TITLE:  DSC Cleaning, Inc., B-292125, June 25, 2003
BNUMBER:  B-292125
DATE:  June 25, 2003
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DSC Cleaning, Inc., B-292125, June 25, 2003

   Decision
    
    
Matter of:    DSC Cleaning, Inc.
    
File:             B-292125
    
Date:              June 25, 2003
    
David S. Cantu for the protester.
Capt. Gregory A. Moritz, Department of the Army, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protester's proposal was properly excluded from the competitive range
where, due to several serious evaluated deficiencies, it was not among
most highly-rated proposals, and protester fails to show that evaluation
was unreasonable.
DECISION
    
DSC Cleaning, Inc. protests the exclusion of its proposal from the
competitive range under request for proposals (RFP) No. DAPC50-02-R-0023,
issued by the Department of the Army for dining facility attendant
services for Schofield Barracks and Wheeler Army Airfield, Oahu, Hawaii. 
DSC contends that the Army unreasonably evaluated its proposal with
respect to performance risk.
    

   We deny the protest.
    
The solicitation, issued on November 6, 2002 as a section 8(a) set-aside,
provided for the *best value* award of a fixed-price contract for an
8-month base period, with four 1-year options.  RFP, attach. 12, at 1-6. 
The RFP identified the following technical evaluation factors (and
subfactors):  Technical capability (Workforce Plan/Key Personnel
Qualifications, Mobilization/Phase-in); Quality Control (Quality Control
Plan, Safety and Training); and Performance Risk (Past Performance, Work
Experience).  The three factors were approximately equal in importance
and, combined, approximately equal in importance to price.  RFP, attach.
3, at 1-2. 
    
The RFP advised offerors to address each evaluation factor and subfactor
in their proposals.  As relevant here, under performance risk the RFP
specifically advised offerors to provide information pertaining to the
experience of the firm and current and previous federal, state, municipal
or commercial contracts within the last 3 years, for services similar to
this requirement.  RFP, attach. 3, at 3.  Additionally, offerors were to
complete and submit with their proposals attachment 9, Experience
Reference Information, for each reference and request that each reference
complete and separately submit attachment 10, Past Performance
Questionnaire.  Id.
    
The solicitation stated that the agency would *subjectively assess
performance risk based on the offeror's overall past performance and
experience,* defined experience as *those projects, in progress or
completed, that are of services similar to this requirement,* and stated
that *[p]ast performance reflects how well the offeror has performed these
services.*  RFP, attach. 3, at 4.  The evaluation under past performance
was to include, among other things, conformance to specification, quality
of performance, customer satisfaction, adherence to work schedules, timely
submittal of required reports, and the effectiveness of the contractor's
quality control process.  Id.  The evaluation of work experience was to
include current and recent projects and/or the years of experience of the
firm.  The solicitation specified that the experience of offerors'
proposed project manager and other key personnel may be considered for
those newly formed entities without previous work experience.  Id. 
    
The source selection evaluation board (SSEB) used color/risk ratings to
evaluate proposals--blue/very low risk; green/low risk; yellow/moderate
risk; pink/high risk; red/very high risk; and gray/unknown risk--under the
performance risk factor (proposals received only color ratings under the
technical capability and quality control factors).  Agency Report (AR),
Tab 10, Pre-Negotiation Objective Memorandum, at 6-7.  A red/very high
risk rating indicated that the offeror's experience and past performance
record provided extreme doubt that the offeror would or could successfully
perform the required effort.  A gray/unknown risk rating indicated that
the offeror had no relevant performance record and an unknown probability
of success.[1]  Id. at 7.    
    
The Army received several proposals by the amended December 17 closing
time.[2]  AR, Tab 2, Contracting Officer's Statement, at 1.  DSC's
proposal was rated pink/marginal under the technical capability factor,
red/unacceptable under the quality control factor, and pink/high risk
under the performance risk factor.  AR at 3, 4.  For the past performance
subfactor under performance risk, the Army rated DSC's proposal
gray/unknown risk based on its finding that DSC did not provide any of the
required reference information--its proposal identified no references and
did not include the Experience Reference Information (attachment 9) sheets
for any references, and no reference returned the required Past
Performance Questionnaire (attachment 10).  The Army also found no past
performance information for DSC in the Department of Defense's Past
Performance Information Retrieval System.  AR, Tab 10, Pre-Negotiation
Objective Memorandum, at 12.  DSC's proposal was rated red/high risk under
the work experience subfactor based on the Army's finding that DSC
provided no references to indicate that it had any experience in dining
facility attendant services.  Id.
    
The SSEB established a competitive range, representing the lowest-priced,
highest-rated proposals.  DSC's proposal was eliminated from the
competitive range because it was not one of the most highly-rated; indeed,
it was one of the lowest-rated proposals, with no overall acceptable or
greater rating for technical capability or quality control, and a high
performance risk.     
    
DSC filed an agency-level protest when it learned of the Army's decision,
and filed the instant protest with our Office prior to receiving an agency
response.  DSC maintains that, in rating its proposal gray/unknown risk
under the performance risk factor, the Army improperly failed to consider
three references it submitted, as well as the relevant experience of its
proposed key employees.  It concludes that the Army had no reasonable
basis for eliminating its proposal from the competitive range.  Protest at
1.
    
The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable discretion of the procuring
agency; in reviewing such a determination, we will consider only whether
the documented evaluation was fair and reasonable and consistent with the
evaluation criteria and procurement statutes and regulations.  Matrix
Gen., Inc., B‑282192, June 10, 1999, 99-1 CPD P: 108 at 3. 
Contracting agencies are not required to retain in the competitive range
proposals that are not among the most highly rated or that the agency
otherwise reasonably concludes have no realistic prospect of award. 
Federal Acquisition Regulation S: 15.306(c)(1); Matrix Gen., Inc., supra,
at 3; SDS Petroleum Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD P: 59
at 5.   
    
Our review of the record confirms the agency's finding that DSC's proposal
included no references or reference information for DSC.  Further, while
DSC maintains that the agency was required to consider the experience of
proposed employees, in fact, the RFP only stated that the agency *may* do
so for newly formed entities without previous work experience.  Nothing in
the protester's proposal indicated that DSC was a new entity; indeed, the
resume for the president of DSC indicates that DSC has been in business
since 1994.  In any case, while DSC submitted resumes for three
individuals with its proposal, the proposal nowhere indicated that these
individuals would be involved in the performance of the contract or, if
so, in what capacities.  Under these circumstances, we have no basis to
object to the Army's evaluation.[3]
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
      
    
    
    
    
    
    
    
    

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   [1] Under the other technical factors, not in issue, the color ratings
reflected the number of evaluated strengths and weaknesses.  For example,
pink could be assigned a proposal with no strengths, one or more
weaknesses and a marginal or shallow understanding of the requirement,
while red might be assigned for a proposal with no strengths, one or more
major weaknesses and an unacceptable understanding of the requirement. 
AR, Tab 10, Pre-Negotiation Objective Memorandum, at 7.
[2] Because the protester proceeded pro se, we did not issue a protective
order, and our decision therefore does not include any nonpublic
information.  Our conclusions, however, are based on our review of the
entire agency record in camera. 
[3] In its comments on the agency report, DSC argues for the first time
that the evaluation of its proposal under the technical capability and
quality control factors was improper.  Our Bid Protest Regulations require
that protests based on other than apparent solicitation improprieties be
filed within 10 days of when the protester knew or should have known the
protest basis.  4 C.F.R. S: 21.2(a)(2) (2003).  DSC was provided the
information that should have put it on notice of these protest grounds on
or around March 19, when it apparently received a March 13 letter from the
Army listing the evaluated weaknesses and deficiencies in its proposal. 
Since DSC did not raise any objections to the evaluation under these
factors prior to filing its comments on May 8, these allegations are
untimely and will not be considered.