TITLE:  Ocean Technical Services, Inc., B-288659, November 27, 2001
BNUMBER:  B-288659
DATE:  November 27, 2001
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Decision

Matter of: Ocean Technical Services, Inc.

File: B-288659

Date: November 27, 2001

Esteban Fernandez for the protester.

John J. Ralston, Esq., United States Coast Guard, for the agency.

Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where agency is not required to hold discussions or otherwise communicate
with vendors regarding past performance information, and where agency has no
reason to question the validity of past performance information received,
agency can reasonably rely on information furnished without seeking to
verify it or permitting the protester an opportunity to rebut it.

DECISION

Ocean Technical Services, Inc. (Otech), a small disadvantaged business
concern, protests the United States Coast Guard's award of a contract to
Wepfer Marine under request for quotations (RFQ) No. DTCG80-01-Q-3FAG73 for
repair of the Coast Guard cutter "Greenbrier," which is based in Natchez,
Mississippi. [1] Otech questions the agency's evaluation of its quotation
and the resulting selection decision.

We deny the protest.

The RFQ was issued pursuant to Federal Acquisition Regulation (FAR) Part 12,
Acquisition of Commercial Items, and FAR Subpart 13.5, Test Program for
Certain Commercial Items, and the procurement was conducted using simplified
acquisition procedures. The RFQ was issued on an unrestricted basis, but
included a price adjustment provision for small disadvantaged business
concerns.

The RFQ provided that the agency would evaluate quotations based on past
performance and price, with past performance being slightly more important
than price. Performance was to be evaluated under the following subfactors:
quality of product or service; timeliness of performance; business relations
(customer service); and subcontracts. Vendors were instructed to submit
information on four relevant contracts that they had performed during the
previous 3 years. The RFQ stated that in evaluating a vendor's past
performance, the Coast Guard would also review its own contractor
performance reports and would consider general trends in a contractor's
performance. The RFQ stated that price would be evaluated for fairness and
reasonableness, and that the foreseeable cost of transporting the Greenbrier
to the vendor's commercial shipyard would be evaluated. RFP sect. E, at 15.

Otech, located in Harvey, Louisiana, and Wepfer, located in Memphis,
Tennessee, submitted the only two quotations. An evaluation team (ET) was
formed to rate the past performance of each vendor. The ET contacted the
four past performance references provided by Otech for Coast Guard
contracts. The record shows that the references rated the quality of Otech's
services from "excellent" to "marginally satisfactory," with the more
recently performed contracts receiving generally lower ratings for quality
of services. Agency Report (AR), Tab J, Past Performance Questionnaire for
Otech. The ET also reviewed customer surveys that the Coast Guard had on
file for 12 contracts that Otech performed between 1998 and the current
time. The Coast Guard's past performance survey log for Otech listed, as
follows in relevant part, the firm's performance ratings:

 Date Survey   Name of Vessel     Rating
 Received

 11/1999       Ouachita           Satisfactory

 11/1999       Cushing            Excellent

 2/1999        Chandeleur         Excellent

 11/1999       Kickapoo           Excellent

 5/2000        Sciota             Excellent

 6/2000        Cimarron           Excellent

 8/2000        Pakota/Greenbrier  Good

 4/2000        Chincoteague       Satisfactory

 3/2000        Sapelo             Good

 2/2001        Farallon           Fair

 9/2000        Matagorda          Fair

 7/2001        Pamlico            Good

Agency Report, Tab L, Past Performance Survey Log.

In their evaluation summaries, two ET members rated Otech's past performance
as "marginal" overall, and the remaining member rated it as "acceptable"
overall. AR, Tab O, Evaluation Summary Sheets for Otech. The summaries noted
an apparent downward trend in Otech's performance over the past few years.
The summaries contained comments concerning changes in management, cost
control issues, difficulties with customer relations, and a level of
performance requiring more supervision and guidance from the Coast Guard.
The ET arrived at a consensus rating of "acceptable, with significant [Coast
Guard] assistance to control quality through stringent oversight by [Coast
Guard] inspectors." AR, Tab P, Consensus Rating Score Sheets for Otech.

For Wepfer, the ET contacted the four past performance references provided
by the firm for Coast Guard contracts. These references gave Wepfer's
performance predominantly excellent ratings, and two references noted that
the work was completed early. AR, Tab M, Past Performance Questionnaire for
Wepfer. The ET also reviewed nine past performance surveys that were on file
for Wepfer. The past performance survey log ratings for Wepfer, as relevant
here, were as follows:

 Date Survey    Name of Vessel    Rating
 Received

 8/1998         Kankakee          Excellent

 8/1998         Chippewa          Outstanding

 10/1998        Sangamon          Excellent

 10/1998        Chena             Satisfactory

 10/1999        Muskingum         Outstanding

 4/1999         Muskingum         Outstanding

 4/2000         Cheyenne          Good

 7/2001         Chena             Excellent

 2/2001         Kanawha           Excellent

AR Tab N, Past Performance Survey Log.

In their evaluation summaries, each member of the ET rated Wepfer as
"superior" overall. The summaries cited a consistent history of high quality
work, completion of repair contracts ahead of schedule, and excellent
management and customer relations. AR, Tab Q, Evaluation Summary Sheets for
Wepfer. The ET gave Wepfer's past performance a consensus rating of
"superior." AR, Tab R, Consensus Rating Score Sheets for Wepfer.

For price comparison purposes, the agency added a "cost and distance factor"
to each submitted price to reflect the expense of transporting the cutter to
the vendor's facility, and then further increased Wepfer's price by 10
percent to reflect the small disadvantaged business preference to which
Otech was entitled. AR, Tab U, Price Evaluation. After these adjustments,
Otech's price was $243,213.00, and Wepfer's price was $256,441.90. Id.

Based on Wepfer's higher past performance rating and only slightly higher
price, the ET determined that Wepfer's quotation offered the "best value" to
the government, and recommended awarding a contract to Wepfer. In its
tradeoff analysis, the ET noted the RFQ's slight emphasis on the importance
of past performance, and it acknowledged Wepfer's superior past performance
record as compared to Otech's. AR, Tab V, Tradeoff Analysis, at 2. The
contracting officer agreed with the ET's analysis and awarded the contract
to Wepfer. AR, Tab W, Report of Review.

Otech protests its past performance evaluation as "fatally flawed,"
challenging the accuracy of the performance evaluations for its three most
recently completed Coast Guard contracts. Protester's Comments at 2. Otech
points out that the contracting officer changed the performance report for
Otech's contract on the Pamlico--lowering several ratings--after Otech had
signed the report, but without showing Otech the changes. In this regard,
Otech also alleges that until it received the agency report in response to
its protest, it had never received the evaluation of its performance on
contracts for two of the vessels, the Matagorda and the Farallon.

The agency reports that, although it cannot specifically refute Otech's
allegation that the firm never received the performance evaluation surveys
for the Matagorda and Farallon, it is Coast Guard practice to send these
surveys to contractors just as it did for the other Otech contracts listed
on the past performance survey log. The Coast Guard admits that the
contracting officer for the Pamlico contract did unilaterally correct number
ratings for the performance report because the contracting officer, having
reviewed the narrative of the ratings, concluded that the project manager
who rated Otech's performance had erroneously considered a higher numerical
rating to be a negative, rather than a positive, rating. As an example, the
agency points out that the rater gave Otech a "4" (which should be reserved
for excellent performance) for business relations, while commenting that
"the contractor was reactive rather than proactive," and that "the
contractor was hesitant to take responsibility for this relatively simple
change." Response to Protester's Comments at 1. The rating was changed to a
"2" (fair). The Coast Guard asserts that, in any event, its evaluation of
Otech's past performance is supported by Otech's past performance record,
even if the three contracts at issue are discounted.

Otech objects to the substance of the ratings for the two contracts for
which he contends he did not receive ratings and to the changes made in the
numbers in the ratings for the Pamlico contract. Having reviewed the record,
we find no basis to question the agency's actions in the procurement at
issue here.

While we cannot resolve the dispute between the parties regarding whether
Otech actually received the ratings for its work on the Matagorda and the
Farallon, nor their dispute about the accuracy of the substance of those
ratings, we conclude that the protester's contentions do not form a basis on
which a protest can be sustained. The record shows that Otech is familiar
with the agency's process for assessing performance on past contracts and
the contractor's ability to review and comment on those assessments, see
FAR sect. 42.1503(b), since it has provided comments on such assessments in the
past. Thus, Otech knew (or certainly should have known) that its performance
under each contract would be evaluated upon completion of those contracts,
and, with regard to the reports it states that it did not receive, it should
have noted that it had not received a copy of those performance reports
after completion of the contracts, and addressed the matter with the agency
at that time. Our bid protest forum is not the place for a firm to first
complain of not having received an assessment, nor do we serve as a forum
for a firm to dispute the substance of an agency's assessment of the firm's
work (as Otech attempts to do here with respect to the assessments regarding
the Matagorda and Farallon contracts).

With regard to the Pamlico contract assessment, while Otech objects to
changes having been made in the numbers after it received the assessment
form, we view the narrative as the essential part of the assessment, and
Otech did receive the narrative (which Otech does not allege was altered),
and, indeed, responded to the assessors' critical statements about Otech's
performance. [2] In its response, Otech wrote that (while the firm denied
the reasonableness of the rater's position) it recognized that the situation
"has left doubt of this contractor's ability in the mind of our customer."
Protester's Oct. 3 Submission, exh. 1. While Otech obviously believes that
the agency should have agreed with the firm's position and changed the
narrative, that dispute is not for resolution by our Office.

Even if we were to agree, arguendo, with Otech's challenges to the validity
of three of the performance assessments, there is nothing in the record to
suggest that at the time the contracting officials evaluated the survey
information and made the award decision here, they had any reason to
question the accuracy of the information provided. Where an agency is not
required to hold discussions or to otherwise communicate with vendors
regarding past performance information, as is the case here where simplified
acquisition procedures were employed, see FAR sect. 13.106-2(b)(2), and where
the evaluators and selection official have no reason to question the
validity of the past performance information, they can reasonably rely on
the information furnished without seeking to verify it or permitting the
protester an opportunity to rebut it. See A.G. Cullen Constr., Inc.,
B-284049.2, Feb. 22, 2000, 2000 CPD para. 45 at 5.

Finally, Otech insists that it "completed all contracts to the satisfaction
of the government," and that "Otech is the evaluated low bidder with a
history of performance and as such should be awarded the contract in
question." Protester's Final Comments at 2. In a "best value" procurement,
price is not necessarily controlling in determining the quotation that
represents the best value to the government. Rather, that determination is
made on the basis of whatever evaluation factors are set forth in the
solicitation, with the source selection official often required to make a
price/technical tradeoff to determine if one quotation's technical
superiority is worth the higher price that may be associated with that
quotation. In this regard, price/past performance tradeoffs are permitted
when such tradeoffs are consistent with the solicitation's evaluation
scheme. See Rotair Indus., Inc., B-276435.2, July 15, 1997, 97-2 CPD para. 17 at
3. Here, the RFQ established that past performance would be considered
slightly more important than price. RFQ sect. E, at 16. The ET's consensus
rating for Wepfer's past performance was "superior," a rating that Otech has
not challenged, while Otech's consensus rating was a qualified "acceptable."
AR, Tab V, Trade Off Analysis. In these circumstances, we find
unobjectionable the Coast Guard's conclusion that "[b]alancing the Total
Evaluated Prices and weight of the Past Performance ratings, . . . Wepfer
Marine's higher performance evaluation, despite a slightly higher Total
Evaluated Price . . . results in the best value to the government." Id. at
2.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. A "cutter" is a Coast Guard vessel 65 feet long or longer, with
accommodations for crew to live aboard. Contracting Officer's Statement at
1.

2. Our review confirms the reasonableness of the contracting officer's view
that, in light of those critical statements, it appears that the rater
simply misunderstood the numerical rating scale.