TITLE:  Enercorp Federal Services Corp., B-290184.2, September 23, 2002
BNUMBER:  B-290184.2
DATE:  September 23, 2002
**********************************************************************
Enercorp Federal Services Corp., B-290184.2, September 23, 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:   Enercorp Federal Services Corp.
    
File:            B-290184.2
    
Date:              September 23, 2002
    
James S. DelSordo, Esq., for the protester.
David C. Rickard, Esq., Defense Threat Reduction Agency, for the agency.
Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that agency made award on the basis of an unstated evaluation
criterion is denied where the allegation is contradicted by the record,
which establishes that the evaluation and award determination were
consistent with the solicitation criteria.
DECISION
    
Enercorp Federal Services Corp. protests the award of a contract to BAI,
Inc. under request for proposals (RFP) No. DTRA01-02-R-0002, issued by the
Defense Threat Reduction Agency (DTRA).  Enercorp asserts that the agency
relied on an allegedly unstated evaluation criterion as the basis for its
decision to award to BAI.
    
We deny the protest.
    
The RFP, initially issued on November 20, 2001, as an 8(a) set-aside,
sought proposals for technical and analytical support for the Nuclear
Treaties Program Office.  The incumbent contractor did not participate in
the competition; two proposals were received, one from Enercorp, the other
from BAI; the agency selected the BAI proposal for award.  Enercorp
protested that award decision to our Office, objecting to the evaluation
of Enercorp's past performance and to the agency's use of an artificial
*normal workload* factor in evaluating the proposed prices.  The protest
was dismissed as academic after the agency determined to take corrective
action in the form of giving Enercorp an opportunity to provide additional
past performance information concerning one contract for which information
had been unavailable when the proposals were evaluated, and recalculating
the proposed prices, after which the agency would perform a reevaluation
with the understanding that if a different award determination was
warranted, it would terminate BAI's contract.  As a result of the
corrective action, the agency again made a determination that the award to
BAI was appropriate, and this protest followed.
    
The RFP sets forth as evaluation factors mission capability (to be
assessed on a pass/fail basis), past performance, and price, stating that
past performance is significantly more important than price, and that the
agency would make *an integrated past performance/price tradeoff
assessment and award to the technically acceptable offeror whose
performance assessment and price provides the best value to the
Government.*  RFP S: M(a), (d).  Under the reevaluation performed as a
result of the corrective action, both proposals continued to be evaluated
as technically acceptable, that is, *pass,* under mission capability, with
BAI's total contract price reevaluated as $4,789,360, and Enercorp's as
$4,533,066.  Agency Report (AR), Tab 18, Proposal Analysis Report, at 13. 
Under the initial evaluation, *normal workload* prices had been calculated
as $3,529,950 for BAI and $3,619,121 for Enercorp.  AR, Tab 9, Final
Source Selection Evaluation Briefing, Feb. 20, 2002, at 15.  The overall
past performance evaluations remained unchanged, with BAI's proposal
evaluated by the source selection evaluation board (SSEB) as *Very
Good/Significant Confidence,* while Enercorp's proposal was evaluated as
*Satisfactory/Confidence.* The SSEB recommended BAI's proposal for award
as providing the best value on the basis that the RFP provided that *past
performance [was] significantly more important than price,* and *BAI's
higher past performance rating and the evaluators' higher confidence in
BAI's ability to successfully perform all required services were
significantly more important than the minimal price difference of 5.7
[percent].*  AR, Tab 18, Proposal Analysis Report, at 13.  The SSA adopted
this recommendation and concurred with the selection of BAI for award,
noting also that *[a]ward of this contract to BAI will provide the
Government with knowledgeable, experienced personnel who are fully capable
of successfully performing all elements of this Statement of Work
immediately upon contract award.*  AR, Tab 20, Source Selection Decision,
at 4.
    
Enercorp alleges that the agency improperly applied an evaluation
criterion that is not provided for under the RFP evaluation criteria, and
in particular asserts that the agency report confirms that *the
Government's award decision is clearly based on the Government's belief
that only BAI would deliver the incumbent workforce to the Government.* 
Protester's Comments at 5.  In our view, this assertion is without merit.
    
The evaluation of technical proposals, including the evaluation of past
performance, is a matter within the contracting agency's discretion, since
the agency is responsible for defining its needs and the best method of
accommodating them.  Symtech Corp., B-285358, Aug. 21, 2000, 2000 CPD P:
143 at 4.  Our Office will question an agency's evaluation of proposals
only if it lacks a reasonable basis or is inconsistent with the RFP's
stated evaluation criteria or procurement statutes or regulations.  While
an agency is required to identify the significant evaluation factors and
subfactors, it is not required to identify the various aspects of each
factor which might be taken into account as long as those aspects are
intrinsically related to the RFP's stated criteria.  Advanced Data
Concepts, Inc., B‑280967.8, B‑280967.9, June 14, 1999, 99-2
CPD
P: 19 at 4. 
    
Here, under the past performance factor, the RFP called for a performance
confidence assessment representing an evaluation of the offeror's present
and past work record to assess the government's confidence in the
offeror's probability of successfully performing as proposed.  The
solicitation directed offerors to submit information on up to five recent
relevant contracts.  RFP at 40.  The evaluation criteria called for a
relevance determination based on similar project complexity, scope, type
and schedule, with more recent and relevant performance to be given
greater weight.  RFP S: M(f).  The RFP describes *Very Good/Significant
Confidence* as a determination that *[b]ased on the offeror's performance
record, little doubt exists that the offeror will successfully perform the
required effort,* while *Satisfactory/Confidence* constitutes a
determination that *some doubt exists that the offeror will successfully
perform the required effort.*  Id.
    
BAI submitted a list of six contracts for itself and its subcontractor,
four of which were evaluated as relevant, one as slightly relevant and one
as highly relevant.[1]  BAI's performance assessment was exceptional under
five of these contracts, and very good under one.  The SSEB states that
based on BAI's excellent performance ratings in conjunction with the fact
that *one contract was determined to be highly relevant, with the majority
of contracts considered relevant,* BAI's proposal *was rated as Very Good
for the past performance factor.*  AR, Tab 18, Proposal Analysis Report,
at 9.  Enercorp submitted a list of five contracts for itself and its
subcontractor, two of which were evaluated as relevant, two as slightly
relevant, and one as not relevant.  Enercorp's performance assessment was
exceptional under four of these contracts and very good under one.  The
SSEB states that Enercorp's rating was *affected by the lower overall
relevancy of the past performance efforts,* and that the evaluators
*weighed the high performance ratings . . . with the lower overall
relevancy and determined that some doubt existed regarding the
[protester's] ability to successfully perform the required effort,*
resulting in a rating of *Satisfactory for the past performance factor.* 
Id. at 10.
    
Enercorp does not directly object to the reasonableness or propriety of
the respective past performance evaluations contained in the record. 
Rather, Enercorp alleges that the agency's past performance evaluation and
award determination were actually driven by the motive that *from the
beginning the Government wished to continue employing the services of the
incumbent employees [and for] some reason  . . . came to the conclusion
that only BAI could provide these employees.*  Protester's Comments at
9.   According to the protester *BAI was given credit for proposing to
provide the incumbent workforce where no such requirement or evaluation
criteria existed.*  Id. at 8. 
    
As the protester notes, while the RFP did not require any identification
of proposed staff, both offerors stated in their proposals that they
intended to hire the incumbent staff to perform the contract.  Protester's
Comments at 2, n.2.  We need not address the question of whether an
offeror's ability to retain qualified incumbent employees who had been
successfully performing the precise services being procured is
intrinsically related to past performance evaluation criteria designated
as assessing confidence in an offeror's probability of successfully
performing as proposed, even without having been specified as a past
performance subfactor, because the record simply does not support
Enercorp's contention that the agency based its evaluation and award
determination on an assessment of this retention ability.  Citing the
source selection decision, Enercorp asserts that *the record clearly
demonstrates that the SSA based its award decision on this [incumbent
retention] claim by BAI.*  Protester's Comments at 10.  Because the
protester specified as support two pages in the source selection decision
which do not contain any references to incumbent retention, the protester
was provided an opportunity in a telephone conference to identify the
particular language on which it was relying.  The protester indicated two
references.  The first consists of the SSA's statement under his summary
of the evaluations that *[t]he BAI proposal met all the requirements of
all subfactors.  BAI demonstrated a complete understanding of the
requirement and the ability to provide experienced personnel to perform
the work.*  AR, Tab 20, Source Selection Decision, at 2.  The second
consists of the SSA's statement in his conclusion that *[a]ward of this
contract to BAI will provide the Government with knowledgeable,
experienced personnel who are fully capable of successfully performing all
elements of this Statement of Work immediately upon contract award.*  Id.
at 4. 
    
The simple answer is that nothing in these statements substantiates or
supports  the assertion that retention of the incumbent work force was the
determining evaluation and award factor, or even that the likelihood of
such retention was specifically considered by the SSA.  There is nothing
in either quote which refers to the likelihood of BAI's retaining the
incumbent employees, and the reference to BAI's ability to provide
experienced personnel capable of immediately successfully performing is
consistent with the stated intent of the past performance evaluation
criterion to assess whether a firm's performance was indicative of the
probability that it could successfully perform this contract.  The
agency's determination that BAI had successfully performed contracts that
were more relevant encompasses an assessment that BAI could provide better
experienced personnel.  In light of this evaluation, the SSA determined
that *BAI's higher past performance rating and the evaluators' higher
confidence in BAI's ability to successfully perform all required services
were significantly more important [than] the minimal total price
difference (5.7%) over the proposal submitted by Enercorp.*  AR, Tab 20,
Source Selection Decision, at 4.  This tradeoff and award determination
were reasonable, substantiated, and consistent with the evaluation
criteria, and nothing in the record supports the protester's assertion
that the evaluation and award were actually driven by the agency's
application or consideration of an unstated criterion reflecting an intent
to ensure retention of the incumbent workforce.[2]
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    
    
    

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

   [1] Enercorp objects that the agency *evaluated six past performance
references from BAI, but only the five required references from [the
protester].*  Protester's Comments at 5.  The agency has explained that
three of the contracts listed by BAI are identical, and received identical
references consisting, as is indicated in the Proposal Analysis Report, of
*three relevant contracts [that] were all for the same customer and were
virtually identical as they were each one-year efforts, two of which were
follow-on sole-source contracts.*  AR, Tab 18, Proposal Analysis Report, 
at 8.  In these circumstances we find unobjectionable the agency's
assessment that BAI submitted a past performance list that essentially
amounted to four contracts.  Further, Enercorp has not shown, nor does the
record reflect, any benefit to BAI or detriment to Enercorp arising from
the agency's consideration of all of the contracts listed in BAI's
proposal.  In short, we see no basis to object to the agency's evaluation
of the listed contracts.
[2] Enercorp also asserts that the award determination reflects the
agency's *clear bias . . . for BAI over [Enercorp].*  Protester's Comments
at 7-8.  Because government officials are presumed to act in good faith,
we do not attribute unfair or prejudicial motives to them on the basis of
inference or supposition.  Therefore, where a protester alleges bias on
the part of government officials, the protester must provide credible
evidence clearly demonstrating a bias against the protester or for the
awardee and that the agency's bias translated into action that unfairly
affected the protester's competitive position.  Dynamic
Aviation-Helicopters, B-274122, Nov. 1, 1996, 96-2 CPD P: 166 at 4.  
Here, the protester's bias allegation is based in substantial part on the
alleged application of an unstated evaluation criterion which, in light of
our determination of the reasonableness of the agency evaluation, does not
provide any evidence of bias.  Fishermen's Boat Shop, Inc., B-287592,
July 11, 2001, 2001 CPD P: 123 at 5.  The other alleged evidence of bias
consists of the  agency's initial evaluation of the respective prices
using a *normal workload* methodology which resulted in a smaller price
differential in favor of Enercorp than the final differential under the
corrective action, and the agency's failure to stay performance by BAI. 
Neither allegation provides any basis to attribute prejudicial motives to
the agency, and certainly does not evidence that the agency took adverse
action that unfairly affected Enercorp's competitive position. 
Accordingly, the bias allegation is unfounded and without merit.