TITLE: MCR Engineering Company, Inc., B-287164; B-287164.2, April 26, 2001
BNUMBER: B-287164; B-287164.2
DATE: April 26, 2001
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MCR Engineering Company, Inc., B-287164; B-287164.2, April 26, 2001
Decision
Matter of: MCR Engineering Company, Inc.
File: B-287164; B-287164.2
Date: April 26, 2001
Daniel J. Kelly, Esq., and Lisa K. Miller, Esq., Gadsby Hannah, for the
protester.
Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Adduci, Mastriani &
Schaumberg, for Rolls Royce Naval Marine, Inc., an intervenor.
Vera Meza, Esq., and Arthur M. Boley, Esq., Department of the Army, 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
Protester's challenge to the evaluation of past performance and experience
in a competition where several of the awardee's former key employees are now
employed by the protester and where those personnel, at least in part, may
have had a role in the awardee's favorable past performance, is denied where
the record shows that the agency reasonably: (1) credited the protester for
the favorable past performance of its key employees (achieved while they
were employed by the awardee), but nonetheless recognized that the
protester, as a company, has not previously manufactured this item, and does
not have production employees with this experience; and (2) considered
downgrading the awardee's excellent past performance rating due to the loss
of its key personnel, but left the rating intact based on a recognition that
the company has continued to successfully perform despite the loss of its
former key employees, and is doing so with production employees and a
facility that has performed well in the past.
DECISION
MCR Engineering Company, Inc. protests the award of a contract to
Bird-Johnson Company by the Department of the Army, pursuant to request for
proposals (RFP) No. DAAE07-00-R-T110, for corner and intermediate hydraulic
actuators for the
M-9 Armored Combat Earthmover (ACE) vehicle. [1] MCR argues that the agency
improperly evaluated proposals in the areas of past performance, experience
and small business utilization, and thus, wrongly concluded that
Bird-Johnson's higher-priced proposal represented the best value to the
government.
We deny the protest.
BACKGROUND
The M-9 ACE vehicle, procured by the Army's Tank-Automotive and Armaments
Command (TACOM) in Warren, Michigan, is a fully-tracked and armored
earthmover used to support ground forces. Among other things, the vehicle
can be used to breach berms, remove roadblocks, and prepare anti-tank
ditches, combat roads and access routes at water obstacles. The actuators
being purchased here are the principal component of the M-9's hydraulic
suspension system, and each vehicle is equipped with four corner and four
intermediate actuators. As these actuators rotate they allow the vehicle's
wheels to move up and down over uneven terrain, and they force fluid into
accumulators, which act as shock absorbers for the vehicle. Contracting
Officer's (CO) Statement, Feb. 22, 2001, at 2.
There is no dispute in this record that the manufacture and assembly of
these hydraulic actuators require very tight machining tolerances, and a
special bench test involving 25 separate performance tests. There is also no
dispute that producing these actuators presents a significant challenge for
new sources, and that past attempts at awarding contracts to new
manufacturers have met with numerous problems.
For many years, the Bird-Johnson Company, in Walpole, Massachusetts, has
been a source for these actuators, both as a prime contractor and as a
subcontractor for the manufacturer of the M-9 vehicle. Over a 5-year period
prior to the issuance of this solicitation, four individuals previously
employed by Bird-Johnson--at least three of whom appear to have been
significantly involved in the M-9 actuator effort--left the company to join
MCR Engineering Co., Inc., in nearby North Attleboro, Massachusetts. MCR has
not previously been a source for actuators, but has instead provided
engineering support for marine propulsion systems. [2] These individuals who
left Bird-Johnson now serve as MCR's president, product manager and
engineer, quality assurance manager, and M-9 assembly superintendent. Id.;
AR, Tab 20, Letter from MCR to TACOM, Mar. 29, 2001. This migration of
experienced employees from an existing source to an aspiring one is the
backdrop for the evaluation discussion below.
The RFP here was issued on December 3, 1999, and anticipated award of a
5-year, indefinite-quantity contract for corner and intermediate actuators.
The RFP advised offerors that award would be based on consideration of two
factors, past performance and price, with past performance slightly more
important than price. Id. at 74. Within the past performance factor, the RFP
identified three elements: past performance, experience, and small business
utilization. Id. at 3. Among these three, the RFP advised that past
performance and experience would be significantly more important than small
business utilization. Id. at 74.
Under the past performance element, offerors were asked to provide
information on relevant contracts with some portion of performance occuring
within 3 years of the date the solicitation was issued. [3] There were
several other instructions and requests for information relevant to this
portion of the review. Specifically, the RFP requested that offerors
identify any contracts that were terminated or cancelled (sect. L.28.1.3);
identify if any listed contracts were performed by a different corporate
entity, or prior to a relocation of the company, or prior to a change in
ownership, and describe any changes in personnel, facilities, or equipment
resulting from these changes (sect. L.28.1.4); identify (if the company has no
recent or relevant past performance) any key personnel who may have gained
experience via their roles with a previous employer (sect. L.28.1.5); and
identify (if all relevant and recent past performance was as part of a
predecessor company) the contracts, key personnel, etc., of that predecessor
company (sect. L.28.1.6).
Under the experience element, the solicitation requested information not
traditionally related to offeror experience. Given the above-described
inference that the information requested in section L of the solicitation
represents the evaluation considerations, the experience element addressed
technical experience, whether the offered actuator complies with the
specification, and the extent of any modifications to be made to the
offeror's existing products and production processes. To avoid confusion,
the RFP's direction in this area is quoted below:
L.28.3.1. Experience as used in this solicitation will describe your
technical involvement in providing M9 ACE hydraulic actuators or an
equivalent. Describe the degree to which your hydraulic actuators, to the
extent it currently exists [sic], meets the TDP requirements for the M9 ACE
system.
L.28.3.2. Identify any or all modifications you will need to make to your
existing actuators to meet the M9 ACE Hydraulic Actuators Technical Data
requirements.
L.28.3.3. Describe how your proposed actuator is interoperable and
interchang[e]able with the existing M9 ACE Army inventory in the field.
Describe the considerations given to the interaction and compatibility
between components.
L.28.3.4. Describe your current production capacity for hydraulic acuators.
Describe any modification to your existing production lines which would be
necessary to produce the planned monthly quantities for the M9 ACE Hydraulic
Actuator, Corner and intermediate or equivalent under this contract.
RFP at 71. Under the small business utilization element, the RFP requested
information on the offeror's plans and policies for subcontracting with
small businesses, small disadvantaged businesses, women-owned small
businesses, and historically black colleges and universities or minority
institutions. Id. Finally, the RFP advised that prices would be evaluated by
multiplying each offeror's unit price by the estimated quantity for each
year of performance, and adding the results. Id. at 73.
By the closing date here, the Army received proposals from four offerors,
one of whom later withdrew from the competition. After reviewing the
proposed prices, the Army began its evaluation of past performance and
noticed that all of the contracts identified for review in MCR's proposal
were, in fact, Bird-Johnson contracts. Thus, the evaluators asked MCR to
identify some contracts of its own for review. MCR complied with the
request, while explaining that most of its key people previously worked for
Bird-Johnson, so that Bird-Johnson's past performance providing actuators
should be credited to MCR.
After completion of an initial review, the contracting officer prepared an
evaluation and decision document selecting Bird-Johnson for award, and
submitted this document to the selection authority on June 19, 2000. On the
following day, the selection authority, TACOM's Deputy Director of
Acquisition, rejected the proposed award decision and initiated a process of
review and revision that extended until early October. In short, the initial
document was broken into two separate documents--an evaluation document and
an award decision document--both of which were rewritten, submitted for
review, and rejected two more times. CO's Statement at 9-10. During this
process, the analysis in these documents was expanded and tailored to more
closely address the requirements of the RFP. In addition, the evaluation
ratings of MCR, Bird-Johnson, and a third offeror were changed several
times, based on feedback provided by the selection authority.
After the selection authority rejected the evaluation and decision documents
a third time, he drafted alternate award documents--one supporting award to
MCR; the other supporting award to Bird-Johnson--and submitted them for
review to the contracting officer and other TACOM personnel. AR Tabs 37, 39.
After receiving comments on the draft award documents, the selection
authority chose Bird-Johnson for award on October 5.
The decision that the proposal submitted by Bird-Johnson represented the
best value to the government was based on the following evaluation results
and prices:
OFFEROR PAST EXPERIENCE SMALL PRICE
PERFORMANCE BUS. UTIL.
MCR Good Adequate Good $9.45
million
Bird-Johnson Excellent Excellent Good $10.01
million
AR, Tab 39, at 2-3. [4] Specifically, the agency concluded that
Bird-Johnson's lower risk in the past performance area and superior overall
experience was worth its 5.9 percent price premium, and that award to
Bird-Johnson was consistent with the evaluation scheme's rating of the past
performance factor as slightly more important than price. In addition, the
agency noted that the potential cost of delays in performance could exceed
the price premium between the two offerors. Id. at 6. This protest followed.
DISCUSSION
MCR raises detailed challenges to the agency's assessment of its and
Bird-Johnson's proposals under each of the three elements of the past
performance evaluation factor--past performance, experience, and small
business utilization. Many of MCR's challenges repeat two closely-related
themes. First, MCR argues that it should be credited with the favorable past
performance of Bird-Johnson, and Bird-Johnson should not receive credit for
past performance that may have been due, at least in part, to individuals
who have since moved to MCR. In addition, and related to the first issue,
MCR argues that the evaluation of the past performance element was flawed
because of the contracts the agency considered for each company, and the
conclusions the agency reached about those contracts.
Our standard in reviewing evaluation challenges like these 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. While
we have not addressed below every contention raised by MCR in its protest,
all of the contentions have been reviewed, and, for the reasons set forth
below, we find the evaluation conclusions were reasonable.
As a preliminary matter, we address first the general contention, found
throughout MCR's pleadings, that the record here demonstrates that TACOM
officials were looking for a way not to award this contract to MCR; an
allegation, essentially, of bad faith. In our view, this record--albeit
problematic in several areas discussed below--shows nothing of the sort.
Instead, with each revision of the evaluation and award documents prepared
at the direction of the selection authority, the underlying materials more
frankly address the issue of how to assess MCR's past performance and
experience given the fact that several of Bird-Johnson's key employees are
now employed by MCR. Compare AR, Tab 27, at 3 with AR, Tab 28, at 2-4 and
with AR, Tab 35, at 2-4. In addition, MCR's ratings were increased at every
step in this process. Compare AR, Tab 27, at 10 with AR, Tab 29, at 4 and
with AR, Tab 36, at 4. Put simply, these are not the actions of an agency
seeking to deprive MCR of award.
MCR's first theme, raised with respect to the evaluation of both its and
Bird-Johnson's proposals under the past performance element, is that the
agency failed to give credit to MCR for its key people, and failed to deduct
credit from Bird-Johnson for people who had departed. On this subject, the
final version of the evaluation document expressly considers that MCR has "a
number of key personnel who have substantial recent and relevant
performance" as a result of their prior employment with Bird-Johnson. AR,
Tab 38, at 3. The evaluation then addresses Bird-Johnson's excellent
performance (both from a technical and timely delivery standpoint) under
contracts that fall within the 3-year time requirement of the RFP, and
recognizes that this performance was due, at least in part, to some of the
people who are now employed by MCR. Given this view of the role current MCR
employees played in the favorable past performance of Bird-Johnson, the
evaluation concludes that there is little risk that MCR will fail to
successfully perform. Id. at 3-4. On the other hand, the evaluation also
recognizes that Bird-Johnson's contracts were not performed in MCR's
facility, or with MCR production employees, and thus concludes that
assigning MCR a rating of "good" under the past performance evaluation
element is appropriate (and that no higher rating is warranted). Id. While
MCR disagrees with this assessment, it cannot claim that the Army failed to
consider these issues, and it makes no showing that these conclusions are
unreasonable.
Conversely, the record shows that the Army considered the effect on
Bird-Johnson's past performance rating of the loss of personnel to MCR. In
the first and second versions of the evaluation documents, the contracting
officer expressly acknowledges that "Bird-Johnson's loss of key personnel to
MCR might be of concern were it not for the fact that Bird-Johnson has been
successfully producing the actuators today even though those personnel are
no longer with Bird-Johnson." AR, Tab 27, at 6; Tab 28, at 6. Thus, these
versions of the evaluation concluded that any concern about the departure of
these key employees was mitigated by the fact that the company continued to
successfully perform. While the language quoted above, admittedly, is not
found in the final version of the evaluation document, the final evaluation
still contains the consideration of the mitigating fact (the accuracy of
which is discussed in greater detail below) that Bird-Johnson is continuing
to provide actuators on time for TACOM. In addition, the final decision
document (as opposed to the final evaluation document) recognizes that
Bird-Johnson has continued to provide actuators as both a prime contractor
and subcontractor, and notes that deliveries have generally been on time or
ahead of schedule, with the exception of certain minor deficiencies. In our
view, these materials do not support a conclusion that the Army failed to
recognize that the loss of certain Bird-Johnson key personnel made
successful performance here less likely.
The second theme--and one closely related to the first--is MCR's contention
that the evaluation of the past performance element was flawed because the
agency considered contracts it should not have, and reached improper
conclusions about the contracts it considered, including overlooking recent
late deliveries by Bird-Johnson. In this regard, MCR argues that one of the
contracts that formed the basis of Bird-Johnson's past performance review
was completed prior to the departure of Bird-Johnson's key personnel to MCR,
and thus should not be considered predictive of Bird-Johnson's ability to
perform the effort here. MCR argues that the two other Bird-Johnson
contracts were performed late, and thus cannot properly support a past
performance rating of "excellent." In addition, MCR contends that the agency
reached unreasonable conclusions about MCR's own contracts offered for
review under this element.
The record here shows that there were three Bird-Johnson contracts related
to actuators within the 3 years prior to the issuance of this RFP, but that
only two of those contracts were formally considered in the evaluation of
Bird-Johnson's past performance. Additional background on these contracts is
set forth below.
The contract not formally reviewed was Bird-Johnson's contract to rebuild
and refurbish existing actuators. MCR correctly points out that deliveries
under this contract were received late. According to the contracting
officer, these late deliveries were caused by government delay in providing
the actuators to be rebuilt/refurbished, government delay in authorizing and
funding Bird-Johnson after receiving from the company an explanation of the
effort required to rebuild or refurbish each batch of actuators, and orders
that significantly exceeded the contract's estimated annual ordering levels.
CO's Statement at 16-17. The contracting officer explained that this
overhaul contract did not appear as part of the formal past performance
review because it was for services, not supplies, and thus did not get
included initially. Nonetheless, the contracting officer was aware of this
contract, and mentioned it in her evaluation of Bird-Johnson. Id. at 16. In
the contracting officer's view, this contract is neither relevant to this
procurement, nor a predictor of future success, because it was for
rebuilding/refurbishing actuators, rather than manufacturing and assembling
them, and because the delays were caused by the government. Id. at 17.
The other two contracts, both formally reviewed, involve manufacture and
assembly of new actuators--one requires delivery to the manufacturer of the
M-9 vehicle, the other was an emergency purchase of 44 actuators requiring
delivery directly to TACOM. Under the contract for delivery to the M-9
manufacturer, the record shows that six incremental deliveries were
required, and all six deliveries were early, with an average acceleration of
36 days. Id. at 16. This is the contract that MCR argues should not be
credited to Bird-Johnson because it was largely performed prior to the
departure for MCR of at least a portion of the company's key personnel.
Under the contract for the emergency purchase of 44 actuators, there were
late deliveries, as explained below. The emergency purchase contract was
awarded to Bird-Johnson on February 1, 2000, approximately 2 weeks after the
company submitted its proposal for this procurement. There was no mention of
any late deliveries under this contract in the early (and rejected) versions
of the evaluation and selection documents because the emergency purchase
contract had not yet reached its delivery date. After the third rejection of
the evaluation and decision documents by the selection authority, the agency
undertook a new, and more formal assessment of each offeror's past
performance by a TACOM industrial specialist. AR, Tabs 31-33. According to
this review, dated August 14, the delivery date for the emergency purchase
contract was August 2, and TACOM had been advised that 22 of the actuators
would be delivered approximately 2 weeks late. Id.; AR Tab 32. Although the
contracting officer made note of this 2-week delinquency in subsequent
evaluation materials, she states that she did not consider the delinquency
serious, and concedes that she did not later check to confirm when the items
were received, despite receiving a letter from MCR on August 24 again
bringing Bird-Johnson's late deliveries to her attention. CO's Statement at
16. Ultimately, the record shows that these actuators were delivered on
October 10, 84 days late. Id.
Our review of these facts leads us to conclude, first, that there was
nothing unreasonable in the contracting officer's decision to include within
her review, and give credit to Bird-Johnson for, Bird-Johnson's contract to
provide actuators to the manufacturer of the M-9 vehicle, which was
performed on an accelerated basis. Although the record supports MCR's
contention that much of this contract was performed while MCR's key
employees were still employed by Bird-Johnson, this issue was considered by
the agency as part of its review of the effect of the change in key
personnel. As indicated in our discussion of that issue above, MCR was given
credit for now having on board the very people who may have contributed to
Bird-Johnson's favorable past performance. Even so (and just as with the
discussion above), this does not necessarily translate to giving no credit
to Bird-Johnson for its past performance on this contract, given that this
is prior performance by the same company, in the same facility, with the
same production (as opposed to key) personnel. Secondly, we see nothing
unreasonable about the decision to ignore Bird-Johnson's late deliveries
related to the contract for the overhaul of the actuators. As the
contracting officer indicated, it appears that these deliveries were late
because of delays caused by the government, not by Bird-Johnson.
With respect to the emergency purchase contract, we note that although MCR
is again correct about the matter of late deliveries, there is no evidence
in the record of anything other than cooperation by Bird-Johnson with TACOM
in resolving problems related to the deliveries under this contract. While
clearly it would have been preferable for the contracting officer to have
been more diligent in following up on the issue of late deliveries,
especially given the passage of time between the August 14 past performance
review identifying the delinquency and the October 5 award date, the record
here shows the contracting officer was involved in a significant ongoing
effort to complete this procurement. Given the overall effort, we cannot say
that the generally thoughtful considerations here were rendered unreasonable
by the failure to make further inquiry on this matter. In addition, we note
that this delinquency by Bird-Johnson appears to have been an aberration,
and the company kept the Army advised of its efforts to resolve the problem.
[5]
Also within this area of prior contracts, we find nothing unreasonable in
the agency's conclusion that MCR's own prior contracts were generally not
relevant to its ability to perform the contract here. All of MCR's
identified contracts were considerably smaller than the multi-million dollar
effort here, and none involved producing this item. Rather, MCR sought
credit for the manufacture of items involving analogous skills and
technology. In addition, MCR's initial approach of identifying the prior
contracts of Bird-Johnson for its own past performance assessment--which in
the context of this procurement makes sense--provides evidence that MCR
itself viewed the Bird-Johnson contracts as more relevant to this evaluation
than any it could offer.
As a final matter within the agency's assessment of the past performance
element, we find no basis for concluding that the evaluation was
unreasonable because the agency apparently overlooked changes in
Bird-Johnson's corporate ownership between the time of at least some of the
performance under prior contracts, and the evaluation here. For the record,
we note that MCR has made no attempt to show that future performance by
Bird-Johnson might be affected by Rolls Royce's purchase of Vickers Ultstein
stock, which occurred approximately 1 month before proposals were submitted.
Also, there is no evidence in the record that Bird-Johnson has relocated its
actuator manufacture and assembly facility. Rather, the record shows that
other activities were consolidated into the same Walpole facility where
Bird-Johnson has manufactured and assembled actuators for years.
The remainder of the challenges raised by MCR fall into two areas--that it
should have received a higher rating, and Bird-Johnson a lower rating, under
the experience element, and that the agency improperly failed to distinguish
between the two offerors under the small business utilization elements of
the solicitation. We have reviewed each of these contentions and conclude
that none of them provides a basis for overturning this procurement. We
will, however, discuss two significant examples.
MCR complains that the Army should have given it a high experience rating
for its key employees, and instead improperly considered its understanding
of the RFP's requirements under the experience element of the past
performance evaluation factor. MCR argues that understanding of the RFP's
requirements is a consideration that must be reserved for a technical
evaluation criterion, which was not included in this solicitation.
While we agree that a review of technical capability is generally not
considered in an evaluation of offeror experience, the solicitation here
anticipated precisely such a review. As quoted above, the solicitation's
instructions for addressing the experience element required information on
how the offered actuators would meet the technical data requirements, and a
description of any necessary modification to existing production lines to
meet the requirements of this contract. RFP at 71. Given that MCR has
clearly adopted the view that section L of the RFP here identified the
evaluation criteria for this solicitation, [6] and given MCR's failure to
challenge the solicitation prior to the closing date set for receipt of
proposals, the Army did nothing unfair or unreasonable when it conducted the
evaluation in the manner the solicitation advised.
Finally, MCR complains that the Army unreasonably failed to distinguish
between its proposal and that of Bird-Johnson under the element of small
business utilization. In this area, the record shows that because MCR is
itself a small business, and because it uses mostly small business
subcontractors, more than 93 percent of the contract dollars paid to MCR
will go to small businesses. CO's Statement at 12. The record shows that
Bird-Johnson expects to achieve a 55 percent small business utilization
rate. Id. The evalution gave both offerors a rating of "good" in this area.
The agency explains that since both offerors proposed a plan to exceed the
agency's small business subcontracting goals, and since both plans were
realistic, it based its evaluation conclusion on the realism of the plans,
not a numerical comparison of the
amount of small business contracting. In our view, there was nothing
unreasonable about this assessment, and this issue provides no basis for
overturning this procurement.
The protest is denied.
Anthony H. Gamboa
General Counsel
Notes
1. Although the proposal and evaluation materials refer to the Bird-Johnson
Company, the successful proposal here was, in fact, submitted by Vickers
Ulstein Marine Systems Bird-Johnson Company. In December 1999, Vickers
Ulstein was acquired by Rolls-Royce. After award of this contract,
Bird-Johnson's name was changed to Rolls-Royce Naval Marine Inc., thus that
company is the intervenor here. For consistency with the evaluation
materials, we will refer to the awardee as Bird-Johnson.
2. Specifically, MCR's proposal explains that the company "was founded in
1988 to provide engineering service support on marine propulsion plant
systems, emphasizing the strong background of the founders in hydraulically
actuated controllable pitch propellers and thrusters." Agency Report (AR),
Tab 6, MCR Proposal, at 1. Since its founding, MCR explains, it has expanded
its capabilities to include other marine and industrial products.
3. A feature of the solicitation here is that the RFP does not identify any
of the criteria that will be used in the evaluation of the three past
performance elements. Instead, the solicitation identifies in section L the
kinds of information that should be included in the proposal so that these
elements can be evaluated. Throughout these pleadings, the protester, the
Army, and the awardee point to the information requested in section L, and
infer that these are the criteria to be used in evaluating each element of
the past performance factor. While the better practice would have been for
the agency to specifically identify in the RFP (in section M, for example)
the evaluation criteria for these elements, we will adopt the inference of
the parties and assume that the information requested in section L under
each of the three elements of past performance (past performance,
experience, and small business utilization) also outlines the evaluation
criteria for that element. We note for the record that the Source Selection
Plan for this procurement is generally consistent with the inference drawn
by the parties, and adopted by our Office; however, the Source Selection
Plan was not distributed outside the government, and thus could not have
been the basis for the offerors' understanding of the evaluation criteria
here.
4. While there was also a third offeror in this competition, its proposal
was priced higher, and rated lower, than either MCR's or Bird-Johnson's
proposal. Thus, there was no reason for the Army to select it over the two
proposals discussed above.
5. For the record, all three of these contracts fell within the RFP's
requirement limiting the agency's consideration of past performance to
performance that occurred within 3 years of the issuance of the
solicitation. Despite MCR's contention that Bird-Johnson's rating of
excellent is improperly drawn from the agency's experience with the company
outside the 3-year limit, none of the evaluation materials relies upon
contracts that fall outside the RFP's limit. In addition, as discussed
above, we find that the evaluation conclusions reached regarding
Bird-Johnson's past performance on contracts within the 3-year period were
reasonable.
6. That MCR adopted this view is established throughout its protest. For
example, MCR complains that the agency waived the requirements of RFP sect.
L.28.1.4, which requested submission of information identifying whether
contracts offered for evaluation under the past performance element were
performed by a different corporate entity. Supplemental Comments, Apr. 11,
at 8. Clearly MCR is inferring that this request for information stands in
proxy for an evaluation criterion. Similarly, MCR contends that the agency
was required by RFP sect. L.28.1.5 to consider Bird-Johnson's key personnel in
evaluating that company's past performance. Id. at 8.