TITLE:  Al Hamra Kuwait Company, B-288970, December 26, 2001
BNUMBER:  B-288970
DATE:  December 26, 2001
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Decision

Matter of: Al Hamra Kuwait Company

File: B-288970

Date: December 26, 2001

Adel Aziz, for the protester.

Randall E. McGinnis, Echota Technologies, an intervenor.

Kerri A. Cox, Esq., Gregory H. Petkoff, Esq., and Maj. Mark C. Garney,
Department of the Air Force, for the agency.

David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly evaluated the corporate experience of a new business by
considering the experience of a predecessor firm where, although the
predecessor firm still existed as a legal entity, the offeror had acquired
all of the predecessor firm's accounts payable, accounts receivable,
equipment, machinery and personnel (including key personnel, technical staff
and other employees), such that the experience evaluated reasonably could be
considered predictive of the offeror's performance under the contemplated
contract.

DECISION

Al Hamra Kuwait Company protests the Department of the Air Force's award of
a contract to Al Musairie National General Trading and Contracting, under
request for proposals (RFP) No. F38604-01-R-0001, for the simplified
acquisition of base engineering requirements (SABER) at Al Jaber Air Base
and Ali Al Salem Air Base in Kuwait. Al Hamra asserts that Al Musairie was
ineligible for award, and challenges the evaluation of past performance.

We deny the protest.

The RFP provided for award of an indefinite-delivery, indefinite-quantity
contract for a base year, with 4 option years, to furnish the personnel,
tools, and materials necessary for the design, management, and completion of
maintenance, repair, alteration and/or new construction at Al Jaber Air Base
and Ali Al Salem Air Base. The procurement was "[r]estricted to Kuwaiti
firms, or firms, or partnerships with firms approved by the Kuwait Ministry
of Defense/Military Engineering Projects (MOD/MEP), Central Tenders
Committee." RFP, Standard Form (SF) 1422, Block 10. Award was to be made to
the offeror "who submits a technically acceptable . . . proposal that
represents the best value to the government." RFP sect. M-2(a)(1). The RFP
listed three evaluation factors: technical, price, and past performance. The
solicitation provided that the "[t]echnical proposal will be rated on an
acceptable/unacceptable basis." RFP sect.sect. M-2(a)(3), M-2(b). The RFP further
provided that "[a]fter . . . technically acceptable proposals have been
identified, price and past performance will be evaluated to determine the
combination that represents the best value to the Government." RFP sect.
M-2(a)(4). In this regard, price and past performance were of "approximately
equal importance and will bear a significant impact on the final award." Id.

Fourteen proposals were received by the June 4, 2001 closing time. Final
proposal revisions were received on July 9. Only five proposals, including
Al Musairie's and Al Hamra's, were evaluated as technically acceptable (the
agency also identified several strengths in Al Musairie's proposal,
including an exceptional quality program and processes, highly skilled and
qualified personnel, and the capability to provide any equipment required to
accomplish the array of possible projects under the contemplated contract).
Since these two proposals also received exceptional past performance
ratings, and Al Musairie's price was low, the Air Force determined that it
represented the best overall value to the government. Proposal Analysis
Report at 11. Upon learning of the resulting September 16 award to Al
Musairie, and after being debriefed by the agency, Al Hamra filed this
protest challenging the award on a number of grounds.

In reviewing an agency's evaluation of proposals and source selection
decision, our review is confined to a determination of whether the agency
acted reasonably and consistent with the stated evaluation factors and
applicable procurement statutes and regulations. Main Bldg. Maint., Inc.,
B-260945.4, Sept. 29, 1995, 95-2 CPD para. 214 at 4. Based on our review of the
record, we find that the evaluation and the award to Al Musairie were
reasonable. We discuss Al Hamra's principal arguments below.

ELIGIBILITY FOR AWARD

Al Hamra asserts that the awardee was ineligible for award because it did
not exist at the time of initial proposal submission and was not on the
MOD/MEP list, as required by the RFP. In this regard, Al Hamra notes that
the September 29 written debriefing letter it received included an excerpt
from the agency's evaluation in which the successful firm was identified as
"Al Musairie National General Trading & Contracting CO. W.L.L.," that is, as
a company with limited liability. Air Force Letter, Sept. 29, 2001, at 3. In
contrast, notes Al Hamra, the Kuwaiti MOD/MEP list includes a listing for
"Al-Musairie National General Trading & Contracting." Al Hamra Comments,
Nov. 13, 2001, attach. MOD/MEP List, July 2000 (updated), at 4. According to
the protester, "[i]n Kuwait, if the word 'company' is not included in your
name, you are by default an establishment and a sole proprietorship."
Al Hamra Comments, Dec. 3, 2001, at 12. The protester concludes that the
firm on the MOD/MEP list could not be the Al Musairie General Trading &
Contracting CO. W.L.L. identified in the debriefing letter.

The name of an offeror need not be exactly the same in all of the offer
documents, although the offer documents or other information available must
show that differently-identified offering entities are in fact the same
legal entity. See S3 LTD, B-288195 et al., Sept. 10, 2001, 2001 CPD para. 164 at
11; Trandes Corp., B-271662, Aug. 2, 1996, 96-2 CPD para. 57 at 2.

We find that, notwithstanding the variations in the identification of the
awardee in the proposal, debriefing letter and evaluation excerpts, the
entries in the proposal itself support the agency's determination that the
awardee was the firm on the MOD/MEP list. As noted by the agency, in Block
14 of the SF 1422 in the awardee's July 9 final proposal, the awardee
identified itself, not as Al Musairie National General Trading & Contracting
CO. W.L.L., the name the protester saw in the evaluation excerpt in the
debriefing letter, but as Al Musairie National Gen. Trdg. & Cont. Est.
Further, although shortened forms of the awardee's name as entered by it in
Block 14 were used elsewhere in the relevant documents--the awardee used
"Al Musairie National Gen. Trdg. & Cont." for its remittance address and in
the corporate certification of its authorized representative, Proposal at 13
and 37; the entry on the Kuwaiti MOD/MEP list was for "Al-Musairie National
General Trading & Contracting," MOD/MEP List at 4; and the agency entered
"Al Musairie National General Trading" in Block 14 of the signed SF 1422
contract document--according to the protester's own position, these
shortened forms, like the reference in Block 14, identified the awardee as
an establishment (rather than as a firm with limited liability). [1] Since
this was consistent with the name on the MOD/MEP list, the agency reasonably
determined that Al Musairie was eligible for the award.

PAST PERFORMANCE EVALUATION

The solicitation required offerors to furnish "a list of at least three (3)
but not more than five (5) most recent and relevant contracts, exceeding
[Kuwaiti Dinars] 461,475 ($1,500,000 @ .30765) annually for each recent and
relevant contract that has occurred, or is occurring, (basic or option
period) during the period 1 Oct[ober] 1997 through 30 Jun[e] 2001." RFP,
Proposal Preparation Instructions, Past Performance. Likewise, the RFP
provided that in the past performance evaluation, "[m]ore recent performance
will have a greater impact on the evaluation than less recent performance."
RFP sect. M-2(b)(2)(b).

In its proposal, Al Musairie cited performance of three contract efforts,
including: (1) contract number 95G071/CPK/SBC/082, for earthwork at Oil
Gathering Center 27 and erection of a steel structure at Oil Gathering
Center 28 in Kuwait; (2) contract number 11550, for construction of the main
substation and a new control room at Oil Gathering Center 25 in Kuwait; and
(3) contract number 6970-SC-05, for civil and building works, earthwork,
concrete foundations and reinforced concrete works in joint operations
between Kuwait and Saudi Arabia. Al Musairie's performance on these efforts
was rated as exceptional or very good by its references.

Al Hamra challenges the exceptional past performance rating received by
Al Musairie on the basis that the cited prior contracts should not have been
attributed to the offeror. Specifically, Al Hamra asserts that the work at
Oil Gathering Center 25 in fact was undertaken by a different entity than Al
Musairie; Al Hamra has furnished copies of two subcontracts
(No. 11550-4080-706 dated September 26/27, 1998, and No. 11550-4080-704-1
dated August 22, 1998) entered into by Daelim Engineering Company Ltd. as
the contractor and Baddah & Musairie General Trading Contracting Co. as the
subcontractor for this work. Al Hamra Comments, Nov. 13, 2001, attachs.

In reviewing an agency's evaluation of past performance, our Office
considers whether the evaluation was reasonable and consistent with the
solicitation's evaluation criteria and applicable statutes and regulations.
Universal Fabric Structures, Inc., B-284032, Feb. 10, 2000, 2000 CPD para. 37 at
3. In this regard, an agency may properly evaluate the corporate experience
of a new business by considering the experience of a predecessor firm, see
J.D. Miles & Sons, Inc., B-251533, Apr. 7, 1993, 93-1 CPD para. 300 at 3, or a
subcontractor, Cleveland Telecomms. Corp., B-257294, Sept. 19, 1994, 94-2
CPD para. 105 at 5, including experience gained by employees while working for
the predecessor firm. Oklahoma County Newspapers, Inc., B-270849,
B-270849.2, May 6, 1996, 96-1 CPD para. 213 at 4. The key consideration is
whether the experience evaluated reasonably can be considered predictive of
the offeror's performance under the contemplated contract. Id.

The evaluation of Al Musairie's experience was reasonable. The Air Force
reports that Al Musairie is effectively the successor firm to Baddah &
Musairie General Trading & Contracting, in that it was formed by one of the
partners in that firm, and acquired all of that firm's accounts payable,
accounts receivable, equipment, machinery and personnel (including key
personnel, technical staff and other employees). The agency has furnished in
this regard both contemporaneous legal documentation of Al Musairie's
acquisition of Baddah & Musairie's assets and a consistent statement from Al
Musairie. Air Force Comments, Nov. 27, 2001, at 5, attachs. Al Hamra argues
that Al Musairie cannot be a successor to Baddah & Musairie because that
firm still exists as a legal entity. However, as noted, the key
consideration in this area is whether the experience evaluated reasonably
can be considered predictive of the offeror's performance under the
contract. Since Al Musairie has acquired the resources Baddah & Musairie
used in performing the cited contracts, thus affording some additional
confidence in the likelihood of successful performance by Al Musairie under
the contemplated contract, we see nothing unreasonable in the agency's
considering Baddah & Musairie's experience in the evaluation, whether or not
Baddah & Musairie remains in existence.

Al Hamra also argues that the dollar values of the Oil Gathering Center 25
subcontracts improperly were aggregated in order to meet the minimum annual
contract value of $1.5 million. Al Hamra has furnished documentation
indicating that, depending upon whether the contract performance period is
measured from the contract date or the commencement of performance, the
value of the larger of the two subcontracts was only approximately $1.44 or
$1.48 million annually. (The smaller of the two subcontracts apparently
amounted to as much as approximately $739 thousand annually.) The protester
concludes that this contract did not satisfy the dollar value relevance
requirement and therefore should not have been considered. Al Hamra
Comments, Dec. 3, 2001, at 9-10; Al Hamra Comments, Nov. 13, 2001, at 16-17;
Air Force Comments, Nov. 27, 2001, at 4.

This argument is without merit. While it does appear that neither
subcontract's value independently amounted to $1.5 million annually, we see
no reason to view the contracts so restrictively. Since the contracts
apparently were for related work, at the same location, during the same
general period of time, for the same prime contractor, and under the same
overall job number (11550), we think the agency could reasonably view the
work as a single contract effort for purposes of determining their relevance
in the past performance evaluation. In any case, viewed in light of the
purpose of the past performance evaluation--to predict the quality of the
offeror's performance under the contract--the dollar value discrepancy is de
minimis and therefore immaterial; there is no basis for concluding that
performance on a contract with an annual value of $1.44 or $1.48 million was
materially less predictive of future performance than performance on one
with a value of $1.5 million.

Al Hamra further argues that giving exceptional past performance ratings to
both Al Hamra and Al Musairie indicates that the Air Force failed to take
into account the fact that Al Hamra has more recent experience than Al
Musairie, and thus improperly failed to give effect to the solicitation
statement that more recent performance would have a greater impact on the
evaluation than less recent performance. Al Hamra's argument is without
merit. As an initial matter, the record indicates that Al Musairie was
properly credited with recent experience. While Al Hamra cited in its
proposal five contract efforts, including two that ended in 1999, one in
December 2000, and two that were ongoing at the time of award, Al Musairie
cited three contract efforts, including one that ended in January 2000, one
in August 2000, and one in May 2001. Moreover, Al Hamra's challenge to Al
Musairie's exceptional past performance rating does not account for the more
favorable ratings received from Al Musairie's references. The record
includes only two returned ratings questionnaires for Al Hamra; one amounted
to little more than a very good rating (with nine very good rating
categories and only one exceptional category), while the other did not
uniformly consist of exceptional ratings (with six exceptional categories
and four very good categories). In contrast, the record includes three
returned ratings questionnaires attributable to Al Musairie; two were
overwhelming exceptional ratings (with either nine exceptional categories
and one very good category, or eight exceptional categories and two very
good categories) and one was evenly split between exceptional and very good
(with five exceptional categories and five very good categories). On this
record, we find no basis to question the agency's determination that an
exceptional past performance rating was warranted for Al Musairie as well as
for Al Hamra. [2]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Likewise, in the solicitation clause for taxpayer identification, Al
Musairie certified itself a sole proprietorship.

2. Al Hamra challenges the adequacy of the agency's notice of award and of
the debriefings furnished by the agency. However, the adequacy of the notice
of award or a debriefing are procedural matters concerning agency actions
after award which are unrelated to the validity of the award; we generally
will not review such matters. Acquest Development LLC, B-287439, June 6,
2001, 2001 CPD para. 101 at 2 n.1; American President Lines, Ltd., B-236834.8,
B-236834.9, et al., May 15, 1991, 91-1 CPD para. 470 at 6.