TITLE: Exelon Services Federal Group, B-291934, April 23, 2003
BNUMBER: B-291934
DATE: April 23, 2003
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Exelon Services Federal Group, B-291934, April 23, 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: Exelon Services Federal Group
File: B-291934
Date: April 23, 2003
Marilyn L. Hudson, Esq., Blevins, Hudson & Kizer, for the protester.
Donald E. Barnhill, Esq., and Judith Ann G. Laughlin, Esq., for BMAR &
Associates, Inc.; Stephen I. Lingenfelter, Esq., and Karl Dix, Jr., Esq.,
Smith, Currie & Hancock, for Vanguard Contractors, Inc.; Jonathan M.
Bailey, Esq., for Global Engineering and Construction LLC; and John E.
McCarthy, Esq., Daniel R. Forman, Esq., and Richard J. Bednar, Esq.,
Crowell & Moring, for Ameresco, Inc., intervenors.
Steve Feldman, Esq., and Margaret Simmons, Esq., U.S. Army Corps of
Engineers, for the agency.
Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency evaluation of past performance is unobjectionable where protester's
past performance record included adverse information, the agency pointed
out the evaluated problem past performance areas during discussions and
considered the protester's explanations, including its disagreement with
aspects of the underlying negative information, and reasonably concluded
that a moderate risk rating was warranted.
DECISION
Exelon Services Federal Group protests that it should have been selected
for an award under request for proposals (RFP) DACA87-02-R-0003, issued by
the Army Engineering and Support Center (CEHNC) for quick responses for
facility repair, renovation, conversion, alteration, additions and related
activity for government installations and facilities (FRR), including
architectural, civil, cost, electrical, environmental, and mechanical
services. The protester contends that its proposal was improperly
downgraded under the past performance evaluation factor, and that Exelon
would have been in line for an award if its past performance had been
properly evaluated.
We deny the protest.
The RFP, which had an April 17, 2002 revised closing date for submission
of initial proposals, provided for the award of 7
indefinite-delivery/indefinite-quantity (ID/IQ) contracts for a base year
with four one-year options. Exelon submitted a proposal for an
unrestricted contract award, four of which were contemplated under the
RFP.[1] The solicitation called for *best value* awards on the basis of
four evaluation factors, technical approach, past performance, price, and
small business participation. RFP S: M.2. Technical approach was
denominated as slightly more important than past performance and
significantly more important than price and small business participation;
the non-price factors, combined, were significantly more important than
price. Id. The solicitation provided for adjectival ratings of
excellent, good, satisfactory, poor and unacceptable under technical
approach and small business participation. RFP S: M.1.2.1. Under past
performance, the solicitation provided an adjectival rating scale of low
risk, moderate risk, high risk and unknown risk. RFP S: M.1.2.2. A low
risk evaluation was called for where *[b]ased on offeror's past
performance record essentially no doubt exists that the offeror will
successfully perform the required effort*; moderate risk was called for
where *some doubt exists that the offeror will successfully perform.*
Id.
The past performance evaluation was to be based on performance under
existing and prior contracts for services that were *similar in scope,
magnitude, and complexity to this requirement,* RFP S: M.2.2.1, and the
solicitation advised that in making this evaluation the agency could
utilize information from past performance questionnaires, calls to
references listed by the offeror and from *other customers known to the
Government, and others who may have useful and relevant information.*
RFP S: M.2.2.2.
The source selection evaluation board (SSEB) evaluated the 30 initial
proposals that were received and established a competitive range
consisting of 16 proposals, including the proposals submitted by BMAR &
Associates, Inc., Ameresco, Inc., Vanguard Contractors, Inc., Global
Engineering and Construction LLC, and Exelon. Discussions were conducted,
after which CEHNC issued a last request for final proposal revisions with
a closing date of November 13, 2002. The SSEB performed a final
evaluation under which Exelon's proposal was rated as *low excellent*
under technical approach, *moderate risk* under past performance, and
*medium satisfactory* under small business participation, at an evaluated
price of $15,708,000. The three highest rated proposals that were
selected for award (those submitted by Ameresco, BMAR and Global), each
received higher evaluations than Exelon under all of the non-price
factors, and each proposed prices that were more than $2,8000,000 lower
than Exelon's. The proposal of the fourth selected offeror, Vanguard, was
evaluated as *high good* under technical approach, *low risk* under past
performance, and *medium good* under small business participation, at an
evaluated price of $12,790,000.[2]
In selecting the Vanguard proposal for the fourth unrestricted award, the
source selection authority (SSA) directly compared the Exelon and Vanguard
proposals (along with other comparisons), and noted that Exelon's slightly
higher rating under technical approach (low excellent versus high good)
was offset by its lower past performance rating (moderate risk versus low
risk). In this regard, the SSA took into account that the past
performance factor was only slightly less important than technical
approach and considered it to have *almost as much significance,* and
recognized the possible additional burdens and risks that a moderate risk
rating represented with respect to meeting quality and schedule
requirements for successful contract performance. Agency Report (AR), Tab
13, Source Selection Decision Unrestricted Awards, at 11. The SSA
concluded that Exelon's overall non-price evaluation did not reflect any
advantage relative to Vanguard, and Vanguard's significantly lower price
became determinative. Exelon alleges that its proposal was misevaluated
under the past performance factor and contends that if its proposal had
received the appropriate low risk assessment, it would have been in line
for an award.
The evaluation of past performance is a matter within the discretion of
the
contracting agency, which our Office will review in order to ensure that
it was
reasonable and consistent with the stated evaluation criteria. NLX Corp.,
B-288785, B-288785.2, Dec. 7, 2001, 2001 CPD P: 198 at 7. An agency's
past performance evaluation may be based on a reasonable perception of
inadequate prior performance, regardless of whether the contractor
disputes the agency's interpretation of the underlying facts, Ready
Transp., Inc., B-285283.3,
B-285283.4, May 8, 2001, 2001 CPD P: 90 at 5, and the protester's mere
disagreement
with the agency's judgment is not sufficient to establish that the agency
acted
unreasonably. Birdwell Bros. Painting & Refinishing, B-285035, July 5,
2000,
2000 CPD P: 129 at 5. Where a solicitation requires the evaluation of
offerors' past performance, an agency has discretion to determine the
scope of the offerors' performance histories to be considered, provided
all proposals are evaluated on the same basis and consistent with the
solicitation requirements. IGIT, Inc., B-275299.2, June 23, 1997, 97-2
CPD P: 7 at 5.
In its initial evaluation of Exelon's past performance, the agency's past
performance evaluation board (PPEB) considered past performance
questionnaires submitted by customers that had been identified in Exelon's
proposal for itself and its subcontractors, as well as internal survey
forms returned by CEHNC personnel on programs where Exelon had performed,
and the personal knowledge of the PPEB chairman with respect to Exelon's
performance of an energy savings performance contract (ESPC) at Fort
McPherson, Georgia. Based on this information, the PPEB evaluated
Exelon's past performance as warranting a moderate risk assessment under
two of the four listed subfactors (quality and customer satisfaction), a
high risk assessment under one subfactor (cost/schedule management) and a
low risk assessment under one subfactor (labor standards compliance/safety
plan adherence), with a resulting overall evaluation that Exelon's past
performance presented a moderate risk. AR, Tab 16, Exelon Past
Performance Information, Evaluation Worksheet.
During discussions, Exelon was provided with eight questions concerning
its past performance which specified the particular problem areas of
concern and the underlying contract performance that the PPEB had
identified as warranting the moderate risk evaluation, as well as a
request to discuss and explain corrective actions that have been or will
be taken with respect to preventing repetition of
the problems. AR, Tab 11, Discussion Letters with Exelon, at 3. These
questions referenced, among other things, demonstrated problems meeting
established schedules for work (Huntsville Medical and FRR programs, Omaha
Veterans Administration (VA) and other customers); authority to perform
work at an installation revoked by the contracting officer because of
failure to perform
(Fort McPherson); demonstrated quality problems in performance (Huntsville
Medical Program); demonstrated problems with overall management of work
(Huntsville Medical and FRR programs, Eglin Air Force Base and other
customers); and demonstrated problems controlling cost through high
markups (Huntsville Medical and FRR programs, Department of Defense (DOD)
Schools in Puerto Rico, Omaha VA and other customers). Id.
Exelon provided a detailed response to each question, which included its
disagreement with what it denominated mistaken information, and its
characterization of the discussion questions as difficult to rebut
specifically because *many of the comments are generic in nature and do
not identify a specific project, problem, or person.* AR, Tab 8, Exelon
Proposal, Discussion Questions, at 14. Nonetheless, Exelon was able to
provide detailed information about specific projects, in which it disputed
much of the adverse information. However, Exelon also conceded the
substantial accuracy of the negative information that formed the basis for
several of the adverse assessments. Thus, for example, with respect to
schedule problems at the Omaha VA, Exelon provided a lengthy explanation
concerning the conceded scheduling problems and delays experienced under a
roof replacement contract, asserting that circumstances beyond its
control, such as changes in the scope of work, delays in the start of
work, and winter weather delays were the primary causes in most
instances. However, Exelon also recognized its own contributions to the
delays, and conceded that it *should not have accepted a task order to
apply BURS [built up roof systems] in the winter months.* Id. at 20. In
these circumstances, while the agency concluded that the protester's
performance on this project did not, by itself, validate a weakness
assessment, nonetheless Exelon's explanations support the reasonableness
of the agency's determination that Exelon's past performance warranted a
moderate risk assessment under the cost/schedule management subfactor.
With respect to the Fort McPherson revocation, Exelon conceded the
revocation, but pointed out that it was limited to ESPC projects, and that
Exelon continued to perform other Fort McPherson projects after the
imposition of the ESPC revocation. While Exelon asserted that in making
the revocation *the commander acted unfairly and unreasonably,* the
protester also acknowledged that *Exelon must accept much of the fault,*
and that *[t]here is no doubt the ESPC contract at Fort McPherson is a
blemish on Exelon's record but we are confident the corrective actions
have been successful.* Id. at 26-27.[3]
With respect to quality problems in performance, Exelon acknowledged that
it received a directive letter under its current medical program contract
concerning deficiencies in the quality of a concrete slab at Lajas, Puerto
Rico. As it did with respect to other problem areas, Exelon sought to
deflect blame, focusing primarily on its contention that the conceded
quality problems, which Exelon states it is currently working on
remedying, were caused in part by the use of *defective and incomplete
designs prepared by others.* Id. at 29. However, Exelon also conceded
that *[t]he fact that the verbal description of the design was deficient
does not relieve Exelon of the obligation to identify design
deficiencies,* and that it *proceeded with work based on a directive from
individuals that were not properly authorized to give that direction.*
Id.
Based on the discussion answers provided by Exelon, its cost/schedule
management subfactor rating improved from high risk to moderate risk as a
result of the PPEB's determination to delete one of the identified
weaknesses. However Exelon's overall moderate risk evaluation remained
unchanged, reflecting the three moderate risk and one low risk subfactor
evaluations. AR, Tab 16, Exelon Revised Evaluation Worksheet.
In our view, the record provides no basis to object to the agency
determination that Exelon's past performance warrants a moderate risk
rating. Exelon correctly points out that its references include a number
of instances in which it received assessments that were uniformly
excellent or good. However, the record also makes clear that there were a
number of instances in which Exelon's past performance was evaluated as
presenting meaningful problems. As noted above, the solicitation
specifically advised offerors that the agency could obtain past
performance information from sources other than those submitted by the
offeror, hence the fact that some of the adverse references were not the
ones listed in Exelon's proposal provides no basis to discount them.
Similarly, the fact that Exelon was able to provide a number of favorable
references does not provide any basis to require the agency to ignore the
adverse information presented by other references, including ones that
Exelon had not included in its proposal. While Exelon seeks to place
partial blame for these performance problems on a variety of outside
factors, it is also apparent from Exelon's explanations quoted above that
in its discussion responses the protester recognized and acknowledged its
own contributory responsibility as well. In these circumstances, we see
no basis to question the agency's determination that Exelon's documented
past performance problems provide a reasonable basis to conclude that
there was some doubt that Exelon would perform successfully, which under
the RFP warrants a moderate risk rating.
In this regard, Exelon also contends that the agency failed to conduct
meaningful discussions with respect to its past performance. In order to
satisfy its obligation to conduct meaningful discussions with competitive
range offerors, while an agency is required to lead the offerors into
areas of their proposals that require revision or amplification, the fact
that an offeror's responses do not fully satisfy the evaluators provides
no basis to conclude that the discussions were inadequate. Ryan Assocs.,
Inc., B-274194 et al., Nov. 26, 1996, 97-1 CPD P: 2 at 6-7. As detailed
above, notwithstanding Exelon's complaints regarding lack of specificity,
here CEHNC did more than lead the protester into the relevant areas. The
agency disclosed to Exelon all of the evaluated weaknesses and referenced
the customers and contracts underlying them in the written discussion
questions, which enabled Exelon to provide specific, detailed responses.
Indeed, as noted above, Exelon's explanations were sufficient to convince
the agency to delete one of the assessed weaknesses and to raise the
applicable subfactor rating as a result of the information provided.
The record also reflects that the agency considered Exelon's responses in
making its final evaluation, but found them insufficient to merit an
upward assessment of Exelon's overall performance risk assessment.
CEHNC's determination that the additional information, explanations and
excuses offered by Exelon were unpersuasive provides no basis to object to
the discussions. While Exelon attempts to provide a more favorable
picture of its past performance than that drawn by the agency, as detailed
above, Exelon's answers actually serve to corroborate some of the
evaluated problems. In short, the record reflects that the agency
conducted meaningful discussions, and that the information provided by
Exelon during the discussions supports the agency's moderate risk
assessment for Exelon's past performance.
The protest is denied.[4]
Anthony H. Gamboa
General Counsel
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[1] Only the four unrestricted awards are at issue in this protest.
[2] Exelon does not raise any objection to the price evaluations.
[3] Exelon also asserts that the ESPC contract performance is not relevant
because of its dissimilarity to the current requirement. We disagree.
First, in its discussion responses, the only dissimilarity noted by Exelon
with respect to the ESPC contract pertained to manner in which the work is
financed. In any event, as noted above, the solicitation called for past
performance assessment on the basis of prior contracts that were similar
in scope, magnitude and complexity, not for contracts that are identical.
The contracting officer has explained that the ESPC contract work includes
the installation, maintenance and repair of energy efficient equipment
under a process that is substantially similar to that used in performing
the FRR work at issue here. AR at 16-20. In these circumstances, the
agency reasonably determined, consistent with the RFP, that Exelon's ESPC
contract performance was sufficiently similar to be considered relevant
for purposes of its past performance evaluation here. Oceaneering Int'l,
Inc., B-287325, June 5, 2001, 2001 CPD P: 95 at 8.
[4]Exelon initially protested that the agency's use of distinguishers such
as *low* or *high* was inconsistent with the RFP evaluation criteria for
technical approach, which prescribed adjectival ratings ranging from
unacceptable to excellent, without specifying differentiation between low
and high. In its report, the agency explained that application of these
distinguishers is consistent with the evaluation scheme and reflected the
agency's appropriate attempt to recognize meaningful differences between
proposals with the same adjectival rating that were not of equal quality.
Since Exelon failed to respond to the agency's explanation, we have no
basis to consider this aspect of its protest. Baldt, Inc., B-278422, Jan.
28, 1998, 98-1 CPD P: 36 at 3 n.3. Additionally, in its comments on the
agency report Exelon raised for the first time allegations concerning the
evaluation of the past performance of other offerors, including allegedly
unequal treatment. These separate and independent allegations are
untimely because they were filed more than 10 days after Exelon learned of
their bases from the agency report. 4 C.F.R. S: 21.2(a)(2) (2003).
Exelon was granted an extension of time in which to file its comments, but
such an extension does not toll our timeliness requirements. Litton Sys.,
Inc., Data Sys. Div., B-262099, Nov. 17, 1995, 95-2 CPD P: 261 at 4 n.4.
Finally, Exelon has alleged that agency officials were personally biased
against it in their conduct of the procurement. Because government
officials are presumed to act in good faith, we will not attribute unfair
or prejudicial motives to procurement officials on the basis of inference
or supposition; rather, the protester must present credible evidence that
the officials acted with specific and malicious intent to injure the
protester. Strategic Res., Inc., B‑287398, B-287398.2, June 18,
2001, 2001 CPD P: 131 at 6 n.8. Here, Exelon's allegations essentially
reflect its disagreement with the judgments of the agency officials, which
does not provide a basis to attribute bias.