TITLE:  Chicataw Construction, Inc., B-289592; B-289592.2, March 20, 2002
BNUMBER:  B-289592; B-289592.2
DATE:  March 20, 2002
**********************************************************************
Decision

Matter of: Chicataw Construction, Inc.

File: B-289592; B-289592.2

Date: March 20, 2002

Lawrence J. Sklute, Esq., Sklute & Associates, for the protester.

Joel David Malkin, Esq., General Services Administration, 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 evaluation of its past performance is denied
where the record shows that the agency made reasonable efforts to contact
the required minimum of three past performance references, and ultimately
used a neutral rating for the reference it was unable to reach.

2. Agency's post-protest recalculation of the protester's past performance
score, and corresponding redetermination that the awardee's proposal still
represents the best value to the government, will be considered where the
reevaluation is limited in scope, primarily involves a straightforward
recalculation with little room for subjective judgment, and there is nothing
in the record to support a conclusion that the resulting increase in the
protester's score would materially alter the agency's selection decision.

DECISION

Chicataw Construction, Inc. protests the award of a contract to Hammond
Corporation by the General Services Administration (GSA), pursuant to
solicitation No. GS05P01GAC0174, issued to procure a chiller/cooling tower
replacement for the Federal Building in Akron, Ohio. Chicataw argues that
the agency's evaluation of past performance was unreasonable.

We deny the protest.

BACKGROUND

The solicitation here was issued on September 14, 2001, and anticipated
award of a fixed-price contract for the demolition and removal of existing
chiller and cooling tower equipment, and the furnishing and installation of
new equipment. In addition, the solicitation identified two optional
requirements related to replacing additional cooling equipment in the
building. The total price for the base effort and the two options was
defined as the "total evaluated price," and the solicitation advised that
award would be made to the offeror whose proposal represented the best value
to the government in terms of total evaluated price and past performance.
Solicitation at 380, amend. 4, at 3. The solicitation also advised that past
performance and total evaluated price were approximately equal in weight,
but that as proposals became more equal in past performance, total evaluated
price would become more important. Solicitation, amend. 3, at 3.

With respect to past performance, the solicitation advised that only an
offeror's experience as a prime contractor would be considered relevant, but
that the experience of key personnel obtained from firms other than the
offeror might also be considered, at the discretion of the contracting
officer (CO). Solicitation at 380. With respect to the amount of past
performance information to be provided, the solicitation included
conflicting requirements. On page 380, the solicitation required offerors to
provide a minimum of three references (but no more than six) for prior work
completed no more than 5 years earlier (or for uncompleted work that was
90 percent completed by the time of proposal submission); on page 381, the
solicitation required a minimum of six references, three for projects
completed within the last 3 years and three for current projects.

The solicitation also included a standard form for the submission of the
requested past performance information. This form required identification of
the project and its location, identification of a reference and contact
information, as well the dollar value, the completion date, and a
description of the work and complexity of the project. Id. at 383. With
respect to offerors who might lack past performance information, the
solicitation advised that failure of an offeror to provide a minimum of
three relevant references (or the inability of the government to reach at
least three references, after making a reasonable effort to do so), "may
result in the offeror not being rated on the past performance factor." Id.
at 381. [1]

By the November 7 closing date set for the receipt of offers, GSA received
proposals from four offerors, including Chicataw and Hammond. Chicataw's
proposal identified five prior projects for its past performance evaluation,
but did not use the solicitation's standard form for submitting such
information; as a result, for certain of its past performance projects
Chicataw did not provide all of the information sought by the agency for its
evaluation. In contrast, Hammond's proposal identified six prior projects,
and did so on the standard form provided with the solicitation.

To evaluate past performance, the CO asked each of Chicataw's references to
rate its performance in six areas using a 5-point scale, ranging as follows:
excellent, 5 points; very good, 4 points; good, 3 points; fair, 2 points;
and, poor, 1 point. There was also an N/A category for answers of "not
applicable" or "no response." The reference's ratings in all six areas were
averaged to obtain a single rating for each prior project; the ratings for
all of an offeror's prior projects were averaged to obtain an overall past
performance score. Agency Report (AR), Tab H.

Since its proposal failed to provide all of the necessary performance
information, the CO made numerous calls to Chicataw seeking additional
information about the projects identified. In addition, the CO requested
that the company identify additional projects for evaluation, as at least
one of the references would not return the CO's calls (alternatively, the CO
asked Chicataw's president for his assistance in reaching this reference).
We need not set forth here the details of these inquiries as the record of
these calls and letters was provided to Chicataw in the agency's report;
Chicataw has in no way challenged the agency's description of its repeated
requests for information; and Chicataw failed to supplement its proposal
with any of the requested additional performance information.

Ultimately, the CO did not evaluate three of Chicataw's five prior projects
for the following reasons: in the first case, the CO learned from the
reference that the project was completed in 1991, and thus the project was
considered too stale for evaluation here; in the second case, the CO learned
from the reference that the company was a subcontractor on the project, and
not the prime contractor; and in the third case, the CO was unable to reach
the identified reference. For the two projects that were rated, Chicataw
received ratings of 4.75 and 3.5. Since the CO concluded that the
solicitation required a minimum of three prior projects for evaluation, and
since Chicataw had failed to identify additional projects, the CO averaged
the two ratings received from valid references with a rating of zero for the
third project to obtain an overall past performance score of 2.75. AR,
Memorandum of Law, Tab H, and Tab O, at 2; Supplemental AR, Tab D.

In evaluating Hammond's past performance, the CO noted that on four of the
six projects Hammond identified, it had served as a subcontractor, and not
as a prime contractor. Thus, the CO sought, and Hammond provided, additional
past performance information, including additional projects, for review.
Ultimately, the CO received responses from references on three valid prior
projects who gave Hammond ratings of 5, 5, and 4.88. These ratings were
averaged to obtain an overall past performance score for all of Hammond's
projects of 4.96. AR, Memorandum of Law, Tab O, Supplemental AR, Tab D.

Upon completion of the agency's review, the total evaluated prices and past
performance scores for the four offerors were as follows:

 Offeror           Total Evaluated     Past
                   Price               Performance
                                       Score

 Chicataw          $867,000            2.75

 Hammond           $913,223            4.96

 Offeror A         $946,100            4.61

 Offeror B         $1,248,000          4.39

Using this information, the CO concluded that Chicataw's lowest total
evaluated price did not offer the best value to the government because the
company's past performance score was significantly lower than the scores of
the other offerors. As a result, the CO selected Hammond's proposal for
award on the basis that its combination of price and past performance
offered the best value to the government. Source Selection Decision, Dec. 3,
2001, at 2. This protest followed.

DISCUSSION

Chicataw's initial protest raised only two issues: that GSA failed to make
reasonable efforts to contact one of its references, and that it improperly
disregarded experience gained by Chicataw's president while working for a
different company. In answer, the agency produced a report addressing the
two issues raised. Specifically, the report defended the CO's efforts to
contact Chicataw, its president, and its references, and explained why
Chicataw was not credited with experience gained by its president; the
report did not, however, provide a detailed explanation of the evaluation.

In response, Chicataw did not abandon its initial protest, but submitted
only a single-sentence request that the protest be decided on the existing
record. See 4 C.F.R. sect. 21.3(i) (2001). In addition, Chicataw filed a
supplemental protest arguing that the agency's report showed that the
evaluation of past performance was arbitrary, irrational, and in violation
of Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(v), which requires
that offerors lacking past performance information may not be evaluated
favorably or unfavorably.

With respect to Chicataw's assertion that the agency did not make reasonable
efforts to contact one of its past performance references, the record here
shows that the CO made numerous attempts to reach Chicataw's reference, to
advise the company of the problem, and to permit the company to either
submit additional information or assist the CO in her efforts to contact the
reference. As Chicataw has not taken issue with the agency's description of
these actions, and as the actions themselves appear reasonable, we conclude
that there was nothing improper about the failure of the agency to reach
this reference. Atmospheric Research Sys., B-240187, Oct. 26, 1990, 90-2 CPD
para. 338 at 3. Similarly, with respect to whether the agency should have
credited Chicataw with prior experience gained by its president, GSA points
out that there was nothing in the company's proposal indicating that the
identified project was anything other than a standard performance reference.
Given that our review of the proposal confirms GSA's position, and given
Chicataw's failure to offer any evidence or argument to the contrary, we
conclude that the agency also acted reasonably in not crediting the company
with its president's prior experience. Id. Put simply, in both of these
instances, Chicataw, not GSA, bears responsibility for its evaluation
shortfalls.

GSA's supplemental report provides a more detailed explanation of the
evaluation, and acknowledges certain deficiencies in the solicitation and
errors in the evaluation process. In addition, the agency recalculates
Chicataw's past performance score by removing the rating of zero the agency
used for the project where the CO had been unable to reach the reference,
and replacing it with a rating of 2.5 (out of 5 possible points), which the
agency contends is, in essence, a neutral rating. It then averages the
revised neutral rating with the ratings received from the two Chicataw
references the CO was able to reach, to generate a revised past performance
score of 3.58. Finally, the supplemental report includes an Amended Source
Selection Decision, dated one day prior to submission of the report, which
again concludes that Hammond's slightly higher-priced proposal, with its
significantly higher past performance score of 4.96, offers the best value
to the government. Amended Source Selection Decision, Feb. 21, 2001, at 2-3.

Chicataw answers that the supplemental report is inconsistent with the
initial report, argues that the evaluation was irrational, and alleges that
the CO apparently "made up" its past performance score. We disagree.
Instead, we conclude that the more detailed explanations provided in the
supplemental agency report are consistent with the record initially
provided, and do not support the protester's contention that the evaluation
was irrational or its speculation that its scores were arbitrarily created
by the CO. In addition, under the circumstances here, we do not agree with
Chicataw's assertion that the agency's recalculation of Chicataw's past
performance score, and its revised tradeoff decision, should be given no
weight by our Office under the rule established by our decision in Boeing
Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD
para. 91 at 15. Our reasons for these conclusions are set forth below.

As a preliminary matter, we note first that the initial agency report filed
with our Office did not attempt to provide a complete recounting of the
agency's evaluation in this procurement. Under our Bid Protest Regulations,
4 C.F.R. sect. 21.3 (c), (d), an agency is required to answer a protest with a
statement of the relevant facts, and with all relevant documents or portions
of documents. In GSA's view, the facts and documents relevant to Chicataw's
initial protest were those that answered the two specific allegations
raised, and did not include a full explanation of the evaluation. Thus,
several of the protester's allegations that this evaluation was irrational
are based on an admittedly incomplete explanation of the agency's actions.

Turning to the merits of Chicataw's allegations, we note that several of the
protester's contentions are based on agency misstatements in the record that
do not accurately reflect the actions they purport to describe, and thus,
are easily answered by the underlying facts. For example, as the protester
correctly argues, the initial Source Selection Decision quotes, and purports
to follow, the solicitation's requirement that offerors identify six
projects for the past performance evaluation--three current projects and
three prior projects--during the last 5 years. Source Selection Decision at
1. Despite this statement, the document clearly indicates that each
offeror's evaluation was based on three references, with the exception of
Chicataw, whose evaluation was based on two references.

Another example is Chicataw's observation that the Source Selection Decision
provided with the initial report erroneously describes the ratings received
from Chicataw's two valid references as "one good rating, and one a little
above fair." Source Selection Decision at 1. Our review of the evaluation
scheme shows that the adjectival descriptors associated with the numerical
ratings given by Chicataw's two relevant references were considerably more
favorable than described by the CO in her decision document. Specifically, a
rating of 4.75 approaches "excellent" under the agency's scheme, while a
rating of 3.5 falls halfway between "very good" and "good." We note,
however, that this error appears to be limited to the narrative description
of Chicataw's evaluation results, as the tradeoff portion of the decision is
based on the correct numerical ratings, rather than the erroneous adjectival
ratings referenced earlier. Specifically, the tradeoff is based on the
numerical past performance score obtained by averaging the two ratings
received from relevant references, with a rating of zero. [2]

With respect to the protester's contentions that the more detailed
explanations in the supplemental report are inconsistent with the record in
the initial report, Chicataw's arguments are refuted by the facts. The
supplemental explanation of the agency's averaging approach is supported
both by the actual number used in the initial Source Selection Decision
(which, as explained above, can be derived arithmetically using the
averaging process the agency describes), and by the Memorandum of Law
provided with the initial report, which states that "[w]ith only two
relevant past performance ratings available, Chicataw received an average
past performance rating of 2.75." AR, Memorandum of Law, at 4. In our view,
this evidence corroborates the agency's later-provided explanation of its
approach. [3]

We turn next to the general question of whether the evaluation here was
reasonable. The protester does not raise a specific challenge to the
approach the agency used for offerors, like Chicataw, who had some, but not
all, of the required past performance information. Rather, it argues that
the agency's initial use of a zero rating for Chicataw's third past
performance project violates FAR sect. 15.305(a)(2)(iv), and complains that our
Office should accord little deference to GSA's revised evaluation under the
rule in Boeing Sikorsky Aircraft Support, supra.

It is not entirely clear that the FAR admonition against rating offerors
lacking past performance information favorably or unfavorably applies to the
situation here--i.e., where an offeror has some portion of the required
minimum of past performance information, but not as much as the agency
requested. However, we see nothing unreasonable in the agency's adoption of
this principle for this analysis. We have held that, when FAR
sect. 15.305(a)(2)(iv) applies, ratings of zero generally cannot be reasonably
viewed as neutral ratings, and they thus violate the requirement that an
offeror without past performance information may not be evaluated favorably,
or unfavorably. Meridian Mgmt. Corp., B-285127, July 19, 2000, 2000 CPD
para. 121 at 3 n.2. Thus, if the FAR rule is assumed to apply, the initial
selection decision's best value tradeoff was improperly based on an unfairly
low past performance score generated by using a rating of zero for
Chicataw's third prior project.

As explained above, however, the agency recalculated Chicataw's score using
a rating of 2.5 for neutral. That score is the mid-point of the five-point
range used to rate an offeror's prior performance, and appears to be
consistent with the above-cited FAR requirement, and with our prior
decisions. See Braswell Servs. Group, Inc., B-278921, B-278921.2, June 17,
1998, 98-2 CPD para. 10 at 7-8; Oceaneering Int'l, Inc., B-278126, B-278126.2,
Dec. 31, 1997, 98-1 CPD para. 133 at 7-8. On that basis, Chicataw's amended past
performance rating of 3.58 appears reasonable, and Chicataw has not
challenged the recalculation in any specific way other than its assertion
that the recalculation should be disregarded.

In Boeing and its progeny, we have been generally skeptical of reevaluations
prepared by agencies during the protest process in response to protest
contentions, because they were "prepared in the heat of an adversarial
process" and thus "may not [have] represent[ed] the fair and considered
judgment of the agency, which is a prerequisite of a rational evaluation and
source selection process." Boeing, supra, at 15. As opposed to here, the
Boeing case involved a reevaluation and a cost/technical tradeoff late in
the protest process where no tradeoff had been made during the initial
source selection. Further, the agency continued to assert that there was no
error, but, in order to immunize itself against a losing protest, submitted
a reevaluation that it argued was not necessary. In our view, the
substantial nature of the agency's errors and the resulting closeness of the
proposals meant that, after the errors were corrected in Boeing, the outcome
was not clear. We thus concluded that it was appropriate to give little
weight to the agency's after-the-fact decisional materials prepared for the
purpose of ensuring that our Office would conclude there was no prejudice to
the protester.

Here, the agency's reevaluation is less a matter of judgment, and more a
matter of mathematics. Essentially, the need for recalculation springs from
the agency's decision (with which the protester clearly agrees) that the
initial rating of zero for Chicataw's third prior project was inconsistent
with the FAR's admonition that offerors should not be evaluated favorably or
unfavorably when they lack prior experience. Removing this rating, replacing
it with a neutral rating, and recomputing the average of the three ratings
to generate a revised past performance score is a straightforward
computation that raises fewer concerns than we might have when an agency is
revisiting matters that are entirely discretionary, and are, as a result,
less amenable to objective review. [4] See Advanced Data Concepts, Inc.,
B-277801.4, June 1, 1998, 98-1 CPD para. 145 at 4-5.

A matter of greater discretion than the assignment of a neutral rating is
the tradeoff decision that follows. In this regard, there is nothing in this
record to lead us to conclude that the resulting increase in Chicataw's past
performance score--from 2.75 to 3.58 on a 5-point scale--would materially
alter the agency's decision to select Hammond's proposal for award. While
the increase in Chicataw's score cannot be termed de minimis, it remains the
lowest past performance score received by any offeror in this competition.
It also remains significantly lower than Hammond's score of 4.96. Given the
great disparity in these scores, together with the minimal price advantage
offered by Chicataw's proposal, we find reasonable the CO's redetermination
that Hammond's proposal continues to offer the best value to the government.
Scientific and Commercial Sys. Corp.; Omni Corp., B-283160 et al., Oct. 14,
1999, 99-2 CPD para. 78 at 18-19.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. For the record, we note that the solicitation also advised that "[i]n the
case of an offeror without a record of relevant past performance or for whom
information on past performance is not available, that offeror will not be
evaluated on past performance." Id. Any distinction between these two
provisions, however, is not at issue in this protest.

2. For the record, we note that the score used in the tradeoff decision can
be easily generated by averaging the ratings provided by Chicataw's two
references, with a third rating of zero, which refutes the protester's
assertion that its past performance score was fabricated. In addition, these
calculations show that the agency did not refuse to rate the company at all
under this factor--as the solicitation had warned it might if an offeror did
not have three past performance references.

3. Similarly, the protester's assertion that the CO disregarded past
performance information from commercial projects--as opposed to disregarding
projects where the offeror was a subcontractor, rather than the prime
contractor--is not supported by the record.

4. Specifically, the only exercise of discretion in the recalculation is the
decision to use a rating of 2.5 for a neutral score, which, as explained
above, appears reasonable.