TITLE:  Kay & Associates, Inc., B-291269, December 11, 2002
BNUMBER:  B-291269
DATE:  December 11, 2002
**********************************************************************
Kay & Associates, Inc., B-291269, December 11, 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:    Kay & Associates, Inc.
    
File:             B-291269
    
Date:              December 11, 2002
    
Kevin P. Connelly, Esq., Joseph J. Dyer, Esq., and Grace Bateman, Esq.,
Seyfarth Shaw, for the protester.
Douglas M. Flinn, Esq., Sherman & Howard, for Doss Aviation, Inc., an
intervenor.
Andrew D. Fallon, 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.  Agency's evaluation record reasonably supports evaluation of awardee's
past performance record as [deleted] and protester's past performance
record as [deleted].
    
2.  Agency reasonably concluded that awardee's higher past performance
rating was more valuable to the government than protester's somewhat lower
price.
DECISION
    
Kay and Associates, Inc. (KAI) protests the Department of the Air Force's
award of a contract to Doss Aviation, Inc. under request for proposals
(RFP) No. F05604-01-R-9004 to provide helicopter maintenance services at
various Air Force bases.  KAI protests that the agency improperly
evaluated Doss's and KAI's past performance, and failed to perform a
reasonable tradeoff between price and past performance.
    
We deny the protest.
    
BACKGROUND
    
On March 6, 2002, the agency issued solicitation No. F05604-01-R-9004
seeking proposals to perform helicopter maintenance on UH-1N helicopters
at five Air Force bases in the United States and Japan.[1]  The
solicitation contemplated award of a fixed-price contract for a 1-year
base period and six 1-year option periods.  The solicitation required each
offeror to submit a price proposal, technical proposal, and past
performance information,[2] provided that technical proposals would be
evaluated only on a pass/fail basis, and advised offerors that, with
regard to technically acceptable proposals, award selection would be based
on a tradeoff between price and past performance.  Agency Report, Tab 8,
RFP at 125.  
    
Regarding evaluation of past performance, the solicitation provided that
the agency would assign *confidence assessment ratings* pursuant to the
provisions of Air Force Federal Acquisition Regulation Supplement (AFFARS)
S: 5315.305(a)(2),[3] and stated that the ratings assigned would reflect
consideration of the offerors' past performance in the following six
areas:  maintenance of similar types of aircraft; maintenance and
management support for missions demanding quick turnaround with short
notice; maintenance and management support at multiple sites, in varying
climates, with substantial workload fluctuations; employee hiring,
training and retention; participation of small disadvantaged business
concerns; and corrective actions taken from past experience.  RFP at 126.
    
On or before the April 12, 2002 closing date, proposals were submitted by
nine offerors.  In evaluating past performance, the agency reviewed the
completed questionnaires, considered information contained in the
performance assessment reporting system (CPARS), and conducted telephone
interviews with government personnel who had oversight of the various
contracts identified by the offerors.  Agency Report, Tab 14, Proposal
Analysis Report, at 4.  Ultimately, the agency sought final proposal
revisions (FPRs) from four offerors, including KAI and Doss.[4]  The
agency's final evaluation resulted in the following assessments:
    
    

   +------------------------------------------------------------------------+
|EVALUATION                |KAI                   |DOSS                  |
|FACTOR                    |                      |                      |
|--------------------------+----------------------+----------------------|
|Technical                 |Pass                  |Pass                  |
|--------------------------+----------------------+----------------------|
|Past Performance          |[deleted]             |[deleted]             |
|--------------------------+----------------------+----------------------|
|Price                     |[deleted]             |[deleted]             |
+------------------------------------------------------------------------+

    
Upon completion of the final proposal evaluation, the source selection
evaluation team (SSET) chair prepared a report for the source selection
authority (SSA) which stated, among other things:
    
The trade-off decision recommendation is between Doss . . . and
Kay. . . .  Doss' past performance references indicate proactive and
innovative contract performance with a stronger ability to handle
fluctuating workloads at multiple sites.  Their past
performance/performance risk references indicate Doss' ability to
form cohesive teams that will reduce the likelihood of problems in hiring,
training, and retaining skilled helicopter maintenance
personnel at multiple sites including sites at overseas locations. 
Agency Report, Tab 14, Proposal Analysis Report, at 19.
    
Thereafter, the SSA determined that Doss's proposal represented the best
value to the government, specifically concluding: 
    
Due to Doss Aviation's higher past performance rating and their lower risk
of contract non-performance, their offer is the best value to the
Government despite the [deleted] percent price difference[[5]].
.     .     .     .     .
The [deleted] percent difference in price is well worth the additional
price of Doss' proposal because their higher past performance rating
increases the likelihood of successful performance, reducing the labor
load of Government oversight on a daily basis.  This provides lower costs
for changes, resolving concerns earlier in the processes, at a lower
management level.  The cohesive teamwork of Doss ensures successful
mission accomplishment at multiple locations, including overseas with less
Government involvement and a more stable workforce.  Doss innovative style
provides a definite advantage in resolving issues at multiple sites with
substantial fluctuations in workload and makes them the best value
offeror.  Because Doss has a higher Performance Risk rating, they have a
lower possibility of performance failure which results in less Government
costs associated with solicitation re‑competition and change-over
costs.
Agency Report, Tab 13, Source Selection Decision Document, at 2.
    
On August 30, a contract was awarded to Doss.  This protest followed.
    
DISCUSSION
    
KAI first protests that the agency was required to give KAI a past
performance rating of [deleted], rather than [deleted], because *there is
nothing in KAI's past performance history to indicate that KAI cannot
successfully perform this contract.*[6]  Protest at 12.  Alternatively,
KAI asserts that there *is no logical rationale* for Doss's [deleted]
rating, maintaining that the agency applied unstated evaluation criteria
and complaining that *it is KAI's understanding that the vast majority of
Doss's experience is on fixed-wing aircraft.*  Protest at 13, 14.  In
short, KAI concludes that Doss *could not have been entitled to a higher
past performance rating than the rating KAI received.*  Protest at 14. 
    
Our Office will examine an agency's past performance evaluation to ensure
that it was reasonable and consistent with the stated evaluation criteria
and applicable statutes and regulations; however, the necessary
determinations regarding the relative merits of offerors' past performance
records are primarily matters within the contracting agency's discretion. 
Pacific Ship Repair and Fabrication, Inc., B-279793, July 23, 1998, 98-2
CPD P: 29 at 3-4.  In this regard, our Office will not question an
agency's determinations absent evidence that those determinations are
unreasonable or contrary to the stated evaluation criteria.  Id.
    
Here, the record shows that, in evaluating KAI's past performance, the
agency considered six prior KAI contracts which KAI had identified as
representative of the work to be performed.  Of these contracts, KAI's
past performance was rated [deleted] in two, [deleted] in three, and
[deleted] in one.  Agency Report, Tab 21, Summary of KAI Past Performance
Rating, at 3.  These ratings are supported by questionnaires submitted by
individuals who had been associated with KAI's performance of the various
contracts.  Id. at 35-117.  We have reviewed the substantial
contemporaneous evaluation record and find nothing unreasonable in the
agency's assessments.  Although KAI maintains that its performance under
each prior contract should have been rated as [deleted], we view its
arguments as reflecting mere disagreement with the agency's judgments.   
    
Similarly, in evaluating Doss's prior performance record, the agency
reviewed information regarding Doss's performance of three prior contracts
involving requirements similar to the requirements under this
solicitation.  Based on the past performance information the agency
obtained, including questionnaires submitted by personnel associated with
the prior contracts, Doss's past performance was reasonably rated
[deleted] for each contract.  Agency Report, Tab 23, Summary of Doss's
Past Performance Rating, at 3, 32-88. 
    
Although KAI complains that Doss should have received less than an
[deleted] due to KAI's *understanding* that *the vast majority of Doss
experience is on fixed-wing aircraft,* Protest at 14, KAI's arguments in
this regard are directly contrary to the solicitation provisions. 
Specifically, the solicitation advised offerors that experience with *both
helicopter and/or fixed wing aircraft* would be considered *similar* to
the requirements of this solicitation for purposes of the agency's past
performance evaluation.  Agency Report, Tab 8, RFP at 126.  Thus, it is
clear that the solicitation clearly contemplated consideration of
offerors' past performance with regards to both helicopter and fixed wing
aircraft.  
    
KAI also complains that the agency's consideration of Doss's *proactive
and innovative contract performance* and its *ability to form cohesive
teams* was improper because *neither 'proactive/innovative' management nor
'ability to form cohesive teams' is listed among the six past performance
evaluation factors.*  KAI Comments on Agency Report, Oct. 21, 2002, at
18.[7] 
    
As noted above, the solicitation specifically advised offerors that their
past performance records would be assessed with regard to various
criteria, including: support for missions demanding quick turnaround and
short notice, and fluctuating workloads at multiple sites.  Agency Report,
Tab 8, RFP at 126.  In our view, the agency's consideration of Doss's
prior *proactive and innovative contract performance* was clearly
appropriate under these specifically identified evaluation factors. 
Similarly, the solicitation advised that past performance would be
evaluated with regard to employee hiring and retention.  Id.  In
considering Doss's demonstrated ability to *form cohesive teams,* the
agency expressly noted that this ability *will reduce the likelihood of
problems in hiring, training and retaining skilled helicopter maintenance
personnel.*  Agency Report, Tab 14, Proposal Analysis Report, at 19.  Here
again, consideration of this aspect of Doss's past performance was, in our
view, clearly appropriate.  In summary, based on our review of the record
here, we find nothing unreasonable in the agency's evaluation of the
offerors' respective past performance records.
    
Finally, KAI asserts that the agency had no rational basis to view Doss's
higher past performance rating as more valuable than KAI's somewhat lower
price.  We disagree.
    
Source selection officials in negotiated procurements have broad
discretion to determine the manner and extent to which they will make use
of evaluation results; tradeoffs between price and non-price factors may
properly be made, subject only to the test of rationality and consistency
with the established evaluation factors. Creative Apparel Assocs.,
B-275139, Jan. 24, 1997, 97-1 CPD P: 65 at 6.
    
As discussed above, the agency considered, and documented, the manner and
extent to which Doss's higher rated past performance record would affect
the agency's expenditure of various resources during contract
performance.  Among other things, the SSA noted that the higher rating was
worth the additional price because the higher likelihood of successful
performance will likely *reduc[e] the labor load of Government oversight
on a daily basis [due to] resolving concerns earlier in the processes, at
a lower management level.*  Agency Report, Tab 13, Source Selection
Decision Document, at 2.  On the record here, we find no basis to question
the agency's tradeoff decision. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The specified locations were:  Malmstrom Air Force Base (AFB),
Montana; Minot AFB, North Dakota; Vandenburg AFB, California; F.E. Warren
AFB, Wyoming; and Yokota Air Base, Japan. 
[2] Offerors were directed to identify contracts they had recently
performed that had  requirements similar to the requirements here.  The
solicitation contained, as an attachment, a past performance questionnaire
that offerors were directed to provide to personnel capable of evaluating
their performance under those prior contracts. 
[3] As relevant here, the ratings, and accompanying definitions, were
identified as: *exceptional/high confidence,* reflecting *essentially no
doubt* that the offeror will successfully perform; and *very
good/significant confidence,* reflecting *little doubt* that the offeror
will successfully perform.  AFFARS S: 5315.305(a)(2).
[4] The proposals of the other offerors, and the agency's evaluation of
those proposals, are not relevant to this protest and are not further
discussed.
[5] Doss's price of [deleted] was [deleted] * or [deleted] percent *
higher than KAI's price of [deleted].
[6] KAI also lists various honors and awards it has received in connection
with its prior contract performance.  Protest at 12.
[7] Although KAI received the SSA's rationale, including the references to
Doss's *proactive/innovative contract performance* and *ability to form
cohesive teams,* prior to filing its September 9 protest, see Protest at
10, KAI failed to raise this issue until filing its October 21 comments on
the agency report.  Accordingly, although we find no merit in KAI's
assertion in any event, the matter is not timely raised.  Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(2) (2002).