TITLE: Eastern Colorado Builders, Inc., B-291332, December 19, 2002
BNUMBER: B-291332
DATE: December 19, 2002
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Eastern Colorado Builders, Inc., B-291332, December 19, 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: Eastern Colorado Builders, Inc.
File: B-291332
Date: December 19, 2002
Judith Ward Mattox, Esq., for the protester.
Clarence D. Long, III, Esq., Department of the Air Force, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency's evaluation of present/past performance is unobjectionable where
the record establishes that the evaluation was reasonable and consistent
with the stated evaluation factors; protester's mere disagreement with the
agency's conclusions does not render the evaluation unreasonable.
DECISION
Eastern Colorado Builders, Inc. (ECBI) protests the award of a contract to
Active Endeavors, Inc. (AEI) under request for proposals (RFP) No.
FA22550-02-R-0005, issued by the Department of the Air Force for flooring,
furniture, and protective coating services at Schriever Air Force Base,
Colorado. ECBI challenges the agency's evaluation of its and AEI's
present/past performance.
We deny the protest.
The RFP, issued May 1, 2002 as a small business set-aside, contemplated
the award of a fixed-price, indefinite-delivery, indefinite-quantity
contract for a base year, with 4 option years. The solicitation sought
proposals for three functional areas--design, procurement, and
installation of all types of office furniture; storage, inventory,
installation and repair of different types of flooring; and protective
coating maintenance services. Section M of the RFP listed three
evaluation factors--price, technical proposal and present/past
performance--and provided for award based on a performance/price tradeoff
among technically acceptable proposals, with present/past performance
being significantly more important than price. The present/past
performance evaluation was to include an assessment of relevance of
offerors' prior contracts; in making this assessment, the agency could
consider an offeror's contracts in the aggregate. Offerors' present/past
performance could be very relevant (contract involved the magnitude of
effort and complexities required under the RFP), relevant (less magnitude
of effort and complexities, including
most of what RFP required), semi-relevant (much less magnitude of effort
and complexities, including some of what the RFP required), or not
relevant. Additionally, as part of the present/past performance rating,
proposals were to be assigned an overall confidence assessment focusing on
three key performance parameters--quality of the service or product,
contract compliance, and resource management.
Four proposals, including AEI's and ECBI's, were received by the June 10
closing time. Both firms' proposals were rated technically acceptable,
and thus were also rated for present/past performance. AEI received an
exceptional/high confidence present/past performance rating, while ECBI
was rated only satisfactory/confidence. AEI's offered price was second
low at $9,558,756, and ECBI's was third low at $10,128,919. One of the
other two proposals was rated technically acceptable and very
good/significant confidence for present/past performance, and was the
lowest‑priced, at $9,417,739. The agency determined that AEI's
higher present/past performance rating offset the low offeror's price
advantage, and awarded the contract to AEI on September 5. Agency Report
(AR), Tab 18, Proposal Evaluation Report, at 11-12, and Tab 34, Notice of
Award, at 1.
ECBI alleges that the agency misevaluated the relevance of its prior
contracts and that, as a result, its present/past performance rating was
too low. Specifically, the protester notes that it provided present/past
performance questionnaires concerning a painting contract (relevant to
protective coatings), a flooring tile contract (relevant to flooring), and
a renovation contract (relevant to rehab/retrofit work). Protester's
Comments at 3. The protester concedes that it lacked direct experience
concerning the furniture portion of this contract, but notes that its
proposed subcontractor had this type of experience. Id. at 4.
The evaluation of proposals is a matter within the contracting agency's
discretion, since the agency is responsible for defining its needs and the
best method of accommodating them. KRA Corp., B-278904, B-278904.5, Apr.
2, 1998, 98-1 CPD
P: 147 at 7. Thus, in reviewing an agency's evaluation, we will not
reevaluate proposals, but will examine the record to ensure that the
evaluation was reasonable and in accordance with the stated evaluation
criteria and applicable procurement laws and regulations. Id.
The evaluation here was unobjectionable. The agency rated each prior
contract for relevance under seven different areas--furniture
installation, carpet installation, painting, program management, storage
and inventory, recency of the work (within 1 year) and dollar value (less
or greater than $1 million)--and then determined the overall relevance of
each contract. ECBI submitted 4 present/past performance questionnaires
covering its own performance, and 11 questionnaires covering its proposed
subcontractor's (Office Scapes) performance. The agency determined that
two of ECBI's present/past contracts were very relevant, but that two were
only semi-relevant. For the protester's subcontractor, the agency
determined that one contract was very relevant, two were relevant, and the
remaining eight were not relevant. Agency Report, Present/Past
Performance Questionnaires and Consolidated Relevance Grid, Tab 17, at
108-112. In contrast, AEI submitted 13 present/past performance
questionnaires; nine of these contracts were rated very relevant and four
were rated relevant.[1] AR, Present/Past Performance Questionnaires and
Consolidated Relevancy Grid, Tab 16, at 76-77. Based on ECBI's (and its
subcontractor's) low number of relevant and very relevant prior contracts,
the agency determined that only some of the protester's present/past
performance related to the work to be performed, and that its present/past
performance overall therefore was only semi-relevant. As a result,
although ECBI and its subcontractor received primarily very good and
exceptional ratings for the quality of their past performance, the agency
assigned ECBI a present/past performance evaluation rating of
satisfactory/confidence. Since AEI's relevance rating was high and its
quality ratings also were high, it received a present/past performance
evaluation rating of exceptional/high confidence.
We have examined the questionnaires and the agency's summary of its
determinations and find that ECBI's evaluation is supported by the
record. Specifically, the relevance rating forms show that the agency
indeed found that ECBI and its proposed subcontractor lacked substantial
past performance under most of the contracts rated for the two firms. We
note that, while ECBI points to experience in painting, flooring tile,
rehabilitation/retrofit and furniture work, the agency's relevance
determination methodology took into account, not only those areas, but
also program management, storage and inventory, recency of the work and
dollar value. ECBI simply was found to have relatively few present/past
contracts that involved work in the evaluated areas, and while the
protester argues generally that the agency misevaluated the relevance of
its past contracts, it does not point to any specific contract relevance
rating that it believes is incorrect. Under these circumstances, we have
no reason to object to the agency's determination that only some of the
protester's present/past performance was relevant, and warranted a
semi-relevant rating. This being the case, although ECBI and its
subcontractor received very good and exceptional ratings for the quality
of their past performance, we find nothing unreasonable in the agency's
rating ECBI only satisfactory/confidence for present/past performance, to
reflect its limited relevant experience.
The protester argues that the agency improperly evaluated AEI's
present/past performance because the awardee *has not performed services
on contracts of similar dollar magnitude,* and because the agency ignored
a default termination against AEI at Peterson Air Force Base. Protester's
Supplemental Comments, Nov. 11, 2002, at 2.
In order to have standing to protest a federal procurement, a protester
must be an interested party, that is, an actual or prospective offeror
whose direct economic interest would be affected by the award of, or the
failure to award, a contract. Bid Protest Regulations, 4 C.F.R. S:
21.0(a) (2002). A protester is not an interested party where it would not
be in line for contract award if its protest were sustained. Durocher
Dock & Dredge/Black & Veatch, A Joint Venture, B-280853, Nov. 24, 1998,
98-2 CPD P: 149 at 8. As noted above, a third offeror received a higher
present/past performance rating than ECBI and offered a lower price, and
ECBI does not challenge this intervening offeror's evaluation. Thus, that
offeror, not ECBI, would be in line for award if we found that the award
to AEI were improper. Accordingly, ECBI is not an interested party to
challenge AEI's evaluation. Id. at 8-9.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Although we refer to only one relevant rating for each offeror, the
record actually contains two relevance evaluation grids for both ECBI's
subcontractor and AEI, presumably prepared by two different evaluators.
In addition to the above results, on a second grid two of Office Scapes'
contracts were rated relevant, four were rated semi-relevant and the
others were rated not relevant. AR, Present/Past Performance
Questionnaires and Consolidated Relevancy Grid, Tab 17, at 105-106 and
111-112. On AEI's second grid, 12 of its contracts were rated very
relevant and one relevant. AR, Present/Past Performance Questionnaires
and Consolidated Relevancy Grid, Tab 16, at 76-77 and 79-81.