TITLE:  Wilson Beret Company, B-289685, April 9, 2002
BNUMBER:  B-289685
DATE:  April 9, 2002
**********************************************************************
Wilson Beret Company, B-289685, April 9, 2002

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:    Wilson Beret Company
    
File:             B-289685
    
Date:              April 9, 2002
    
James A. McMillan, Esq., and Alan M. Grayson, Esq., Grayson Kubli &
Hoffman, for the protester.
Sharif T. Dawson, Esq., and Marlene Surrena, Esq., Defense Supply Center
Philadelphia, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest of exclusion of protester's proposal from the competitive range is
sustained where evaluation under one factor was unreasonable, and correct
evaluation could have resulted in a different competitive range
determination.
DECISION
    
Wilson Beret Company protests the elimination of its proposal from the
competitive range under request for proposals (RFP) No. SPO100-01-R-0045,
issued as a total small business set-aside by the Defense Supply Center
Philadelphia (DSCP), Defense Logistics Agency (DLA) for military berets. 
Wilson asserts that the agency improperly evaluated its proposal.
    
We sustain the protest.
    
The RFP sought proposals to supply the Army and Air Force with berets of
various colors, including black.  With regard to black berets, the RFP
contemplated the award of a fixed-price contract for a 2-year base period,
with three 1-year options, encompassing 3,643,488 units.  Proposals were
to be evaluated on the basis of five factors, listed in descending order
of importance:  experience/past performance;
manufacturing plan; quality control plan; DLA mentoring business
agreements program; and price.[1]  Non-price factors were significantly
more important than price.  Award was to be made to the offeror whose
proposal was most advantageous to the government.
    
Thirteen offerors, including Wilson, submitted written proposals to supply
black berets, which were evaluated as follows: 
    

   +------------------------------------------------------------------------+
|         |Past         |Mfg.  |Quality  |DLA     |Overall  |Price       |
|         |Performance  |Plan  |Plan     |Mentor  |         |(millions)  |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 1| A (low end) |MA    |A        |N       |A        |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 2|MA           |UA    |UA       |6       |UA       |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 3|A            |MA    |A        |N       |A        |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 4|MA  (high    |MA    |A        |N       |MA       |[deleted]   |
|         |end)         |      |         |        |         |            |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 5|MA           |A     |MA       |3       |MA       |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 6|HA           |A     |A        |N       |A        |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 7|MA (high end)|MA    |MA       |1       |MA       |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Wilson   |MA (low end) |MA    |HA       |4       |MA       |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror 9|A            |MA    |HA       |2       |A        |[deleted]   |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror  |MA           |A     |HA       |N       |A        |[deleted]   |
|10       |             |      |         |        |         |            |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror  |MA (high end)|MA    |HA       |5       |MA (high |[deleted]   |
|11       |             |      |         |        |end)     |            |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror  |MA (low end) |MA    |MA       |N       |MA       |[deleted]   |
|12       |             |      |         |        |         |            |
|---------+-------------+------+---------+--------+---------+------------|
|Offeror  |MA (high end)|MA    |A        |N       |MA       |[deleted]   |
|13       |             |      |         |        |         |            |
+------------------------------------------------------------------------+

    
Agency Report (AR), Tab 6.  Based on these evaluation results and prices,
the contracting officer eliminated Wilson and offerors 2, 7, and 9-13 from
the competitive range due to their technical ratings and their higher
proposed prices, all of which exceeded the agency's price objective for
black berets.  AR, Tab 7, P: 5.  In eliminating Wilson's proposal, the
contracting officer noted that it had been rated marginally acceptable
under both the experience/past performance and manufacturing plan factors,
resulting in an overall marginally acceptable rating.  Specifically, she
found:
    
The Manufacturing Plan rated Marginally Acceptable contains deficiencies
in the manufacturing procedures, production scheduling and production
equipment subfactors . . . .  Wilson's offered prices exceed the
Government's negotiation objectives and the offered prices of the highest
technically rated offeror in the competitive range, [offeror 6].  Its
technical proposal is considered inferior to [Offerors 1, 3, and 6] and
although it is essentially equal to that of [Offerors 4 and 5] from a
technical standpoint, it is not superior to them and does not contain
features which warrant retaining it in the competitive range.
AR, Tab 7, P: 7(h).  After receiving notice of its elimination from the
competitive range and a debriefing, Wilson filed this protest challenging
the evaluation of its proposal under the experience/past performance and
manufacturing plan factors, and the resulting elimination of its proposal
from the competitive range.
    
The determination of whether a proposal is in the competitive range is
principally a matter within the discretion of the procuring agency. 
Dismas Charities, Inc., B‑284754, May 22, 2000, 2000 CPD P: 84 at
3.  Federal Acquisition Regulation (FAR) S: 15.306(c) allows an agency to
establish a competitive range consisting of only the most highly-rated
proposals.  Our Office will review an agency's evaluation of proposals and
determination to exclude a proposal from the competitive range for
reasonableness and consistency with the RFP and applicable statutes and
regulations.  Novavax, Inc., B‑286167, B‑286167.2, Dec. 4,
2000, 2000 CPD P:  202 at 13; SDS Petroleum Prods., Inc., B-280430, Sept.
1, 1998, 98-2 CPD P: 59 at 4. 
    
We find that the evaluation of Wilson's proposal under the experience/past
performance factor was reasonable, but that the evaluation under the
manufacturing plan factor was not.
    
EXPERIENCE/PAST PERFORMANCE
    
DLA rated Wilson's experience/past performance marginally acceptable based
in part on Wilson's performance on a prior contract with Bancroft Cap
[deleted], and its proposal to rely on Bancroft for assistance and
consultation in various areas of contract performance.  Wilson asserts
that it was improper for the agency to take Bancroft's poor past
performance into account because Wilson did not propose to subcontract or
otherwise team with that firm.  In Wilson's view, it is a *start‑up*
company with no past performance record, and therefore should have been
rated neutral for experience/past performance.
    
Wilson is correct that, where an offeror has no record of past
performance, it may not be evaluated favorably or unfavorably on past
performance.  FAR S: 15.305(a)(2)(iv); Boland Well Sys., Inc.,
B‑287030, Mar. 7, 2001, 2001 CPD P: 51 at 2, n.1.  However, the
record shows that Wilson did have a past performance record concerning
beret manufacture.  According to its proposal, *Wilson Beret employees
(including the owner) have past experience producing the black berets for
DSCP through Bancroft Cap* and *assisted Bancroft Cap establish a
finishing operation* in a building rented to Bancroft by Wilson (the
*Osceola facility*).  Wilson Proposal at 2.  With regard to Wilson's
president and majority owner, the proposal noted her training *on all
aspects of the beret production and processes,* her status as a licensed
ISO 9000:2000 instructor, her engineering degree, and work *as a process
engineer and as a quality engineer in local industry.*  Wilson Proposal at 2‑3, 10. 
In addition, an August 2001 letter from Bancroft to the agency identified
the *finishing operation* referred to in Wilson's proposal as including
*attaching the leather sweatband onto the beret,* and identified Wilson's
president as the *manager of the new facility.*  Supplemental AR, attach.
1. 
    
Where a proposed employee will have a significant role in contract
performance, an agency reasonably may consider that employee's past
performance in evaluating the offeror's proposal.  Lynwood Mach. & Eng'g,
Inc., B‑287652, Aug. 2, 2001, 2001 CPD P: 138 at 4.  Notwithstanding
Wilson's claimed status as a startup company, its proposal representations
provided DLA with a reasonable basis for concluding that Wilson, through
its owner, possessed past performance history with beret production that
warranted assigning Wilson's proposal other than a neutral past
performance rating.
    
Wilson asserts that its connection to the Bancroft contract was limited. 
Specifically, the protester avers that its president was not hired as a
Bancroft employee and did not receive compensation from Bancroft; spent
only 2 to 4 hours per week at the facility; never entered into a contract
to manage the facility; and only agreed to the limited role at the request
of the local mayor and chamber of commerce to *create jobs for the
community.*  Protester's Supplemental Comments at 7.  Whether or not
Wilson's characterization is correct, however, the fact remains that its
proposal, evidently designed to obtain maximum evaluation credit,
specifically identified its own past experience producing berets with
Bancroft, and stated that it assisted Bancroft in establishing the Osceola
facility.  Further, as the August 2001 letter shows, Bancroft understood
that the facility was being managed by Wilson's owner.  To the extent that
its connection to Bancroft's contract in fact was very limited, it was
incumbent upon Wilson to make this clear in its proposal.  Offerors are
responsible for submitting an adequately written proposal.  Carlson
Wagonlit Travel, B-287016, Mar. 6, 2001, 2001 CPD P: 49 at 3. 
    
In addition to Wilson's own relevant past performance, the agency
considered Bancroft's past performance in evaluating Wilson under the past
performance factor.  In determining whether one company's performance
should be attributed to another, an agency must consider the nature and
extent of the relationship between the two companies--in particular,
whether the workforce, management, facilities, or other resources of one
may affect contract performance by the other.  Lynwood Mach. & Eng'g,
Inc., B‑285696, Sept. 18, 2001, 2001 CPD P: 113 at 4.  Wilson
proposed extensive use of Bancroft facilities, expertise, and certain
former employees to perform this contract.  For example, its proposal
stated under the title *Experience/Past Performance* that the firm *can
demonstrate the ability to successfully produce the berets* due to: 
Bancroft's past mentoring of Wilson, including training of Wilson Beret
owners and employees *on all aspects of the beret production and
processes*; Bancroft's offer to train additional employees *on all aspects
of the production and quality assurance, particularly the felting, dying
and/or blocking operations*; Bancroft's agreement to consult with Wilson
in areas including *manufacturing, sale and distribution of berets,
assistance and advice in establishing the manufacturing facility/equipment
layout, establishing an accounting system, purchasing of equipment,
inventory/supplies, and production shipping and distribution*; and
Wilson's intention, if awarded the contract, to possibly assume Bancroft's
Osceola facility, *including its equipment, staff and system.*  Wilson
Proposal at 2-3.  Wilson also proposed to hire two of Bancroft's current
supervisors, id. at 10, and proposed to use Bancroft's facilities for 150
days for felting, until Wilson's own machines were delivered.  Id. at 6. 
While Wilson states that it has no formal teaming arrangement with
Bancroft, its proposed reliance on that firm for virtually all aspects of
contract performance made Bancroft's past performance relevant and
appropriate for the agency to consider.
    
DLA's past performance evaluation conclusions based on both Wilson's own
and Bancroft's past performance were reasonable.  Bancroft had experienced
delivery problems on its beret contract, and the Osceola facility,
ostensibly managed by Wilson's president, was brought in to supplement
Bancroft's production capacity.  AR, Tab 5.  Wilson apparently was unable
to resolve the problem, because Bancroft subsequently requested a
revision/extension of its already delinquent delivery order.  Id.  Under
these circumstances, the agency could reasonably conclude that Wilson's
past performance was marginally acceptable. 
    
MANUFACTURING PLAN
    
Wilson asserts that the agency improperly evaluated its proposal as
marginally acceptable under the manufacturing plan factor.  The proposal
was rated marginally acceptable under the first, second and fourth
subfactors based on the agency's finding that it lacked information,
including training details and certain written commitments.  Wilson
maintains that these ratings were unreasonable because the information was
either included in its proposal, or was not required by the RFP.  We find
that the downgrading of Wilson's proposal under the first and fourth
subfactors was unreasonable.[2] 
    
First Subfactor
    
Under the first subfactor, offerors were to describe manufacturing
procedures to produce the berets, including a list of operations and
proposed standard allowed minutes, standard allowed hours, and number of
operators.  RFP S: L, at 130.  In its evaluation, the agency downgraded
Wilson's proposal on the basis that it did not include sufficient
information on manufacturing operations, operators, and proposed
training.  However, the agency now concedes that Wilson's proposal did in
fact contain sufficient information regarding manufacturing operations and
operators, and now maintains that Wilson's marginally acceptable rating
was justified because *the firm still failed to indicate how much training
(and its duration) it anticipated was necessary.*[3]  AR at 8-9.  Wilson
maintains that this conclusion is unreasonable because its proposal
included detailed training information.
    
Even ignoring the fact that DLA essentially has re-evaluated this aspect
of Wilson's proposal in response to the protest, the evaluation conclusion
is unsupported.[4]  Wilson's proposal included a Gantt chart containing
entries for five different training activities, with durations of from 12
to 22 weeks.  Wilson Proposal at 16.  Even though the protester
specifically called attention to, and included a copy of, this chart in
its comments on the agency report, the agency ignored this argument in its
supplemental report, and has not undertaken to explain why the chart did
not satisfy the informational requirement.  Given this failure to address
the matter, the fact that the chart, on its face, seems to provide
precisely the information requested, and the fact that the agency has
abandoned the other bases for downgrading Wilson's proposal in this area,
there appears to be no basis for Wilson's receiving any rating lower than
acceptable for this subfactor. 
    
Fourth Subfactor
    
Under the fourth subfactor, offerors were to provide a profile of the
major plant equipment proposed for use on the contract.  RFP S: L,
at 131.  The agency rated Wilson's proposal marginally acceptable based on
the absence of letters of commitment (LOCs) for any of the equipment it
proposed to obtain.  AR, Tab 11.  Wilson maintains that the downgrading of
its proposal on this basis was unreasonable because the RFP made no
mention of a requirement for LOCs in this area; Wilson states that it
would have provided LOCs had it been aware that its proposal otherwise
would be downgraded.  The agency responds that it was permissible for it
to determine the need for LOCs on a case-by-case basis, even absent an RFP
requirement for them.
    
While we would agree with the agency that it generally may consider LOCs
in an evaluation even where they are not expressly required by the RFP, it
was unreasonable for the agency to do so here because the RFP was
misleading.  In this regard, the production equipment subfactor stated:
    
The offeror shall provide a profile of the major plant equipment proposed
for use on any resultant contract.  At a minimum, the offeror shall
provide a listing that specifies the manufacturer, model number, age,
general condition, and quantity of each item listed.  If this equipment
will not be on hand at the time of solicitation closing, identify the
equipment you plan to acquire and describe your method of obtaining the
equipment in sufficient time to meet the production requirements.  Please
note that for equipment procured outside the United States, documentation
must be provided for the mode of transportation and the time frame for
shipping.
RFP S: L, at 131.  This description provided specific informational
guidelines for offerors to follow with regard to equipment to be obtained
after the time of solicitation closing.  While it called for
identification of the equipment and the method of timely obtaining it, and
required other specific documentation for non‑domestic equipment, it
did not require LOCs.  In contrast, the immediately preceding third
manufacturing plan subfactor, materials, informed offerors--in all upper
case, underlined text--that they must submit LOCs from material suppliers
for all components with lead times.  RFP S: L, at 131.  Wilson provided
the required LOCs for materials.  The agency did not find (and does not
now assert) that Wilson's proposal did not meet the informational
requirements for the fourth subfactor; rather, the sole reason for the
marginal acceptability rating provided by the agency was the failure to
provide LOCs.  Under the circumstances, we think Wilson reasonably read
the list of required information as exclusive, and thus could reasonably
assume that it would not be penalized for failing to provide information
that was not specified.  We conclude that it was unreasonable for the
agency to downgrade Wilson's proposal for failure to include LOCs. 
    
Prejudice
    
We will sustain a protest where there is a reasonable possibility that the
protester was prejudiced by the agency's actions, that is, that, but for
the agency's actions, it would have had a substantial chance of receiving
the award.  McDonald-Bradley, B‑270126, Feb. 8, 1996, 96-1 CPD P: 54
at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
1996).  This standard is met here.  Absent the flaws discussed above,
Wilson's proposal would have been evaluated as acceptable under both the
manufacturing procedures and production equipment subfactors.  Wilson thus
would have had acceptable ratings under three of the four subfactors (only
the production scheduling subfactor would remain marginally acceptable),
and since the four subfactors were of equal weight (RFP amend. 0001, S: M,
at 147), it is reasonable to assume that Wilson's proposal may have been
rated overall acceptable under the manufacturing plan factor.  This added
acceptable rating, combined with Wilson's ratings under the other factors,
reasonably could have resulted in an overall acceptable technical rating;
however, even if Wilson's proposal remained marginally acceptable overall,
its individual factor scores would be similar to those of other offerors
included in the competitive range.[5] 
    
DLA asserts that, even if all of Wilson's disputed ratings were raised,
its proposal still would be eliminated from the competitive range due to
its higher price.  Supplemental Report at 7.  However, the record does not
support this position. [6]  While Wilson's price exceeded the agency's
*negotiation objectives,*  Offeror 6 was included in the competitive range
despite the fact that its price also exceeded those objectives.  Further,
although the agency eliminated Offerors 9 and 10 due to their higher
proposed prices notwithstanding their overall acceptable ratings, Wilson's
price was lower than those offerors' prices.  Finally, it is clear from
the contracting officer's explanation of her decision to eliminate
Wilson's proposal that her decision was based on technical and price
factors combined.  AR, Tab 7, P: 7(h).  We conclude that it is not clear
whether Wilson's proposal would have been eliminated from the competitive
range had the evaluation been conducted properly.  Accordingly, we sustain
the protest. [7] 
    
RECOMMENDATION
    
We recommend that the agency re-evaluate Wilson's proposal on the basis of
the flaws discussed above and make a new competitive range determination
with appropriate supporting documentation.  We also recommend that Wilson
be reimbursed the reasonable costs of filing and pursuing the protest,
including attorneys' fees.  4 C.F.R. S: 21.8(d)(1) (2001).  The protester
should submit its certified claim for such costs, detailing the time
expended and the costs incurred, directly to the contracting agency within
60 days after receipt of this decision.
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] With the exception of the DLA mentoring factor, non-price factors were
rated on an adjectival basis as highly acceptable (HA), acceptable (A),
marginally acceptable (MA), or unacceptable (UA).  RFP S: M, at
52.215-9P17.  The DLA mentoring factor was evaluated on the basis of
numerical ranking among the offerors or neutral (N).
[2] We find nothing improper in the evaluation of Wilson's proposal as
marginally acceptable under the second subfactor, production scheduling
(offerors' control and surveillance over subcontractors to ensure that the
delivery schedule is met).  RFP S: L, at 130.  The downgrading was based
on the absence of an agreement defining the duration and extent of
Bancroft's involvement in the contract.  AR, Tab 11.  Wilson asserts that
this was improper because there was no requirement that such an agreement
be provided (Protester's Comments at 9).  However, in light of Wilson's
proposed reliance on Bancroft, we believe the agency reasonably could
expect such documentation of Bancroft's role to be furnished; Wilson's
failure to furnish the information thus provided a reasonable basis for
downgrading its proposal. 
[3] We note that the agency also commented negatively on Wilson's proposal
to use a [deleted] instead of a true linking machine to perform one of the
manufacturing operations.  DLA does not rely on this aspect of the
evaluation to support the marginally acceptable rating.
[4] Although our Office considers the entire record in determining the
reasonableness of an agency's evaluation, including statements and
arguments made in response to a protest, we accord greater weight to
contemporaneous materials rather than judgments made in response to
protest contentions, such as the agency's new judgment here that the
training information deficiency alone warranted a marginally acceptable
rating for the subfactor.  This reflects the concern that, because it was
prepared in the heat of an adversarial process, it may not represent the
fair and considered judgment of the agency, which is a prerequisite of a
rational evaluation and source selection process.  Boeing Sikorsky
Aircraft Support, B‑277263.2, B‑277263.3, Sept. 29, 1997, 97-2
CPD P: 91 at 15.
[5] Offeror 4 was marginally acceptable (high end), marginally acceptable
and acceptable under the three factors, while Offeror 5 [deleted]  was
marginally acceptable, acceptable and marginally acceptable.  Wilson's
ratings, as adjusted in accordance with our conclusions, could be
marginally acceptable (low end), acceptable and highly acceptable. 
[6] Further, the agency's position in this regard represents, at best, a
post hoc price/technical tradeoff.  As discussed above, it is our view
that such post‑protest judgments made in the heat of the adversarial
process may not reflect the fair and considered judgment of the agency. 
Boeing Sikorsky Aircraft Support, supra.
[7] Wilson also asserts that the agency improperly failed to provide it an
opportunity to respond to the negative past performance information
referenced in the evaluation.  Protest at 11.  Under FAR S: 15.306(b)(1),
agencies must conduct discussions with offerors *whose past performance
information is the determining factor preventing them from being placed in
the competitive range.*  The agency asserts that Wilson's past performance
rating was not the *determining factor*; rather, it was Wilson's overall
technically marginal proposal, coupled with its higher proposed price,
that resulted in its proposal's elimination.  In view of our conclusion
that the evaluation and the resulting competitive range determination were
deficient, this issue is academic and not for consideration.  Dyna-Air
Eng'g Corp., B-278037, Nov. 7, 1997, 97-2 CPD P: 132.