TITLE: Albert Moving & Storage, B-290733; B-290733.2, September 23, 2002
BNUMBER: B-290733; B-290733.2
DATE: September 23, 2002
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Albert Moving & Storage, B-290733; B-290733.2, 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: Albert Moving & Storage
File: B-290733; B-290733.2
Date: September 23, 2002
Kenneth S. Nankin, Esq., Nankin & Verma, and Brian W. Craver, Esq.,
Person & Craver, for the protester.
Warren D. Leishman, Esq., and Gregory H. Petkoff, Esq., Department of the
Air Force, for the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where solicitation defined a *satisfactory* past performance rating as
permissibly encompassing minor problems which were satisfactorily
corrected, agency reasonably rated awardee's past performance as
*satisfactory,* based on the agency's consideration of various past
performance information, including a past performance questionnaire, the
awardee's response to certain performance problems, and other additional
information submitted by the awardee.
2. Agency reasonably included awardee's proposal in the competitive
range where contracting officer considered and documented various
deficiencies that existed in awardee's initial proposal and concluded they
were not significant enough to require proposal's elimination from the
competitive range.
DECISION
Albert Moving & Storage protests the Department of the Air Force's
contract awards to Ace Movers and Dwight Transfer & Storage under request
for proposals (RFP) No. F41612-01-R-0119 to perform services related to
shipment of personal property for Department of Defense personnel moving
to or from Sheppard Air Force Base (SAFB), Texas. Albert protests that
the agency misevaluated proposals with regard to past performance and that
Dwight's proposal should not have been included in the competitive range.
We deny the protest.
BACKGROUND
The Air Force issued solicitation No. F41612-01-R-0119 on August 29,
2001, seeking fixed-price proposals to perform specified packing and
moving services for a 1-year base period with four 1-year option periods.
As amended, the RFP divided the required services into three parts:
schedule I, which included tasks related to outbound shipments; schedule
II, which included tasks related to inbound shipments; and schedule III,
which included tasks associated with intra-area moves.[1] Offerors were
required to submit technical proposals, past performance proposals, and
price proposals. The solicitation provided that technical proposals would
be evaluated for technical acceptability on a *pass/fail* basis, and that,
for technically acceptable proposals, award determinations, by schedule
and area, would be based on *best value* tradeoffs between past
performance and price.
With regard to past performance, offerors were required to identify prior
customers for whom they had performed activities similar to those
solicited here, and to provide those customers with a *past performance
questionnaire* (which was included as part of the solicitation), and
request that the customer complete the questionnaire and forward it to the
specified SAFB contracting officer. The solicitation provided that
offerors' past performance would be evaluated under an adjectival rating
system using the terms *exceptional,* *very good,* *satisfactory,*
*neutral/not applicable,* *marginal,* and *unsatisfactory.*
Three companies -- Albert, Dwight, and Ace -- timely submitted proposals
by the specified closing date. The agency performed a preliminary
evaluation of proposals and concluded that all three should be included in
the competitive range. Thereafter the agency conducted discussions with
each of the offerors, and requested submission of final revised proposals.
Upon receiving and evaluating the final proposals, the agency concluded
that all three proposals were technically acceptable, that Albert's and
Ace's proposal warranted *very good* past performance ratings, and that
Dwight's proposal warranted a *satisfactory* past performance rating.
Agency Report, Tab 2, Contracting Officer's Statement, at 3-4. The
proposed prices for area 1 of the three schedules were as
follows.[2]
+------------------------------------------------------------------------+
| |Albert |Ace |Dwight |
|----------------+------------------+------------------+-----------------|
|Schedule I |$ 353,046 |$ [deleted] |$ [deleted] |
|----------------+------------------+------------------+-----------------|
|Schedule II | [deleted] | [deleted] | 1,802,754 |
|----------------+------------------+------------------+-----------------|
|Schedule III | [deleted] | 2,126,800 | [deleted] |
+------------------------------------------------------------------------+
Agency Report, Tab 2, Contracting Officer's Statement, at 5-6.
The agency then performed trade-off assessments between the offerors'
proposed prices and past performance ratings, awarding the following
contracts: schedule I --Albert ($353,046); schedule II -- Dwight
($1,802,754); schedule III -- Ace ($2,126,800). Albert's protest
challenging the awards to Dwight and Ace followed.
DISCUSSION
Albert's Initial Protest
In its initial protest, Albert challenges the agency's *satisfactory*
evaluation of Dwight's past performance as unreasonably high, asserting
that *the quality of Dwight['s] . . . work, and [its] reputation therefor,
is poor.* Protest at 3.[3]
With regard to evaluation of offerors' past performance, the solicitation
stated:
Means of Evaluation: All offerors will be given a risk assessment
rating. The primary means of evaluation will be the Contractor
Performance Assessment Questionnaire. However, the government reserves
the right to consider any other information obtained through other means .
. . .
Agency Report, Tab 5, RFP amend. No. 3, at 314.
As noted above, the solicitation advised offerors of the adjectival rating
scheme the agency intended to use in evaluating past performance. The
solicitation further provided definitions for each term to be used. With
regard to the term *satisfactory,* the solicitation provided the following
definition: *Performance met all contract requirements. There were some
minor problems and corrective actions taken by the contractor were
satisfactory.* Id.
The record shows that, in evaluating Dwight's past performance, the agency
relied upon the past performance questionnaire completed by the SAFB
Traffic Management Office (TMO).[4] That questionnaire sought adjectival
rating responses (using the same terms esatablished in the solicitation
for evaluation of past performance) to 26 questions. In response, the
SAFB TMO rated Dwight's performance [deleted].[5] Agency Report, Tab 13,
Completed Questionaire for Dwight. Overall, the SAFB TMO stated that it
*probably would* award Dwight another contract. Id.
Regarding the [deleted], the contracting officer brought these matters to
Dwight's attention during discussions, giving Dwight an opportunity to
[deleted].[6] With regard to [deleted], Dwight responded that it
[deleted].[7] Agency Report, Tab 13, Lettter from Dwight to Contracting
Officer (Nov. 5, 2001). With regard to [deleted], Dwight provided the
contracting officer with its earlier correspondence to the agency, which
described the actions Dwight had taken [deleted].[8] Id; Agency Report,
Tab 13, Letter from Dwight to SAFB TMO (June 20, 2001).
The contracting officer considered all of the information provided and
ultimately concluded that the required risk assessment related to Dwight's
past performance was *satisfactory.* Albert argues that, [deleted], it
was inappropriate for Dwight to receive a *satisfactory* rating. We
disagree.
Our Office will question an agency's past performance evaluation only
where it lacks a reasonable basis, violates statute or regulation, or is
inconsistent with the stated evaluation criteria. An agency may base its
evaluation of past performance upon its reasonable perception of prior
performance, regardless of whether the contractor disputes the agency's
interpretation of the facts. See Birdwell Bros. Painting & Refinishing,
B-285035, July 5, 2000, 2000 CPD P: 129; Quality Fabricators, Inc.,
B‑271431, B-271431.3, June 25, 1996, 96-2 CPD P: 22 at 7. A
protester's mere disagreement with the agency's judgment does not
establish that the agency acted unreasonably. Coffman Specialties, Inc.,
B-284546, B-284546.2, May 10, 2000, 2000 CPD P: 77 at 5.
As noted above, the solicitation provided that, in evaluating offerors'
past performance for purposes of making source selection decisions in the
procurement at issue here, each offeror would be given a *risk assessment
rating,* and that this rating would be based in large part, but not
exclusively, on prior performance as reflected in the past performance
questionnaires. Agency Report, Tab 5, RFP amend. No. 3, at 314. That is,
offerors were advised that the agency would make risk assessments
regarding the level of performance that each offeror was likely to provide
under the pending solicitaiton, based on considerations of how each
offeror had previously performed similar requirements. The solicitation
further provided that an offeror could obtain a *satisfactory* risk
assessment, notwithstanding minor performance problems, provided those
problems had been satisfactorily corrected. Id.
Here, the record shows that, although Dwight encountered problems during
its prior performance, it corrected those problems to the satisfaction of
the agency. Based on our review of the record, including the information
relating to Dwight's prior corrective actions, we find that the
contracting officer reasonably made a risk assessment of *satisfactory*
with regard to Dwight's proposal. Albert's assertions to the contrary are
without merit.
Albert's Supplemental Protest
Following receipt of the agency report responding to the initial protest,
Albert filed a supplemental protest, asserting that the agency improperly
included Dwight's proposal in the competitive range. Albert does not
dispute that Dwight's final revised proposal was properly rated as
technically acceptable; nonetheless, Albert maintains that [deleted]
should have precluded Dwight from being given an opportunity to further
compete for the requirements. We disagree.
The determination of whether a proposal is in the competitive range is
principally a matter within the sound judgment of the procuring agency.
Dismas Charities, Inc., B‑284754, May 22, 2000, 2000 CPD P: 84 at
3. While exclusion of technically unacceptable proposals is frequently
permissible, it is not generally required. More specifically, the
significance of the weaknesses and/or deficiencies in an offeror's
proposal, within the context of a given competition, is a matter for which
the procuring agency is, itself, the most qualified entity to render
judgment. Our Office will review that judgment only to ensure it was
reasonable and in accord with the solicitation provisions, and a
protester's mere disagreement with an agency's judgment does not establish
that the judgment was unreasonable. Abt Assocs. Inc., B-237060.2, Feb.
26, 1990, 90-1 CPD P: 223 at 3-4; Keco Indus., Inc., B-261159, Aug. 25,
1995, 95-2 CPD P: 85.
The record here contains the contracting officer's contemporaneous
documentation supporting his decision to retain Dwight in the competitive
range. Agency Report, Tab 11, Competitive Range Determination. In making
the determination, the contracting officer specifically discussed Dwight's
proposal in the context of each of the three technical evaluation
factors.[9] [Deleted], the competitive range determination provides a
reasonably detailed analysis regarding the specific type of information
Dwight would need to provide [deleted]. For example, [deleted]. Agency
Report, Tab 11, Competitive Range Determination at 3. With regard to the
[deleted], the contracting officer noted that, [deleted]. Id. Based on
his analysis that the problems identified by the evaluators were mostly
informational in nature, the contracting officer concluded that Dwight's
proposal, [deleted], had a reasonable chance of receiving an award.
Based on our review of the entire procurement record, including the
agency's contemporaneous documentation reflecting its judgment regarding
the significance of the [deleted] in Dwight's initial proposal, we do not
find Dwight's initial technical proposal to [deleted] as to require
exclusion from further consideration. (That is, of course, not to say
that the contracting officer was legally required to keep the proposal in
the competitive range.) Dwight's subsequent submission of revisions and
additional information which rendered its proposal acceptable -- a fact
Albert does not dispute ‑‑ supports the reasonableness of the
contracting officer's
determination. Accordingly, Albert's assertion that Dwight's proposal
should have been excluded from the competitive range is without merit.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Each of the three schedules was further divided into four geographic
areas.
[2] Albert received contract awards for areas 2, 3, and 4 under all three
schedules. Accordingly, those portions of the solicitation requirements
are not at issue here.
[3] Albert also protested that the agency's *very good* past performance
rating for Albert was unreasonably low; that the agency's *very good* past
performance rating for Ace was unreasonably high; and that Dwight's and
Ace's proposed prices were unrealistically low. The agency addressed each
of these issues in its report responding to Albert's protest. In its
comments following receipt of the agency report, Albert failed to address
these issues in any way, focusing only on Dwight's past performance
rating. Accordingly, we view Albert as having abandoned its assertions
regarding its own and Ace's past performance ratings, and the assertion
that Dwight's and Ace's prices were unrealistically low. See Datum
Timing, Div. of Datum, Inc., B-254493, Dec. 17, 1993, 93-2 CPD P: 328 at
5.
[4] The record shows that the SAFB TMO completed a performance assessment
questionnaire for each of the three offerors. Agency Report, Tab 13. It
is clear that these documents were primary considerations regarding each
offeror's past performance rating.
[5] No responses or *do not know* responses were provided for the
remaining questions. [Deleted].
[6] In this regard, the agency was relying on the provisions of Federal
Acquisition Regulation (FAR), applicable at the time, which state:
[t]he contracting officer shall . . . indicate to, or discuss with, each
offeror still be considered for award, significant weaknesses,
deficiencies, and other aspects of its proposal (such as cost, price,
technical approach, past performance, and terms and conditions) that
could, in the opinion of the contracting officer, be altered or explained
to enhance materially the proposal's potential for award.
FAR S: 15.306(b)(1)(i).
[7] [Deleted].
[8] At that time, Dwight also provided various letters of commendation
received from other customers. Agency Report, Tab 13.
[9] The solicitation identified the following three technical evaluation
factors: management/manpower/experience, understanding the task, and
quality control plan.