TITLE:  Robert Clay, Inc., B-292443, August 14, 2003
BNUMBER:  B-292443
DATE:  August 14, 2003
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Robert Clay, Inc., B-292443, August 14, 2003

   Decision
    
    
Matter of:   Robert Clay, Inc.
    
File:            B-292443
    
Date:              August 14, 2003
    
Robert Clay for the protester.
Capt. Ryan Hendricks, Department of the Air Force, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest based on information learned in non-required debriefing is
timely if filed within 10 days of the debriefing.
    
2.  Agency reasonably determined that awardee and protester had equal
performance risk ratings; because past performance and price were the sole
evaluation factors, award was reasonably based on the awardee's
lower-priced proposal. 
DECISION
    
Robert Clay, Inc. protests the award of a contract for roof repairs to
Platinum One Contracting, Inc., by the Department of the Air Force under
request for proposals (RFP) No. FA4416-02-R-0016.  Clay argues that past
performance was unreasonably evaluated.

   We deny the protest.
    
The RFP, issued as a Historically Underutilized Business Zone (HUBZone)
set aside, contemplated award of an indefinite-delivery requirements
contact for roof repairs.  Award was to be made on a *best value* basis,
considering past performance and price, with past performance being
*significantly more important than* price.  RFP at 33.  The assessment of
past performance was to result in an overall performance risk rating of
either exceptional, very good, satisfactory, neutral, marginal, or
unsatisfactory.  Offerors without *relevant* past performance were to
receive a neutral rating, meaning that the rating was to be treated
neither favorably nor unfavorably.  RFP, amend. 1, at 3.  Relevant
contracts were said to *include, but are not limited to, repair and/or
replacement of standing seam metal roofing, of the same magnitude of this
project (between $1,000,000.00 and $3,000,000.00).*  RFP, amend. 3, at 1.
    
Seven proposals were received in response to the RFP.  Platinum submitted
the lowest-priced offer.  This offer was significantly lower priced than
Clay's second low offer.  Both proposals were given overall performance
risk ratings of very good, based on the offerors' and their teaming
partners' past performance evaluations.  Platinum's and Clay's own past
performance was rated neutral because their listed contracts were not
found to be relevant in scope and/or magnitude.  However, these firms'
teaming partners' past performance was rated exceptional because their
listed contracts were found to be relevant with exceptional performance
reports.  The overall very good risk ratings for Clay and Platinum were
determined to be the midpoint between their neutral ratings and the
exceptional ratings of their teaming partners.  Agency Report, Tab 6, Past
Performance Evaluations for Platinum and Clay.  The Air Force determined
that *[s]ince both ratings were Very Good, there isn't any risk reduction
to the Government if we award to the higher priced offeror.*  Accordingly,
Platinum's lower-priced proposal was found to represent the best value and
was selected for award.  Id., Integrated Assessment Best Value Decision,
at 2.
    
A notice of award was *uploaded to the Electronic Posting System
website*[1] on March 26, Contracting Officer's Statement at 1, and
provided by facsimile to Clay on March 28.  This notice provided the name
of the awardee, contract price, and the general basis for award.  On March
28, Clay requested additional information concerning the procurement under
the Freedom of Information Act.  On March 29, Clay mailed a request for a
debriefing to the contracting officer, which the Air Force received on
April 2. 
    
On April 1, Clay mailed an agency-level protest to the Air Force,
asserting that its proposal *represented the lowest price and lowest risk
to the government.*  Clay complained that the Air Force had not responded
to its information request so it did *not have sufficient information at
this time to set forth all its[] grounds as to why the contract award is
improper,* but stated that it was filing this protest *to preserve its[]
right to make a complete bid protest and will supplement this letter after
sufficient documentation has been produced.*  Protester's Comments, Tab F,
Agency Protest, at 1.  The protest was received by the Air Force on April
3. 
    
On April 9, the Air Force provided Clay with a debriefing. 
    
On April 14, Clay mailed a supplemental protest to the Air Force.  This
protest alleged that Platinum *was not the most qualified company offering
the lowest price
and lowest risk to [the] government.*  With regard to this latter
contention, Clay stated that, during the debriefing, the Air Force
*incorrectly stated that Platinum is equally as qualified as [Clay]*
because this *evaluation was flawed insofar as it was based on an
inaccurate assessment of the company's capability and history.*  This
protest also alleged that Platinum was merely a *pass through* for its
teaming partner, and the principal of the teaming partner had an improper
conflict of interest with unspecified agency officials.  Protester's
Comments, Tab G, Supplemental Agency Protest, at 1-2.  The Air Force
received Clay's supplemental agency-level protest on April 16. 
    
On May 15, the Air Force dismissed both the initial and supplemental
protests as untimely because Clay did not timely request a debriefing. 
The Air Force asserts that it attempted to deliver the dismissal to Clay
via certified mail on May 21, 26, and June 5, and that the letter was
returned as *unclaimed.*  Contracting Officer's Statement at 1.  Clay
states that it was unaware of these attempts.  A copy of the dismissal was
ultimately faxed by the agency to Clay on June 4, which is when Clay
states that it first became aware of the dismissal.  Clay filed a protest
with this Office on June 13, incorporating the same grounds as raised in
its agency-level protests. 
    
Clay first contends that the Air Force performed a *flawed* and
*inaccurate* assessment of past performance *capability and history.*  The
Air Force requests that we dismiss Clay's protest as untimely because Clay
did not timely request a debriefing. 
    
Our Bid Protest Regulations contain strict rules for the timely submission
of protests.  Under these rules, a protest based on other than alleged
improprieties in a solicitation must be filed no later than 10 calendar
days after the protester knew, or should have known, of the basis for
protest, whichever is earlier.  4 C.F.R. S: 21.2(a)(2) (2003).  Further,
our Regulations provide that a matter initially protested to the
contracting agency will be considered only if the initial protest was
filed within the time limits for filing a protest with our Office, unless
the contracting agency imposes a more stringent time for filing, in which
case the agency's time for filing will control.  4 C.F.R. S: 21.2(a)(3). 
    
As stated in the supplemental agency protest, the protester's allegation
was based upon information first learned at the debriefing, namely that
the Air Force had rated Platinum and Clay the same for past performance
and thus found them to be *equally as qualified.*[2]  Protester's
Comments, Tab G, Supplemental Agency Protest, at 1-2. 
Because this protest ground was received by the Air Force within 10 days
of the debriefing, it was timely filed with the agency, and  Clay's
subsequent protest was timely filed at our Office because it was received
here within 10 days of when Clay received notice of the Air Force's
dismissal of its agency protests.[3]  The agency's argument that Clay's
entire protest should be dismissed because it did not timely request a
debriefing is meritless, given that non-required debriefings are
permitted, see Federal Acquisition Regulation (FAR) S: 15.506(a)(4)(i),
and a protest based on information first revealed in a non-required
debriefing, as here, is timely if filed within 10 days of the debriefing. 
Beneco Enters., Inc., B-283154, Oct. 13, 1999, 2000 CPD P: 69 at 6 n.6. 
    
However, this protest ground has no merit.  The evaluation of past
performance is a matter of agency discretion, which we will review to
ensure that it was reasonable and consistent with the stated evaluation
criteria.  Honolulu Shipyard, Inc., B-291760, Feb. 11, 2003, 2003 CPD P:
47 at 4.  The record here does not support Clay's contention that it
should have received a more favorable risk rating than Platinum.  Rather,
the record reveals that neither offeror had past performance that was of
the same scope and/or magnitude of that required by the RFP, and therefore
both offerors warranted only a neutral rating, and that these offerors'
teaming partners, who had relevant past performance, warranted a rating of
exceptional.  While Clay contends that it has more experience in
*indefinite quantity contracts* than Platinum, it does not allege that
these contracts are of the same scope or magnitude as contemplated by the
RFP, or that these contracts were even identified in its proposal for
evaluation under past performance.  In sum, Clay has not demonstrated that
the Air Force's determination as to relevance of the offerors' listed
contracts, or assessment of past performance, was unreasonable.  Given
that both offerors received an overall rating of very good, we find that
the Air Force could reasonably conclude that there would be no reduction
in risk from awarding to the higher-priced offeror. 
    
Clay next contends that Platinum is a *pass through* for its teaming
partner and that the principal of the teaming partner has an improper
conflict of interest with unspecified agency officials.  Clay has provided
no supporting evidence of any improper conflict of interest and relies
solely on inference and supposition; as a
result, we will not consider this issue further.[4]  Integrity Mgmt.
Enter., Inc., B-290193, B‑290193.2, 2002 CPD P: 117 at 17 n.12. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
        
    
    
    
    

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   [1] The RFP does not contain a provision notifying offerors that notice of
award would be provided in this manner.
[2] Clay's initial agency-level protest based on its allegation that it
offered the lowest price has turned out to be not accurate, so we need not
consider the allegations made in that protest further.
[3] While the agency suggests the protester should have been on notice of
the dismissal of its agency-level protest because of the three attempts to
deliver the certified mail copy of the dismissal, there is nothing in the
record that suggests that the protester had actual or constructive notice
of the dismissal of its agency-level protest until June 4, and it
protested to our Office within 10 days of that date.
[4] Clay raises additional allegations for the first time in its comments
to the agency report, including that Platinum is not a qualified HUBZone
contractor, Platinum's teaming partner is not Section 8(a) certified and
is not a small disadvantaged business, and a conflict of interest exists
regarding the evaluation of past performance.  These allegations are
dismissed, as they were not raised in Clay's agency-level protests or
initial protest to are Office and are now untimely.   4 C.F.R. S: 21.2(a);
Research Tech. Int'l, B-243844, Aug. 19, 1991, 91-2 CPD P: 165 at 2-3; see
also Dial Page, Inc., B‑256210, May 16, 1994, 94-1 CPD P: 311 at 4
(allegations raised for first time in comments are untimely).