TITLE:  Prime Environmental Services Company, B-291148.3, March 4, 2003
BNUMBER:  B-291148.3
DATE:  March 4, 2003
**********************************************************************
Prime Environmental Services Company, B-291148.3, March 4, 2003

   Decision
    
    
Matter of:    Prime Environmental Services Company
    
File:             B-291148.3
    
Date:              March 4, 2003
    
Eric Radke for the protester.
Phillipa L. Anderson, Esq., Dennis Foley, Esq., and Philip Kauffman, Esq.,
Department of Veterans Affairs, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that contracting agency improperly evaluated protester's proposal
with respect to the firm's performance history and certain technical areas
is denied where the record shows that the evaluation was reasonable and
consistent with the solicitation's evaluation factors.
DECISION
    
Prime Environmental Services Company protests the award of a contract to
North State Environmental under request for proposals (RFP) No.
600-088-02, issued by the Department of Veterans Affairs (VA) to procure
hazardous waste removal services at VA facilities in southern California. 
Prime argues that the agency improperly evaluated its proposal and
unreasonably selected North State's higher-priced proposal for award.
    
We deny the protest.
    
The VA issued this solicitation on June 26, 2002 to procure the services
of a contractor to remove and dispose of hazardous waste at VA facilities
in Los Angeles, Long Beach, Loma Linda, and San Diego, California.  Prime
is the incumbent contractor providing these services.  The solicitation
anticipated the award of a fixed-price contract for a base period of 1
year, with up to four 1-year option periods.  Award was to be made to the
firm whose offer was most advantageous to the government, considering
three equally important evaluation factors:  performance history,
technical, and price.  The technical factor was comprised of four equally
important subfactors:  management capability, staff adequacy, facilities
and equipment, and financial condition.  RFP at 157. 
    
The VA received proposals from six firms by the July 24 closing date. 
After the proposals were evaluated, the contracting officer determined
that all offerors save one were nonresponsible.  North State challenged
that determination in a protest filed in our Office on August 19.  Several
days later, the firm withdrew its protest based upon the contracting
officer's notice that he had withdrawn his nonresponsibility determination
and would conduct discussions with the firm.  The VA then conducted
discussions with each offeror, and requested the submission of final
proposal revisions (FPR).  Despite the agency's advice during discussions
that the firm's service in the past had not been satisfactory, and that
its proposal was weak in the areas of staff adequacy and financial
condition, Prime's proposal revisions were limited to its price proposal. 
The final point scores from the VA's evaluation of the FPRs were as
follows:[1]
    

   +------------------------------------------------------------------------+
|                                |North State        |Prime              |
|--------------------------------+-------------------+-------------------|
|Performance History             |88 points          |60 points          |
|--------------------------------+-------------------+-------------------|
|Technical                       |94 points          |54.25 points       |
|  Management Capability         |24 points          |24 points          |
|  Staff Adequacy                |23 points          |0 points           |
|  Facilities and Equipment      |22 points          |22 points          |
|  Financial Condition           |25 points          |8.25 points        |
|--------------------------------+-------------------+-------------------|
|Price                           |$792,718           |$679,682           |
+------------------------------------------------------------------------+

    
The contracting officer, acting as the SSA, noted that Prime's past
performance score was the lowest of all offerors, and recited various
reasons for this low score.  Among other things, the SSA explained that
Prime tended to be non-responsive and slow to respond to requests for
service, and had mismanaged waste, causing the government to expend extra
funds to correct the problem and subjecting the government to potential
regulatory violations.  The SSA also explained that Prime used a
cumbersome manifest system, and that North State offered a superior
records management system.  Specifically, the agency found that North
State's records management system allows the firm to arrive at the pick-up
site with a pre-printed manifest indicating that the disposal facility has
issued an acceptance authorization.  In contrast, the agency found that
Prime generally writes its manifest on site and seeks authorization from
the disposal facility later.  The SSA stated that waiting for this
authorization until after the pick-up delayed the VA's ability to send a
copy of the manifest to the appropriate regulatory body and jeopardized
its ability to meet regulatory time limits.  The SSA also found that
Prime's staff was not as large or well trained as that of North State.  He
stated that packing the waste was one of the most complicated parts of the
requirement, and a mistake could lead to a dangerous reaction of
incompatible chemicals.  The SSA found that the fact North State always
has a chemist present during the packing was an advantage over Prime's use
of a truck driver to perform the packing.  In addition, the SSA stated
that the VA has a need for emergency response and clean-up operations to
cover these four facilities, and the contractor must have sufficient
facilities and staff to respond to one or more spills concurrently.  He
found that North State was better able to respond because of its larger
and more highly trained staff.
    
The SSA concluded that North State would save the government time in
records management, reduce the risk of mishaps, and provide faster and
more complete emergency spill response.  He stated that one instance of an
adverse chemical reaction due to improper packing or of an improperly
contained hazardous waste spill could subject the government to costs far
greater than the approximately $22,000 annual price difference between the
two offers, and determined that North State offered the best value to the
government.  Award was made on December 11 and Prime filed this protest
after its debriefing.  Prime argues that the VA improperly evaluated its
performance history and certain aspects of its technical proposal, and
unreasonably selected North State's higher-priced proposal for award.
    
Our Office will question an agency's evaluation of proposals only if 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 at 5; Quality Fabricators, Inc.,
B‑271431, B-271431.2, 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.  Our review of
the record shows that the VA's evaluation of Prime's proposal was
reasonable.
    
With respect to the evaluation of its performance history, Prime initially
contends that the VA improperly failed to contact any of the three non-VA
references it provided in its proposal but, instead, contacted the four VA
facilities served under Prime's incumbent contract for their references,
even though one was *known to have personnel that were overtly hostile to
Prime.*  Protest at 5.
    
The record shows that the VA did attempt to telephone the three non-VA
references cited in Prime's proposal, but two of the numbers were no
longer in service and the third reference failed to return the evaluator's
telephone call.  There is no legal requirement that all past performance
references be included in a valid review of past performance.  Advanced
Data Concepts, Inc., B-277801.4, June 1, 1998, 98-1 CPD P: 145 at 10.  An
agency is only required to make a reasonable effort to contact an
offeror's references, and, where that effort proves unsuccessful, it is
unobjectionable for the agency to evaluate an offeror's past performance
based on fewer than the maximum possible number of references the agency
could have received.  Universal Bldg. Maint., B-282456, July 15, 1999,
99-2 CPD P: 32 at 8 n.1.  This is particularly true where, as here, the
contracting officer actually contacted the most current and relevant
references for the work at hand:  the four facilities currently served by
Prime under its incumbent contract for these services. 
    
As for Prime's assertion that one of these VA facilities was *known to be
hostile* to the firm, Protest at 6, in order to show bias, the record must
clearly establish that agency personnel intended to injure the protester. 
Miller Bldg. Corp., B-245488, Jan. 3, 1992, 92-1 CPD P: 21 at 5.  We will
not attribute unfair or prejudicial motives to such personnel on the basis
of inference or supposition.  Eastco Bldg. Servs., Inc.,
B-283972.2, Feb. 10, 2000, 2000 CPD P: 38 at 3.  There is no showing of
bias here.  The record contains no evidence--aside from the protester's
allegations--that references from this facility harbored *hostility*
toward the firm or made untrue negative statements about the firm's past
performance.  Moreover, the record shows that all four facilities--not
just this one--were dissatisfied with Prime's performance.  All four
facilities reported that Prime's response to complaints or problems was
not the optimum *immediately* but, rather, within a week; three facilities
reported that Prime's response to requests for service was not the optimum
*one day* but, rather, less than a week, and one facility reported that it
was more than a week; and all four facilities reported that the experience
of Prime's staff was merely adequate.  This consistency among the four
facilities undercuts Prime's assertion that its evaluation was unduly
influenced by the *hostile* remarks of one facility. 
    
We have reviewed Prime's specific objections to each of the SSA's negative
comments about its past performance, along with the record supporting
those comments.  As the following examples illustrate, none of Prime's
objections show that the VA's evaluation of its past performance was
unreasonable.    
    
Prime objects to the SSA's statement that it *tends to be nonresponsive
and . . .  slow to respond to requests for services.*  Source Selection
Memorandum at 2.  Prime states that it was occasionally slow in returning
telephone calls during the initial few months of its performance, but
that, since that time, it has been *totally responsive.*  Comments at 3. 
In response to GAO's request to address Prime's objection, the VA provided
detailed contemporaneous evidence supporting the agency's position that
Prime was repeatedly late showing up to scheduled appointments and
nonresponsive with regard to returning phone calls and providing adequate
customer service.  Prime has not rebutted any of this information, which
supports the VA's conclusion that the firm tended to be nonresponsive and
slow to respond to requests for services.[2]
    
Prime next objects to the SSA's finding that the firm had, on occasion,
mismanaged waste.  The firm concedes that it played some role in this
mismanagement, but shifts much of the blame to the VA for these problems. 
At GAO's request, the VA provided a detailed response to this allegation,
along with a contemporaneous statement from Prime in which the firm
accepted responsibility for the problem.  Again, Prime has failed to rebut
the VA's explanation or its own prior statement, which supports the VA's
conclusion that Prime had instances where it mismanaged waste.
    
Prime also complains that the SSA improperly found that it used a
cumbersome manifest system.  Prime states that it has historically
provided manifests with all of the information pre-printed except the
actual waste stream information.  However, at GAO's request, the VA
provided a detailed account from the industrial hygienist at one facility
in which she states that Prime routinely appeared with blank manifests, to
be filled out by hand, even though a detailed inventory of items and
amounts to be disposed had been faxed to the firm before the scheduled
service.  Prime has not rebutted this individual's account, or her
explanation regarding the negative impact Prime's manifest system had on
her facility's operations.  As a result, we have no basis to object to the
VA's conclusion that the firm's manifest system was cumbersome.
    
Finally, in response to the SSA's finding that its staff was not as large
or well trained as that of North State, Prime asserts that its staff is
more than capable of handling the requirements.  The VA responded to
Prime's assertion by citing instances where Prime sent only one individual
to perform the service, sent out staff who were unaware of the scope of
the work and needed to be told what to do, and sent out staff who were
uncomfortable speaking English.  The VA also cited instances where waste
pickups were delayed due to Prime's staff shortages.  Again, Prime has not
rebutted the VA's explanations, which support its findings regarding the
firm's past performance in connection with staffing.
    
We now turn to Prime's challenges of the evaluation of its proposal under
two of the four technical subfactors.  Under the staff adequacy subfactor,
the RFP required offerors to submit:
    
Proof of 40 Hour [Hazardous Waste Operations and Emergency Response
Standard (HAZWOPER)] training for technicians who will perform lab
packing, bulk packing, labeling, loading, and transporting hazardous
Materials, Proof of Certified First Responder Training for staff
responding to hazardous materials spills or incidents.  List of all
personnel who will support this contract including each individual's
training, refresher training, along with all relevant experience and
qualifications and current valid required licenses.
    
RFP at 158.
    
The VA's evaluation team assigned zero points to Prime's proposal under
this subfactor.  As for the requirement to submit *[p]roof of 40 Hour
HAZWOPER training for technicians who will perform lab packing, bulk
packing, labeling, loading, and transporting hazardous materials,* the VA
found that Prime's proposal did not include any proof for any individual
for the 40-hour HAZWOPER initial training, but only included certificates
for HAZWOPER annual refresher training for seven individuals.  None of
these certificates indicated how many hours or days of training were
received, and four of the certificates were expired.  In addition, these
certificates indicated the names of the individuals, but not all of their
positions, so the VA was unable to clearly ascertain which individuals
were driver/technicians and which were supervisors.
    
Prime concedes that several certificates were expired, but asserts that
all of the personnel that would actively inventory, prepare and pack the
waste had current certificates included.  This claim is not supported by
Prime's proposal.  Although Prime complains that the VA did not contact
the training program administrator to ascertain the validity of the
expired certificates, the VA was not required to do so because the RFP
placed the burden on Prime to provide this required information.  Prime
also argues that the 40-hour training was performed many years ago and the
certificates were unavailable, and that the refresher certificates *imply*
that the original 40-hour training was completed.  Whether or not this is
true, the RFP plainly required the submission of the 40-hour certificates
and Prime's failure to meet the RFP's requirements warranted the VA's
downgrading of its proposal.  An agency's evaluation is dependent upon
information furnished in a proposal, and it is the offeror's burden to
submit an adequately written proposal for the agency to evaluate.  Chant
Eng'g Co., Inc., B-279049, B-279049.2, Apr. 30, 1998, 98-2 CPD P: 65 at
7.      
    
The VA next considered the requirement to submit proof of first responder
training for all staff responding to hazardous material spills or
incidents.  The VA found that Prime had provided no such proof and did not
describe the staff that would meet this requirement.  Our review of
Prime's proposal confirms the validity of this finding.
    
The VA finally turned to the requirement to provide a list of personnel
who will support this contract including each individual's *training,
refresher training, along with all relevant experience and qualifications
and current valid required licenses.*  RFP at 158.  The VA concluded that,
because not all of the positions were identified, it was impossible to
determine which training requirements applied to each of the personnel. 
The VA found that, to provide proper resources to this contract, certain
training requirements must be met and they had problems finding any
evidence of such training in Prime's proposal.  Our review of the proposal
confirms the validity of this finding.  Although Prime argues that it
provided biographical data on key personnel, the RFP's requirement was to
provide such information on all personnel supporting the contract.  Most
of the biographies in Prime's proposal are for managers and administrative
or sales staff; the proposal contains a very brief description of the
project manager with none of the required information, and contains no
information on any of the firm's technicians.  While Prime states that it
*did not think it relevant to include information on every technician,*
Comments at 12, the RFP plainly required it to do so.
    
Finally, under the financial condition subfactor, offerors were required
to provide *[c]opies of insurance certificates, business license permits,
latest Profit and Loss statement and Balance sheet.*  RFP at 158.  Prime's
proposal included its current insurance certificate, but none of the other
required information.  Instead, the firm simply stated that it was a
private corporation and did not publish financial statements; explained
that it had been in business for more than 10 years, was financially
sound, and had an established line of credit; and provided a list of
credit references, bank references and other credit information.  Since
Prime failed to comply with the solicitation's requirement to submit
business license permits and its latest profit and loss statement and
balance sheet, the evaluation committee gave it only 8.25 of the 25
available points.
    
Notwithstanding Prime's argument that it is a private company and does not
disclose its financial information, the RFP plainly required this
information and Prime plainly did not comply with this requirement.  If
Prime believed that the nature of its business precluded it from requiring
the information required by the solicitation, it was required to protest
this issue prior to the initial closing date for receipt of proposals.  4
C.F.R. S: 21.2(a)(1); see Novavax Inc., B-286167, B-286167.2, Dec. 4,
2000, 2000 CPD P: 202 at 9.  An offeror cannot learn of what it views as a
requirement that cannot be met and continue to compete on that basis
without objection, and then complain when it is not selected for award. 
Id.
    
As for Prime's objection to the SSA's selection for award of North State's
higher-priced, and higher-rated proposal, source selection officials in
negotiated
procurements have the discretion to select other than the lowest-priced
proposal, if, as here, doing so is consistent with the solicitation's
evaluation criteria.  B. Diaz Sanitation, Inc., B-283827, B-283828, Dec.
27, 1999, 2000 CPD P: 4 at 4.  We have
concluded that the evaluation of Prime's proposal was reasonable, and
Prime has given us no basis to question the SSA's decision that the
advantages offered by North State justified its higher price. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] Each non-price evaluation factor was worth up to 100 points, and each
technical subfactor was worth up to 25 points.  The proposals of three
offerors were removed from consideration based on their low technical
ratings and high prices.  The proposal of a fourth offeror received a
higher point score than North State but proposed a higher price; the
source selection authority (SSA) determined that this firm's proposal
presented no advantage over North State's proposal that would justify its
higher price.  This fourth offeror's protest of the award to North State
was dismissed because the firm failed to file comments on the agency's
report.  Bid Protest Regulations, 4 C.F.R. S: 21.3(i) (2002).
[2] While Prime complains that the contact person at one VA facility
created scheduling problems by insisting on speaking only with its
vice-president of operations, an individual from a different VA facility
complains of difficulties in scheduling because Prime itself insisted that
its vice-president of operations was the only scheduling contact point. 
Prime has not rebutted this individual's detailed explanation of her
difficulties in this regard, which supports the evaluation committee's
finding of a degree of risk in Prime's proposal because all operational
decisions and activities had to be funneled through its vice-president of
operations.