TITLE:  Thomas Brand Siding Company, Inc., B-286914.3, March 12, 2001
BNUMBER:  B-286914.3
DATE:  March 12, 2001
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Thomas Brand Siding Company, Inc., B-286914.3, March 12, 2001

Decision

Matter of: Thomas Brand Siding Company, Inc.

File: B-286914.3

Date: March 12, 2001

Kenneth T. Roberts, Esq., Roberts & Bishop, for the protester.

John D. Inazu, Esq., and Russell R. Sibbel, Esq., Department of the Air
Force, for the agency.

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Under solicitation that provided that submission of fewer than three
questionnaires from offeror's past performance references could be regarded
as inadequate to evaluate offeror's past performance, agency reasonably
assigned past performance rating of neutral/unknown confidence to offeror
for whom it received only one relevant contract reference.

DECISION

Thomas Brand Siding Company, Inc. protests the evaluation of its proposal
under request for proposals (RFP) No. F25600-00-R0145, issued by the
Department of the Air Force for military family housing maintenance services
at Offutt Air Force Base, Nebraska. Specifically, the protester objects to
the agency's rating of its past performance as neutral/unknown confidence.

We deny the protest.

The RFP, which was issued on September 15, 2000, contemplated the award of a
requirements contract for a base period of 10 months and four option periods
of 1 year each. Services to be performed include quarters cleaning,
painting, refinishing of hardwood floors, refinishing and replacement of
bathroom fixtures, replacement of outlets, and appliance replacement. The
solicitation provided that two factors, past performance and price, would be
considered in the evalution of proposals, with past performance of
significantly greater importance than price.

To facilitate evaluation of their past performance, offerors were instructed
to identify not more than five recent, simultaneously-managed,
multi-discipline service projects of varying complexity, each exceeding
$500,000. RFP amend. 2, at 2. Offerors were to furnish copies of a past
performance questionnaire to the agencies/firms responsible for the
administration of these projects. The RFP advised offerors that they were
responsible for ensuring that their references received, completed, and
returned the questionnaires to the issuing office on time. Id. at 3. The RFP
further advised that "[t]ypically, less than 3 submitted questionnaires
could be regarded as inadequate to properly evaluate an offeror's past
performance." Id. Elsewhere, the RFP defined relevant experience for
purposes of the solicitation as "similar end items (i.e., Family Housing
maintenance on at least 1,000 units, multiple projects concurrently
accomplished, and efforts with similar services)," and provided that
"[c]urrent and relevant performance will have greater impact in the
performance confidence assessment than less recent or non-relevant
performance." Id. at 5.

[Deleted] offerors submitted proposals by the October 23 closing date. Upon
initial evaluation, the agency evaluators assigned Brand a past performance
rating of neutral/unknown confidence because past performance questionnaires
had been received from only two of its references. Because Brand had
submitted the lowest-priced proposal, the agency contacted it regarding its
neutral rating, informing the protester that questionnaires had been
received from Maxwell and Shaw Air Force Bases (AFB) only. The protester
responded by contacting a third reference to whom it had furnished a past
performance questionnaire, the contracting officer for a contract that it
was performing at Fort Benning, Georgia, to find out why a completed
questionnaire had not been submitted. The Fort Benning contracting officer
responded by furnishing a copy of a past performance questionnaire to the
evaluators.

Upon receipt of the questionnaire from Fort Benning, agency officials
informed Brand that they would not consider it because the reference had
completed the wrong form. (Amendment 2 to the RFP, issued on October 10,
included a revised past performance questionnaire, which offerors were to
furnish to their references; Brand's Fort Benning reference instead
submitted a copy of the past performance questionnaire that had been
included in the original RFP.) On November 7, the reference furnished a copy
of the correct questionnaire to the contracting office, but the evaluation
board again refused to consider it.

On November 10, the protester filed an agency-level protest requesting
acceptance of the corrected questionnaire. The agency denied the protest,
and on December 1, Brand filed a protest with our Office. On December 5, the
Air Force notified our Office that it had decided to take corrective action
with regard to the protest and that it would accept the revised
questionnaire.

The evaluation panel rated Brand's performance on the Fort Benning contract
as exceptional/high confidence, but determined that Brand's overall past
performance rating should remain as neutral/unknown confidence because even
after the Fort Benning questionnaire was taken into account, the protester
lacked three relevant references. In this regard, the evaluators had found
at the time of the initial evaluation that neither the Maxwell nor the Shaw
AFB contracts, both of which involved protective coating maintenance, were
for relevant services.

The prices and past performance ratings of the three lowest-priced offerors
were as follows:

Offeror Price Confidence Rating

Thomas Brand $15,799,025 Unknown (Neutral)

[Deleted] $16,824,388 Unknown (Neutral)

DGR $16,839,661 High Confidence

The source selection authority determined that DGR's higher confidence
rating was worth its additional cost and that DGR's proposal represented the
best value to the government. On December 14, the agency awarded DGR a
contract. The agency debriefed Brand by telephone on December 28, and Brand
filed a protest with our Office on January 5, 2001.

Brand objects to several procedural aspects of its past performance
evaluation. First, the protester complains that the composition of the
evaluation board was changed.

The record shows that the original contracting officer, who was one of four
members of the evaluation board, retired and was replaced as contracting
officer and as a member of the evaluation board prior to completion of the
evaluation process. We see nothing objectionable in this substitution, nor
does the record in any way suggest that the protester was prejudiced by it.
The only questionnaire that was evaluated after the substitution was the
Fort Benning one, and Brand received a rating of exceptional/high confidence
on it. To the extent that Brand argues that it was the replacement
contracting officer who determined that offerors with fewer than three
relevant questionnaires would receive past performance ratings of neutral,
the record does not support the protester's position; rather, it shows that
this standard had already been adopted by the evaluators at the time of the
initial past performance evaluation (i.e., prior to replacement of the
contracting officer). In the proposal evaluation report (Section II
Evaluation of Proposals--Past Performance Assessment), the assessments of
three offerors other than the protester open with the following two
sentences: "Two (2) past performance questionnaires were submitted. The
offeror was rated Neutral/Unknown confidence for failure to provide adequate
relevant past performance information in accordance with the solicitation."

Next, the protester complains that the replacement contracting officer
should not have been involved in the reevaluation of its past performance
because she had denied its earlier agency-level protest seeking
consideration of the Fort Benning questionnaire.

The protester is arguing, in essence, that the replacement contracting
officer was biased against it, but we see no evidence of such bias in the
record. Clearly, the contracting officer did not influence the evaluation
panel negatively in its evaluation of the Fort Benning questionnaire since
Brand received a rating of exceptional/high confidence on it. Moreover, to
the extent that Brand is suggesting that at the time of its past performance
reevaluation, the replacement contracting officer influenced the evaluation
panel to change its assessment of the Shaw and Maxwell AFB contracts, the
agency reports that the determination of irrelevance with regard to these
two contracts was made at the time of the initial past performance
assessment, before the substitution of personnel. Contracting Officer's
Statement, Jan. 18, 2001, at 2.

Third, Brand argues that it was unfair for the evaluators to have discussed
and rated the Fort Benning questionnaire via teleconference when they met in
person to rate other offerors' past performance. Since the protester has
failed to offer any explanation--and we fail to see--how it was injured by
the decision to discuss via telephone rather than in person, we see no merit
in this argument.

Brand also takes issue with the agency's rating of its past performance,
arguing that it was unreasonable to give it a rating of neutral/unknown
confidence because it had fewer than three relevant references. In the
alternative, the protester asserts that all three of its references were in
fact relevant.

Where a solicitation requires the evaluation of offerors' past performance,
we will examine an agency's evaluation only to ensure that it was reasonable
and consistent with the stated evaluation criteria, since determining the
relative merits of offerors' past performance information is primarily a
matter within the contracting agency's discretion. DGR Assocs., Inc.,
B-285428, B-285428.2, Aug. 25, 2000, 2000 CPD para. 145 at 11. Here, we see no
basis to object to the evaluation.

Regarding the protester's first argument, it was clearly consistent with the
terms of the solicitation, which provided that "[t]ypically less than 3
submitted questionnaires could be regarded as inadequate to properly
evaluate an offeror's past performance," RFP amend. 2, at 3, for the agency
to assign offerors with fewer than three questionnaires a past performance
rating of neutral/unknown confidence. Moreover, we think that the agency
reasonably viewed fewer than three questionnaires as an inadequate basis
upon which to evaluate an offeror's past performance and on that basis
assigned a neutral rating.

Regarding the protester's argument that its contracts at Shaw and Maxwell
AFBs should have been viewed as relevant, the solicitation explicitly
defined relevant experience as "similar end items (i.e., Family Housing
maintenance on at least 1,000 units, multiple projects concurrently
accomplished, and efforts with similar services." RFP amend. 2, at 5.
Neither the Shaw nor the Maxwell AFB contracts involved the range of housing
maintenance services called for under the solicitation here (e.g., quarters
cleaning, refinishing of hardwood floors, refinishing and replacement of
bathroom fixtures, replacement of outlets, and appliance replacement);
instead, both focused more narrowly on protective coating maintenance
services. Given that the RFP placed offerors on notice that only contracts
for family housing maintenance and efforts with similar services would be
viewed as relevant experience, we think that the evaluators reasonably
determined that Brand's contracts for protective coating maintenance at Shaw
and Maxwell AFBs were not relevant. See Ostrom Painting & Sandblasting,
Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4.

The protester also complains that the RFP placed responsibility for ensuring
that the past performance questionnaires were completed and returned on the
offeror, who in fact has no control over whether its references fill out and
return the forms.

The protester's objection is untimely because it is based upon an alleged
impropriety in the solicitation, which was not protested prior to the
closing time for receipt of proposals. See Bid Protest Regulations, 4 C.F.R.
sect. 21.2(a)(1) (2000). In this regard, the RFP, as revised by amendment 2,
explicitly provided that "[o]fferors are responsible to ensure that their
reference sources receive, complete, and return the questionnaires on time
to the issuing office." RFP amend. 2, at 3. In any event, it appears that
the failure of two of Brand's references to return past performance
questionnaires did not have an impact on the protester's past performance
rating because both of the contracts for which questionnaires were not
returned were also for protective coating maintenance services and, as such,
would have been regarded by the evaluators as irrelevant.

Finally, Brand argues that the agency should have selected its proposal,
which was lowest in price, for award because its past performance confirmed
that it had the capability to perform.

The RFP here did not provide for award to the lowest-priced responsible
offeror; it provided for award to the offeror whose combination of past
performance and price represented the best value to the government. The
evaluators determined that DGR's offer, while higher in price than Brand's,
represented the best value to the government because DGR had received a past
performance rating of high confidence, whereas Brand had received a neutral
rating. Since such a

determination was both reasonable and consistent with the stated evaluation
scheme, we see nothing objectionable in it.

The protest is denied.

Anthony H. Gamboa

General Counsel