TITLE: United Coatings, B-291978.2, July 7, 2003
BNUMBER: B-291978.2
DATE: July 7, 2003
**********************************************************************
United Coatings, B-291978.2, July 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: United Coatings
File: B-291978.2
Date: July 7, 2003
James A. Kelley, Esq., and Lori Ann Lange, Esq., Bastianelli, Brown &
Kelley, for the protester.
James. L. Weiner, Esq., and Sherry Kinland Kaswell, Esq., Department of
the Interior, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency unreasonably evaluated the protester's and
awardee's quotes under a solicitation for tank preservation services is
denied where the record shows that the agency's evaluation of the quotes
was reasonable and consistent with the stated evaluation criteria, and the
protester's contentions represent only its disagreement with the agency's
evaluation.
2. Protest that the agency improperly failed to downgrade awardee's quote
because of the intended use of several non-United States citizens, who
would require a security waiver to perform work, is denied where the
agency reasonably assessed the attendant risk.
3. Protest that agency's failure to take into account, as part of the
price evaluation of revised quotes, additional payments made to the
awardee under an interim purchase order is denied where the record fails
to show that the protester was competitively prejudiced.
DECISION
United Coatings (UCC) protests the issuance of a purchase order to W-Mann
Services (USA) LLC, under request for quotations (RFQ) No.
1435-04-03-PR-71323, issued by the Minerals Management Service (MMS),
Department of the Interior, for preservation work of various fuel oil
service tanks aboard the Navy aircraft carrier, USS John F. Kennedy.[1]
UCC argues that the agency's evaluation of vendors' quotes was improper.
We deny the protest.
The RFQ,[2] initially issued on December 27, 2002, required the successful
vendor by means of ultra high pressure (UHP) water jetting to remove the
existing coating, and apply a new solid edge retentive coating, to an
estimated 54,822 square feet of fuel oil service tanks. The tank
preservation work was to be performed while the USS John F. Kennedy was
pier-side, but still waterborne, at the Naval Air Station, Mayport,
Florida. The original solicitation also informed vendors that work must
commence no later than February 3, 2003, in order to ensure completion by
July 31.
The RFQ contemplated the issuance of a fixed price purchase order. Tr. at
20. However, the original solicitation also stated that *the contractor
shall be reimbursed for actual allowable, allocable, and reasonable travel
costs incurred during performance under this [contract] in accordance with
the Federal Travel Regulations currently in effect[] on the date of
travel. All travel under this contract shall bear no fee, and must be
pre-approved.* RFQ at 16.
The solicitation identified the following evaluation factors and
subfactors:
+------------------------------------------------------------------------+
|A. Technical Approach |
|------------------------------------------------------------------------|
| |1. Understanding the work. |
| |----------------------------------------------------------------------|
| |2. Specific methods and techniques for completing each discrete task.|
| |----------------------------------------------------------------------|
| |3. Anticipation of potential problem areas, and creativity and |
| |feasibility of solutions to problems. |
| |----------------------------------------------------------------------|
| |4. Logistics, schedule, and any other issues the government should be|
| |aware of. |
| |----------------------------------------------------------------------|
| |5. Ability to meet performance and other scheduled dates. |
|------------------------------------------------------------------------|
|B. Past Performance |
|------------------------------------------------------------------------|
| |1. Organization's history of successful completion of projects. |
| |----------------------------------------------------------------------|
| |2. Quality of cooperation (with each other) of key individuals within|
| |the organization and quality of cooperation between the organization, |
| |its subcontractors, and clients. |
| |----------------------------------------------------------------------|
| |3. Organization's specific proof of past performance to include |
| |evidence of the ability to perform UHP water jetting. |
| |----------------------------------------------------------------------|
| |4. Organization's ability to apply high solids edge retentive coating|
| |while the ship is waterborne. |
| |----------------------------------------------------------------------|
| |5. Organization's ability to remove and install tank coatings in a |
| |period as short as 14 days. |
| |----------------------------------------------------------------------|
| |6. Degree of comparability of past projects to the current project, |
| |including number of projects, complexity, and dollar amount. |
|------------------------------------------------------------------------|
|C. Key Personnel Qualifications |
|------------------------------------------------------------------------|
| |1. Currency, quality, and depth of experience of individual personnel|
| |in working on similar projects. |
| |----------------------------------------------------------------------|
| |2. Quality and depth of education; experience on other projects which|
| |may not be similar to this specific [RFQ], but may be relevant; and |
| |publication history. |
| |----------------------------------------------------------------------|
| |3. At least one [National Association of Corrosion Engineers] |
| |International Certified Coating Inspector or [Naval Sea Systems |
| |Command] NAVSEA equivalent on staff. |
| |----------------------------------------------------------------------|
| |4. Appropriate mix and balance of education and training of team |
| |members. |
|------------------------------------------------------------------------|
|D. Organizational Experience |
|------------------------------------------------------------------------|
| |1. Degree of comparability of past projects to the current project, |
| |including number of projects, complexity, and dollar amounts. |
| |----------------------------------------------------------------------|
| |2. Appropriate mix and balance of education and training of team |
| |members. |
|------------------------------------------------------------------------|
|E. Price |
+------------------------------------------------------------------------+
The solicitation established that the non-price factors were of equal
importance and that, within each factor, the subfactors were of equal
importance. The RFQ also stated that price was less important than
nonprice factors. Award of the purchase order was to be made, without
discussions, to the responsible vendor whose quote conformed to the
solicitation and provided the overall *best value* to the agency, based on
consideration of all factors. RFQ at 4, 19.
Three vendors, including W-Mann and UCC, submitted quotes by the January 6
closing date.[3] A technical evaluation panel (TEP) consisting of three
SUPSHIP employees evaluated vendors' technical quotes using a numeric
rating system.
On January 15, following both the technical and price evaluation of
quotes, MSS determined that W-Mann's quote represented the best overall
value. W-Mann began performance of the subsequently issued purchase order
on February 3. On February 13, following a debriefing by the agency, UCC
filed an earlier protest with our Office.[4] MMS directed W-Mann to stop
performance on February 19.
On March 11, the agency notified our Office of its intent to amend the
solicitation and reopen negotiations with vendors while staying
performance of the issued purchase order to W-Mann. We subsequently
dismissed UCC's initial protest as academic.
On March 7 and again on March 10, the agency revised its solicitation.
The amended RFQ both increased the estimated quantity from 54,822 to
66,400 square feet, and accelerated the required completion date from July
31 to June 15. Relevant to this protest the solicitation also contained
the following *security note*:
No employee or representative of the Contractor shall be admitted to any
facility or ship of the U.S. Navy unless satisfactory proof of citizenship
of the United States has been furnished. (Note--Waivers will be
considered by the US Navy for Contractor personnel possessing unique
skills or knowledge. Case by case determination will be made based on
Contractor's request and adequate justification).
RFQ amend. 2, at 12. The amended solicitation also expressly required
vendors to submit prices for tank preservation work on a square footage
basis, and created a separate line item for the pricing of mobilization
(e.g., travel, per diem, set-up, and staging) expenses.
Both W-Mann and UCC submitted revised quotes to the agency by the March 11
closing date. W-Mann's total revised price was $1,657,480, to include
[DELETED] for mobilization; UCC's total revised price was $2,297,822, to
include [DELETED] for mobilization.
The TEP, consisting of one new and two former evaluators, reviewed the
revised technical quotes of W-Mann and UCC, now using an adjectival rating
system: outstanding, highly acceptable, acceptable, marginal,
unacceptable, technically unacceptable. The TEP also developed
quantitative and qualitative criteria for each evaluation subfactor in
support of the aforementioned adjectival ratings. [5] AR, Tab 11,
Evaluation Standards. In its evaluation of revised quotes the TEP neither
considered nor referred to the scores rendered under the initial
evaluation of quotes. Tr. at 184-85, 206-07. The TEP's ratings for the
two vendors' revised quotes were as follows:
+------------------------------------------------------------------------+
| |Factor |W-Mann |UCC |
|------------------------------------------------------------------------|
|Technical Approach |Highly Acceptable |Acceptable | |
|------------------------------+-------------------+------------------+--|
|Past Performance |Acceptable |Marginal | |
|------------------------------+-------------------+------------------+--|
|Key Personnel Qualifications |Highly Acceptable |Highly Acceptable | |
|------------------------------+-------------------+------------------+--|
|Organizational Experience |Highly Acceptable |Acceptable | |
|------------------------------+-------------------+------------------+--|
+------------------------------------------------------------------------+
AR, Tab 13, TEP Evaluation Results for UCC; Tab 14, TEP Evaluation Results
for
W-Mann.
The contracting officer subsequently adopted the TEP's technical ratings
of the quotes. Tr. at 35; AR, Tab 16, Source Selection Decision. On
March 17, having found the quote of W-Mann to be both lower-priced and
higher technically rated than that of UCC, the contracting officer
determined that W-Mann's quote represented the overall best value to the
government. AR, Tab 16, Source Selection Decision.
This protest followed.[6]
In its protest UCC raises numerous issues that can be grouped into two
general categories. First, UCC contends that the agency's evaluation of
W-Mann's quote (e.g., technical evaluation, price evaluation) was improper
in various ways. Second, UCC alleges that the agency's evaluation of
UCC's quote was improper. Although we do not here specifically address
all of UCC's complaints about the evaluation of quotes, we have fully
considered all of them and find that they afford no basis to question the
agency's selection decision.
Evaluation of W-Mann's Quote
UCC first argues that the agency's evaluation of W-Mann's quote, under all
five evaluation factors, was improper. Specifically, UCC argues that the
TEP's evaluation of W-Mann's quote as to the technical approach, past
performance, key personnel qualifications, and organizational experience
factors was both unreasonable and unsupported. UCC also contends that
W-Mann's quote fails to conform to certain material requirements of the
solicitation and should have been found unacceptable. Lastly, the
protester asserts that the agency's price evaluation of W-Mann's quote was
improper and provided the awardee with an unfair competitive advantage.
In reviewing a protest against an agency's evaluation of proposals, our
Office will not reevaluate proposals, but instead will examine the record
to determine whether the agency's judgment was reasonable and consistent
with the stated evaluation criteria and applicable procurement statutes
and regulations. See Shumaker Trucking
& Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD P: 169
at 3; Hydraulics Int'l, Inc., B-284684, B-284684.2, May 24, 2000, 2000 CPD
P: 149 at 14.
A protester's mere disagreement with the agency's judgment does not
establish that the evaluation was unreasonable. C. Lawrence Constr. Co.,
Inc., B-287066, Mar. 30, 2001, 2001 CPD P: 70 at 4. As demonstrated
below, our review of the record, including the quotations themselves, the
parties' pleadings, and testimony taken during the hearing in this matter,
provides us no basis to find the agency's evaluation here unreasonable or
otherwise objectionable.
For example, UCC challenges the TEP's evaluation of W-Mann's quote, under
the technical approach, past performance, and organizational experience
factors, arguing that the agency improperly attributed the experience and
past performance of a different company to W-Mann. The protester contends
that the ratings that
W-Mann received under these evaluation factors was in large part the
result of the tank preservation work recently performed on the Navy
aircraft carrier USS George Washington.[7] UCC alleges that the work
performed on the USS George Washington in fact was done by Hempel Paint
Company and its subcontractor, W-Mann Services, ApS (W-Mann ApS), a
foreign firm that is not the concern that submitted the quote here.
Similarly, the other two past performance references provided in W-Mann's
quote were also for work performed by W-Mann ApS, at a point in time that
predated the formation of W-Mann as a business entity.
The agency does not dispute that the tank preservation work performed on
the USS George Washington as well as the awardee's other two past
performance references was done by Hempel and/or W-Mann ApS. Instead, the
agency points to the fact that the three key individuals who performed the
work on the USS George Washington as employees of Hempel and W-Mann ApS
were now key employees of the vendor here, W-Mann.[8] AR, May 2, 2003, at
4-5. The TEP was aware of this fact when conducting its evaluation, and
acknowledges that it evaluated the newly-created company on the basis of
the experience of its key individual members. Tr. at 113-19.
FAR S: 15.305(a)(2)(iii) directs agencies to take into account past
performance information regarding predecessor companies, key personnel,
and major subcontractors when the information is relevant to an
acquisition. Thus, an agency properly can consider the relevant
experience and past performance history of key individuals and predecessor
companies in evaluating the past performance of a newly-created company,
since that experience may be useful in predicting success in future
contract performance. See Interstate Gen. Gov't Contractors, Inc.,
B-290137.2, June 21, 2002, 2002 CPD P: 105 at 5; SDS Int'l, B-285822,
B-285822.2, Sept. 29, 2000, 2000 CPD P: 167 at 4. In this regard, we
believe the agency here reasonably concluded that the experience of the
aforementioned key individuals, gained while employed by other firms, did
adequately demonstrate W-Mann's capability to function as a corporate
entity and to successfully perform the current project.
UCC also alleges that the TEP improperly evaluated the interim work
performed by W-Mann on the USS John F. Kennedy, pursuant to the initially
issued purchase order, even though only a small amount of work had been
performed prior to the agency's issuance of a stop-work order.[9] The
protester contends that the TEP unreasonably treated the limited work
performed by W-Mann on the USS John F. Kennedy as equivalent to completed
projects, and improperly gave W-Mann credit for this partial work on past
performance subfactors 3--6.[10] UCC contends that consideration of the
work performed by W-Mann under the interim purchase order wrongfully
resulted in an improper evaluation rating.
While the record is not entirely clear on this point, we think that,
reasonably interpreted, the record shows that the past performance ratings
for W-Mann were not in fact based on consideration of the awardee's
performance on the USS John F. Kennedy pursuant to the initially issued
purchase order. We base our conclusion on our review of the TEP's
consensus evaluation report and reference checks gathered by the agency
regarding the awardee. Thus, for example, under subfactor 5, the TEP
consensus evaluation gives the following rationale for its rating of the
awardee as highly acceptable: *For 2 referenced projects, W-Mann
accomplished three tanks in 23 days and 67,000 square feet in 45 days.*
AR, Tab 14, TEP Evaluation Results for W-Mann, at 4. Although the
consensus report does not identify the two ships by name, the reference
checks the agency performed for W-Mann indicate that the two projects
referred to in the consensus report are the USS George Washington (three
tanks in 23 days) and another ship, the Anglo Eastern, involving
equivalent work (63,700 square feet[11] in 45 days).[12] AR, Tab 12, TEP
Reference Checks, at 2-3.
We recognize that the TEP evaluator who testified at the hearing held by
our Office stated that he considered the work performed on the USS John F.
Kennedy as part of his individual evaluation of W-Mann's past
performance. Tr. at 169-89, see also AR, Tab 23, Evaluation Worksheets of
Mr. Korzun, at 8-11. The ratings assigned W-Mann reflect the findings of
all the evaluators, however, and in our view the record shows that the TEP
consensus evaluation and the ratings assigned W-Mann were based on
consideration of projects listed in the reference checks, not on W-Mann's
interim performance pursuant to the initially issued purchase order.
The protester also argues that the evaluation of W-Mann's quote was
unreasonable with regard to the key personnel qualifications factor,
because many of the key personnel listed in W-Mann's quote are not U.S.
citizens and would have to obtain a waiver from the Navy in order to
perform work on the USS John F. Kennedy. UCC contends that the TEP
improperly assumed that the Navy would automatically grant the requisite
waivers, and failed to take into account the additional risk inherent in
W-Mann's quote when performing its evaluation. Protest at 8-9. We
disagree.
The TEP was aware when evaluating W-Mann's quote that three of the
awardee's key personnel were not U.S. citizens and would have to secure
waivers in order to perform any work on the USS John F. Kennedy. Tr. at
103-05. Additionally, it is clear that the granting of waivers to
non-U.S. citizens was an action that NAVSEA, and not the TEP members,
controlled. Id. at 109. The TEP knew, however, that the W-Mann employees
in question had previously secured waivers to perform similar tank
preservation work on the USS George Washington, a nuclear-powered aircraft
carrier. Id. at 105. By contrast, the tank preservation work here was to
take place on the USS John F. Kennedy, an oil-burning carrier with
significantly less stringent security requirements. Id. Thus, the fact
that certain key employees would need waivers did not negatively affect
the TEP's evaluation of W-Mann's quote. Id. at 109. Having considered
and assessed the risk attendant to W-Mann's quote because of its non-U.S.
citizen personnel, the TEP's evaluation of W-Mann's proposal in this
regard was reasonable.
UCC also contends that W-Mann's quote failed to comply with various
material requirements of the RFQ. Specifically, UCC alleges that W-Mann's
quote took exception to the solicitation's revised completion date and
that the awardee placed conditions on its pricing, whereas the
solicitation required the submission of fixed prices. The protester
argues that because W-Mann's quote failed to comply with material
requirements of the RFQ, W-Mann should have been found ineligible for
award.
A quote that fails to conform to the material terms and conditions of the
solicitation should be considered unacceptable and may not form the basis
for an award. See, e.g., Marshall-Putnam Soil and Water Conservation
Dist., B-289949, B-289949.2, May 29, 2002, 2002 CPD P: 90 at 5; Techseco,
Inc., B-284949, June 19, 2000, 2000 CPD P: 105 at 3; Barents Group,
L.L.C., B-276082, B-276082.2, May 9, 1997, 97-1 CPD P: 164 at 10. Here,
however, W-Mann's revised quote does not take exception to any of the RFQ
requirements as alleged by the protester; on the contrary, W-Mann's quote
expressly commits the firm to satisfy these requirements.
As set forth above, the amended solicitation accelerated the required
completion date from July 31 to June 15, and required vendors to submit
fixed prices for both the tank preservation work (on a square footage
basis) and mobilization expenses. RFQ amend. 2, at 2-3. In its revised
quote, W-Mann acknowledged and took no exception to the revised completion
date; the vendor also submitted fixed prices for both the tank
preservation work and mobilization line items. AR, Tab 8B, W-Mann's
Revised Quote, at 10-12.
UCC argues that other portions of W-Mann's quote do in fact take exception
to the project completion date. For example, UCC points to the language
in the awardee's revised quote which states:
Note: We would like to add for your attention that you have stated and
approved in the solicitation that the contractor can use 14 days per
tank. If that is the case the Navy will only get 8 tanks completed during
the period of performance.
* * * * *
W-Mann Services secured the project on the USS John F. Kennedy . . . .
The project started on 13 February (original[ly] scheduled [for] 3rd
February but the vessel delayed the start date due to valve isolation
issues) . . . . We were ready to absorb the 10 days delay from the
original start date through the creative use of resources and manpower.
We are confident that we would have completed the
16 fuel oil tanks within 100 working days and fully understand the US Navy
need to have this aircraft carrier ready for sea at the prescribed time.
AR, Tab 8B, W-Mann's Revised Quote, at 1, 5. Notwithstanding the
protester's characterization of these comments as express exceptions to
the solicitation's completion requirement, we think the comments,
reasonably interpreted, constitute an observation by W-Mann regarding the
schedule chosen by the Navy, not an exception to the schedule.
Accordingly, we see no basis to question the reasonableness of the
agency's acceptance of W-Mann's quote in this regard.[13]
UCC also challenges the agency's price evaluation of W-Mann's revised
quote, specifically with regard to mobilization expenses, a line item that
UCC priced at [DELETED] and that W-Mann priced at [DELETED]. The
protester contends that
W-Mann failed to include the full cost for mobilization in its revised
price quote because the awardee was separately seeking to be paid for
these costs under the initial purchase order issued to it by the
agency.[14] UCC argues that MMS, when evaluating vendors' revised price
quotes, essentially provided W-Mann with an unfair competitive advantage
by not taking into consideration those additional payments that would be
made to the awardee for mobilization expenses under the initial purchase
order.
It is a fundamental principle of government procurement that competition
must be conducted on an equal basis, which includes treating all offerors
equally and evaluating proposals on a common basis. See Systems Mgmt.,
Inc.; Qualimetrics, Inc., B-287032.3, B-287032.4, Apr. 16, 2001, 2001 CPD
P: 85 at 8; Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000,
2001 CPD P: 65 at 5. This general tenet is equally applicable to
simplified acquisitions, and our Office will review allegations of
improper agency actions in conducting simplified acquisitions to ensure
that the procurements are conducted consistent with a concern for fair and
equitable competition and with the terms of the solicitation. Kathryn
Huddleston
& Assocs., Ltd., B-289453, Mar. 11, 2002, 2002 CPD P: 57 at 6; Finlen
Complex, Inc.,
B-288280, Oct. 10, 2001, 2001 CPD P: 167 at 8-10. As applied here, a
failure by the agency to consider any additional payments made by it to
W-Mann for mobilization costs pursuant to the initial purchase order in
the evaluation of revised price quotes could preclude an
*apples-to-apples* comparison between the two vendors, working to the
disadvantage of the protester.
The agency states that, pursuant to the initial purchase order issued by
W-Mann, it has made contractual payments to W-Mann for tank preservation
work performed, and extra-contractual payments (e.g., site access delays,
stop-work order delays, change orders), the latter of which will result in
the awardee receiving payments totaling more than its $1,657,480 revised
purchase order price. The agency argues, however, that it properly did
not take these amounts into account in the evaluation of vendors' revised
price quotes. UCC contends that notwithstanding W-Mann's characterization
of its extra-contractual charges as delay claims, it is evident that the
expenses in fact represent the awardee's mobilization costs. We need not
resolve this issue regarding whether the extra-contractual expenses
invoiced by W-Mann under the initial purchase order represent the
awardee's mobilization costs, and the reasonableness of the agency's
decision not to take them into account in the evaluation of W-Mann's
revised price quote, however, because the record demonstrates that the
protester could not have been prejudiced as a result of any alleged error
in this regard.
Our Office will not sustain a protest unless the protester demonstrates a
reasonable possibility of prejudice, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. Parmatic Filter Corp.,
B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD P: 71 at 11; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
Here, by the protester's own calculations, the agency's failure to take
into account payments under the initial contract award and unrelated to
work performed resulted in MMS understating W-Mann's evaluated price by
$308,393. Protester's Comments, May 19, 2003, at 2. By contrast, the
total price difference between the quotes of UCC and
W-Mann was in excess of $640,000. Under these circumstances, we conclude
that UCC could not have been prejudiced since, even assuming the agency's
evaluation of W-Mann's price was unreasonable and should be adjusted as
alleged by UCC,
W-Mann's higher-rated quote would remain lower priced.[15]
Evaluation of UCC's Quote
UCC goes to great length alleging that the evaluation of its quote with
regard to the four technical factors was unreasonable.[16] The protester
essentially challenges every instance under four evaluation factors and
seventeen subfactors where the TEP evaluated its quote as less than highly
acceptable. We have examined each of the protester's arguments in detail
and find no basis to question the agency's evaluation. Quite simply, the
protester's allegations amount to mere disagreement with the agency's
evaluation, which does not render it unreasonable. C. Lawrence Constr.
Co., Inc., supra.
For example, UCC challenges the evaluation of its quote as to technical
approach, where the protester was rated as acceptable under all subfactors
and acceptable overall. For the first technical approach subfactor,
understanding of the work, the TEP determined that, *UCC demonstrated
[DELETED]. Rated acceptable.* AR, Tab 13, TEP Evaluation Results for
UCC, at 2. While UCC argues that its quote did [DELETED], and thereby
should have received a rating of highly acceptable, we simply find no
basis to object to the agency's evaluation.
UCC also argues that it should have been given the opportunity to address
the negative past performance information that the agency obtained from
one of its references. Specifically, one of UCC's references provided the
TEP not only with favorable information about work performed on the
specific project referred to in UCC's quote (the MV Lt. John P. Bobo), but
also unfavorable information about a different project (the aircraft
carrier USS Enterprise). UCC argues that had it been given the
opportunity, it would have explained that the work performed on the USS
Enterprise was done by UCC's parent company, Earl Industries, LLC, and an
unrelated subcontractor, and not by UCC itself.
As noted above, MMS conducted this acquisition using simplified
acquisition procedures. These procedures provide discretion to
contracting officers to use one or more of the evaluation procedures in
FAR parts 14 and 15, and do not require formal evaluation plans, the
establishment of a competitive range, or the conduct of discussions. See
FAR S: 13.106-2(b). Again, our Office reviews allegations of improper
agency actions in conducting simplified acquisitions to ensure that the
procurements are conducted consistent with a concern for fair and
equitable competition and with the terms of the solicitation. See Finlen
Complex, Inc., supra.
FAR S: 15.306(a)(2), which addresses clarifications and award without
discussions, states in relevant part that where, as here, an award will be
made without conducting discussions, *offerors may be given the
opportunity to clarify certain aspects of proposals (e.g., the relevance
of an offeror's past performance information and adverse past performance
information to which the offeror has not previously had an opportunity to
respond) or to resolve minor or clerical errors.* Pursuant to this
provision, an agency has broad discretion to decide whether to communicate
with a firm concerning its performance history. NMS Mgmt., Inc.,
B-286335, Nov. 24, 2000, 2000 CPD P: 197; A.G. Cullen Constr., Inc.,
B-284049.2, Feb. 22, 2000, 2000 CPD P: 45 at 5. We will review the
exercise of such discretion to ensure that it was reasonably based on the
particular circumstances of the procurement. NMS Mgmt., Inc., supra.
With regard specifically to clarifications concerning adverse past
performance information to which the vendor has not previously had an
opportunity to respond, we think that for the exercise of discretion to be
reasonable, the agency must give the offeror an opportunity to respond
where there clearly is a reason to question the validity of the past
performance information, for example, where there are obvious
inconsistencies between a reference's narrative comments and the actual
ratings the reference gives the offeror. In the absence of such a clear
basis to question the past performance information, we think that, short
of acting in bad faith, the agency reasonably may decide not to ask for
clarifications. Id.
Applying this standard here, we think the agency reasonably exercised its
discretion in deciding not to communicate with UCC regarding the adverse
past performance information reported by one of UCC's references. First,
there is nothing on the face of the adverse reference that would create
concerns about its validity. Second, the TEP member who performed the
reference checks testified at the hearing conducted by our Office that he
had no reason to question the relationship between UCC and Earl, a view
supported by language in UCC's quote suggesting that they would work
together on the project here.[17] Tr. at 225. Given the permissive
language of the relevant provision, FAR S: 15.306(a)(2), the fact that UCC
may wish to respond to the adverse reference does not give rise to a
requirement that the agency give the protester an opportunity to do so.
NMS Mgmt., Inc., supra.
Lastly, UCC alleges that the agency was biased against it. UCC argues
that the agency's bias is evidenced by, among other things, the fact that
SUPSHIP solicited a quote from W-Mann before the RFQ was formally issued,
that SUPSHIP did not include UCC on its source list of qualified marine
industrial coating contractors, and that the TEP dramatically downscored
UCC's revised technical quote in relation to the evaluation of the initial
quote. Government officials are presumed to act in good faith and, where
a protester contends that contracting officials are motivated by bias or
bad faith, it must provide convincing proof, since this Office will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or suppositions. ACC Constr. Co., Inc., B-289167, Jan.
15, 2002, 2002 CPD P: 21 at 4. Here, UCC has not provided any proof to
support this allegation.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] MMS, by means of its GovWorks Federal Acquisition Center, provides
contracting services in support of other federal agencies on a
fee-for-service basis. See Government Management Reform Act of 1994, Pub.
L. No. 103-356, S:403, 108 Stat. 3410, 3413-14 (1994). Here, MMS provided
contracting services to the Supervisor of Shipbuilding Conversion & Repair
(SUPSHIP), Department of the Navy.
[2] At a hearing that our Office conducted in this protest, the
contracting officer testified that the solicitation was in fact a request
for quotations, governed by Federal Acquisition Regulation (FAR) Part 13,
notwithstanding that both the solicitation itself and agency report refer
to it as a *request for proposals.* Hearing Transcript (Tr.) at 20; see
also RFQ at 1, Agency Report (AR), May 2, 2003, at 1.
[3] The quotes submitted by W-Mann and the third vendor each priced the
tank preservation work on a square-footage basis, thereby enabling a
determination of the vendor's total price. UCC's quote, by contrast,
included various labor and material cost information, as specified by the
RFQ, but did not provide a unit price for the tank preservation work,
thereby precluding a determination of its total price.
[4] UCC protested, among other things, that MMS had failed to treat
vendors equally and had evaluated quotations improperly as the
solicitation had never requested or required pricing on a square footage
basis.
[5] The TEP rated proposals by having each member separately review and
assign an adjectival rating to each technical subfactor and factor. The
TEP then developed consensus ratings based upon discussions among the
members of the strengths and weaknesses of each quote.
[6] The agency subsequently notified our Office of its determination and
findings, pursuant to FAR S: 33.104(d), to continue performance of the
issued purchase order notwithstanding UCC's protest here. W-Mann
completed the work on June 13.
[7] UCC does not challenge the agency's judgment regarding the quality of
the work performed on the USS George Washington, which the Navy found to
be outstanding.
[8] The individuals in question were proposed by W-Mann to be the
director, project manager, and general foreman for the work performed on
the USS John F. Kennedy. AR, Tab 8B, W-Mann's Revised Quote, at 7-8.
[9] The revised solicitation represented that W-Mann had removed
approximately 25 percent of the coating in one tank, and 45 percent of the
coating in a second tank. RFQ amend. 2, at 2. It is unclear whether
W-Mann had removed 100 percent of the old coatings in any areas of the two
partially-worked tanks; it is certain that W-Mann had yet to apply any new
coatings or complete any tanks. Tr. at 169-73, 188-89.
[10] As to past performance, the TEP rated W-Mann's quote as highly
acceptable as to subfactors 3, 5, and 6, as acceptable as to subfactors 1,
2, and 4, and as acceptable overall. AR, Tab 14, TEP Evaluation Results
for W-Mann, at 3-4.
[11] The consensus evaluation apparently erred in writing the numbers in
the square footage and recorded it as 67,000 square feet.
[12] Likewise, under subfactor 4, the TEP consensus evaluation determined
that
W-Mann had one equivalent job demonstrating the ability to apply high
solids edge retentive coatings while the ship is waterborne, a finding
supported by W-Mann's reference to the work on the USS George Washington,
and rated the awardee here as acceptable. AR, Tab 12, TEP Reference
Checks, at 2; Tab 14, TEP Evaluation Results for W-Mann, at 4.
[13] Likewise, UCC's allegation that W-Mann had qualified its pricing
(e.g., that it was based on the conditions found on the USS George
Washington and not on the USS John F. Kennedy, and that the quote
contained a fixed rate for any changes or delays incurred) and thus again
failed to conform to a material term or condition of the RFQ, is also
without merit.
[14] As set forth above, while the original RFQ contemplated the issuance
of a fixed price purchase order, it also contained language that the
contractor's travel expenses would be treated as a cost-reimbursement
item.
[15] In its protest UCC also argued that given the large disparity between
the prices offered by W-Mann and UCC for mobilization, the agency was
required to conduct discussions or clarifications with UCC to allow it to
compete on an equal basis. The agency addressed this allegation in its
report, and the protester failed to respond in its comments; thus, we
consider UCC to have abandoned this argument and will not consider it
further. MFVega & Assocs., LLC, B-291605.3, Mar. 25, 2003, 2003 CPD P: 65
at 4.
[16] Among other things, the protester contends that the TEP's evaluation
ratings of UCC's revised quote were not the same as--and in many instances
lower than--the TEP's earlier evaluation ratings, that the worksheets of
the individual TEP evaluators often failed to provide any written
rationale for various factor and subfactor ratings, and that the TEP's
consensus ratings were different than the individual evaluators' ratings
without explanation.
[17] Specifically, while UCC's letterhead states that it is a division of
Earl Industries, the cover letters accompanying both UCC's original and
revised quotes here state, *Earl Industries and United Coatings look
forward to the possibility of working with the [agency] in completion of
this project . . . .* AR, Tab 9A, UCC's Initial Quote, at 1; Tab 9B,
UCC's Revised Quote, at 6.