TITLE:  Wadsworth Builders, Inc., B-291633, January 24, 2003
BNUMBER:  B-291633
DATE:  January 24, 2003
**********************************************************************
Wadsworth Builders, Inc., B-291633, January 24, 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:    Wadsworth Builders, Inc.
    
File:             B-291633
    
Date:              January 24, 2003
    
Michael B. Galletch, Esq., Barokas Martin & Tomlinson, for the protester.
John D. Inazu, Esq., and Nancy Anderson Sinclair, Esq., Department of the
Air Force, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Protest of past performance evaluation is denied where record supports
agency's rating of protester's past performance, including its
determination regarding which contracts were recent and relevant within
the meaning of the solicitation.  To the extent that one prior contract
should have been considered relevant but was not, the protester was not
prejudiced as a result, given that the record shows no reasonable
possibility that the agency would have rated protester's past performance
more favorably had this contract been considered.
DECISION
    
Wadsworth Builders, Inc. protests the award of a contract to Falls
Construction Company under request for proposals (RFP) No.
F24604-02-R-0045, issued by the Department of the Air Force for the
replacement of gas lines in Capehart Military Family Housing at Malmstrom
Air Force Base (AFB), Montana.  The protester contends that the agency
misevaluated both offerors' past performance.
    
We deny the protest.
    
The RFP, which was issued on August 8, 2002, contemplated the award of a
fixed-price contract to the offeror whose proposal represented the best
value to the government, price and past performance considered.  The
solicitation provided that in the award determination, the two factors
would be of approximately equal weight.
    
Four offerors submitted proposals prior to the September 9 closing date. 
After reviewing offerors' past performance information, the evaluators
assigned the following ratings:
    

   +------------------------------------------------------------------------+
|Offeror       |Past Performance/ Performance Risk Rating   |Price       |
|              |                                            |            |
|--------------+--------------------------------------------+------------|
|Falls         |Exceptional/Hign Confidence                 |$226,810    |
|--------------+--------------------------------------------+------------|
|Wadsworth     |Satisfactory/Confidence                     |$207,600    |
|              |                                            |            |
|--------------+--------------------------------------------+------------|
|Offeror A     |Satisfactory/Confidence                     |$310,623    |
|--------------+--------------------------------------------+------------|
|Offeror B     |Very Good/Significant Confidence            |$324,195    |
+------------------------------------------------------------------------+

    
The contracting officer determined that the difference between Falls' and
Wadsworth's past performance ratings outweighed the difference of
approximately
8 percent in their prices and that Falls' proposal therefore represented
the best value to the government.  On September 28, the agency awarded a
contract to Falls.
    
The protester objects to the agency's evaluation of both its own and
Falls' past performance.  Specifically, the protester contends that in
evaluating Falls' past performance, the Air Force improperly considered a
contract on which Falls had not yet completed performance.  Wadsworth
further argues that in evaluating its own past performance, the agency
failed to consider recent, relevant contracts that it had performed and
rated its performance under one contract less favorably than warranted.
    
Where a solicitation requires the evaluation of offerors' past
performance, we will examine an agency's evaluation only to ensure that it
was reasonable and consistent with the stated evaluation criteria, since
determining the relative merits of offerors' past performance information
is primarily a matter within the contracting agency's discretion.  Thomas
Brand Siding Co., Inc., B-286914.3, Mar. 12, 2001, 2001 CPD P: 53 at 4.
    
The RFP provided that in evaluating offerors' past performance, the agency
would consider contracts for similar work that were current or had been
completed within the past 3 years.  RFP S: L-505(b)(1)(c).  The
solicitation further provided that the agency would obtain past
performance information from offerors' proposals, the Construction
Contractor Appraisal Support System (CCASS) (a centralized, automated
database of performance evaluations on construction contractors), the Past
Performance Retrieval System, documentation filed with the 341st
Contracting Squadron (the contracting activity here), and data
independently obtained from government and commercial sources.  RFP S:
M-2.b.
    
In evaluating Falls' past performance, the contracting officer considered
four contracts performed by Falls that she determined to be both recent
and relevant. 
On two of the contracts, Falls received overall ratings of very good,
while on the

   other two, it received ratings of outstanding/exceptional.  All four
projects involved underground utilities, and two of the four were gas line
projects similar in scope and complexity to the project here.  Acquisition
Memorandum at 4.
    
Wadsworth argues that the agency should not have considered one of the
above contracts--a project identified on the evaluation worksheet for
Falls as *Drainage Restoration at Missile Launch Facility,* for which
Falls received a rating of outstanding--because the performance evaluation
questionnaire completed by the contract administrator for this project
indicates that performance is not expected to be completed until October
31, 2003.  The protester contends that because the project has yet to be
completed, the agency should not have taken it into account in determining
Falls' overall past performance rating, and that had the project not been
considered, the agency would have assigned Falls a rating of very good
rather than a rating of exceptional.
    
While the protester contends that the agency should have considered only
completed contracts in its evaluation, as noted above, the RFP provided
for consideration of both current and completed contracts.  Accordingly,
we see nothing inappropriate in the agency's having considered Falls'
performance under this ongoing contract.  As a consequence, we have no
basis upon which to question the agency's assignment to Falls of a past
performance rating of exceptional.
    
In evaluating Wadsworth's past performance, the agency considered only one
contract:  a contract to upgrade the missile alert facility at Malmstrom
AFB completed on September 30, 2001, on which the protester received a
performance rating of satisfactory.  The contracting officer identified
five other contracts completed by the protester, but determined that three
of the five should not be considered because, while recent, they were not
relevant, and that one should not be considered because, while relevant,
it was not recent.  The contracting officer did not consider the fifth
contract because, although she considered it both recent and relevant, she
was unable to obtain a reference regarding the protester's performance on
it in a timely manner.[1]
    
The protester argues that the Air Force should have rated its performance
on the missile alert facility upgrade as better than satisfactory. 
Wadsworth further argues that the contracting officer incorrectly found
one of its recent contracts to be not relevant and one of its relevant
contracts to be not recent.  The protester contends that had the
contracting officer properly considered the above contracts, she would
have assigned Wadsworth an overall past performance rating of very good
rather than satisfactory.
    
Regarding the missile alert facility upgrade contract at Malmstrom AFB,
Wadsworth argues that the project was divided into two phases, and that
its performance on each phase was separately evaluated.  The protester
maintains that it received a rating of very good/outstanding[2] on the
first phase and a rating of satisfactory on the second, and that taking
the two ratings into account, the Air Force should have rated its overall
performance on the contract as very good.
    
While it is clear that the first evaluation of Wadsworth's performance on
the missile alert facility upgrade project pertained to only its first
phase of performance (the evaluation form identifies the evaluation as
*interim 50%*), contrary to the protester's argument, there is no
indication that the second evaluation pertained to only its second phase
of performance; instead, the second evaluation form indicates that the
evaluation was a *final* one, encompassing the entire period of
performance.  Thus, the record does not support the protester's argument
that the evaluations pertained to two independent phases of contract work
and should have received equal weight in the evaluation.
    
Furthermore, it is apparent from the record that the contracting officer
did not rely exclusively on the above evaluations, which the contracting
officer had obtained from the CCASS, in evaluating Wadsworth's performance
under the missile alert facility upgrade contract; in addition, she
contacted the contract administrator for the project, who confirmed the
rating of satisfactory.  The contracting officer reports that the contract
administrator informed her that Wadsworth's performance on the project
was, in fact, *at best . . . satisfactory,* i.e., its quality of
workmanship was only satisfactory; it had completed identified deficient
workmanship items without subsequent write-ups only after the government
had brought them to its attention; and it had not initiated and maintained
coordination with its subcontractors.  Statement of Facts at 2-3.
    
Wadsworth further argues that the contracting officer incorrectly
concluded that its performance on a previous project to install gas mains
in Capehart Military Family Housing was not recent.  The protester
contends that it was still completing work on the project until August 31,
1999, and that the project therefore qualifies as recent within the
solicitation definition.[3] 
    
The Air Force disputes the protester's assertion that it was completing
work on the project during August 1999.  According to the agency,
Wadsworth completed performance on the previous gas main project by July
1, 1999, over 3 years prior to issuance of the instant RFP.
    
Both parties have submitted documentation purporting to support their
positions.  The Air Force's documentation consists of a contract progress
report for contract No. F24604-98-C-0833, which the agency identifies as
the only prior contract for the replacement of gas lines in Capehart
Housing.  The report is for the period June 16 to June 30, 1999, and shows
that the contract work had been 100 percent completed by the end of the
period.  The Air Force also furnished a copy of a construction inspection
record pertaining to the above contract, which identifies the completion
date as July 1, 1999.
    
The protester's documentation consists of a contract progress report for
the period August 15, 1999 to August 30, 1999 and a contract modification
dated August 27, 1999.  Neither document references contract number
F24604-98-C-0833, however.  Moreover, the progress report shows that no
work was completed on the referenced contract during the time period
covered and that the contract was already
100 percent complete prior to the period.  In addition, the modification
furnishes no information regarding the status of performance.
    
While the documentation furnished by the agency supports its position that
performance on the previous Capehart gas main contract had been completed
by July 1, 1999, the documentation furnished by the protester does not
support its argument that performance on the project continued into August
1999.  Accordingly, the record does not support the protester's argument
that its performance on the previous gas main project qualified as recent
within the meaning of the RFP.
    
Finally, the protester argues that the contracting officer erred in
finding non-relevant its performance on a project identified on the
evaluation worksheet as *Combat Arms Range Phase II,* on which it received
a performance rating of very good.  Wadsworth contends that the project
encompassed work similar to the work to be performed here, i.e., it
installed approximately 5,000 linear feet of gas main, which totaled about
27 percent of the contract value.  Affidavit of Wadsworth's
Vice-President, Dec. 6, 2002, P: 7.
    
The protester has made a prima facie showing of similarity between the
work performed under the combat arms range project and the project to be
performed here, which the Air Force has neither taken issue with nor
attempted to rebut.
Even assuming that the agency should have regarded the combat arms range
project as relevant and considered it in evaluating the protester's past
performance, however, we see no basis to conclude that consideration of
this contract would have resulted in an increase in Wadsworth's past
performance rating.  In this regard, prejudice is an essential element of
a viable protest, and we will sustain a protest only where a reasonable
possibility of prejudice is evident from the record.  Lithos Restoration,
Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD P: 379 at 5-6.  Here,
Wadsworth's performance on the missile alert facility project, which was
over six times greater in dollar value than the combat arms range project,
was rated as *at best* satisfactory.  In addition, only about a quarter of
the value of the combat arms contract was for work similar to the work to
be accomplished here, meaning that while the contract was relevant, its
relevance was limited.  In light of these factors, we see no reasonable
possibility that the contracting officer would have raised the protester's
overall past performance rating to very good based on its performance on
the latter project. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    
    

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

   [1] The agency report includes a memorandum from the contract
administrator documenting her efforts to obtain a reference concerning the
protester's performance on this contract.  The agency notes that a
completed questionnaire was eventually received from the reference 2 days
after contract award, and that the reference rated the protester's
performance as very good.  The protester has not objected to the
contracting officer's failure to take this reference into consideration.
[2] While Wadsworth's vice-president asserts that the Air Force rated his
company's performance on the first phase as outstanding, Affidavit of
Wadsworth's
Vice-President, Dec. 6, 2002, P: 9, counsel for the protester recognizes
that the documentation furnished by the agency in fact shows that the
contract administrator rated Wadsworth's performance as above average in
his first evaluation.  Protester's Comments, Dec. 9, 2002, at 3.
[3] As previously noted, the RFP provided for consideration of contracts
completed within *the past 3 years*; however, the RFP did not specify the
date to be used to establish the end of the 3-year period.  Wadsworth
argues that the date used should be either the date the RFP was issued
(August 8), or the date by which past performance information was to be
submitted to the agency (August 30).  As explained above, using either
date, the record shows that the agency reasonably concluded that the
contract was not recent within the meaning of the RFP.