience
should be imputed to the offeror for evaluation purposes. See Pacific
Architects & Eng'rs, Inc., B-262243, B-262243.2, Dec. 12, 1995, 95-2 CPD para.
253 at 7-8. The letter included in SWR's proposal established no commitment
on the part of the proposed individual to work for SWR and, indeed, did not
even refer to SWR, and there was nothing else in the proposal indicating
that SWR and the individual had even discussed specific employment terms. We
think the agency reasonably could decline to impute the proposed
individual's experience to SWR based on the absence of stronger evidence of
an employment commitment, or other evidence indicating that the individual
would in fact be employed by SWR. [1]

SWR asserts that the absence of a firm employment commitment should not be
relevant, since the RFP did not require firm letters of commitment from
proposed employees. However, our above conclusion is not dependent upon such
a requirement; rather, it is based on the inherent rationality of an
agency's assessing whether a proposed individual will be employed by an
offeror before it imputes that employee's past performance to the offeror.
The fact that letters of commitment were not required did not preclude the
agency from making this assessment based on all relevant considerations.

In a supplemental protest filed on September 18, SWR argues that the agency
improperly failed to evaluate each offeror's quality control plan and
phase-in plan. Under our Bid Protest Regulations, protests of alleged
improprieties in a solicitation which are apparent prior to the time for
receipt of proposals, must be filed prior to that time. 4 C.F.R. sect.
21.2(a)(1) (2000). Although the RFP provided that the quality control plan
and phase-in plan were mandatory parts of every offer, RFP attach. 8
at 1, it also provided that only price and past performance would be
evaluated. RFP attach. 5 at 1. The agency evaluated the proposals under
these two factors, in accordance with the RFP. If SWR believed other parts
of its proposal submission should have been evaluated, it was required to
protest on this basis prior to the closing time for receipt of proposals; it
could not wait until the agency actually evaluated the proposals as it said
it would. Because it did not raise this allegation prior to the closing
time, this aspect of its protest is untimely.

SWR also argues in its supplemental protest that the agency improperly
failed to consider past performance information in its proposal regarding
its ongoing contract for repair and maintenance of food service equipment in
the dining facility at
Ft. Shafter, Hawaii; SWR asserts that its past performance on this contract
should have been considered relevant. This argument also is untimely.
Protests concerning other than solicitation deficiencies must be filed
within 10 days after the protester knew or should have known the basis for
the protest. 4 C.F.R. sect. 21.2(a)(2). New protest grounds raised in a
supplemental protest must independently satisfy the timeliness requirements
of our Regulations. RAMCOR Servs. Group, Inc.,
B-276633.2 et al., Mar. 23, 1998, 98-1 CPD para. 121 at 9 n.9. As of its August
3 debriefing, SWR was aware that, notwithstanding that it had included the
Ft. Shafter contract information in its proposal, it had been rated neutral
for past performance. Since the RFP specified that a neutral rating would be
assigned where the agency found no relevant experience, it should have been
clear from the debriefing that the agency did not consider the Ft. Shafter
contract to be relevant experience. Therefore, this argument was required to
be raised no later than August 14 (the next business day following August
13). Because it was not raised until September 18, it is untimely and will
not be considered.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. We note that, even had the evaluators imputed the relevant experience of
its proposed project manager to SWR, the record is not clear that the result
would have been favorable to SWR. The agency asserts that it would not have
been favorable, and has provided numerous contract discrepancy reports with
respect to the incumbent contractor, at least one of which is specifically
critical of the project manager. AR, sect. 12, exh. 2, at 19.