TITLE:  CETROM, Inc., B-291106, October 31, 2002
BNUMBER:  B-291106
DATE:  October 31, 2002
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CETROM, Inc., B-291106, October 31, 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:    CETROM, Inc.
    
File:             B-291106
    
Date:           October 31, 2002
    
Matthew Pavlides, Esq., Miles & Stockbridge PC, for the protester.
Michael Colvin, Department of Health and Human Services, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest challenging contracting agency's evaluation of protester's
proposal and exclusion of proposal from competitive range is denied where
agency's evaluation and competitive range determination were reasonable
and in accordance with the solicitation evaluation criteria.
DECISION
    
CETROM, Inc. protests the exclusion of its proposal from the competitive
range under request for proposals (RFP) number 292-01-P(CL)-0316, issued
by the National Institutes of Health (NIH) for minor construction,
alteration, and rehabilitation of various NIH facilities in the
Washington/Baltimore area.  CETROM contends that NIH improperly evaluated
its proposal.
    
We deny the protest.
    
The RFP, limited to 8(a) contractors, provided for award of multiple
task-order contracts for construction services under a fixed-price,
indefinite-delivery indefinite-quantity (ID/IQ) contract for a base year
with 4 option years.  The RFP contemplated that NIH would issue separate
task orders for the work, ranging from $25,001 to $100,000 per task order,
with a maximum dollar amount of $150 million over the life of the
contract.  RFP S: C.1.a. 
    
    
    
    
    
    
Contract awards were to be made to the responsible offerors that provided
the *most advantageous or best value* to the government, considering the
following evaluation criteria:
.       past performance
.       technical/management factors
.       price
    
RFP S: M.2.a.   Of these evaluation factors, past performance was equal in
importance to the technical/management factors, and the two combined were
*significantly more important* than price.  The four technical/management
factors--relevant project experience, management plan, subcontracting
management capabilities, and financial/bonding capability--were of equal
importance. 
    
Both the past performance and relevant project experience factors
specified that evaluators would consider the *extent to which the offeror
has successfully completed similar type projects (including Federal,
state, local and private) . . . .*    Offerors were informed that they
*shall be responsible* for ensuring that their past performance references
completed past performance questionnaires and submitted these
questionnaires to NIH for consideration.  The RFP also stated that NIH
*will consider* not only the information provided in the questionnaires,
but also information obtained from other sources.  Additionally, the RFP
provided that the evaluation of past performance would be a *subjective
assessment based on a consideration of all relevant facts and
circumstances. . . .  This is a matter of judgment.*  RFP S: M.3.
    
In response to the RFP, NIH received 25 proposals, including CETROM's.  
A technical review committee examined the proposals with respect to the
past performance and technical/management factors; the contracting officer
reviewed the proposals with respect to the price factors.  Agency Report
(AR), Tab 4a, Evaluation Documents, at 1.  Four proposals were rated as
excellent from a technical/management/past performance standpoint, and
10 proposals were rated excellent from a price standpoint.[1]  Id. at
3-7.  CETROM was rated acceptable in both categories.  Id. at 3.  Based
upon these ratings, the contracting officer made a competitive range
decision, placing the four proposals with excellent technical ratings in
the competitive range.  Id.  at 1.  (Two of those proposals were rated
excellent for price and two were rated acceptable for price.  Id. at 4, 6,
7.)  All other proposals, including CETROM's, were excluded from the
competitive range.  CETROM thereafter timely filed this protest.
    
CETROM objects to the exclusion of its proposal from the competitive
range, arguing that its past performance and relevant project experience
were misevaluated.  Specifically, CETROM contends that NIH disregarded
relevant performance information, letters of reference demonstrating its
*exemplary* experience in performing similar contracts, and proposal
information citing projects of a similar type.  It also contends that NIH
gave undue deference to the comments of a telephone reference not listed
by CETROM concerning an ongoing construction project for NIH where CETROM
alleges it has a claim pending.  
    
In reviewing protests of allegedly improper evaluations, we will not
reevaluate proposals, but instead will examine the record to determine
whether the evaluators' judgments were reasonable and in accord with the
stated evaluation criteria.  GEC Avionics, Inc., B-250957, B-250957.2,
Feb. 25, 1993, 93-2 CPD P: 24 at 5.  Where a proposal was reasonably
evaluated, the determination of whether to include it in the competitive
range is principally a matter within the discretion of the procuring
agency.  Dismas Charities, Inc., B-284754, May 22, 2000, 2000 CPD P: 84 at
3.  Our Office will review an agency's evaluation of proposals and
determination to exclude a proposal from the competitive range for
reasonableness and consistency with the evaluation criteria and language
of the solicitation and applicable statutes and regulations.  Novavax,
Inc., B-286167, B-286167.2, Dec. 4, 2000, 2000 CPD P: 202 at 13.  Here, we
conclude that the evaluation of CETROM's proposal was reasonable and
consistent with the solicitation, and that it was reasonably eliminated
from the competitive range.[2] 
    
The record shows that NIH conducted a thorough and reasoned review of both
the past performance and relevant project experience factors.  Consistent
with the solicitation, NIH considered each of the four past performance
questionnaires submitted and each of the six relevant projects identified
by CETROM.  It also considered outside references, as was contemplated by
the RFP.  NIH identified a number of strengths, a few weaknesses, and no
deficiencies in CETROM's proposal for both the past performance and
relevant experience evaluation factors, which contributed to an overall
rating of acceptable.  AR, Tab 4, Technical Analysis of Proposals, at
12.  
    
With respect to past performance, NIH noted that each of the past
performance references rated CETROM as excellent, but that the four listed
projects did not involve laboratory, hospital, or animal facility work,
the type of work required under this RFP.  Instead, CETROM's past
performance references involved a design-build project for an Army
conference center, a repair project of solar screens for NIH, and two
office renovations involving private firms.  Id.  NIH also obtained a
telephone evaluation from the project officer of an ongoing relevant
contract that CETROM was performing at NIH.  AR, Tab 4, Telephone
Interview with Project Officer.  This individual provided some criticisms
of CETROM's performance (and rated it only
[deleted] on a 10-point scale), but NIH noted this only as a weakness and
not a deficiency in CETROM's past performance.  AR, Tab 4, Technical
Analysis of Proposals, at 12.  NIH also considered CETROM's Construction
Contractor Appraisal Support System (CCASS) ratings, which were
*average.*  Id. 
    
Based upon the record, NIH's evaluation of CETROM's past performance as
acceptable was reasonable.  The RFP highlighted the importance of similar
laboratory, hospital, and animal experience, and cautioned offerors that
NIH would consider outside sources of past performance information.  The
record does not support the contention that NIH gave undue deference to
the telephone reference not listed by CETROM with which CETROM has a
dispute.[3]  Even if this reference were not considered in the evaluation,
the record would still, in our view, support an acceptable rating for the
past performance factor.
    
With respect to relevant project experience, NIH noted CETROM's strength
as a construction manager/project manager in hospital environments. 
However, NIH also noted that CETROM appeared to have only minimal
experience with ID/IQ contracts (such as that being competed here) or
contracts of similar scope.  AR, Tab 4, Technical Analysis of Proposals,
at 12.  Of the six projects that CETROM identified under this evaluation
factor, only one was for a fixed-price contract; the rest were for
time-and-material or cost-plus type contracts.  Only one project involved
laboratory settings; the other five involved renovations of office areas
and public spaces.[4]  In four of the projects (including the only
contract for laboratory renovations), CETROM subcontracted out the vast
majority of the work (between 65 and 87 percent).  Contracting Officer's
Statement at 2-3; AR, Tab 2, CETROM's Technical Proposal, Relevant Project
Experience.  While CETROM provided letters of references for some of these
jobs that did reflect (as CETROM contends) its *exemplary* performance on
these projects, NIH nevertheless reasonably determined that CETROM's
experience was not as relevant as other offerors' experience and that
CETROM merited an overall technical rating of acceptable for this
factor.[5]  AR, Tab 4, Technical Analysis of Proposals, at 12.         
    
Based upon the record before us, we conclude that NIH's evaluation ratings
and determination to exclude CETROM from the competitive range are
reasonable and supported by the record.  CETROM's recited examples of what
it believes demonstrate relevant performance reflect nothing more than
CETROM's disagreement with NIH's evaluation, which does not render it
unreasonable.  D S Inc., B-289676, Mar. 12, 2002, 2002 CPD P: 58 at 6.    
    
    
The protest is denied.
      
Anthony H. Gamboa
General Counsel
    
    
    
    
    

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

   [1] The prices requested were cost coefficients to be applied to the
direct costs and indirect costs in determining the prices of task orders
under the contracts.  The offerors were also requested to respond applying
these coefficients to various pricing exercises.  RFP S: B.  In rating the
price factor, various elements were considered, the most important of
which was the proposed coefficients--the lower the coefficient, the higher
the rating. 
[2] Because the proposal was reasonably eliminated from the competitive
range, no discussions were required.  Federal Acquisition Regulation S:
15.306; SOS Interpreting, Ltd., B-287505, June 12, 2001, 2001 CPD P: 104
at 12. 
[3] CETROM argues that this telephone source was biased against CETROM due
to animosity in connection with cost claims on the contract.  CETROM
further contends that the information the source provided was inaccurate
because the source was not forthcoming as to the nature of the ongoing
dispute.  Specifically, CETROM contends that the source dishonestly
answered a question concerning whether litigation existed by stating only
that a *potential claim* exists, and CETROM further contends that this
allegedly false statement somehow *improperly altered* the evaluation of
its past performance.  There is no evidence in the record of
misrepresentation or bias or, for that matter, that this statement had any
impact on the evaluation.  Nor is there any evidence that the statement is
false, since the record before our Office does not establish the status of
the claim (or potential claim).  CETROM further alleges that a conflict of
interest exists among the evaluators because this telephone source and two
of the evaluators report to the same supervisor (who was not part of the
evaluation team), and that this, too, tainted the evaluation of past
performance.  These allegations of bias and conflict of interest, however,
do not rise above mere supposition and inference.  Our Office will not
attribute unfair or prejudicial motive to procurement officials on the
basis of inference and supposition.  Abt Assocs., Inc., B-253220.2,
Oct. 6, 1993, 93-2 CPD P: 269 at 9.  Absent strong evidence of bias, which
does exist here, our Office will not sustain the protest on this ground. 
DSDJ, Inc., B-288438 et al., Oct. 24, 2001, 2002 CPD P: 50 at 9.
[4] In its protest, CETROM references another project (an animal
facilities project) that it did not list in the relevant project
experience or past performance sections of its proposal, but mentioned
elsewhere in its proposal.  Under the circumstances, we do not believe
that NIH was required to evaluate this project under these evaluation
factors.  RFP S:S: L.14, M.3, M.4.
[5]  CETROM repeatedly argues that it should have been rated higher
because its proposal *fully meets* the requirements of the RFP.  However,
by definition, an offeror's proposal that meets the requirements of the
RFP is entitled to an *acceptable* rating and nothing more.  AR, Tab 4a,
Adjectival Ratings Definitions.  That is the rating that CETROM
received.