TITLE: Kira, Inc.; All Star Maintenance, Inc., B-291507; B-291507.2, January 7, 2003
BNUMBER: B-291507; B-291507.2
DATE: January 7, 2003
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Kira, Inc.; All Star Maintenance, Inc., B-291507; B-291507.2, January 7, 2003
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: Kira, Inc.; All Star Maintenance, Inc.
File: B-291507; B-291507.2
Date: January 7, 2003
Alan M. Grayson, Esq., and James A. McMillan, Esq., Grayson, Kubli &
Hoffman, for Kira, Inc., and Mitchell W. Quick, Esq., Michael Best &
Friedrich, for All Star Maintenance, Inc., the protesters.
Timothy H. Power, Esq., for Dellew-PEMCO JV, an intervenor.
John D. Inazu, Esq., and C. Gordon Jones, Esq., Department of the Air
Force, for the agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where proposals were reasonably evaluated as technically equal in the area
of past performance (the only technical evaluation factor), agency
reasonably selected for award the proposal of the firm proposing the
lowest price.
DECISION
Kira, Inc. and All Star Maintenance, Inc. protest the award of a contract
to Dellew‑PEMCO JV, under request for proposals (RFP) No.
F64605-02-R-0003, issued by the Department of the Air Force for
maintenance services in support of over 2,200 military family housing
units at the Kaneohe Marine Corps Air Base, Hawaii. Kira and All Star
challenge the evaluation of Dellew's past performance.
We deny the protests.
The RFP, issued on June 5, 2002, contemplated the award of a fixed-price
requirements contract to the responsible offeror whose proposal was
determined to represent the best overall value to the government,
considering past performance and price, which were approximately equal in
importance. With respect to the past performance evaluation factor, the
RFP stated that the agency would assess an offeror's past performance *as
a prime [contractor] or subcontractor on requirements of similar scope and
magnitude.* The RFP defined *scope and magnitude* in terms of the recency,
currency, and relevance of a firm's past performance. RFP at 57-58. The
RFP required an offeror to provide references for similar military family
housing maintenance requirements performed either as a prime contractor or
subcontractor, while reserving the right of the agency to limit the number
of references actually reviewed and/or consulted. The RFP provided
that the offeror's past performance would be evaluated in the areas of
quality of service, schedule, business relations, and management of key
personnel. An offeror's past performance could receive one of the
following ratings: outstanding/high confidence, very good/significant
confidence, satisfactory/confidence, neutral/unknown confidence,
marginal/little confidence, and unsatisfactory/no confidence. As relevant
here, the RFP defined the outstanding/high confidence rating as *[b]ased
on the offeror's performance record, essentially no doubt exists that the
offeror will successfully perform the required effort.* RFP at 59. With
respect to price, the RFP stated that an offeror's price would be
evaluated for reasonableness. Id. Finally, the RFP advised that the
agency intended to award the contract without conducting discussions.
Six firms, including Kira, All Star (the incumbent contractor), and Dellew
(as teamed with PEMCO), submitted proposals by the closing time on July
15. Dellew submitted references for military family housing maintenance
contracts it had been awarded at Wright‑Patterson Air Force Base
(AFB), Ohio (2,600 military family housing units) and Langley AFB,
Virginia (1,253 units). As relevant to these protests, the government's
standard form contract documents (copies of which were included in
Dellew's proposal) show that both of the referenced contracts had been
awarded to *Dellew Corporation* as the prime contractor. As part of its
proposal, Dellew included the statement of work for each of the referenced
contracts; under each contract, Dellew was required to provide, among
other things, management, supervision, and other services necessary to
perform military family housing maintenance requirements.
For its contract at Wright‑Patterson AFB, Dellew also included in
its proposal documentation addressed to the firm from the assistant to the
base commander showing that for a 6‑month period, Dellew's overall
performance had been considered *very good,* defined as *consistently
above standard and exceed[ing] the standard in many tasks.* Dellew
received a 70-percent award fee for its *noteworthy accomplishments*; the
assistant also commented that the agency was *very pleased with the
present local management, Program Manager, Assistance Program, and Quality
Control Manager[, and that Dellew] continue[s] to have good performance on
Change of Occupancies and Quality of Work.* Dellew's Past Performance
Proposal, Memorandum from the Base Commander's Assistant at
Wright‑Patterson AFB to Dellew, May 9, 2002. Dellew also included
documentation of contract discrepancy reports (CDR) issued to it under its
Wright‑Patterson contract (e.g., CDRs in the areas of data entry
input for job orders (request date, scheduled start date, and completion
date); timeliness of job completions and missing appointments, and number
of extensions; and current and updated master appliance list. The
assistant to the base commander characterized the CDRs, except those
involving the master appliance list, as *minor . . . simply requir[ing]
more noteworthy management oversight.* Id.
For its contract at Langley AFB, Dellew reported that no CDRs were
issued. Dellew included in its proposal a letter of appreciation
addressed to the firm from Langley's Quality Assurance Manager, in which
he expressed, among other things, his *gratitude for the outstanding
support . . . provided by . . . [the] project and assistant project
managers.* The quality assurance manager continued by stating that these
two individuals were *by far, the best managerial team . . . [Langley AFB
has] had the pleasure of working with since . . . 1994[,] the date of
[Langley's] first contract, with the original maintenance corporation.*
Dellew's Past Performance Proposal, Letter of Appreciation from Quality
Assurance Manager at Langley AFB to Dellew, Mar. 27, 2001. The quality
assurance manager also stated that Dellew's two managers were very
dedicated and committed, extremely competent and efficient, and more job
knowledgeable than any of the previous contractor management teams; he
pointed out that he *very seldom receive[d] customer complaints[, and]
when [he did,] they [were] usually not legitimate.*
Id.
In evaluating Dellew's past performance, the evaluators noted as strengths
the firm's 70-percent award fee at Wright-Patterson AFB and that Dellew
consistently exceeded quality of service standards; that the firm
established strong working/partnering relationships with the government;
and in terms of managing key personnel, Dellew was responsive to ensure
effective project management. The only noted weakness in Dellew's past
performance involved the referenced CDRs, which the evaluators ultimately
determined were minor in nature. AR, Tab 8, Evaluation Team Report for
Dellew, Aug. 9, 2002, at 7-8.
More specifically, regarding these CDRs, the evaluators consulted the
contract administrator at Wright-Patterson AFB, who confirmed that while
Dellew had 22 CDRs, this was not, in her view, an indication of Dellew's
actual performance because the government played a role in the issuance of
several (14) of the CDRs. For example, in the area of playground
maintenance, the contract administrator reported that the government's
performance standard was considered unreasonable and unrealistic and
subsequently was revised to more accurately reflect the agency's needs.
In another example, the contract administrator reported that because the
government had failed to timely provide appliance repair listing
information, Dellew was not entirely responsible for performance problems
in this area. The contract administrator pointed out that Dellew was very
responsive, as evidenced by the fact that the firm replaced the project
manager, thus alleviating performance problems. Overall, the contract
administrator reported that she was very satisfied with Dellew's
performance at Wright-Patterson AFB. Id.
In considering the past performance information as reported by the
contract administrator at Wright‑Patterson AFB, the evaluators
determined that those CDRs based on unreasonable and unrealistic
performance standards and those CDRs generated where the government was a
cause of performance problems did not constitute weaknesses in Dellew's
past performance. With respect to the eight other CDRs (involving, for
example, service call job orders, fan coil cleaning defects, the failure
to request an extension due to parts being ordered, a service call delay
due to the inability to contact a resident, a gutter downspout inspection,
the failure to note tenant availability, and a service call extension
request), the evaluators determined that these performance problems were
minor, given the breadth of the contract environment, where Dellew was
required to maintain 19 General Officer's Quarters (characterized by the
evaluators as *an exceptionally high number,* placing high demands on a
contractor and requiring maximum contractor flexibility in order to meet
the government's needs). In addition, the award fee documentation
indicated that Dellew exceeded requirements in several areas. Finally,
noting that Dellew's reference from Langley AFB reported no performance
problems or issues, the evaluators concluded that the CDRs did not reflect
a pattern of nonperformance by Dellew. On this record, the evaluators
assigned an outstanding/high confidence rating to Dellew's proposal in the
area of past performance. Id.
With respect to Kira, the agency contacted references at the Naval Air
Station Lemoore, California (1,500 military family housing units), Keesler
AFB, Mississippi (1,950 units) and Altus AFB, Oklahoma (970 units). The
evaluators noted the following past performance strengths for Kira: Kira
provided exceptional customer service and earned a 100‑percent award
fee; the firm exceeded schedule requirements; the firm established strong
working/partnering relationships with the government; and the firm had
exceptional project managers. The evaluators pointed out that Kira's
references reported that the firm was very capable and consistently met
contract requirements, exceeding requirements in some areas as
demonstrated by its earning a 100-percent award fee. The evaluators noted
no weaknesses in Kira's proposal and assigned an outstanding/high
confidence rating to Kira's proposal in the area of past performance. AR,
Tab 8, Evaluation Team Report for Kira, Aug. 9, 2002, at 6.
With respect to All Star, the agency contacted references at Kaneohe
(2,608 military family housing units), Fort Lewis, Washington (3,639
units), and Hickam AFB, Hawaii (2,662 units). The evaluators noted the
following past performance strengths for All Star: All Star earned the
maximum award fee and provided excellent quality service; the firm
established strong working/partnering relationships with the government;
and the firm had excellent project managers. [Deleted] the evaluators
assigned an outstanding/high confidence rating to All Star's proposal in
the area of past performance. AR, Tab 8, Evaluation Team Report for All
Star, Aug. 9, 2002, at 10.
In terms of price, Dellew submitted the low price; Kira's price was
approximately [deleted] percent higher than Dellew's price and All Star's
price was approximately [deleted] percent higher than Dellew's price.
Agency Report (AR), Tab 9, Source Selection Decision Document, at 5-6.
The source selection authority considered the strengths in each offeror's
proposal that resulted in the outstanding/high confidence past performance
ratings, determining that the proposals were technically equal and that
Dellew's low price meant that its proposal represented the best value to
the government. Accordingly, the agency awarded a contract (without
conducting discussions) to Dellew.
Kira and All Star challenge as unreasonable the outstanding/high
confidence rating assigned to Dellew's proposal in the area of past
performance. The protesters acknowledge that Dellew, a small business,
was the named prime contractor under its contracts at Wright-Patterson AFB
and Langley AFB. Kira's Protest, Oct. 9, 2002, at 6; All Star's Comments,
Dec. 2, 2002, at 5. The protesters also point out that under these
contracts, Dellew was a protege of B-MAR, a large business and mentor to
Dellew.[1] In this regard, the protesters allege that it was actually
B-MAR, not Dellew, that successfully performed the requirements under the
referenced contracts and, accordingly, the agency here unreasonably
credited Dellew with B-MAR's favorable record of past performance.
In reviewing a protest against an agency's proposal evaluation, we will
consider whether the evaluation was reasonable and consistent with the
terms of the solicitation and applicable statutes and regulations. CWIS,
LLC, B-287521, July 2, 2001, 2001 CPD P: 119 at 2. We conclude that the
agency's evaluation of Dellew's past performance was reasonable and in
accordance with the terms of the RFP.
Here, the RFP stated that the agency would assess an offeror's past
performance as either a prime contractor or subcontractor on requirements
of similar scope and magnitude, defined in terms of recency, currency, and
relevance. The record shows that Dellew's contracts at Wright-Patterson
AFB and Langley AFB were recent (both contracts were awarded to Dellew as
the prime contractor in 2000), current (at the time of proposal
submission, Dellew was performing as the prime contractor under the
options exercised by the government under each of the referenced
contracts), and relevant (both contracts were for the performance of
military family housing maintenance requirements).[2] While Dellew
performed as a protege of B‑MAR under a government-sponsored
program, this relationship is irrelevant, as it did not negate Dellew's
status as the prime contractor ultimately responsible for all aspects of
contract performance under both contracts. This point is supported by the
facts, as detailed above, showing that Dellew, not its mentor, was named
as the contract awardee in the government's standard form contract award
documents (as acknowledged by the protesters) and Dellew, not its mentor,
received the contract award fees, the CDRs,[3] and the favorable
performance comments and letter of appreciation. Moreover, the record
shows that Dellew's references, as consulted by the agency, did not
mention B-MAR; rather, these references commented favorably upon Dellew's
performance as the prime contractor.
In these circumstances, where the agency reasonably evaluated Dellew's
past performance as the prime contractor under two military family housing
maintenance contracts in accordance with the terms of the RFP, we have no
basis to question the selection of Dellew's technically equal, low-priced
proposal for award.
The protests are denied.[4]
Anthony H. Gamboa
General Counsel
------------------------
[1] Dellew and B-MAR worked together at Wright-Patterson AFB and Langley
AFB pursuant to the Small Business Administration's (SBA)
Mentor‑Protege Program. This SBA program is designed to encourage
approved mentors to provide various forms of assistance (e.g., technical
and contract management assistance, financial aid in the form of equity
investments and/or loans, and subcontract support) to eligible protege
participants in order to enhance the capabilities of the proteges and to
improve their ability to successfully compete for federal contracts. The
amount of work performed by a protege under this type of arrangement is
governed by a written agreement between the protege and mentor, which is
approved by the SBA. For a detailed discussion of this program, see
http://www.sba.gov/8abd/indexmentorprogram.html.
[2] For all offerors, in terms of magnitude, the agency generally
considered maintenance of at least 1,000 military family housing units to
be similar to the requirements of this RFP. AR, Tab 8, Evaluation Team
Report, at 1. Thus, contrary to the protesters' assertion, we believe
that the agency reasonably evaluated as similar Dellew's past performance
at Langley AFB, which involved the maintenance of 1,253 military family
housing units.
[3] The protesters complain that the agency unreasonably characterized as
minor eight of the CDRs issued to Dellew under its contract at
Wright‑Patterson AFB. The record shows, however, that the agency
reasonably concluded that these CDRs were minor after consulting with the
contract administrator at Wright-Patterson AFB and after considering its
requirements under this RFP. Although the protesters disagree with the
agency's assessment of these CDRs, such disagreement does not mean that
the evaluation was not reasonable. A protester's mere disagreement with
the agency's judgment is not sufficient to establish that the agency acted
unreasonably. Birdwell Brothers Painting & Refinishing, B-285035, July 5,
2000, 2000 CPD P: 129 at 5.
[4] The protesters have raised other collateral issues and arguments, each
of which we have considered and find without merit.