TITLE: John Blood
BNUMBER: B-290593
DATE: August 26, 2002
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John Blood, B-290593, August 26, 2002
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Decision
Matter of: John Blood
File: B-290593
Date: August 26, 2002
John Blood for the protester.
Lynn W. Flanagan, Esq., Department of Agriculture, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency improperly evaluated protester's past
performance in a procurement using simplified acquisition procedures is
denied where at the time of its selection decision agency had no reason to
question the validity of the information furnished by the protester's
references. Agency was not required to conduct discussions or otherwise
communicate with protester regarding the adverse past performance
information obtained from the protester's references.
DECISION
John Blood protests the issuance of a purchase order to URI Forestry
Services, Inc. under request for quotations (RFQ) No. RFQ-RMAST-02-033,
issued by the Forest Service, United States Department of Agriculture, for
tree thinning and snagging services at the Nebraska National Forest. Blood
challenges the evaluation of the firm's past performance record and award to
a higher-priced vendor.
We deny the protest.
The RFQ, issued as a small business set-aside under simplified acquisition
procedures, contemplated the issuance of a fixed-price order to the
commercial vendor whose quotation represented the best value to the
government. Quotations were to be evaluated on the basis of price and past
performance; past performance was stated to be as important as price. To
evaluate past performance, vendors were required to provide specific
information about recent relevant similar contracts from the last 3 years
that support past and present performance, as well as contact information
for three references. This information would be reviewed by the agency
to assess the quality of each vendor's past performance in the following
areas:
(1) quality of services; (2) customer satisfaction; (3) business relations;
(4) timeliness; and (5) responsiveness and reliability. The agency planned
to issue a purchase order based on initial quotations without conducting
discussions.
The agency received six quotations. In assessing the vendors' past
performance, the contracting officer's representative (COR) conducted
telephone interviews with references either furnished by the vendors in
their quotations or otherwise identified by the agency. He then assigned
adjectival ratings on the basis of the interview results for each firm.[1]
As relevant here, URI was evaluated as qualified/low performance risk based
on information received from two of the vendor's listed references. Each
reference provided generally good assessments of URI's performance, except
that one reference identified some safety concerns and indicated that URI
had received a time extension of a few days. AR exh. 8, Evaluation Rating
Worksheets. In rating Blood's past performance, the COR contacted four of
Blood's listed references. The responses indicated unfavorable assessments
of the protester's performance in the areas of quality of services, business
relations, timeliness, responsiveness and reliability. Based on the
information provided by these four references, the COR assigned an
unsatisfactory/ very high performance risk rating to Blood's past
performance record. Id.
After evaluation of quotations and price verification, Blood was the
apparent lowest priced vendor at $21,098, and URI's quote of $23,716 was
second low. In making her award decision, the contracting officer stated:
[The contracting officer] has determined that John Blood does not represent
the best value to the Government given his past performance record.
Specifically:
Quality of Services -- Demonstrated ability to meet the contract
specifications and conformance to standards of good workmanship. John Blood
refused to meet the contract specifications for 7' minimum spacing between
trees for the Tree Thinning Services: Whiskey Park Tree Planting contract
number 43-8508-9-0507. On the Uinta National Forest John refused to perform
Item 2 of the contract.
Business Relations -- Effectiveness of management working relationships and
cooperative behavior. John Blood's response to inquiries and
technical/service/administrative issues were not effective on the Whiskey
Park Tree Planting contract. John hung up on the CO and COR during a
teleconference. Communications with the government were unprofessional.
John's relationship with the MBR National Forest can be characterized as
adversarial.
Timeliness -- Compliance with schedules. John did not start work on time
for a Uinta National Forest contract. On the Whiskey Park Tree Planting
contract John had major difficulty meeting milestones and delivery
schedules.
Responsiveness and Reliability. John missed mutually scheduled meetings
with the Government on the Whiskey Park Tree Planting contract and did not
attend the pre-work meeting as he said he would. John was difficult to
contact . . . during the Whiskey Park Tree Planting contract. Extensions
were needed for contracts John performed on the MBR National Forest.
. . . . .
The difference in price between John Blood, the apparent low quoter rated
Unsatisfactory and the next lowest quoter, URI rated Qualified is $2,618
($23,716 - $21,098). . . . The best value for the Government given the
difference in price of $2,618 is to contract with a contractor determined to
be Qualified, which is URI.
AR exh. 9, Award Memorandum, at 3. The Forest Service issued the order to
URI, as the best value vendor, and after receiving notice of the award Blood
filed this protest.
Blood argues that the agency erred in evaluating his past performance as
unsatisfactory/very high performance risk, alleging that the oral
information obtained from his references were false and unverifiable
hearsay. Protester's Comments at 2. Blood claims the agency downgraded his
past performance record because of legitimate contract claims under his
prior Forest Service contracts and expresses disagreement with the agency's
evaluation, concluding that his past performance history supported a
qualified/low performance risk rating. In support of his argument, the
protester cites different accounts of his past performance that Blood
obtained by contacting his references after receipt of the agency's report
on the protest. Protester's Comments at 2-3; Protester's Supplemental
Comments at 1. For instance, the protester states that his references
denied statements attributed to them, for example, that Blood was granted
time extensions. As to the Whiskey Park Tree Planting contract, the
protester also disputes that he failed to attend a scheduled pre-work
meeting, missed milestones, or hung up on the CO and COR during a
teleconference. Id.
Notwithstanding the challenges to the validity of the reference-furnished
information that Blood now raises, the protester has not alleged, nor is
there anything in the record to suggest, that at the time the contracting
officer made her selection decision, she had any reason to question the
accuracy of the information provided to her. Where an agency is not
required to hold discussions or otherwise communicate with vendors regarding
past performance information, as is the case where simplified acquisition
procedures are employed, see FAR � 13.106-2(b)(2), and the contracting
officer has no reason to question the validity of the past performance
information, we think that she can reasonably rely on the information
furnished without seeking to verify it or permitting the protester an
opportunity to rebut it. Lynwood Mach. & Eng'g, Inc., B-285696, Sept. 18,
2000, 2001 CPD � 113 at 7.[2] Moreover, we note that an agency's past
performance evaluation may be based on a reasonable perception of inadequate
prior performance, even where the protester disputes the agency's
interpretation of the underlying facts.[3] Quality Fabricators, Inc.,
B-271431, B-271431.3, June 25, 1996, 96-2 CPD � 22 at 7. Thus, we conclude
the agency's actions were unobjectionable.
In a related argument, Blood alleges that the agency violated the provisions
of FAR subpart 42.15--which establishes policies and procedures for
recording and maintaining contractor performance information--by failing to
prepare past performance evaluation reports and by failing to provide the
protester an opportunity to rebut any negative information contained
therein. Protester's Comments at 1-2. To the extent Blood is asserting
that FAR subpart 42.15 establishes a blanket requirement to collect and
maintain past performance information on all contracts, we disagree. As
relevant here, agency contracting officers are to prepare past performance
reports--either on an interim basis (voluntary), or at the conclusion of a
contract (mandatory)--for all contracts valued in excess of $100,000,
regardless of the date of contract award. See generally
FAR subpart 42.15. None of the references listed in Blood's quotation fall
within the monetary threshold requirements of this subpart. Advanced Data
Concepts, Inc.,
B-277801.4, June 1, 1998, 98-1 CPD � 145 at 8-9.
The protest is denied.[4]
Anthony H. Gamboa
General Counsel
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[1]The following adjectival ratings were used in the evaluation of past
performance: highly qualified/very low performance risk (contractor is able
to meet or exceed the government's requirements, consistent high quality
excellent performance can be expected); qualified/low performance risk
(contractor is able to meet the government's requirements, good or
acceptable performance can be expected); and unsatisfactory/very high
performance risk (contractor is unable to meet the government's
requirements, unacceptable performance can be expected from the
contractor). Agency Report (AR) exh. 5, Evaluation Rating System.
[2]Blood incorrectly alleges that the agency's evaluation of his past
performance constituted a determination of nonresponsibility of a small
business that the Forest Service was required to refer to the Small Business
Administration (SBA) for consideration under the SBA's certificate of
competency procedures. Traditional responsibility-type factors, such as
past performance, may be used for the comparative evaluation of quotations
in relevant areas as it was here. Where a vendor's past performance is
determined to be unsatisfactory pursuant to such a best value evaluation
scheme, the matter is one of relative technical merit, not responsibility,
and does not require referral to the SBA. T. Head and Co., Inc.,
B-275783, Mar. 27, 1997, 97-1 CPD � 169 at 3-4.
[3]There is no merit to the protester's suggestion that the award to URI is
somehow questionable because URI also received unfavorable past performance
assessments. The agency has fully explained in the agency report and
supplemental agency report how this unfavorable information was considered
and we see nothing improper in URI's past performance evaluation.
[4]Blood also maintains that the Forest Service harbored some bias against
Blood that influenced its evaluation and selection decision. Protest at
5-6. This accusation is unsupported. Government officials are presumed to
act in good faith, and where a protester argues otherwise it must provide
convincing proof, since our Office will not attribute unfair or prejudicial
motives to procurement officials on the basis of inference or supposition.
Oceanometrics, Inc., B-278647.2, June 9, 1998, 98-1 CPD
� 159 at 6. In addition to producing credible evidence showing bias, the
protester must demonstrate that the agency bias translated into action that
unfairly affected the protester's competitive position. Triton Marine
Constr. Corp., B-250856,
Feb. 23, 1993, 93-1 CPD � 171 at 6. Blood has offered nothing but bare
assertions.