TITLE:  Power Connector, Inc., B-286875; B-286875.2, February 14, 2001
BNUMBER:  B-286875; B-286875.2
DATE:  February 14, 2001
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Power Connector, Inc., B-286875; B-286875.2, February 14, 2001

Decision

Matter of: Power Connector, Inc.

File: B-286875; B-286875.2

Date: February 14, 2001

Pamela J. Mazza, Esq., and Andrew P. Hallowell, Esq., Piliero, Mazza &
Pargament, for the protester.

Geoffrey A. Barrow, Esq., Jenner & Block, for Day Leather Corporation, an
intervenor.

Michael A. Lewis, Esq., Federal Prison Industries, 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

In evaluating past performance under solicitation for quantity of leather,
agency reasonably disregarded non-leather supply contracts in its evaluation
of the protester, and limited its evaluation to leather contracts, on the
basis that leather contracts were the most relevant.

DECISION

Power Connector, Inc. (PCI) protests the award of a contract to Day Leather
Corporation under request for quotations (RFQ) No. 6200000119, issued by the
Federal Bureau of Prisons, UNICOR, for leather to be used in manufacturing
work gloves. PCI argues that UNICOR should have rejected Day's quotation as
materially unbalanced, and that it misevaluated PCI's past performance.

We deny the protest.

The solicitation provided for a best value award of a fixed-price,
indefinite-quantity contract for a base year, with four 1-year option
periods. The quotations were to be evaluated against three factors, listed
in descending order of importance--past performance, compliance with
technical specifications and price; the past performance and technical
factors combined were significantly more important than price. RFQ at 39. In
order to establish compliance with the technical specifications, vendors
were required to submit samples and lab test results for evaluation on a
pass/fail basis. Regarding past performance, vendors were required to
complete a business management questionnaire listing, among other things,
from three to five references for previous similar contracts performed
within the past 3 years. Id. at 34. Prices were to be quoted on a per-foot
basis for estimated quantities, with the evaluation to be based on the total
extended prices for the base and option years.

Four quotations, including PCI's and Day's, were received and found to
comply with the technical specifications. Day's price ($9,720,000) was low,
and PCI's ($9,975,000) second low. Agency Report (AR) at 3. Day was rated
overall excellent for past performance based on three references for leather
contracts (two excellent ratings, one good), and PCI was rated good based on
three references for leather contracts (one excellent, two good ratings).
Id. at 4-5. The contracting officer selected Day for award, citing its
superior past performance. Price Analysis at 2.

UNBALANCED PRICING

PCI maintains that Day's quotation should have been rejected as materially
unbalanced because it quoted $1.36 per foot for the base year and $1.28 for
each of the option years, despite the fact that the solicitation requests
the same item for each year.

The concept of unbalanced pricing has only limited application in the
context of a procurement under which the government's primary objective is
the best overall value rather than the lowest price, USATREX Int'l, Inc.,
B-275592, B-275592.2, Mar. 6, 1997, 98-1 CPD para. 99 at 6; we apply the concept
of unbalancing in such cases only where price constitutes the basis for the
source selection. MG Indus., B-283010.3, Jan. 24, 2000, 2000 CPD para. 17 at 7.

Here, although the award was ultimately made to the low-priced vendor, price
was listed as the least important award factor, and the solicitation
specifically provided that the technical and past performance factors were
significantly more important than price. In addition, while in her source
selection decision the contracting officer recognized that Day's price was
low, it is clear that price was not the basis for her award decision.
Rather, the source selection decision states, "In conclusion, it has been
determined that award should be made to Day Leather Corporation due to the
experience they have with the leather business." Price Analysis at 2. Since
technical and past performance factors were more important than price, and
since price did not dictate the award decision, the concept of unbalancing
does not apply, and this argument could not provide a basis for sustaining
the protest. Human Resource Sys., Inc.; Health Staffers, Inc., B- 262254.3
et al., 96-1 CPD para. 35 at 7-8. We therefore do not address it further.

PAST PERFORMANCE

PCI listed four past performance references in its business management
questionnaire, two for leather contracts and two for communications
components contracts. Contracting Officer's Declaration at 3-4. After
concluding that the communications components contracts were not similar to
the leather supply requirement here, the contracting officer checked
UNICOR's database and found that PCI had a current contract to supply
leather to UNICOR. Since she viewed this contract as similar to the
solicited requirement, she used it--instead of one of the communications
components contracts--as PCI's third past performance reference. Id. Based
on the ratings for these three contracts--one excellent, two good--the
contracting officer evaluated PCI as overall good for past performance. Id.
at 5. PCI challenges this rating, asserting that the contracting officer
improperly failed to consider the two communications components contract
references listed in its quotation; it concludes that, had she done so, PCI
would have received all excellent references, would have been rated overall
excellent for past performance, and would have been in line for the award.
[1]

We review an agency's evaluation of vendors' submissions (such as the
quotation at issue here) to ensure that it is fair, reasonable and
consistent with the evaluation criteria stated in the solicitation. In
evaluating past performance, an agency has discretion to determine the scope
of the vendors' performance history to be considered, provided that it
evaluates all submissions on the same basis and consistent with the
solicitation. OMV Medical, Inc.; Saratoga Medical Ctr., Inc., B-281387 et
al., Feb. 3, 1999, 99-1 CPD para. 52 at 4. An agency properly may base its
evaluation on contracts it believes are most relevant to the solicitation,
USATREX Int'l, Inc., supra, at 4; Braswell Servs. Group, Inc., B-278921.2,
June 17, 1998, 98-2 CPD para. 10 at 6; it has discretion to consider information
other than that provided by the vendors, TEAM Support Servs., Inc.,
B-279379.2, June 22, 1998, 98-1 CPD para. 167 at 6, and need not consider all
references a vendor submits. Advanced Data Concepts, Inc., B-277801.4, June
1, 1998, 98-1 CPD para. 145 at 10.

UNICOR's actions fall within the above standard. The contracting officer
sought to identify the most relevant contracts for purposes of assessing
PCI's past performance and, in doing so, considered a relevant contract not
listed in PCI's quotation and disregarded two listed contracts which were
not similar to the current requirement. This was reasonable, and well within
the agency's discretion. Moreover, although we think the logic of evaluating
similar contracts to assess past performance is obvious, the RFQ requirement
that firms provide references for "similar" contracts put PCI and the other
vendors on notice that the agency wanted to evaluate similar contracts;
thus, the agency's reliance on PCI's ongoing leather contract was fully
consistent with the evaluation scheme.

PCI argues that UNICOR's failure to consider its two listed communications
components contract references constituted disparate treatment, since the
agency did consider a dissimilar contract (for fiberboard) in evaluating the
past performance of another vendor (not the awardee). The agency
acknowledges that it considered dissimilar contracts in evaluating that
other vendor's past performance, but explains that it did so only because
they were the only contracts the vendor listed, and a search indicated no
other similar contracts. AR at 6. The contracting officer rated this vendor
overall good for past performance because all three references rated the
vendor good. Contracting Officer's Declaration at 5. However, she indicated
on the evaluation form that the contracts were not for similar items, see
Past Performance Evaluation, and also concluded in making the selection
decision that, due to the vendor's lack of experience on similar contracts,
an award to that firm would result in an unacceptable performance risk.
Price Analysis at 2.

We find nothing unfair or otherwise improper in the contracting officer's
actions. Her different approach to evaluating PCI and the other vendor
reflected those firms' different circumstances, not improper disparate
treatment. In evaluating both firms, the contracting officer considered
similar contracts to the extent possible, consistent with the RFQ reference
to "similar" contracts. Similar (leather supply) contracts, including the
one she discovered in the agency's records, were available for PCI, so she
considered those in PCI's evaluation. Since the other vendor had not
performed leather supply contracts, she could not consider similar contracts
to evaluate its past performance. Thus, she considered the firm's dissimilar
contracts, and then penalized it in the evaluation by finding that the lack
of past similar contracts made the performance risk too great to permit
award to the firm. In our view, nothing in this record indicates that the
treatment of PCI was unreasonable. [2]

PCI also asserts that two UNICOR employees--the chief of procurement and the
general counsel--told PCI that it was appropriate to include the
communications components contracts as past performance references for this
solicitation. [3] Both employees deny discussing with PCI the references it
intended to submit. Declarations of the Procurement Chief and General
Counsel. In any case, however, PCI was not downgraded in the evaluation for
listing these contracts and, moreover, this advice would not diminish the
contracting officer's discretion to consider the most relevant contracts in
evaluating PCI's past performance.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. PCI also argues that UNICOR should have engaged in clarifications or
discussions with it on the issue of past performance. See Federal
Acquisition Regulation sect. 15.306. However, UNICOR did not find PCI's past
performance deficient or unclear in any way, and did not receive adverse
past performance information that PCI had not had an opportunity to address.
Under these circumstances, there was no requirement for discussions or
clarifications with PCI. Id.

2. PCI argues that the agency could not consider performance risk in the
evaluation because it was not specified as an evaluation factor in the RFQ.
However, risk is an element of quotation evaluation that may be considered
even where it is not specifically listed as an evaluation factor. See
Information Spectrum, Inc., B-256609.3, B-256609.5, Sept. 1, 1994, 94-2 CPD
para. 251 at 6; Frequency Eng'g Labs. Corp., B-225606, Apr. 9, 1987, 87-1 CPD para.
392 at 8-9.

3. PCI maintains that it appears from the record that two references for one
of its listed prior contracts were not advised that they could rate PCI's
performance excellent, and that their rating of PCI's past performance as
good therefore did not accurately reflect the level of their satisfaction
with its performance. However, the two references have stated that they knew
the excellent rating was available, but chose to rate PCI good, and the
contracting officer states that she informed all references of each possible
rating, including excellent. Declaration of Contracting Officer, Jan. 23,
2001, at 1.