TITLE:  Weber Cafeteria Services, Inc., B-290085.2, June 17, 2002
BNUMBER:  B-290085.2
DATE:  June 17, 2002
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Decision


Matter of: Weber Cafeteria Services, Inc.

File: B-290085.2

Date:June 17, 2002

Ralph Weber for the protester.
Sherry Kinland Kaswell, Esq., Alton E. Woods, Esq., and Hugo Teufel, Esq.,
Department of the Interior, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest alleging that the awardee's proposal was unbalanced is denied
where there is no evidence that any of awardee's prices were so overstated
as to create any concern of risk to the government.

2.  Protest against agency's past performance evaluation is denied where the
record shows the evaluation was reasonable and consistent with the
evaluation criteria; agency was not required to give evaluation preference
or additional credit for protester's past performance as the incumbent.

3.  Where protester's and awardee's proposals were properly evaluated as
technically equal, and awardee's proposed price was lower than the
protester's, the agency reasonably determined that awardee's proposal
represented the best value to the government.

DECISION

Weber Cafeteria Services, Inc. protests the award of a contract to Acores
Foods, LLC, under request for proposals (RFP) No. RMK0E020012, issued by the
Department of the Interior, Bureau of Indian Affairs (BIA), for food
services at the BIA Southwestern Indian Polytechnic Institute (SIPI),
Albuquerque, New Mexico.  Weber, the incumbent contractor, contends that BIA
misevaluated offerors' proposals and that the agency's award decision was
improper.

We deny the protest.

The RFP, issued on November 20, 2001, contemplated the award of a
fixed-price contract for a base year, with four 1-year options, to provide a
complete food service program for the students attending BIA-SIPI.  The RFP
notified offerors that the two evaluation factors for award, past
performance and price, were equal in weight, and that award would be made to
the offeror whose proposal was most advantageous to the government.  RFP
amend. 2, ï¿½ 52.212-2.  The RFP instructed offerors that the submission of
past performance information was to include ?recent and relevant contracts
for the same or similar items.?  Id. ï¿½ 52.212-1(b)(10).  The RFP's price
schedule required that offerors provide both unit and extended prices, in
each performance period, for the base meal program, the Summer Upward Bound
student program, catering services, and the ?50/50 program.?[1]

Four proposals, including those of Weber and Acores, were received by the
RFP's closing date.  Weber's proposal was rated ?very good? under the past
performance criterion at a proposed price of $5,939,743.55; Acores' proposal
was rated ?very good? under the past performance criterion at a proposed
price of $5,855,235.05.[2]  Having found that Acores and Weber were equal in
terms of past performance, and that Acores was the lowest-priced offeror,
the agency determined that Acores' proposal offered the best value to the
government.[3]  Agency Report at 1; Contracting Officer's Statement, Apr.
25, 2002, at 2.  On February 21, 2002, BIA announced its intent to make
contract award to Acores.  This protest followed.

Weber protests that the agency's decision to make award to Acores was
improper.  The protester contends that Acores' offer was unbalanced and
should not be accepted for award.  Weber also asserts that the agency's
evaluation of proposals under the past performance factor was flawed, and
BIA's selection decision was unreasonable.  Weber also argues that the
agency improperly calculated the protester's proposed price.

Unbalanced Pricing

Weber argues that Acores' offer was unbalanced and could not be accepted for
award because its prices for the 50/50 program were improperly overstated.
A price abstract provided to all offerors shows that Acores' prices for the
50/50 program were approximately twice that proposed by Weber (e.g., $18,990
for the awardee as compared to $8,862 for the protester for the base year).
Agency Report, Tab K, Price Abstract.  Weber alleges that Acores' overstated
prices to the agency for the 50/50 program, together with the income to be
generated from students under this contract line item, permitted Acores to
understate its pricing for the much larger, base meal program.

Unbalanced pricing exists where the price of one or more contract line items
is significantly overstated, despite an acceptable total evaluated price
(typically achieved through underpricing of one or more other line items).
See Federal Acquisition Regulation (FAR) ï¿½ 15.404-1(g)(1).  While unbalanced
pricing may increase risk to the government, agencies are not required to
reject an offer solely because it is unbalanced.  Id.  Rather, where an
unbalanced offer is received, the contracting officer is required to
consider the risks to the government associated with the unbalanced pricing
in making the award decision, including the risk that the unbalancing will
result in unreasonably high prices for contract performance.  FAR ï¿½
15.404-1(g)(2).

Even assuming, arguendo, that Acores' prices for the 50/50 program were
overstated, the record shows that BIA analyzed Acores' proposal and
reasonably concluded that the awardee's pricing did not pose an unacceptable
risk.  The 50/50 program represents only a very small part of the BIA-SIPI
food services program, and constituted a very minor portion of each
offeror's total proposed price.  As shown above, while Acores' prices for
the 50/50 program were twice those proposed by Weber, the price difference
between the two offerors for the program amounted to only approximately
$10,000 annually.  This amount is insignificant in comparison to the
offerors' prices for the much larger, base meal program.  There is simply no
evidence that any of Acores' prices were so overstated as to create any
concern of risk to the government.

Past Performance

Weber argues that Interior's evaluation of proposals under the past
performance criterion was faulty.  Specifically, the protester contends that
given its successful past performance as the incumbent contractor at
BIA-SIPI, the agency could not properly assign an equal past performance
rating to another offeror.  Weber also asserts that, regardless of the
awardee's performance at other locations, the protester was the only offeror
with proven past performance with this particular agency or with a
?culturally sensitive customer base.?

In reviewing a protest against an agency's evaluation of proposals, 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.  Ostrom Painting & Sandblasting, Inc., B-285244, July 18,
2000, 2000 CPD ï¿½ 132 at 4.  A 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.  C.
Lawrence Constr. Co., Inc., B-287066, Mar. 30, 2001, 2001 CPD ï¿½ 70 at 4.  As
discussed below, we find that the agency's evaluation of the protester's and
awardee's past performance was reasonable and consistent with the evaluation
criteria.

After receipt of proposals, BIA sent past performance questionnaires to the
references submitted by each offeror.[4]  The agency received responses from
four references for Acores, who rated Acores' past performance in all areas
as either exceptional or very good.[5]  All four past performance references
rated overall satisfaction with Acores' performance as exceptional, and
three references provided favorable narrative comments.  Agency Report, Tab
O, Past Performance Questionnaires for Acores.  Based on a review of Acores'
past performance references, BIA assigned a rating of very good to Acores.
Contracting Officer's Statement, Apr. 24, 2002, at 1-2.

BIA also received responses from four references for Weber, including from
the contracting officer representative (COR) for the previous contract at
BIA-SIPI.[6]  The references rated Weber's past performance in almost all
areas as either exceptional or very good.  Two past performance references,
including the COR for the previous contract at BIA-SIPI, rated overall
satisfaction with Weber's performance as exceptional, and two references
rated overall satisfaction with Weber as very good.  Two references also
provided favorable narrative comments.  Agency Report, Tab N, Past
Performance Questionnaires for Weber.  After review of the ratings from all
of Weber's past performance references, the contracting officer assigned a
rating of very good to Weber.  Contracting Officer's Statement, Apr. 24,
2002, at 1-2.  We find BIA's ratings of both Acores' and Weber's past
performance to be reasonable.

Weber's contention that its successful performance as the incumbent
contractor should result in special consideration or additional evaluation
credit (and presumably, a higher past performance rating) is also without
merit.[7]  In preparing a solicitation, a procuring agency has broad
discretion in identifying the factors which will form the basis for the
source selection decision.  However, once the solicitation is issued and
offerors are informed of the criteria against which their proposals will be
evaluated, the agency must adhere to those criteria in making its award
decision, or inform all other offerors of any significant changes made in
the evaluation scheme.  QuesTech, Inc., B-255095, Feb. 7, 1994, 94-1 CPD ï¿½
82 at 7.  Quite simply, an agency may not announce in the solicitation that
it will use one evaluation plan, and then follow another.  Here, the
solicitation stated that the contracting agency sought past performance
information regarding offerors' ?recent and relevant contracts for the same
or similar items.?  RFP amend. 2, ï¿½ 52.212-1(b)(10).  The RFP did not
specify that an offeror had to have food service experience with BIA-SIPI or
with ?a culturally sensitive customer base,? nor did the RFP provide that
the past performance of the incumbent contractor would be given special
recognition or consideration.  Accordingly, the agency properly declined to
afford Weber an evaluation preference or additional credit for its
performance as the incumbent contractor on the preceding contract.

Award Selection Decision

Weber also protests the agency's award selection decision.  The protester
argues that given the ?statistically insignificant? price difference between
itself and Acores, and Weber's proven past performance as the incumbent
contractor, BIA's decision to make award to Acores was improper and did not
actually represent the best value to the government.  We disagree.

A price/technical tradeoff, as advocated by the protester here, is necessary
only where one proposal is rated higher technically than another, but the
other is lower in price.  As discussed above, we have rejected the
protester's arguments that the agency should have rated Weber's past
performance higher by providing special consideration to past performance as
the incumbent contractor, and Weber has not otherwise demonstrated any flaw
in the agency's determination that the protester's and awardee's past
performance were essentially equal.  Since Acores' proposal was both
technically equal to Weber's and lower priced, no tradeoff was required;
Acores' proposal represented the best value to the government. State Mgmt.
Servs., Inc.; Madison Servs., Inc., B-255528.6 et al., Jan. 18, 1995, 95-1
CPD ï¿½ 25 at 6-7.

Calculation of Weber's Price

Weber also protests that the agency miscalculated its proposed price,
thereby resulting in the improper addition of $16,920 to its evaluated
offer.  The agency argues that its upward adjustment of Weber's proposed
price was proper, as the protester's extended price for the special meals
line item (within the base meal program) in each performance period was
inconsistent with its unit price for the same item.[8]  Even assuming that
the agency improperly computed Weber's extended price as the protester
alleges, Weber has not demonstrated that it was prejudiced by the agency's
action.  Our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility of prejudice, that is, unless the
protester demonstrates that, but for the agency's actions, it would have had
a substantial chance of receiving the award.  Parmatic Filter Corp.,
B-285288.3, B-285288.4,
Mar. 30, 2001, 2001 CPD ï¿½ 71 at 11; see Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996).  Here, even if Weber's evaluated price is
reduced by $16,920, Acores' offer remains lower priced.  Accordingly, the
computation error alleged by Weber would not affect the award decision.

The protest is denied.

Anthony H. Gamboa
General Counsel

[1] The 50/50 program requires the contractor to provide a package meal to
students who miss the breakfast or lunch meal.  RFP amend. 2, Price Schedule
at 4.
[2] The agency determined that the prices proposed by the remaining two
offerors were unreasonably high.  Agency Report at 1; Contracting Officer's
Statement,
Apr. 25, 2002, at 1.
[3] During evaluation of proposals, BIA realized that the RFP's price
schedule for the base meal program contained an error that significantly
affected offerors' extended prices: while worksheets accompanying the price
schedule accurately reflected the estimated number of students per meal for
each school trimester, the price schedule improperly aggregated the
estimated number of students per meal for the entire school year for
purposes of calculating offerors' extended prices.  The agency analyzed
Weber's and Acores' prices on the basis of the worksheets, and determined
that while the price difference was smaller than when the price schedules
were compared, Acores' proposal was still lower-priced.  Contracting
Officer's Statement, June 6, 2002; Agency Report, Tab L, Price Abstract for
Weber; Tab M, Price Abstract for Acores.
[4] Specifically, the questionnaires sought past performance information in
the areas of quality control, scheduling methodologies, personnel, equipment
and supplies, cost, and overall customer satisfaction.  Contracting
Officer's Statement, Apr. 24, 2002, at 1.
[5] An exceptional/high confidence rating was assigned for past performance
if ?[b]ased on the offeror's performance record, essentially no doubt exists
that the offeror will successfully perform the required effort.?  A very
good/significant confidence rating was assigned for past performance if
?[b]ased on the offeror's performance record, little doubt exists that the
offeror will successfully perform the required effort.?  Agency Report, Tab
N, Past Performance Questionnaires for Weber, at 1.
[6] Weber also protests that the COR from the previous contract should have
been involved in the evaluation of proposals.  The choice of individuals to
serve as proposal evaluators is a matter within the discretion of the
contracting agency; our Office will question this discretion only if there
is evidence of bad faith, bias, or conflict of interest, none of which has
been alleged or is evident in this case.  ELS Inc., B-283236, B-283236.2,
Oct. 25, 1999, 99-2 CPD ï¿½ 92 at 12.
[7] To the extent Weber is protesting that the RFP should have provided for
special consideration of past performance as the incumbent, its protest is
untimely since it concerns an alleged impropriety apparent from the face of
the RFP and was not raised prior to the closing time for submission of
proposals.  4 C.F.R. ï¿½ 21.2     (a)(1) (2002).
[8] Weber does not assert that the agency miscalculation of the protester's
price was repeated when BIA analyzed Weber's and Acores' prices on the basis
of the price schedule worksheets.