TITLE:  American Artisan Productions, Inc., B-292559; B-292559.2, October 7, 2003
BNUMBER:  B-292559; B-292559.2
DATE:  October 7, 2003
**********************************************************************
American Artisan Productions, Inc., B-292559; B-292559.2, October 7, 2003

   Decision
    
    
Matter of:   American Artisan Productions, Inc.
    
File:            B-292559; B-292559.2
    
Date:              October 7, 2003
    
Arthur Friedman for the protester.
Sherry Kinland Kaswell, Esq., Department of the Interior, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Where solicitation instructed offerors to submit past performance
references for projects similar in size, complexity and nature to the
contract being awarded and indicated that past performance would be
evaluated based on performance of work similar in nature to that required
by the solicitation, the agency reasonably downgraded protester*s proposal
for not identifying project references that were comparable in dollar
value to that of the requirement solicited.
    
2.  Because solicitation provided that the agency would evaluate the
quality and workmanship of samples of museum exhibit work completed by
offerors* proposed personnel, it was reasonable for the agency to consider
the aesthetic quality of the work samples submitted by the offerors.
    
3.  Contracting agency reasonably concluded that awardee*s use of a
subcontractor which had participated in the development of the
solicitation*s specifications did not present an organizational conflict
of interest because the subcontractor had worked only on design aspects of
the specifications, more than one contractor was involved in preparing the
specifications, and the subcontractor was not in a position to draft
specifications favoring its own products.       
DECISION
    

   American Artisan Productions, Inc. (AAP) protests the award of a contract
to Promotion Products, Inc. (PPI) under request for proposals (RFP) No.
N9325020022, issued by the National Park Service (NPS), Department of the
Interior, for services in connection with museum exhibits at the John Day
Fossil Beds National Monument, a national park in Kimberly, Oregon. AAP
principally alleges that the agency*s evaluation of its technical proposal
was improper, and that the award to PPI was improper due to an
impermissible conflict of interest resulting from PPI*s use of a
subcontractor (High Desert Museum (HDM)) which had assisted NPS in
developing the RFP*s specifications.
    

   We deny the protest.
    
The RFP, issued on February 11, 2003, contemplated the award of a
fixed-price contract for the design, development, fabrication and
installation of approximately 2,400 square feet of museum exhibits, and
several stand-alone lobby exhibits, at the Thomas Condon Paleontology
Center, and for approximately 500 square feet of museum exhibits at the
James Cant Ranch House, both of which are located at the John Day Fossil
Beds National Monument.  The solicitation specifically stated that the
contractor is to provide *project management, additional exhibit design,
where needed; production, and installation services for all exhibit
elements, including murals, models, fossil mounts, audio (soundscapes),
audio equipment, lighting, and security elements . . . .*  RFP S: C, at 1.
    
Prior to issuing the solicitation, NPS, in partnership with HDM (as well
as other contractors), completed approximately 95 percent of the planning
and design development work for the exhibits at the two sites.  These
plans and designs were then incorporated by NPS in the solicitation as
exhibit specifications and drawings.  Remaining design elements include
development of final edited text for exhibit panels and selection of final
graphics for the panels.
     
The RFP listed four technical evaluation factors in descending order of
importance:
(1) past performance; (2) ability to fabricate both cultural and natural
history exhibitry; (3) key personnel; and (4) samples of work.  Five
subfactors were listed under the past performance factor:  (1) quality of
products and services;
(2) customer satisfaction; (3) cost control; (4) timeliness of
performance; and
(5) business relations.  As relevant to the subject protest, under the
samples of work factor, proposals were to be evaluated based on *the
quality and workmanship of exhibits as shown by photographs and a
description of the exhibit projects that were completed by key personnel
proposed for use under the contract.*  RFP S: M, at 2. 
    
The solicitation provided that, after evaluating the offerors* initial
proposals, the agency would establish a competitive range, hold
discussions with those offerors in the competitive range, and, after
receipt of revised proposals, make award to the offeror whose proposal
*[would] be most advantageous to the Government, cost or price and other
factors considered.*  Id. at 4. When making this determination, a firm*s
technical quality and experience, including past performance, would be
considered more important than cost or price.  Id. 
    
Section L of the RFP instructed offerors to prepare their technical
proposals as a separate package and indicated that the technical portion
of an offeror*s proposal would be the most important single factor in the
evaluation of offers.  Section L described the minimum information that
offerors were to provide in their technical proposals and, with regard to
past performance, it instructed offerors to provide references to
contracts they had performed which were similar in size, complexity and
nature to the John Day Fossil Beds National Monument project.  The
instructions further indicated that past performance would be *evaluated
on performance under existing and prior contracts for work similar in
nature and complexity to that required by the solicitation.*  RFP S: L, at
3. 
    
Eight firms, including AAP and PPI, submitted proposals by the RFP*s April
14 closing date and the agency convened a technical evaluation panel (TEP)
to evaluate the offerors* initial technical proposals.  The TEP assigned
each proposal a score and, based upon that score, the proposals were
assigned an adjectival rating and a numerical ranking.[1]  PPI*s proposal
was rated exceptional with the highest initial technical evaluation score
of 95.33 (no weaknesses were identified), and, accordingly, was ranked
first technically.  AAP*s received a technical rating of good and was
ranked fifth, with a score of 82.33. 
    
As part of the initial evaluation of AAP*s proposal, the TEP identified
several weaknesses.  Regarding AAP*s past performance, the TEP noted that
AAP*s contract references were for smaller-scale projects than the John
Day Fossil Beds National Monument.  AAP*s proposal contained past
performance information regarding three contracts it had completed within
the last 3 years.  The first was for outdoor exhibits at the JFK Special
Forces Museum, in the amount of $87,205.  The second was described as
phase I of the world*s largest fire museum, in the amount of $750,000,
with design and production of an 8,000 square foot fire museum.  The third
was identified as a contract for a Forest Service visitor center, in the
amount of $127,000.  The TEP also noted that the exhibit examples
submitted by AAP did not include *rendering of complex geological
formations*; AAP*s paleontology examples were primarily of dinosaurs,
which the TEP indicated were not relevant to the John Day Fossil Beds
National Monument project; and some of the examples submitted looked
artificial.  AR, Tab 10, TEP Report, at 5-6.
    
Before establishing the competitive range, the contracting officer ranked
the proposals in terms of price.  AAP submitted the lowest-priced offer in
the amount of $1,043,318[2] and, therefore, was ranked first.  PPI*s
proposal was ranked fifth.
    
Based on the evaluations of the initial proposals, all eight offerors were
found to be within the competitive range, and, on June 5, the agency held
telephone discussions with all the offerors. 
    
Because PPI*s technical proposal did not have any perceived weaknesses,
the agency suggested only that PPI take a *second look* at its price
proposal.  AR, Tab 10, TEP Report, at 7.  During its discussions with AAP,
however, the agency highlighted AAP*s various weaknesses.  NPS indicated
that its examples and references were for smaller scale projects and asked
AAP to provide examples of its largest projects.  NPS also asked AAP *to
provide examples of non-dinosaur paleontological exhibits, i.e. mammals
and renderings of complex geological formations.*  AAP*s Comments on
Agency Report, Aug. 18, 2003, at 4.  In response, AAP submitted
information regarding three additional projects, the largest of which was
completed in 1985 and in the amount of $817,000.
    
AAP also sought to send a sample of a typical fossil section in concrete
to the agency*s contracting office in Seattle.  The contracting officer,
however, informed AAP that the sample should be sent directly to the John
Day Fossil Beds National Monument because *the Seattle office did not have
the staff or room to handle, store, or evaluate such an object.*  Agency*s
Response to Protester*s Comments, Aug. 29, 2003, encl. at 4.  According to
AAP, it did not send the sample to the park because, notwithstanding AAP*s
alleged two requests, the contracting officer failed to provide AAP with
an address or a delivery contact for the park.
    
After reviewing the revised proposals, the lead technical evaluator, in a
memorandum to the contracting officer, concluded that the supplementary
material submitted and/or changes to the technical proposals would not
alter the TEP*s scores and he therefore recommended adopting the TEP*s
initial technical scores.  See AR, Tab 10, Evaluation of Offerors*
Supplemental Submissions and Revised Price Proposals, June 26, 2003.    
    
In a memorandum dated June 26, the contracting officer determined that PPI
ranked the highest technically with a score of 95.33; concluded that PPI*s
price ($1,230,000), when compared with the other prices submitted and the
government estimate ($1,234,228), was fair and reasonable; and determined
that PPI*s proposal represented the best value to the government.  See AR,
Tab 11, Source Selection Authority (SSA) Decision.  On June 27, the agency
awarded the contract to PPI and notified the unsuccessful offerors of the
award decision on June 30.
    
On July 1, AAP requested a post-award debriefing in accordance with
Federal Acquisition Regulation (FAR) Part 15.  The contracting officer
provided AAP with a written debriefing, which was sent by facsimile and
mailed on July 3.  In the debriefing letter, the contracting officer
discussed the significant weaknesses in AAP*s technical proposal. 
Specifically, with regard to the past performance factor, the contracting
officer noted that most of the examples of work submitted by AAP were for
projects that were smaller in scale and complexity when compared to the
John Day project and stated that *other firms submitted proposals
documenting many completed projects that were up to 10 times greater in
scale than the John Day project, and many submitted a range of large ($5
million plus) to smaller projects.*   See AR, Tab 14, Debriefing letter,
July 3, 2003, at 1. 
    
With regard to the second evaluation factor, ability to fabricate both
cultural and natural history exhibitry, the contracting officer stated, in
part, that most of the natural history examples submitted by AAP *did not
deal with paleontological themes* and that *the quality (realism) of the
natural history exhibitry . . .
submitted . . . was not deemed as good as other firms submitting
proposals.*  Id.
    
As to the third evaluation factor, key personnel, the contracting officer
indicated, in part, that the examples of AAP*s muralists* work were
inferior to the quality of work submitted by other firms and asserted that
PPI*s key personnel, particularly its muralists, were superior to those of
other offerors.  Id. at 1-2.
    
Due to transmission problems AAP did not receive the contracting officer*s
debriefing until July 7 and, as a consequence, AAP filed an initial
protest, dated
July 6, prior to its receipt of the written debriefing.  Upon receipt of
the debriefing, however, AAP filed a subsequent protest on July 7,
elaborating on its earlier filed protest.[3]
    
Evaluation of AAP*s Proposal
    
AAP challenges the agency*s evaluation of its proposal in several
respects.  AAP argues that:  (1) the agency deviated from the
solicitation*s stated evaluation criteria by downgrading its proposal
under the past performance factor because AAP had no completed museum
exhibits in the $5-$10 million range; and (2) the agency improperly relied
on its determination that AAP*s muralists were inferior to PPI*s muralists
since such a comparison is inherently subjective and cannot be a valid
basis for award.[4]
    
When reviewing a protest of an agency*s proposal evaluation, we will
consider whether the evaluation was reasonable and consistent with the
terms of the solicitation and applicable statutes and regulations. 
Preferred Sys. Solutions,
B-291750, Feb. 24, 2003, 2003 CPD P: 56 at 2.  Here, as discussed in
detail below, we see no basis to question the agency*s evaluation.
    
Past Performance
    
AAP argues that the agency employed an unstated evaluation criterion by
downgrading its past performance score because AAP had not completed
museum exhibits in the $5-$10 million range.  This argument, however, is
unsupported by the record.  AAP*s challenge is based on the section of its
debriefing wherein the agency notes that other firms submitted proposals
documenting projects that were up to
10 times greater in scale than the John Day project, and many submitted a
range of large ($5 million plus) to smaller projects.  This statement,
however, when read in context, does not support AAP*s conclusion that the
agency required offerors to have completed exhibits in the $5-$10 million
range.
    
The RFP expressly instructed offerors to provide references to contracts
they had performed which were *similar in size, complexity and nature* to
the John Day Fossil Beds National Monument project.  RFP S: L, at 2.   
AAP*s debriefing specifically noted that the contract references submitted
by AAP were for projects smaller in scale and complexity relative to the
John Day project.  NPS had raised this concern with AAP during
discussions, which led to AAP*s submission of additional contract
references.
    
Given that all of the projects submitted by AAP were less than the dollar
value of the John Day project, and the project with the highest dollar
value ($817,000) was completed in 1985, approximately 18 years ago, the
agency*s concerns about AAP*s contract references and its evaluation of
AAP*s past performance were wholly reasonable.  While AAP argues that
several of the projects it submitted were larger than the John Day project
in total square footage, the agency correctly points out that it was
within its discretion to consider not only the square footage of the
projects submitted but to also consider their cost as an objective way of
assessing the complexity and scale of the projects submitted.  See
Knightsbridge Constr. Corp., B-291475.2, Jan. 10, 2003, 2003 CPD P: 5 at
3.
    
The comment in AAP*s debriefing letter, that other offerors had completed
projects of a larger scale and for greater dollar amounts than the John
Day project, merely served as a point of comparison with the other
proposals.  There is no evidence in the record suggesting that NPS
downgraded AAP or any other offeror for not having exhibits in the $5-$10
million range.  It is significant to note in this regard that the awardee,
PPI, did not identify any exhibits in the $5-$10 million range; PPI*s
highest dollar value contract reference was $2.5 million.    
                    
    
Evaluation of Muralists
    
AAP also argues that the agency improperly evaluated the quality of the
work of its muralists by comparing them with those of PPI and concluding
that PPI*s muralists were superior.  According to AAP, its muralists are
among *the world*s foremost natural history artists* and any preference
for PPI*s muralists *is like saying I like Rembrandt better than Leonardo
da Vinci.*  Protest, July 7, 2003, at 2.  According to AAP, the agency
should have evaluated only whether its muralists were capable of doing the
work in a cost-effective manner. 
    
The solicitation, however, instructed offerors to submit samples of work
by their proposed personnel and stated that offerors* samples would be
evaluated *based on the quality and workmanship of exhibits.*  RFP S: M,
at 2 (emphasis added).  Because NPS was evaluating samples of artwork
submitted by the offerors* muralists, aesthetic judgments were an inherent
aspect of the agency*s evaluation of the *quality and workmanship* of
those samples.  NPS, therefore, did not act improperly by comparing the
aesthetic quality of AAP*s muralists to those of PPI. 
    
Due to the fact that aesthetic judgments are inherently subjective, the
exercise of such judgments remains within the reasonable discretion of
procuring officials.  SDA Inc., B-256075, B-256206, May 2, 1994, 94-2 CPD
P: 71 at 10.  There is nothing in the record to suggest that the agency
abused its discretion in this regard.  While AAP may disagree with the
agency*s aesthetic assessments of its muralists* work, its mere
disagreement with the agency*s evaluation is not a sufficient basis for
finding the agency*s evaluation unreasonable.  Bell Free Contractors,
Inc., B-227576, Oct. 30, 1987, 87-2 CPD P: 418 at 5.
    
Conflicts of Interest
    
In its comments on the agency report, AAP, for the first time, asserted
the existence of a conflict of interest based on PPI*s proposed use of a
subcontractor (HDM) which had also worked on the solicitation*s
specifications.  As support for its position, AAP cites FAR S:
9.505-2(b)(1), which provides as follows:
    
If a contractor prepares, or assists in preparing, a work statement . . .
that contractor may not supply the . . . services unless: (i) It is the
sole source; (ii) It has participated in the development and design work;
or (iii) More than one contractor has been involved in preparing the work
statement.
    
Our Bid Protest Regulations provide that protests based on other than
alleged solicitation improprieties must be filed not later than 10 days
after the protester knew or should have known the basis of protest.  4
C.F.R. S: 21.2(a)(2).  AAP was on notice of the fact that HDM had a role
in developing the solicitation*s specifications from the solicitation
itself, which had an express statement to that effect and also clearly
marked the specifications and various drawings with HDM*s logo and name. 
Further, AAP learned of PPI*s involvement with HDM on July 17, by virtue
of an
e-mail message from one of its own subcontractors.  See AAP*s Comments on
Agency Report, August 18, 2003, Tab 4.  Because AAP learned of this basis
for protest on July 17, but first raised the issue more than 10 days
later, it is untimely.
    
Even assuming AAP*s challenge to be timely, it is, in any event, without
merit.  The responsibility for determining whether a conflict exists, and
whether a firm should be excluded from competition, rests with the
procuring agency, and our Office will not sustain a protest challenging an
agency*s determination in this regard unless it is shown to be
unreasonable.  SSR Engineers, Inc., B-282244, June 18, 1999, 99-2 CPD
P: 27 at 2.  Procurement officials are to exercise *common sense, good
judgment, and sound discretion* in assessing whether a significant
conflict of interest exists.  FAR
S: 9.505.  Substantial facts and hard evidence are necessary to establish
a conflict; mere inference or suspicion of an actual or apparent conflict
is not enough.  Snell Enters., Inc., B-290113, B-290113.2, June 10, 2002,
2002 CPD P: 115 at 4. 
    
In this case, as a preliminary matter, the prohibition in FAR S:
9.505-2(b)(1), by its own terms, does not apply.  Assuming HDM*s work on
the specifications in some way implicated FAR S: 9.505-2(b)(1), two of the
exceptions contained in this section would, nevertheless, apply.  As noted
above, FAR S: 9.505-2(b)(1)(ii) exempts from the provision*s prohibition a
contractor who has participated in the design and development work; HDM
worked on design aspects for the John Day project exhibits.  Agency*s
Response to Protester*s Comments, Aug. 29, 2003, encl. at 2-3.  The second
exception (FAR S: 9.505-2(b)(1)(iii)) applies where more than one
contractor has been involved in preparing the work statements; here, firms
other than HDM worked on the specifications as well. [5]  Id., encl. at
3.     
    
While not specifically addressed by AAP, the agency also correctly points
out that FAR S: 9.505-2(a)(1) likewise would not render the award to PPI
improper in this case.  FAR S: 9.505-2(a)(1) generally prohibits a
contractor from preparing and furnishing complete specifications covering
nondevelopmental items and then furnishing those items either as a prime
contractor or as a subcontractor.  The concern addressed by this provision
is that the contractor could skew the competition, whether intentionally
or not, in favor of itself.  Snell Enters., Inc., supra, at 3.  In this
case, the agency represents that HDM did not provide *complete
specifications.*  Agency*s Response to Protester*s Comments, Aug. 29,
2003, at 3.  In addition, prior to the release of the solicitation, the
contracting officer determined that HDM*s participation in the competition
did not create a conflict because HDM was not in a position to draft
specifications favoring its own products since HDM does not perform the
type of work solicited.  Id., encl. at 2.  The agency explains that HDM is
dedicated to exhibit design work, while the subject solicitation is
primarily for exhibit fabrication and installation.  Id.  Based on the
record here, there is no basis to question the agency*s determination that
HDM should not have been precluded from participating in the
competition.    
    
In connection with its conflict of interest argument, AAP also highlights
the fact that PPI*s price of $1,230,000 was close to the government
estimate of $1,234,228, and thereby suggests that HDM provided PPI with an
unfair advantage with its price proposal.  According to AAP, this should
have *raised a red flag* with the contracting officer.  In a joint
statement, the contracting officer and the head of the TEP assert that,
while HDM did provide the agency with cost information about the design
work it had performed, HDM did not prepare the government estimate and the
government estimate was never provided to HDM.  Id., encl. at 3.  In our
view, AAP*s contentions concerning the proximity of PPI*s price to the
government estimate are based entirely on mere suspicion and innuendo; the
record before us simply does not support AAP*s speculation.  See Snell
Enters., Inc., supra, at 4.
    
As a final matter, AAP alleges that the contracting officer was biased
against it.  AAP argues that the contracting officer*s bias is evidenced
by the various allegations discussed above. 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 our 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, AAP has not provided any proof to support this
allegation.       
    
The protest is denied.  
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The TEP was composed of three panelists, each of whom independently
rated and scored the offerors* technical proposals.  The total possible
score an offeror could receive was 100 points.  Offerors* adjectival
ratings and numerical rankings were based on an average of the panelists*
scores.  See Agency Report (AR), Tab 10, TEP Report.
[2] AAP also included with its proposal an alternative *value engineering*
cost proposal with a price of $986,667.  The agency, however, did not
consider that alternative proposal.  AAP has not challenged this
decision.   
[3] AAP argues that the contracting officer*s debriefing was not
sufficiently detailed and was *arbitrary and capricious.*  Our Office will
not review a protester*s contention that the debriefing it received was
inadequate because the adequacy of a debriefing is a procedural matter
concerning an agency*s actions after award, which are unrelated to the
validity of the award itself.  HpkWebDac,
B-291538.2, Jan. 22, 2003, 2003 CPD P: 28 at 2.  As a result, this protest
ground will not be considered further. 
[4] In its comments to the agency report, AAP also argues that the agency
should not have downgraded its proposal for not dealing with
paleontological themes because, according to AAP, the contracting officer
denied it the opportunity to submit its sample of a typical fossil section
in concrete.  AAP, however, knew of this basis for protest when it
received its debriefing on July 7 (AAP cites the debriefing as the sole
evidence in support of its position).  Because AAP waited until its
comments on the agency report, filed on August 21, to raise the issue, it
is untimely.  Our Bid Protest Regulations do not contemplate the untimely,
piecemeal presentation of protest issues, and in this regard, a protester
may not delay raising additional protest grounds where, as here, the
protester was aware of those grounds at the time of filing its initial
protest.  See 4 C.F.R. S: 21.2(a)(2) (2003); JAVIS Automation & Eng*g,
Inc., B-290434, B-290434.2, Aug. 5, 2002, 2002 CPD P: 140 at 7 n.11.  
    
[5] AAP*s argument also appears somewhat disingenuous, given that AAP
itself included in its proposal a subcontractor (Delta A/V Systems) which,
like HDM, worked on the specifications for the John Day project exhibits. 
See id.; AAP*s proposal, Tab C, at 1; RFP, amend. 7, two Delta A/V files.