TITLE:  Five-R Company, B-288190, September 10, 2001
BNUMBER:  B-288190
DATE:  September 10, 2001
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Five-R Company, B-288190, September 10, 2001

Decision

Matter of: Five-R Company

File: B-288190

Date: September 10, 2001

Ray Fertig for the protester.

Capt. Jeremy S. Weber, Department of the Air Force, for the agency.

Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Consistent with the stated evaluation scheme in the solicitation, agency
reasonably found that protester's past performance was satisfactory, rather
than exceptional, where the protester's recent experience was not on
projects of the same magnitude as the solicited project and the particular
complexities of the protester's projects were not an aspect of the solicited
project.

DECISION

Five-R Company protests the Department of the Air Force's award of a
contract to John Bowman, Inc. under request for proposals (RFP) No.
F48608-01-R0008.
Five-R contends that the agency unreasonably evaluated its proposal under
the past performance evaluation factor.

We deny the protest.

The RFP, issued February 26, 2001, contemplated the award of a fixed-price
contract for asbestos abatement and demolition of the existing golf course
clubhouse, and the construction of a new golf course clubhouse, at F.E.
Warren Air Force Base (AFB), Wyoming.

The RFP provided for award to the responsible firm whose offer was found
most advantageous to the government, considering past performance and price
equally.
In evaluating past performance, offerors were assigned a performance risk
assessment rating of exceptional/high confidence, very good/significant
confidence, satisfactory/confidence, neutral/unknown confidence,
marginal/little confidence, or unsatisfactory/no confidence, based on the
recency, relevance and quality of the offerors' past performance. Relevance
of past performance was to be determined based on work, size, and complexity
as compared to the RFP work. The RFP proposal instructions provided:

Past performance shall provide adequate information describing
the offeror's previous experience in construction of golf course clubhouse
or work of a similar complexity and magnitude,
both commercial and government within the past three years. The offeror
shall also list all contracts (maximum of last ten consecutive contracts)
performed the past three years.

RFP at 40 (emphasis in original). The RFP advised that, although the agency
reserved the right to conduct discussions if necessary, it planned to make
award on the basis of initial proposals.

The agency received six proposals by the April 9 due date. Five-R's total
offer was second lowest priced at $1,719,300 and Bowman's was third lowest
at $1,831,300. A performance risk assessment group (PRAG) conducted a past
performance evaluation for each offeror.

The agency initially received two questionnaires regarding Five-R's past
performance on other contracts. One of those, an Air Force contract for the
renovation of three missile alert facilities, with a total dollar value of
$1,951,059, was judged to be relevant to the solicited requirement. The
other project of remodeling at a restaurant, with a dollar value of
$175,000, was judged to be somewhat relevant. The agency then called Five-R,
stated that only two questionnaires had been received, and asked if it had
performed other work during the last 3 years. As a result of this request,
Five-R provided two additional projects that it had performed at a hotel and
at a personal residence. The jobs, one valued at $282,000 and another valued
at $29,167, were judged to be somewhat relevant to the present project.
Five-R also referenced work that had been performed more than 3 years
earlier, which was not considered by the PRAG. [1]

Five-R received an overall satisfactory/confidence rating. While Five-R
received favorable comments from its references, and its projects were found
to be relevant or somewhat relevant to the solicited golf course clubhouse
project, the PRAG noted that these projects were for small-scale
construction projects. In this regard, the PRAG noted that the Air Force
contract was for the renovation of three separate facilities to be completed
in sequence for approximately $650,000 apiece, which was 36 percent of the
cost of the RFP project. The PRAG concluded that Five-R had not recently
completed any project close in scope to the golf course clubhouse project,
so that there was some doubt whether Five-R would successfully perform the
required effort.

Bowman received an exceptional/high confidence rating, because its evaluated
projects received high ratings and very favorable comments, and all were
found to be of the same scope, complexity and cost magnitude as the subject
project.

The source selection official determined that Bowman's exceptional/high
confidence rating was worth the associated price premium for "an offeror who
based on their past performance leaves no doubt as [to] their ability to
successfully perform the contemplated effort." Agency Report, Tab 15,
Contracting Officer's Decision, at 2. The contract was awarded to Bowman on
June 7, 2001. On June 15, Five-R filed an agency-level protest against the
award to Bowman, which was denied on June 20. This protest followed.

Five-R does not challenge the exceptional/high confidence past performance
rating assigned to Bowman, but contends that the agency improperly evaluated
the protester's past performance information. Specifically, Five-R contests
the agency's assessment that it lacks recent experience with contracts of
this cost magnitude.
In this regard, Five-R contends that the agency incorrectly broke down its
one missile facilities contract into three small projects, thereby reducing
the contract price for which Five-R could claim experience.

In reviewing a protest against an agency's evaluation of past performance,
we examine the record to determine whether the agency's judgment was
reasonable and consistent with the stated evaluation criteria and applicable
statutes and regulations. The protester's mere disagreement with the
agency's judgment in its determination of the relative merit of competing
proposals does not establish that the evaluation was unreasonable. Ostrom
Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4.
As discussed below, we find that the evaluation of the protester's past
performance was reasonable and consistent with the evaluation criteria.

Although Five-R claims that the agency improperly broke its missile
facilities contract into three smaller pieces, thereby reducing the total
contract price for which Five-R could claim experience, the record shows the
PRAG also considered the total contract value in the past performance
evaluation and judged the renovation of the missile facilities contract to
be relevant to the subject requirement. Agency Report, Tab 12, Five-R's Past
Performance Evaluation at 1. In any case, we find the agency's conclusion
that this one contract was comprised of three separate parts was reasonably
based and not inconsistent with the RFP's evaluation scheme.

The protester also argues that this missile facilities contract presented
special logistical problems that the agency failed to take into account in
evaluating past performance, such as that these projects had to be well
organized and well equipped because of the fact that the missile sites were
in remote locations far removed from the necessary materials and supplies.
While it is true that the agency did not specifically take into account this
particular complexity, it is not an aspect of the project at issue in this
procurement. As stated in the RFP, the agency, in evaluating past
performance, would look at the offeror's experience in construction of a
golf course clubhouse "or work of a similar complexity." RFP at 40. An
agency is not required to give evaluation credit for proposed features it
determines will not contribute in a meaningful manner to better satisfying
the agency's needs. Airwork Ltd.-Vinnell Corp. (A Joint Venture), B-285247,
B-285247.2, Aug. 8, 2000, 2000 CPD para. 150 at 9.

Finally, Five-R attributes its past performance evaluation to bias on the
part of agency officials. Here, Five-R has furnished no credible evidence to
support this allegation, but only infers bias based on the evaluation. We
will not attribute bias in the evaluation of proposals on the basis of
inference and supposition. TLC Sys., B-243220, July 9, 1991, 91-2 CPD para. 37
at 4. Indeed, the agency affirmatively sought additional references from
Five-R--hardly indicia of bias. Given these circumstances, we find no basis
to question the motives of any of the contracting officials.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. While Five-R references other past performance in its protest
correspondence, this was not contained in its proposal. Five-R challenges
the RFP provision limiting the agency' review of the contractor's past
performance to the preceding 3 years. Five-R contends that this RFP
provision excludes much of the work that it had performed at F.E. Warren AFB
since 1961, such as construction of a swimming pool and covered storage.
Under our Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2001), a bid
protest which is based upon alleged improprieties apparent from a
solicitation must be filed prior to the closing time for the receipt of
initial proposals. Five-R's challenges against the terms of the
solicitation, filed after award, are therefore untimely and will not be
considered further.