TITLE: Bella Vista Landscaping, Inc., B-291310, December 16, 2002
BNUMBER: B-291310
DATE: December 16, 2002
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Bella Vista Landscaping, Inc., B-291310, December 16, 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: Bella Vista Landscaping, Inc.
File: B-291310
Date: December 16, 2002
Michael A. Gordon, Esq., and Susan E. Hughes, Esq., Holmes, Schwartz &
Gordon, for the protester.
Timothy H. Power, Esq., for Maintenance Engineers, Inc., the intervenor.
Clarence D. Long, III, Esq., and Michaelisa T. Lander, Esq., Department of
the
Air Force, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest of award to offeror that submitted lower-rated, lower-priced
proposal in commercial services procurement for grounds maintenance
services is denied where record shows evaluation and source selection were
reasonable and consistent with evaluation scheme in which price and
performance risk were considered approximately equal in importance; agency
was neither required to give additional evaluation credit to protester for
its performance as incumbent, nor to award on the basis of protester's
superior performance risk rating where agency reasonably determined
payment of associated cost premium was not warranted in light of awardee's
lower proposed price and favorable performance risk rating.
DECISION
Bella Vista Landscaping, Inc. protests the award of a contract to
Maintenance Engineers, Inc. (MEI) under request for proposals (RFP) No.
F05611-010-R-0325, issued as a small business set-aside by the Department
of the Air Force for grounds maintenance and landscaping services at the
United States Air Force Academy. Bella Vista, the incumbent grounds
maintenance contractor at the Academy, contends that the source selection
was unreasonable and inconsistent with the RFP's evaluation criteria.
Bella Vista contends that, in light of its successful performance of
grounds maintenance services at the Academy, its proposal, with a superior
performance risk rating and slightly higher price than the awardee's,
should have been found to have offered the best value to the agency.
We deny the protest.
The RFP, which contemplated the award of a fixed-price contract for a base
year and four 1-year option periods, was issued as a commercial services
procurement. The streamlined evaluation scheme set forth in the RFP
provided two evaluation factors for award, past performance and price;
award was to be made to the offeror determined to have submitted the most
advantageous proposal considering the two approximately equal factors.
The RFP recognized the agency's right to award to a higher-priced offeror
with a better performance risk rating if a performance risk/price tradeoff
supported the award; in this regard, price and performance risk would be
*traded off, one against the other* to determine which proposal offered
the best value to the agency. RFP amend. 1 at 5-6. The RFP provided that
the best value assessment was to be based upon *the price proposed and the
performance risk rating assigned.* Id.
In assigning a performance risk rating, evaluators were to consider the
quality and extent, including complexity, of the offeror's relevant past
performance. The RFP did not require offerors to demonstrate successful
performance of each individual service called for under the RFP or to show
successful performance of the identical services required at the Academy
in order to be rated highly for past performance. The type of relevant
experience that could demonstrate an offeror's ability to successfully
perform the required services was broadly defined in the RFP, as follows:
Relevant experience includes, but is not limited to, grounds maintenance
and landscaping services, including care of approximately 2,800 acres of
improved & semi-improved grounds, 472,000 linear feet of sidewalks, curbs
and driveways, 35,700 trees and shrubs, and 278 rock beds. Similar scope
will reflect a similar magnitude of approximately $1 million per year.
Id. at 6 (emphasis added). The RFP explained that *the purpose of the
evaluation is to make an assessment of the government's confidence in the
offeror's ability to perform the contract, that is, to assess the level of
risk the Government will incur if an offeror is awarded the contract.*
Id. at 6-7.
The following six ratings were available under the RFP's evaluation scheme
to identify the level of perceived risk in each offeror's performance:
exceptional/high confidence (*essentially no doubt* exists that the
offeror will successfully perform the required effort); very
good/significant confidence (*little doubt exists* that the offeror will
successfully perform the required effort); satisfactory/confidence (*some
doubt exists* that the offeror will successfully perform the required
effort); neutral/unknown confidence (where no performance record was
identified, performance risk was to be rated neither favorably nor
unfavorably); marginal/little confidence (*substantial doubt exists* that
the offeror will successfully perform the required effort); and
unsatisfactory/no confidence (*extreme doubt exists* that the offeror will
successfully perform the required effort). Id. at 7. The performance
risk assessment was to be a subjective, unbiased judgment about the
quality of an offeror's past performance. Offerors were advised, however,
that the agency might limit the number of references that would be
contacted or reviewed during the evaluation and that references other than
those cited by the offeror could be contacted. Id. at 6.
Proposals and final revised proposals were received and reviewed. The
lowest-priced proposal (at $4,096,065) was rated as neutral for
performance risk. The second lowest-priced proposal (at $5,082,600),
submitted by the awardee, MEI, was rated as very good for performance
risk. The third lowest-priced proposal (at [deleted]), submitted by Byrd
Enterprises Unlimited, was rated as exceptional for performance risk. The
protester's proposal (at [deleted]), the fourth lowest-priced offer
received, was also rated as exceptional for performance risk. Numerous
additional proposals were received at higher prices; these proposals
received performance risk ratings ranging from satisfactory to
exceptional.
A performance risk/price tradeoff was conducted to compare proposal prices
and performance risk ratings. MEI's proposal--the second lowest-priced
with a *very good* performance risk rating--was found preferable to the
lowest-priced proposal, which had received a neutral performance risk
rating. Similarly, MEI's lower price, in conjunction with its favorable
performance risk rating of very good (i.e., representing *little doubt* of
successful performance), was then determined to offer better value than
Byrd's slightly higher-priced offer, which had received a performance risk
rating of exceptional.[1] In its tradeoff analysis, the agency reasoned
that there was only a slight difference in performance risk between the
two highest
performance risk ratings available under the RFP's evaluation
scheme--exceptional, for use where there was essentially no doubt of
successful performance, and very good, for use where there was little
doubt of successful performance. The agency determined that both ratings
(exceptional and very good) demonstrated an appropriate level of ability
at an acceptably low level of risk regarding the likelihood of the
offeror's successful performance of the work.[2] In light of the low risk
associated with both a *very good* performance risk rating (as received by
the MEI proposal) and an *exceptional* rating (as received by the next
higher-priced offeror, Byrd), the agency determined that award at a higher
price for a slightly higher performance risk rating of exceptional was not
warranted. Having traded price against performance risk rating, the
agency determined that MEI's proposal (at a price approximately [deleted]
percent lower than Byrd's and [deleted] percent lower than Bella Vista's),
offered the best value to the agency; award was subsequently made to MEI.
After its debriefing, Bella Vista filed this protest.
Bella Vista contends that the only reasonable source selection
determination the agency could have made here would have been to award the
contract to Bella Vista. The protester argues that, in light of its
successful 10-year incumbent contractor experience, which Bella Vista
contends must be the most relevant of any offeror's past performance
experience, it should be afforded additional credit in the evaluation and
performance risk price tradeoff. As such, Bella Vista argues that its
exceptional performance risk rating should not only be considered stronger
than MEI's very good rating, but better than Byrd's or any other offeror's
exceptional rating. Additionally, despite the RFP's direction that any
performance risk/price tradeoff was to assess prices proposed against
performance risk ratings assigned, Bella Vista argues that the tradeoff
instead should have considered the protester's experience (and not only
its rating) performing the Academy's *unique* landscaping requirements.
In reviewing a protest against an agency's evaluation of proposals and
award, including tradeoff determinations, we examine the record to
determine whether the agency's judgment was reasonable and consistent with
the solicitation's evaluation criteria and applicable statutes and
regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18,
2000, 2000 CPD P: 132 at 4. An agency may properly select a lower-rated,
lower-priced proposal where it reasonably concludes that the cost premium
involved in selecting a higher-rated proposal is not justified in light of
the acceptable level of technical competence available at a lower price.
Walsh Distribution, Inc.; Walsh Dohmen Southeast, B-281904,
B‑281904.2, Apr. 29, 1999, 99-1 CPD P: 92 at 8. A protester's mere
disagreement with the agency's determinations as to the relative merit of
competing proposals and its judgment as to which proposal offers the best
value to the agency, does not establish that the evaluation or source
selection was unreasonable. Weber Cafeteria Servs., Inc., B-290085.2,
June 17, 2002, 2002 CPD P: 99 at 4. Our review of the record here
supports the reasonableness of the agency's evaluation, tradeoff and
award, which were consistent with the solicitation's evaluation scheme.
As an initial matter, we note that the protester's argument that the RFP's
landscaping requirements are unique is misplaced. This was a commercial
services procurement for landscaping and grounds maintenance services
readily available in the commercial marketplace. Bella Vista did not
challenge the agency's determination of the commerciality of the
requirements prior to the closing time for submission of proposals and it
is untimely to do so now. See Bid Protest Regulations, 4 C.F.R.
P: 21.2(a)(1) (2002). In any event, our review of the record indicates
that Bella Vista itself now concedes that the high level of performance of
grounds maintenance at the Academy is not necessarily unique, as the firm
acknowledges that the Academy's high standards for the grounds work are
similarly required at other high-visibility facilities. Protester's
Comments at 3.
Bella Vista argues that it must be granted additional credit for its
successful performance as the incumbent contractor of the required grounds
maintenance services. We disagree. The RFP did not require each offeror
to demonstrate experience with identical services, or that the offeror's
relevant, similar work have been performed at the Academy; and no special
consideration was to be granted under the RFP for the incumbent
contractor's experience beyond consideration of that past performance to
assign an adjectival performance risk rating to the proposal. In short,
the RFP simply did not provide for the incumbent contractor preference
Bella Vista now advocates.[3]
Bella Vista does not persuasively challenge the propriety of the *very
good* past performance risk rating assigned to the MEI proposal. Although
the protester alleges that it has more relevant experience than the
awardee, given the relatively strong past performance record for MEI
(which the protester does not specifically challenge), we have no basis to
question the very good rating assigned to that offeror's performance
risk.[4] Further, as to the contention that Bella Vista has more
relevant experience than MEI, having performed the work at the actual site
solicited under the RFP, our review of the record shows that the
protester's proposal was properly credited for that experience, as
reflected in its past performance risk rating of exceptional.
As noted above, in making the award decision, the agency conducted a
tradeoff between MEI's proposal and the proposal submitted by Byrd. Like
Bella Vista, Byrd had received an exceptional performance risk rating and
offered a lower price than Bella Vista. Based on that tradeoff, the
agency selected MEI's proposal, which had received a very good performance
risk rating and was lower in price than Byrd's. Bella Vista essentially
contends that its proposal--specifically, its incumbent contractor
experience--was required to be considered in any tradeoff here because its
experience as the incumbent (which was the basis for its exceptional
rating) distinguishes it from other offerors, including Byrd, who also
received exceptional ratings. We rejected above the protester's argument
that the agency should have given additional evaluation credit under the
RFP to Bella Vista's incumbent contractor performance; the RFP did not
provide for such additional credit. Likewise, we reject Bella Vista's
argument that the agency was required to give additional consideration to
its incumbent contractor experience during the tradeoff analysis.
We cannot agree with the protester that the agency was required to do more
than it did in trading off MEI's lower price (at a very good rating)
against the offer (from Byrd) with the closest price and the highest past
performance rating, exceptional. Since Bella Vista's proposal likewise
received an exceptional rating, its proposal rating was, in effect,
represented in the tradeoff analysis. That analysis concluded with a
determination by the agency that, in light of the limited impact of the
difference between the two low risk ratings of very good and exceptional,
payment of the associated price premium for award on the basis of an
exceptional performance risk rating would not be warranted.[5] The
protester does not provide, and our review of the record does not suggest,
any basis to question the reasonableness of that tradeoff or the award to
MEI on the basis of its slightly lower-rated, lower-priced proposal.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The Byrd proposal, rated exceptional for performance risk, was priced
[deleted] higher than the MEI proposal; the Bella Vista proposal, also
rated exceptional for performance risk, was [deleted] higher than MEI's
proposal.
[2] To the extent Bella Vista challenges the agency's determination that
the difference between the two highest ratings is slight, by arguing that
the RFP's use of multiple performance risk ratings indicates that there
must be a distinct, substantial difference in risk between each rating, we
do not find the argument persuasive. On the contrary, we believe the
RFP's inclusion of multiple ratings indicates that the difference between
ratings is reasonably limited; with multiple available ratings, covering a
limited range of proposal merit, the magnitude of the qualitative
difference between ratings logically decreases.
[3] To the extent Bella Vista contends that the solicitation should have
included additional consideration of past performance as the incumbent,
its protest is untimely, since it concerns an alleged impropriety apparent
from the face of the RFP and was not raised prior to the closing time for
submission of proposals. 4 C.F.R. S: 21.2(a)(1).
[4] To the extent the protester generally argues for the first time in its
comments that *upon information and belief* MEI has had past performance
problems at a facility not referenced in its proposal, the allegation
provides insufficient basis to question the evaluation--in addition to
constituting an improper piecemeal presentation of protest contentions,
the unsupported allegation does not provide sufficient evidence to
constitute a valid basis of protest for review. 4 C.F.R. S:S: 21.1(c)(4)
and (f); Federal Computer Int'l Corp.--Recon., B‑257618.2, July 14,
1994, 94-2 CPD P: 24 at 1‑2. As to Bella Vista's contention that
the awardee's proposal failed to demonstrate the extent of its experience
with several tasks required to be performed under the RFP, we note that,
as stated above, the RFP did not require a demonstration of all tasks
required under the RFP, especially, as in the case of MEI, where there has
been a showing of substantial similar experience at other military
installations at which the contractor received strong commendations.
[5] To the extent the protester contends that the solicitation required
the evaluators to independently obtain additional past performance data,
we note that, as discussed above, the RFP specifically advised offerors
that such independent investigation, if any, could be limited. In other
words, the RFP provided that, although the agency could pursue additional
information, it reserved the right to limit its investigation and review.
Similarly, to the extent the protester argues that it recently learned
potentially adverse past performance information about Byrd which had not
been submitted to the agency in this procurement--and thus that Byrd's
exceptional rating was not warranted, and, by extension, the tradeoff
between Byrd's and MEI's proposals was flawed--this argument does not
demonstrate that the evaluators acted unreasonably during the current
procurement or that the source selection would be changed in any material
way. We see nothing in the contemporaneous evaluation record that
reasonably should have put the evaluators on notice of any questionable
past performance information relevant to their evaluation. Barring a
showing that the agency evaluators were required to pursue, or should have
known and considered, the past performance information in question at the
time of their evaluation, we see no reason to consider this issue
further. Further, even eliminating Byrd's proposal and substituting Bella
Vista's proposal in the tradeoff, there is no basis to conclude that the
agency's decision to select MEI would have been different, given that
Bella Vista, like Byrd, had an exceptional rating but offered an even
higher price than Byrd.