TITLE:  FC Construction Company, Inc., B-287059, April 10, 2001
BNUMBER:  B-287059
DATE:  April 10, 2001
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FC Construction Company, Inc., B-287059, April 10, 2001

Decision

Matter of: FC Construction Company, Inc.

File: B-287059

Date: April 10, 2001

Garreth E. Shaw, Esq., for the protester.

Sharon A. Jenks, Esq., and Gary M. Jackson, Esq., Department of the Air
Force, for the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protester's challenge to the agency's assessment of past and present
performance is denied where the record shows that the agency evaluation was
reasonable, and that offerors were treated equally, despite insignificant
differences in the agency's approach to gathering the information due to
requests from the protester's references.

2. Protester's assertion that the agency wrongly transcribed the telephonic
responses of commercial references identified by the protester's
subcontractor is denied where the commercial references apparently declined
to make themselves available for a hearing that would permit assessment of
the relative credibility of witnesses whose version of the same event is in
conflict.

DECISION

FC Construction Company, Inc. protests the award of a contract to TRECO
Services, Inc. pursuant to request for proposals (RFP) No. 41614-00-R0003,
issued by the Department of the Air Force for base custodial services at
Goodfellow Air Force Base (AFB), San Angelo, Texas. FC argues that the Air
Force improperly evaluated its past performance, and that of the awardee,
TRECO, leading the contracting officer to wrongly conclude that TRECO's
higher-priced proposal offered the greatest value to the government.

We deny the protest.

BACKGROUND

This RFP for custodial services was issued on June 29, 2000, and restricted
the competition to minority-owned small businesses participating in the
Small Business Administration's (SBA) section 8(a) program, and registered
as 8(a) businesses with the SBA's district office in San Antonio, Texas. RFP
at 1. The RFP anticipated award of a fixed-price contract for a 1-year base
period followed by up to four 1-year options. Id. at 2. The RFP also advised
that award would be made to the offeror whose proposal is considered most
advantageous to the government after evaluating performance and price; the
two evaluation factors were approximately equal in weight. Id. amend. 0003,
at 9b.

Potential offerors were advised that the agency would rank proposals by
price, evaluate the performance of the offerors submitting the lowest-priced
proposals, and perform a limited price evaluation. Id. at 9b. The RFP also
advised that the agency's review of each offeror's past and present
performance would be conducted using written questionnaires and would lead
to an assessment of performance risk as either "exceptional," "very good,"
"satisfactory," "none," "marginal," or "unsatisfactory." The rating of
"none" was reserved for offerors with no relevant past or present
performance history, and was to be "treated neither favorably nor
unfavorably." Id.

In addition to setting forth the evaluation process, the RFP also advised
potential offerors of certain award preferences based on the evaluation
information generated. Id. at 9b-9c. In this regard, the RFP directed that
if the offeror with the lowest-priced proposal received a performance risk
rating of exceptional, award would "be made to that offeror without further
consideration of any other offers." Id. at 9b. In addition, the RFP reserved
for the agency the right to award to other than the offeror with the
lowest-priced proposal "if that offeror is judged to have a performance risk
rating of ‘very good' or higher." Id. at 9c. In this event, however,
the RFP required that the contracting officer "make an integrated assessment
best value award decision." Id.

The Air Force initially received five proposals in response to this
solicitation. As indicated above, the proposals were ranked by price, with
FC submitting the lowest-priced proposal ($2.4 million). Contracting
Officer's (CO) Statement at 2; Price Competition Memorandum at 1. For
reasons not relevant here, the second and fourth lowest-priced proposals
were removed from the competition, and were not evaluated. Thus, TRECO was
ultimately the offeror with the second lowest-price ($2.7 million), while a
third offeror proposed the highest price ([deleted]). Id. After completing
the first of two price evaluations, neither of which is relevant to this
dispute, the agency turned to its review of performance.

FC's proposal did not initially include references or any other information
for the agency to review for its evaluation of performance. Thus, the agency
contacted the owner of FC, who provided a list of references to the agency
by facsimile transmission. Upon receiving the list, the agency noted that
the list was headed by the name of a different company, American Building
Maintenance Co. (ABM). In response to Air Force questions regarding the
relationship between FC and ABM, FC's owner explained that ABM would be
performing the work for FC, and that the Air Force should contact ABM's
references for its review of FC's performance. Past Performance Assessment,
Dec. 6, 2000, at 1. [1] Since FC provided no references of its own, the Air
Force initially concluded that FC had no experience performing custodial
services, and assigned the company's proposal a performance risk rating of
"none." CO's Statement. After contrasting FC's performance risk rating of
"none" with the rating of "exceptional" assigned to TRECO's proposal, the
agency initially decided that TRECO's proposal represented the best value to
the government, despite its higher price. Best Value Decision (undated),
Agency Report, Tab 10.

Upon review of the initial decision to select TRECO for award, Air Force
review authorities directed the contracting officer to reopen the
evaluation, contact ABM's references, assign a rating based on the reports
of those references, and make a new selection decision. Id. Accordingly, the
Air Force attempted to contact four of the six ABM references, and
ultimately reached two of them. Id. After both of the contacted references
requested that they be allowed to answer the past performance questionnaire
telephonically, the contract administrator states that she read the
references each of the questionnaire's 26 questions and ratings definitions,
and transcribed their answers. Memorandum for Record, Past Performance
Evaluation Procedures, Feb. 21, 2001, at 2. The Air Force-transcribed
responses for these two references show the following array of answers to
the 52 total questions: [deleted] responses of "exceptional," [deleted]
responses of "very good," [deleted] responses of "satisfactory," and
[deleted] responses of "none."

In addition to the information collected from ABM's references, the
contracting officer considered in-house Air Force knowledge about FC's
performance on two ongoing contracts. For one of these Air Force contracts,
the agency respondent advised that while FC's performance is satisfactory
overall, FC is currently behind schedule and successful completion of the
effort is requiring a great deal of attention from the contract
administrator. Past Performance Assessment, FC Construction, Dec. 6, 2000,
at 2. For the other contract, which is being managed by the contracting
officer here, no adjectival rating is provided, but a detailed narrative
describes numerous problems and administrative difficulties involved in FC's
ongoing performance. Id. Combining the information from the ABM references
and the two Air Force sources, the agency assigned FC a performance rating
of "satisfactory."

In making a revised selection decision, the contracting officer compared
FC's lowest-priced proposal of $2.4 million and its performance rating of
"satisfactory," with TRECO's second-lowest priced proposal of $2.7 million
and its performance rating of "exceptional," and again concluded that the
TRECO proposal provided the best value to the government. Best Value
Decision, Dec. 15, 2000, at 1. In reaching his conclusion, the CO
specifically mentions several concerns regarding the risk of poor
performance by FC, compared to benefits offered by TRECO's "exceptional"
performance rating, and the company's pending Mentor-Protï¿½gï¿½ Agreement with
the incumbent contractor. Id. at 1-2. By letter dated December 18, 2000, the
agency advised FC of its intent to award to TRECO, and this protest
followed.

DISCUSSION

FC argues that the agency unreasonably concluded that TRECO's higher-priced
proposal offered the best value to the government, as the conclusion was
based on an improper evaluation of both FC's and TRECO's past performance.
Specifically, FC contends that the evaluation of its performance was
improper because the Air Force elected to poll its references
telephonically, rather than having them complete written questionnaires, and
because the agency failed to contact all of the references. In addition, FC
alleges that the Air Force either erroneously or intentionally
misrepresented the telephonic responses of the references. FC also contends
that the evaluation of TRECO's performance was improper because the Air
Force failed to consider the poor performance of TRECO's subcontractor (and
the incumbent here) on an Air Force contract at another base.

The Air Force responds that its approach to evaluating FC's past performance
was reasonable, and that any difference in treatment between FC and the
other offerors was due in large measure to problems that were created by FC,
or requests that were made by its references. With respect to the use of
telephonic polling rather than written questionnaires, the Air Force points
out that it elected to collect past performance information telephonically
only when the two references it managed to reach asked that they be allowed
to complete the past performance survey over the telephone. With respect to
the issue of whether the Air Force acted improperly by not contacting all of
FC's references (as opposed to polling only two of them), the agency points
out that it is not required to contact all identified references; that it
attempted to contact two other references but was unable to reach them with
the information provided by FC; that some of the references were for efforts
clearly dissimilar to the contract here; and that there was no unequal
treatment, as the agency also did not contact all of TRECO's references.

Our standard in reviewing evaluation challenges is to examine the record to
determine whether the agency's judgment was reasonable and consistent with
stated evaluation criteria and applicable statutes and regulations. ESCO,
Inc., B-225565, Apr. 29, 1987, 87-1 CPD para. 450 at 7. Based on our review, we
agree with the agency's view that it was reasonable to poll these references
telephonically under the circumstances, and with its claim that it did
nothing improper by not polling all six of the references identified by FC.

The record here shows that one of the references did not have a working
facsimile machine, and requested a telephonic interview after the agency
repeatedly attempted to transmit the written questionnaire. Memorandum for
the Record, Feb. 21, 2001, at 2. The record also shows that the second
reference explained that he was "going out the door" and asked to be
interviewed telephonically. Id. at 1-2. While FC correctly notes that the
solicitation advised that written questionnaires would be used, there was
nothing unreasonable or improper per se in deciding to conduct the interview
telephonically under these circumstances. In addition, we have long held
that there is no legal requirement that all past performance references be
included in a review of past performance. Advanced Data Concepts, Inc.,
B-277801.4, June 1, 1998, 98-1 CPD para. 145 at 10; Dragon Servs., Inc.,
B-255354, Feb. 25, 1994, 94-1 CPD para. 151 at 8. For our Office to sustain a
protest challenging the failure to obtain or consider a reference's
assessment of past performance, a protester must show unusual factual
circumstances that convert the failure to a significant inequity for the
protester. Advanced Data Concepts, Inc., supra; International Bus. Sys.,
Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5. There has been no such
showing here.

We turn next to FC's allegation that the Air Force contract administrator
who spoke with the two references for ABM (FC's apparent subcontractor)
either erroneously or intentionally misrepresented their telephonic
responses. As indicated in the past performance assessment submitted with
the agency report, and in a supplemental memorandum provided after receipt
of the protester's comments, the contract administrator explained that she
ultimately interviewed these references via telephone, and that she read
both references all 26 questions, as well as the definitions for the
adjectival ratings to use in responding to the questions. Past Performance
Assessment, supra, at 1-2; Memorandum for the Record, supra, at 1-2. In
addition, the agency provided the completed questionnaires prepared by the
contract administrator based on these conversations. Agency Report, Tab 12.

FC contends that both of the references the Air Force contacted have advised
it that they described ABM's past performance as "exceptional." In support
of this contention, FC provides an affidavit from one of the references
indicating that he was contacted by the contracting officer and was asked
"approximately 26 questions" regarding ABM's past performance for his
company. He indicates that his "response to virtually all of the questions
(more than 20) was that ABM performance should be rated as exceptional," and
that the remaining responses were "very good." FC represents that the second
respondent was unable to provide a timely affidavit, but advised the company
that he believes the information he provided "was that ABM's past
performance is excellent or exceptional and he is willing to so state if
called as a witness at a hearing." Protester's Comments on Agency Report,
Feb. 16, 2001, at 4. As indicated above, these statements by the two
references conflict with the transcription of their responses prepared by
the contract administrator, which shows an array of answers that support the
agency's overall rating of "satisfactory."

Given the direct conflict between the affidavit of the one reference and the
answers reflected on the questionnaire as completed by the contract
administrator, our Office offered to convene a hearing by
videoteleconference to take testimony from three witnesses: the Air Force's
contract administrator; the affiant whose responses she transcribed; and the
second reference, who was unable to provide a timely affidavit but whom FC
described as willing to testify. In addition, we were willing to convene
this videoteleconference in a location as convenient as possible for the two
witnesses, recognizing that neither of them has any apparent relationship to
the government, or the protester. Despite this offer, the two references
apparently declined to participate in such a hearing. We note that one of
them is no longer employed by the commercial entity for whom ABM performed
custodial services, while the other is unavailable for unknown reasons.

While we recognize the difficulties involved in producing witnesses who have
no obligation to the protester--or in this case, even to the commercial
entity for whom the protester's subcontractor performed work--under these
circumstances and for the reasons below, we will not overturn the
satisfactory rating assigned FC by the Air Force. Our purpose in holding a
hearing in a matter like this, and receiving testimony from the individuals
identified above, would be to make a judgment about the relative credibility
of witnesses whose testimony is in direct dispute. See OneSource Energy
Servs., Inc., B-283445, Nov. 19, 1999, 2000 CPD para. 109 at 8 (where, in a case
involving a direct dispute over the information provided by a past
performance reference, we sustained the protest after convening a hearing
that permitted our Office to make a judgment about the relative credibility
of a past performance reference and the individual who reported the answers
of that reference). Because this case involves a direct conflict between the
description of the answers provided by the references, any judgment by our
Office about the relative credibility of these individuals must be based, in
significant measure, on an assessment of witness demeanor. Given that the
protester is unable to produce these witnesses, and as a result, we are
unable to assess their credibility, this dispute must be resolved on the
written record.

In considering this record, we note that both the contract administrator and
the affiant agree that the past performance review conducted by telephone
here was not a narrative conversation, but instead was based on asking, and
receiving answers for, the 26 questions on the past performance
questionnaire. We find unlikely the notion that the contract administrator
erred in transcribing all 26 of the reference's responses. Instead, it
appears that the only logical explanation for wrongly reflecting 26 separate
answers would be bad faith on the part of the contract administrator, but we
see no evidence of that here.

In addition, we note that even if we assume arguendo that ABM's two outside
references rated the company's performance as "exceptional," this record
reflects the serious concerns of Air Force sources about FC's performance
(as opposed to that of FC's apparent subcontractor). The presence of these
concerns, and the fact that they involve FC rather than ABM, lead us to
conclude that it is extremely unlikely that FC could have received an
overall rating of "exceptional," or even "very good." Our view in this
regard is bolstered by the fact that one of the two Air Force sources is the
contracting officer here. Given the fact that the contracting officer could
not properly ignore such information (about poor performance by FC) located
so very close at hand, see International Bus. Sys., Inc., supra, we simply
cannot conclude that there was any likely prejudice to FC as a result of
being unable to obtain testimony to support its challenge to the agency's
assessment of its past performance as "satisfactory." Accordingly, this
portion of FC's protest is denied.

Finally, FC argues that the Air Force evaluation of TRECO was improper
because the agency did not consider the poor performance of TRECO's
subcontractor (and the incumbent here) on an Air Force contract at another
base. In response, the Air Force admits that it did not consider this
information, as it was not aware of the matter at the time it performed its
past performance assessment. In addition, the agency points out that TRECO
did not provide any references for the Air Force contract at issue, so that
the agency was not only unaware of the matter, but would not have learned of
it even if it had contacted all of TRECO's references. Thus, the agency
contends it reasonably assessed TRECO's performance as "exceptional" based
on the information before it. We agree. Without a showing that the agency
personnel were aware of a problem with TRECO's performance, or had reason to
be aware of it, we have no basis to conclude that the evaluation was
unreasonable. Airwork Ltd.-Vinnell Corp. (A Joint Venture), B-285247,
B-285247.2, Aug. 8, 2000, 2000 CPD para. 150 at 9-10.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. For reasons not clear from the record, FC denied that ABM was its
subcontractor, answering instead that ABM performs FC's custodial work. Id.