TITLE:  R&K Contractors, Inc., B-292287, July 23, 2003
BNUMBER:  B-292287
DATE:  July 23, 2003
**********************************************************************
R&K Contractors, Inc., B-292287, July 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:R&K Contractors, Inc.
    
File: B-292287
    

   July 23, 2003
    
Gary R. Sorensen, Esq., for the protester.
Ruth Kowarski, Esq., General Services Administration, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest of selection of slightly higher-priced proposal with
higher-rated past performance is denied where selection decision was
consistent with solicitation and reflected a reasonable price/past
performance tradeoff.
    
2.  General Accounting Office's granting of an extension of the due date
for the protester's comments on the agency report does not waive the
timeliness requirements for filing a supplemental protest, and thus new
and independent protest issues, first raised in comments submitted more
than 10 days after receipt of the agency report on which the issues were
based, are dismissed as untimely.
DECISION
    
R&K Contractors, Inc. protests the award of a contract to Quantum
Contracting, Inc. under request for proposals (RFP) No.
GS-08P-03-VJC-0017, issued by the General Services Administration (GSA)
for building alteration services at the Judge Bruce M. Van Sickle Federal
Building/Courthouse in Minot, North Dakota.  R&K primarily challenges the
reasonableness of the agency's unfavorable evaluation of the protester's
past performance; the firm also challenges the agency's selection of
Quantum's proposal for award based on that proposal's higher-rated past
performance rating and slightly higher price.
    

   We deny the protest.
    
The RFP, issued on March 7, 2003, as a small business set-aside, sought
proposals for building alteration work requiring demolition and
construction services (to include, for instance, wall, plumbing,
electrical, ceiling, door, ventilation system, painting, and flooring
work).  The RFP contemplated the award of a fixed-price contract
(estimated at between $25,000 and $100,000) to the responsible offeror
whose offer conforming to the solicitation was considered most
advantageous to the government.  Two evaluation factors for award were to
be considered:  past performance and price.  Offerors were requested to
provide three past performance references for projects similar in size and
type to the current project.  Amendment No. 2 to the RFP extended the
closing date for the receipt of proposals until April 11; that amendment
provided a blank line upon which offerors were to insert the amount of the
*total lump sum offer.*  Nine offers were received and reviewed; six were
included in a preliminary competitive range.  The competition, however,
was ultimately limited to the two lowest-priced proposals, R&K's (which
proposed a total price of $41,776) and Quantum's (with a proposed price of
$42,655).
    
The contracting officer limited her past performance review to information
known to her and other GSA contracting personnel about both R&K's and
Quantum's recent performance on similar GSA projects.  This protest
focuses on the contracting officer's finding that R&K's recent performance
of similar work for the agency was plagued with performance problems,
including delays, [deleted].  The contracting officer ultimately
determined that, in light of these known performance problems involving
R&K's performance [deleted], compared to Quantum's excellent past
performance of similar work for the agency, Quantum's higher past
performance rating and lower performance risk warranted payment of the
very slight ($879) cost premium associated with an award to the firm. 
This protest followed.
    
As stated above, R&K primarily challenges the agency's evaluation of its
past performance and the agency's decision to award a contract for the
work to Quantum at a slightly higher price than R&K had proposed.  In
reviewing an agency's proposal evaluation, we examine the record to ensure
that it was reasonable and consistent with the solicitation's evaluation
terms and applicable statutes and regulations.  Digital Sys. Group, Inc.,
B-286931, Mar. 7, 2001, 2001 CPD P: 50 at 7.  In deciding between
competing proposals, tradeoffs, such as between past performance and
price, may be made.  The propriety of the tradeoff does not depend on the
difference in technical scores or ratings, but on the reasonableness of
the source selection official's judgment concerning the significance of
the difference.  Id.  Our review here therefore focuses upon whether the
evaluation record and source selection decision show that the agency
reasonably assessed the relative merits of the proposals in accordance
with the stated evaluation criteria.  KBM Group, Inc., B‑281919,
B-281919.2, May 3, 1999, 99-1 CPD P: 118 at 11.  An offeror's mere
disagreement with the agency's assessment of its past performance, or the
merits of its proposal relative to others, does not render the source
selection unreasonable.  See Encorp-Samcrete Joint Venture,
B‑284171, B‑284171.2, Mar. 2, 2000, 2000 CPD P: 55 at 4.
    
PAST PERFORMANCE EVALUATION AND SOURCE SELECTION
    
The record here shows that the contracting officer's review of R&K's
relatively recent performance of a very similar contract--administration
of which was handled by the same individuals managing this
procurement--became the critical factor in the source selection here,
especially since the two proposals, R&K's and Quantum's, were so close in
price.
    
As a preliminary matter, we note that R&K argues that the contracting
officer improperly considered the firm's performance of the similar work
it performed for GSA at the same building because R&K had not included
that contract in its proposal as a past performance reference.  This
argument is unpersuasive, since it is appropriate for a contracting
officer to rely on past performance information of which he or she is
directly knowledgeable.  See Omega World Travel, Inc., B‑271262.2,
July 25, 1996, 96-2 CPD P: 44 at 4.  Additionally, although R&K contends
that the contracting officer improperly failed to contact all of R&K's
listed references, it is well settled that there was no legal requirement
for the agency to do so.  See Kalman & Co., Inc., B-287442.2, Mar. 21,
2002, 2002 CPD P: 63 at 9.  While we recognize that the contracting
officer's past performance evaluation was limited here to a single past
performance reference for each contractor, given the similarities in the
work of each firm's project to this procurement, and the minimal cost
difference between the two firms, we find, as discussed below, the
evaluation proper and the award decision reasonably based. [1]
    
Although R&K has attempted to refute each of the agency's many examples of
what it considered deficient in the firm's prior performance of similar
work for the agency, and although we have reviewed every one of the firm's
responses, we discuss only an illustrative number of them.  First, for
instance, the agency reports that there were delays in R&K's performance
[deleted].  R&K contends that other delays throughout the contract
performance period, however, were due to agency action or failure to
timely act.  For instance, [deleted].
    
On the other hand, the agency, besides citing the protester's delay in
starting performance, reports that, [deleted] and that many months after
award of the 60-day contract, the parties were still resolving cost claims
under the contract.
    
In making her source selection decision, including a tradeoff analysis
between the two firms' proposals, the contracting officer cited the poor
past performance rating from GSA for R&K [deleted], and the high risk of
such poor performance occurring with the current substantially similar
contract.  Quantum, on the other hand, had received an excellent past
performance rating from GSA personnel, with little or no performance
problems, and only minimal agency time needed for administration of the
contract.  The contracting officer, noting the slight price difference
between the firms' proposals determined that the Quantum proposal
represented the best overall value to the government.
    
Our review of the record confirms the reasonableness of the evaluation and
source selection.  In short, given the agency's recent experience
involving performance problems under R&K's contract for substantially
similar work,[2] discussed above, and the very slight difference in price
between the two proposals, we have no basis to question the reasonableness
of the contracting officer's determination that payment of the $879 cost
premium involved in an award to Quantum based on its higher past
performance rating (and associated lower performance risk) was warranted. 
The record shows that the tradeoff analysis was made in accordance with
the RFP's evaluation terms, allowing for equal consideration of both past
performance and price, and that the agency acted reasonably in determining
that Quantum's higher past performance rating (and lower performance
risk), at a price only slightly higher than R&K's, offered the most
advantageous proposal.
    
UNTIMELY ISSUES
    
R&K received the agency's report responding to its protest on June 11. 
Several days later, R&K requested and was granted a 3-day extension for
the filing of its comments on the report.  R&K's comments, filed on June
26, 15 days after its receipt of the report, elaborated upon contentions
made in its protest (i.e., regarding the evaluation of R&K's past
performance), and raised additional grounds of protest based upon
information it learned in the agency report.
    
The agency asserts that the additional protest grounds are untimely, as
they are admittedly based upon the agency's report and accompanying
documents, yet were not filed in our Office within 10 days of the
protester's receipt of the report.  Bid Protest Regulations, 4 C.F.R.
S: 21.2(a)(2) (2003) (requiring protests regarding other than
improprieties in a solicitation to be filed within 10 days of when the
protester knew or should have known its basis of protest).  On the other
hand, R&K contends that its comments do not raise new grounds of protest,
but rather, provide additional support for its initial general protest of
the evaluation of its past performance, and the agency's award decision,
and thus should be regarded as timely filed within the 3-day extension
granted for comments regarding its initial protest contentions.
    
As a general rule, the timeliness of specific bases of protest raised
after the filing of a timely protest depends on the relationship the
later-raised bases bear to the initial protest.  Where the later-raised
bases present new and independent grounds for protest, they must
independently satisfy our timeliness requirements; conversely, where the
later-raised bases merely provide additional support for an earlier,
timely raised protest basis, we will consider the later-raised arguments. 
Ti Hu, Inc., B‑284360, Mar. 31, 2000, 2000 CPD P: 62 at 4.
    
Our review of the record confirms the reasonableness of the agency's
position that the protest issues raised by R&K for the first time in its
comments constitute new and independent protest grounds, rather than mere
support for the initial protest grounds.  R&K's initial protest submission
is limited to a general challenge to the agency's unfavorable evaluation
of the firm's past performance.  [deleted]  R&K protested for the first
time in its comments, however, that the agency's reported use of
simplified acquisition procedures under the RFP is improper, that the
agency failed to conduct discussions with the protester about its past
performance, and allegedly improperly held discussions with the awardee
regarding price.  R&K also argued for the first time in its comments that
the agency had improperly reviewed the proposals prior to the scheduled
closing date, that amendment No. 2 to the RFP should not be considered a
request for revised proposals (but rather an extension to the initial
closing date), and that any post-protest supplemental past performance
evaluation by the agency is improper.
    
Our review of the record confirms that the nature of the allegations
raised for the first time in the protester's comments (which, R&K admits,
respond to information it first learned in the agency report) are
significantly different, so as to constitute separate and independent
protest grounds that must independently satisfy the timeliness
requirements of our Bid Protest Regulations.  See id. (independent protest
grounds arising under the same evaluation factor); RAMCOR Servs. Group,
Inc., B‑276633.2 et al., Mar. 23, 1998, 98-1 CPD P: 121 at 9 n.9
(individual examples of flaws in evaluation must be alleged in a timely
manner).  These new and independent protest grounds had to be filed within
10 days of receipt of the report.  4 C.F.R. S: 21.2(a)(2).  The fact that
our Office granted the protester's request for a 3-day extension on filing
its comments did not, and cannot, waive the timeliness requirements for
filing new bid protest issues.[3]  ATA Defense Indus., Inc., B-282511.8,
May 18, 2000, 2000 CPD P: 81 at 4.  These additional protest grounds
contained in the protester's comments therefore are untimely and will not
be considered.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The agency reports that it had considered R&K's references but
determined that they related to types of work dissimilar to the work
required under the RFP.  Nonetheless, the agency reports that after this
protest was filed, the contracting officer did contact the references
provided by both R&K and Quantum, and that the results of that admittedly
brief, supplemental survey support its source selection, since R&K did not
receive ratings as high as Quantum did from its past performance
references.
[2] [deleted]
[3] The protester requests that we consider the protest grounds raised in
its comments under either the significant issue or good cause exceptions
to the timeliness requirements of our Bid Protest Regulations, 4 C.F.R.
S: 21.2(c).  The protester's position--that, due to its pressing work
schedule, it was unable to meaningfully respond to the agency's report
within the 10 days allowed for protest comments to be submitted--does not
establish *good cause* to warrant applying that exception to our
longstanding timeliness rules.  See Continental Maritime of San Diego,
Inc.--Claim for Cost, B-249858.5, Dec. 17, 1993, 93-2 CPD P: 323 at 3-4. 
Similarly, the matters raised are not of such widespread interest to the
procurement community as to be considered significant issues under the
exception to our timeliness rules, since, although significant to the
protester, they are limited to this particular procurement.  Source
Diversified, Inc., B-259034, Mar. 1, 1995, 95-1 CPD P: 119 at 3.