TITLE:  Professional Landscape Management Services, Inc., B-286612, December 22, 2000
BNUMBER:  B-286612
DATE:  December 22, 2000
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Professional Landscape Management Services, Inc., B-286612, December 22,
2000

Decision

Matter of: Professional Landscape Management Services, Inc.

File: B-286612

Date: December 22, 2000

Joel S. Rubinstein, Esq., Bell, Boyd & Lloyd, for the protester.

J. Randolph MacPherson, Esq., Sullivan & Worcester, for Environmental
Resources Group, Inc., an intervenor.

Stephanie Foster, Esq., Sharon Roach, Esq., and Edith L. Toms, Esq., General
Services Administration, Public Buildings Service, for the agency.

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Although agency incorrectly evaluated proposals as either acceptable or
unacceptable--rather than on a comparative basis--under best value
evaluation scheme, and then made award based on low price, award decision
was unobjectionable where contemporaneous record shows that all offerors'
technical proposals were of equal merit, as confirmed by agency's
post-protest scoring of offerors' past performance information.

DECISION

Professional Landscape Management Services, Inc. (PLMS) protests the award
of a contract to Environmental Resources Group, Inc. (ERG) under request for
proposals (RFP) No. GS11P00ZCD0155, issued by the General Services
Administration (GSA), Public Buildings Service, for landscape maintenance
services. PLMS asserts that the evaluation was inconsistent with the RFP and
unreasonable, and that discussions were inadequate.

We deny the protest.

The RFP sought proposals for all labor, materials, tools, equipment, and
services necessary for complete landscape maintenance services, including
snow and ice removal, around various buildings at two Maryland sites, the
Suitland Federal Center and Bowie Computer Facility. [1] Offerors submitted
fixed monthly pricing for each service for a performance period of a base
year, with 4 option years. Offers were to be evaluated on the basis of two
equally weighted factors: technical, consisting of experience and past
performance on similar projects, and price. With regard to the technical
factor, offerors were required to submit five references for similar
projects performed by the offeror during the past 7 years. Award was to be
made to the offeror whose proposal was most advantageous, i.e., the best
value to the government, considering the technical and price factors.

Four offerors, including PLMS and ERG, submitted proposals by the September
15, 2000 closing time. In evaluating these proposals, the evaluators
contacted the references submitted by each offeror to obtain answers to
seven questions. [2] The evaluators successfully contacted five of ERG's
references and four of PLMS's. The responses from the references were all
positive and similar in nature and, in accordance with the source selection
plan--which provided for ratings of either acceptable or unacceptable--both
proposals were evaluated as acceptable. PLMS's price was lowest overall and
approximatley $900 below ERG's.

Based on this initial evaluation, the agency determined to conduct
discussions with all offerors. In discussions with PLMS, the agency advised
the firm that all references were acceptable and all reviews received were
"good," but because only three references were for general landscape
services, it asked PLMS to submit two additional references related to
landscaping. The agency also noted that PLMS's pricing was low in comparison
to other offers received and advised PLMS to review its pricing to ensure
that everything was included. The agency similarly advised ERG that its
price was low compared to other offers received and the government estimate,
and that it should review its proposal to ensure that everything was
included.

In its revised proposal, PLMS included two additional references and raised
its overall prices for each year to a total of $365,476. The agency was
unable to contact either of the references, and thus decided to rely upon
PLMS's initial evaluation under the technical factor. ERG increased its
annual prices to a total of $348,218 per year, approximately $17,000 below
PLMS's price. In their final report, the evaluators recommended award to ERG
based on the fact that both PLMS's and ERG's proposals were acceptable and
the fact that ERG's price was lower. Agency Report (AR), Tab 13, Final
Evaluation Report. Further, citing ERG's 6.5 years of experience in
landscape maintenance at the Suitland Federal Center, its favorable
reference rating for that work, and ERG's "considerable knowledge of the
requirements of this contract," the contracting officer determined that
ERG's price was fair and reasonable and that award to ERG was in the best
interests of the government. AR, Tab 13, Final Price Analysis.

PLMS maintains that the agency improperly changed the award basis from best
value to low price/technically acceptable, resulting in price being the sole
evaluation factor. The agency denies that it intended to make an award on a
low price/

technically acceptable basis, but concedes that it improperly used only two
adjectival ratings--acceptable and unacceptable--in rating the propsals
under the technical factor. In response to the protest, the agency rated the
proposals numerically based on the original narratives for each
performance-related question on the past performance reference checks. GSA
maintains that the resulting scores demonstrate that all offerors' proposals
in fact were technically equivalent, and that ERG's low price therefore made
its proposal the best value. In its comments in response to the agency's
report, PLMS asserts that this "after-the-fact scheme" is not a proper basis
for finding the evaluation reasonable.

In reviewing an agency's evaluation of proposals and source selection
decision, we will determine whether the agency acted reasonably and
consistent with the stated evaluation factors. The Cube Corp., B-277353,
Oct. 2, 1997, 97-2 CPD para. 92 at 3; PRC, Inc., B-274698.2, B-274698.3,
Jan. 23, 1997, 97-1 CPD para. 115 at 4. The protester is correct that the RFP
did not provide for selection of the lowest-priced, technically acceptable
proposal, so that a selection on that basis would be improper.

Our Office will not sustain a protest, however, unless the protester
demonstrates a reasonable possibility that it was prejudiced by the agency's
actions, that is, unless the protester demonstrates that, but for the
agency's actions, it would have had a substantial chance of receiving the
award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here,
we agree with the agency that the proposals were effectively found to be
equivalent in technical merit; once that was true, there was no impropriety
in selection based on low price, so that the protester's chances of
receiving the award were not hurt by the agency's deviation from the RFP
selection criteria. See Ogilvy, Adams & Rinehart, B-246172.2, Apr. 1, 1992,
92-1 CPD para. 332 at 5.

In this regard, while we generally accord greater weight to contemporaneous
evidence of an evaluation and source selection decision, we will consider
post-protest explanations that provide a rationale for contemporaneous
conclusions, so long as those explanations are credible and consistent with
the contemporaneous record. Jason Assocs. Corp., B-278689 et al., Mar. 2,
1998, 98-1 CPD para. 67 at 6; ITT Fed. Servs. Int'l Corp., B-283307, B-283307.2,
Nov. 3, 1999, 99-2 CPD para. 76 at 6.

Here, we conclude that the contemporaneous record supports the agency's
post-protest position that the proposals in fact were equivalent under the
technical factor. Specifically, the reference check questionnaires reflected
that the protester and the awardee both had relevant landscape experience on
projects of size and scope similar to that encompassed by the RFP, and
contained uniformly positive narrative statements concerning their actual
performance. For example, with regard to timeliness of performance, one of
ERG's references stated it was "always prompt [and] performed within the
scope of work," and one of PLMS's references stated that it was "always
timely--quick response from [named individual]." AR, Tab 6 at 1, 8. With
regard to positive and negative performance factors, the same references
stated that ERG's "[p]ersonnel are very good listeners, dedicated to their
projects, and willing to do and be better in their field of work" and for
PLMS's stated that there were "no negatives[;] very pleased with
contractor." Id.

The agency's after-the-fact scoring is thus wholly consistent with the
contemporaneous record--and thus is entitled to weight in our review--and
the methodology used appears reasonable. The numerical scale applied
(1--poor to 5--excellent) was the same one used on the reference forms to
rate overall performance. In applying this scale, the agency rated positive
comments such as "good employees, responsive" and "good personnel," as well
as affirmative responses regarding timeliness and absence of performance
problems, as 5s. To arrive at a final numerical score for each offeror, the
agency averaged the scores for each of the four performance questions. [3]
PLMS's proposal received an average of 4.5 for overall performance and an
average of 5 for the other three questions, resulting in a final numerical
rating of 19.5. ERG's proposal received an average of 4.3 for overall
performance, and an average of 5 for the other three questions, resulting in
a final numerical rating of 19.3. The contracting officer concluded that
these scores indicated that the proposals were technically equivalent.

PLMS asserts that, even accepting the agency's post hoc scoring, its
proposal should have been considered technically superior to ERG's since its
scores were higher than ERG's; PLMS concludes that the contracting officer
improperly failed to perform a price/technical tradeoff to determine whether
the superiority of PLMS's proposal was worth its higher price.

The relevant consideration in assessing the impact of evaluation scores on
an evaluation is not the difference in the scores, per se, but the
contracting agency's judgment concerning the significance of that
difference; evaluation scores are merely guides for the source selection
authority. Research Triangle Inst., B-278254, Jan. 12, 1998, 98-1 CPD para. 22
at 6. Here, the scores not only are very close in absolute terms (.2 points
apart), but the contracting officer concluded that the scores show that the
proposals are equivalent technically, in other words, that PLMS's .2-point
scoring advantage is not meaningful. Contracting Officer's Statement para. 22.
This being the case, and since, as we have found, the scores accurately
reflect the contemporaneous record, there simply is no basis for us to
question the contracting officer's determination. It follows that it was
reasonable for the agency to proceed with award to ERG based on its low
price, without conducting a tradeoff (although we note that the contracting
officer actually concluded that the marginally higher score for PLMS's
proposal would not merit the payment of an additional $17,000 per year. Id.
at 9).

Our conclusion is not changed by PLMS's assertion that the agency improperly
failed to contact the additional two references it submitted at the agency's
request; according to PLMS, considering these references would have resulted
in a higher evaluation score for PLMS. This argument is without merit. There
is no legal requirement that all past performance references listed in an
offeror's proposal be checked or included in a past performance evaluation.
See Dragon Servs., Inc., B-255354, Feb. 25, 1994, 94-1 CPD para. 151 at 8;
Questech, Inc., B-236028, Nov. 1, 1989, 89-2 CPD para. 407 at 3. In any case,
even if the agency had contacted the additional references and each had
provided "perfect" responses, this would have increased PLMS's overall score
by only .5 points, to 19.8. We find nothing unreasonable in the contracting
officer's assessment that the remaining difference between the protester's
and awardee's technical scores still would not be so significant as to
change the award decision. Contracting Officer's Statement at 9.

Finally, PLMS asserts that it was misled into raising its price by the
agency's statement during discussions that PLMS's "price was low and . . .
should be specifically reconsidered." Protest at 2. This argument is
unpersuasive. While an agency may not coerce or mislead an offeror into
raising its price, Research Analysis and Maintenance, Inc., B-272261,
B-272261.2, Sept. 18, 1996, 96-2 CPD para. 131 at 11, GSA did not do that here.
Rather, the agency's statements (to both the protester and the awardee)
merely reflected its reasonable concern that, because PLMS's and ERG's
prices were low compared to the other prices received, they might not
include enough to cover the cost of performing all requirements. Each
offeror was simply given the opportunity to review its pricing; that PLMS
chose to raise its price reflects the exercise of the firm's business
judgment, not improper conduct by the agency.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. This requirement was originally solicited under an invitation for bids
(IFB) in October 1999. ERG was the low bidder in that procurement. However,
GSA failed to synopsize the procurement in the Commerce Business Daily and
PLMS protested to the agency on this ground. The agency took corrective
action by canceling the IFB. ERG then protested the agency's action to our
Office, but we dismissed the protest as untimely filed (B-285621, Aug. 22,
2000). Because ERG's and other firms' pricing had been revealed at bid
opening, GSA decided to resolicit using negotiated procedures.

2. The seven questions covered the following areas: (1) type and size
(acreage) of facility; (2) time frame of the contract; (3) dollar amount;
(4) overall rating of performance on a 1 (poor) to 5 (excellent) scale; (5)
timeliness of performance; (6) any problems with performance; and (7)
positive or negative performance factors regarding personnel qualifications
and performance.

3. Any reference that failed to provide a response was not included in the
final average.