TITLE:	American Office Services, Inc.
BNUMBER:	   B-290511
DATE:		    July 5, 2002
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American Office Services, Inc. , B-290511, July 5, 2002

Decision


Matter of:   American Office Services, Inc.

File:            B-290511

Date:              July 5, 2002

Timothy L. McGarry, Esq., Chriszt McGarry Co., for the protester.
James J. Roby, Esq., Department of Justice, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably determined that awardee's quotation represented the best
value where, although protester's price quote was lower than awardee's, its
past performance references were not as strong, and agency determined that
awardee's superior past performance was worth higher price.

DECISION

American Office Services, Inc. (AOS) protests the issuance of a purchase
order to On-Site Electrostatic Painting, Inc. under request for quotations
(RFQ) No. DOJ-FAS-2-02-04, issued by the Department of Justice (DOJ) for
painting metal library shelving units and associated items at the Robert F.
Kennedy Department of Justice Building, Washington, D.C.  AOS contends that
it should have received the purchase order because its quoted price was
lower than On-Site's.

We deny the protest.

On March 29, 2002, DOJ posted a combined synopsis/solicitation (the RFQ) on
the Internet calling for the electrostatic painting of approximately 1,200
linear feet of seven-shelf metal bookcases and approximately 2,000 square
feet of metal decking.  Agency Report (AR), Tab A, Synopsis/Solicitation, at
1-2.  The solicitation, set aside for small business, stated that simplified
acquisition procedures applied to the procurement, see Federal Acquisition
Regulation (FAR) part 13, and that award would be made on a "best value"
basis considering price, contractor experience completing similar projects
within secure facilities, and references.  AR, Tab A, Synopsis/Solicitation,
at 2.  The solicitation advised vendors to submit at least three
references.  Id.
Four quotations were received, including the protester's at $29,950 and
On-Site's at $32,980.  AOS furnished five references, including one from the
current contracting officer's technical representative (COTR), who also had
been the COTR under phase one of this project, for which AOS had been the
painting contractor.  On-Site listed three references.  The agency contacted
On-Site's three references, and four of AOS's references, including the
COTR.[1]  The agency found that "AOS's references were not as strong as what
DOJ desired for performance under this contract," AR at 2, and that
On-Site's were superior to AOS's.

Specifically, of the four AOS references contacted, the agency found that
only one was very positive--this reference stated that he would recommend
AOS again because the vendor was on time and within budget and provided
"good quality" work.  AR, Tab D, COTR's Summary of the AOS References, at
1.  A second reference stated that he would recommend AOS but that, because
AOS's work for this reference was narrow in scope, he had only limited
knowledge of the vendor.  Id. at 2.   A third reference reportedly left a
voice mail message with the COTR stating that, on a prior project involving
cabinet painting, some of AOS's work arrived scratched and/or damaged, and
that his company preferred to use another vendor.  Id.  Finally, the COTR
rated AOS's performance on phase 1 of this project only "marginally
acceptable," because AOS "left lines, and drips and swirls on the shelves .
. . [and] overspray on some wood surfaces."  AR, Tab B, Declaration of COTR,
at 3-4.

In contrast, the COTR found that On-Site's three references "reflect
uniformly very strong recommendations."  AR, Tab B, Declaration of COTR, at
4.  Specifically, one reference stated that she "absolutely would recommend"
On-Site because the vendor worked within the schedule and budget, and
provided good quality work.  AR, Tab C, COTR's Summary of the On-Site
References, at 1.  The second reference stated that On-Site did "excellent
work," worked within budget and showed up on time.  This reference stated
that On-Site was the only contractor he would use in the future.  Id.  The
third reference, noting that On-Site was very professional and prepared,
stated that he "highly recommended" On-Site because "they are the ones to do
the job right."  Id.  Concluding that On-Site's references were sufficiently
superior to AOS's to offset AOS's lower price, the agency selected On-Site
as the best value vendor.

AOS challenges the agency's determination that On-Site's references were
superior to its own.  Specifically, it maintains that the COTR gave "false
and misleading information" to the contracting officer concerning its
references.  Protester's May 14, 2002 Submission, at 1.  AOS states that its
third reference, when presented with the
COTR's account of his voice mail message, "adamantly" denied that he made
negative comments regarding AOS's work, id., and told AOS that he had
provided the agency a "glowing" recommendation.  Protester's Comments at 2.
As for the COTR's negative comments regarding AOS's work on phase 1 of this
project, AOS notes that the agency admits that the alleged deficiencies in
its performance were never discussed or communicated to AOS, id., and
asserts that its work could not have been as deficient as alleged by the
COTR, since DOJ awarded it additional work after its work on phase 1 was
completed.  Id. at 3.  AOS concludes that it should have received the award
based on its low price.

In reviewing protests against an allegedly improper simplified acquisition
and selection decision, we examine the record to determine whether the
competition was fair and consistent with the solicitation, and whether the
agency exercised its discretion reasonably.  Southeast Tech. Servs.,
B-289065, Dec. 20, 2001, 2001 CPD ï¿½ 206 at 3.

The agency's actions here were reasonable.  As noted, all three references
for On?Site "definitely recommended" or "highly recommended" the vendor;
none made a negative comment regarding On-Site's work.  In contrast,
although AOS received one positive recommendation and another positive, but
limited, recommendation, the other two references were not positive.  While
AOS disputes that the third reference raised concerns about the quality of
AOS's performance, nothing in the record establishes that the COTR's account
of the voice mail message is not correct.  In this regard, AOS has recounted
the reference's denial of having provided negative comments, but has
provided no affidavit or other direct statement from the reference to
support its contentions.[2]  In contrast, the COTR has provided a
declaration detailing the contents of the reference's voice mail message,
including statements that some cabinets AOS had refinished "arrived with
scratches and/or damage," and that the reference "preferred another
company."  AR, Tab B, Declaration of the COTR, at 3.  Under these
circumstances, there is no basis for us to question the COTR's account of
the voice mail message.

Similarly, there is no basis to question the COTR's negative comments
regarding AOS's performance under phase 1 of this project.  The agency has
submitted an August 2, 2000 memorandum from the contractor the agency states
was used "to clean the paint residue left by AOS."  Id.  This memorandum is
a punch list of items to be completed, and indicates that 10 bookshelf
openings "need to have the wax removed, lightly sanded and refinished . . .
to repair the damage that the painter caused when he over-sprayed the metal
shelves."  AR, Tab B, Declaration of COTR, attach. 1, at 2.[3]  This
memorandum is consistent with the agency's explanation of the nature of the
defects in AOS's performance, and AOS has provided no evidence refuting it.
The fact that the agency did not bring these defects to AOS's attention
during the contract, and subsequently ordered additional work from AOS, does
not provide a basis for disregarding this clear evidence supporting the
COTR's view of AOS's prior performance.

We conclude that there is no basis to question the agency's conclusion that
On-Site's past performance was superior to AOS's, and that its quotation
represented the best value to the government notwithstanding its higher
price.

The protest is denied.

Anthony H. Gamboa
General Counsel



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

[1] The agency was unable to reach AOS's fifth reference by telephone, and
the reference did not return the agency's messages.  AR, Tab D, COTR's
Summary of AOS References, at 1.
[2] AOS has provided only a statement from its president regarding his
conversation with the reference.
[3] To the extent AOS protests that the agency never communicated these
deficiencies to it at the time of performance, the protest is untimely.
Under our Bid Protest Regulations, protests based on other than apparent
solicitation improprieties must be filed within 10 days of when the
protester knew or should have been known the basis for protest.  4 C.F.R. ï¿½
21.2(a)(2) (2002).  AOS was provided with the information that should have
put it on notice of this protest ground on May 13, upon receipt of an agency
e-mail in which the agency listed the deficiencies in AOS's performance
under phase 1.  Since AOS first raised concerns about these deficiencies in
its June 7 comments, any protest on this ground now is untimely.  In any
event, we are aware of no requirement, in the context of a simplified
acquisition for an agency to provide vendors an opportunity to attempt to
rebut previously undisclosed adverse past performance information.  Cf. FAR
ï¿½ 15.306(d)(3) (such a requirement in context of discussions conducted in a
negotiated procurement).