TITLE:  American Recreation Products, B-292689; B-292689.2; B-292689.3, November 6, 2003
BNUMBER:  B-292689; B-292689.2; B-292689.3
DATE:  November 6, 2003
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American Recreation Products, B-292689; B-292689.2; B-292689.3, November 6, 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:   American Recreation Products
    
File:            B-292689; B-292689.2; B-292689.3
    
Date:              November 6, 2003
    
Ronald K. Henry, Esq., Kaye Scholer, for the protester.
Ruth E. Ganister, Esq., Rosenthal and Ganister, for Tennier Industures,
Inc., an intervenor.
Sean P. Bamford, Esq., Defense Logistics Agency, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest that agency unreasonably determined that awardee's past
performance was superior to protester's is denied where awardee had
performed a substantial number of contracts of similar complexity ahead of
schedule, received high marks for customer satisfaction, and met its
subcontracting goals, while protester had performed fewer contracts, those
contracts were not of similar complexity, and the protester did not
address subcontracting goals in its proposal.
    
2.  Protest that agency unreasonably evaluated protester's production
demonstration model (PDM) is denied where record shows agency reasonably
concluded that PDM did not meet certain dimensional requirements and
specifications.   
DECISION
    
American Recreation Products (ARP) protests the award of a contract to
Tennier Industries, Inc. under request for proposals (RFP) No.
SPO100-02-R-4024, issued by the Defense Logistics Agency (DLA) for modular
sleep systems (MSS).[1]  ARP asserts that the agency misevaluated its
technical proposal and past performance, and the past performance of
Tennier.
    
We deny the protest.
    
The RFP contemplated award of a fixed-price contract on a *best value*
basis, applying the following technical evaluation factors (listed in
descending order of importance)--product demonstration model (PDM);
experience/past performance; industrial mobilization; socio-economic
considerations; DLA mentoring business agreements; Javits-Wagner-O'Day Act
(JWOD)--and price, which was less important than the technical factors. 
The results of the evaluation under the first three technical factors were
to be expressed in terms of adjectival ratings (exceptional, very good,
satisfactory, marginal or unsatisfactory), and proposals were to be
assigned numerical rankings under the last three factors. 
    
DLA received eight proposals, including one from ARP and two from Tennier,
a small business concern.  ARP's proposal was rated very good for PDM and
satisfactory for past performance and industrial mobilization, and was
ranked one (the highest ranking) for the socio-economic considerations,
DLA mentoring and JWOD factors.  Tennier's proposal was rated very good
for PDM, exceptional for past performance, satisfactory for industrial
mobilization, and was ranked three for the socio‑economic
considerations factor and one for the DLA Mentoring and JWOD factors. 
Tennier's evaluated price, at $116,532,250, was lower than ARP's at
[DELETED]. 
    
The source selection official (SSO) reviewed the evaluation results and
found that Tennier had a slight technical advantage over ARP for the PDM
and had superior past performance, while ARP was superior under the
industrial mobilization plan and socio-economic considerations factors. 
Since PDM and past performance/ experience were the most important
technical factors, the SSA concluded that Tennier's technical proposal was
superior to ARP's, and that Tennier's technically superior, lower cost
proposal represented the best value to the government. 
    
ARP protests the agency's evaluation of each technical factor (except DLA
mentoring).  In reviewing a protest against an agency's proposal
evaluation, our role is limited to ensuring that the evaluation was
reasonable and consistent with the terms of the solicitation.  National
Toxicology Labs, Inc., B-281074.2, Jan. 11, 1999, 99-1 CPD P: 5 at 3.  We
have reviewed the record and find all of ARP's argument to be without
merit.  We discuss ARP's primary arguments below.
    
EXPERIENCE/PAST PERFORMANCE
    
The solicitation required offerors to describe their experience producing
the same or similar items within the past 2 years.  Offerors were to
provide, among other things, a point of contact and a brief description of
the item produced.  The experience/past performance proposals were rated
against five subfactors--ability to meet delivery schedule, quality,
commitment to customer satisfaction, history of manufacturing similar
items, and meeting socio-economic goals. 
    
ARP's proposal listed three contracts that were within the designated time
period, but the agency found that it did not provide points of contact for
those contracts or explain how the items produced were similar to the
MSS.  DLA located points of contact for two of the contracts--one for
Mobiflex tents, and another for cutting and sewing warm weather sleeping
bags as a subcontractor.  Based on information from those contacts,
together with its knowledge of ARP's subcontractors, DLA rated ARP
satisfactory overall, with satisfactory ratings under the first four
subfactors, and a marginally acceptable rating under the last subfactor,
which the agency found ARP had not addressed. [2]  Price Negotiation
Memorandum (PNM) at 15-17.
    
DLA rated Tennier exceptional for past performance overall and for each
element of past performance.  This rating was based on 16 contracts
performed during the rating period,[3] under which the references reported
Tennier had delivered substantial quantities of similar items, performed
ahead of schedule, had only one quality issue (that resulted from
receiving a bad batch of tape from a supplier and was promptly corrected)
and was substantially committed to customer satisfaction.   PNM at 9-11.
    
The SSO, in comparing the past performance of ARP and Tennier during the
best value analysis, looked beyond the adjectival ratings to substantive
differences.  Thus, in considering the delivery subfactor, the SSO was
aware that ARP's references stated that its delivery was excellent and
that there were no quality problems, but concluded that Tennier's
nevertheless was superior to ARP's because Tennier had performed
significantly more contracts than ARP and its deliveries had been
generally ahead of schedule.  Source Selection Decision (SSD) at 8. 
Regarding the quality subfactor, the SSO found Tennier and ARP equal,
since ARP had no quality problems, and Tennier had only one, which the
agency considered offset by the fact that Tennier had produced more items,
and more complex items.  Id.
    
With respect to the commitment to customer satisfaction subfactor, the SSO
found Tennier's record superior to ARP's.  Although the past performance
information indicated that ARP had met its obligations and satisfied its
clients, it showed that Tennier had generally exceeded customer
expectations and contractual obligations.  SSD at 8.  With respect to the 
history of manufacturing items of similar kind and complexity subfactor,
the SSO found that Tennier, which designed the modular sleep system and
had manufactured a substantial quantity of them, was superior to ARP,
which had produced warm and cold weather sleeping bags not as complex as
the MSS.  In addition, the agency considered that, while ARP intended to
subcontract for the bivy and stuff sack, and the proposed subcontractors
had very good experience and performance records, none had experience
manufacturing items as complex as the MSS.  Id. at 9.  Finally, with
respect to the  meeting socio-economic goals on previous contracts
subfactor, the agency found that Tennier's proposal, which indicated
success in meeting past goals, was superior to ARP's, which did not
address this issue.  Id.
    
ARP maintains that, since its references contacted by DLA indicated that
ARP's quality and delivery were excellent, it should have received the
same exceptional rating as Tennier for past performance.  Specifically,
ARP challenges the SSO's conclusions under the quality, experience and
meeting subcontracting goals subfactors.  With respect to the quality
subfactor, ARP asserts that the agency improperly failed to consider
instances of negative past performance information regarding 30 of
Tennier's contracts.  This argument is without merit.  DLA explains that,
of those 30 contracts, only 10 fell within the 2-year period of
consideration.  With respect to these 10, DLA explains that two of ARP's
own subcontractors had the same defective performance, which involved
material from a single source of supply.  The contracting officer found
these defects immaterial.  SAR at 9.  While ARP disagrees with DLA,
asserting generally that Tennier experienced different deficiencies, and a
larger number of them than ARP, it has not identified those deficiencies
and has not established that any additional deficiencies were other than
de minimis.  Consequently, we have no basis to question the evaluation in
this regard.
    
With respect to the history of manufacturing similar items subfactor, ARP
asserts that DLA failed to credit its subcontractor with having
manufactured the bivy component, and improperly concluded that the
sleeping bags produced by ARP are not as complex as the MSS.  However, we
find nothing unreasonable in DLA's concluding that manufacturing
components of the MSS is not as complex as producing the entire MSS.  ARP
also complains that the agency improperly failed to consider that its
subcontractor has produced parkas and trousers that, according to ARP, are
as complex as the MSS.  DLA agrees that there are similarities between
some of the parka/trousers and the MSS manufacturing processes, but does
not consider the items overall to be similar in type or complexity to the
MSS.  ARP's disagreement with this conclusion, without some more detailed
explanation as to why the agency's position is unreasonable, does not
provide a basis for us to question the agency's judgment in this regard. 
See American Med. Depot, B-285060 et al., July 12, 2000, 2002 CPD P: 7 at
6.  In any case, the primary reason for the SSO's finding that Tennier was
superior under this subfactor was Tennier's experience in producing the
MSS itself.  In this regard, even ARP acknowledges that Tennier has
produced the MSS and thus has at least some advantage with respect to
experience.
    
Finally, ARP asserts that it did not address the meeting socio-economic
goals subfactor only because none of its prior contracts included
subcontracting goals.  However, ARP did not include this information in
its proposal.  Moreover, even if ARP's proposal were rated neutral for
this element (based on its lack of past performance in this area) rather
than marginally acceptable, Tennier's proposal, which showed successful
past performance in meeting subcontracting goals, would still be superior
to ARP's under this subfactor.  We conclude that the evaluation under the
experience/past performance factor was reasonable.
    
PDM
    
The solicitation required offerors to submit a PDM of the MSS to be
evaluated for, among other things, construction/component compatibility,
visual examination, and dimensional examination.  In evaluating ARP's PDM,
the agency found three dimensional defects and the following nine visual
defects:  (1) barrel lock shows signs of slippage on patrol bag; (2) slide
fastener on the patrol bag not properly set, causing distortion; (3) loose
thread end not removed at the draw cord on the compression sack; (4) and
(5) on the two bivy covers submitted, one from each proposed
subcontractor, the slide fastener was missing a thong on the double pull
at the bottom; (6) and (7) for each of the bivy covers submitted, one from
each proposed subcontractor, the slide fastener had only a single slider
at top when a double slider was required; (8) there was a removable stain
on the inside; and (9) on the compression sack there were loose threads at
the bottom that were not removed‑-and three dimensional defects. 
Notwithstanding these defects, ARP was rated very good for its PDM. 
    
ARP disputes each of DLA's findings.  We find that DLA's conclusions were
reasonable.  We discuss several examples.[4]
    
ARP maintains that DLA improperly double-counted defects for the bivy
cover by twice listing the missing thong on the double pull and the single
slider at the top.  We disagree.  ARP proposed to have the bivy produced
by two subcontractors with separate production facilities.  Consistent
with the requirement in the solicitation that the PDM be produced at the
same facility as the production quantity, ARP submitted a bivy from each
subcontractor production facility.  RFP at 60; SAR at 5.  Since each bivy
had the same defect, we find nothing unreasonable in the agency's decision
to consider the defect for each.
    
ARP argues that DLA should not have considered the barrel lock slippage as
a defect, noting that the solicitation allowed offerors to submit a letter
noting a deviation where it could not obtain a specified part in time to
produce the PDM.  ARP explains that, while it utilized a standard barrel
lock on its PDM, it submitted a letter indicating that it was using a
non-standard draw cord with the barrel lock.  According to ARP, the barrel
lock slipped because it was designed to work with the standard draw cord,
and the alternate draw cord it used was thinner than the standard draw
cord.  ARP asserts that, since it submitted a deviation letter for the
draw cord, it should not have been penalized for the barrel lock
slippage.  This argument is without merit.  ARP's deviation letter
explained neither the difference between the draw cord it utilized on the
PDM and the standard draw cord, nor the effect this would have on the
barrel lock.  Consequently, DLA reasonably considered the barrel lock
slippage a defect.
    
ARP asserts that DLA should not have assessed defects for dimensions
against any offeror because the evaluators themselves could not agree on
how to measure the items.  However, while the evaluators initially
disagreed as to how the products should be measured, the disagreement was
ultimately resolved and the PDMs submitted by all offerors were uniformly
measured.  We therefore have no basis to find that it was unreasonable for
the agency to downgrade PDMs based on dimensional defects.
    
WAIVER OF CONTRACT REQUIREMENTS
    
ARP protests that, immediately after the contract was awarded, Tennier
requested, and was granted, a waiver of performance requirements related
to sampling and testing, based on the fact that the same waivers had been
granted under a prior contract.  ARP argues that the timing and rationale
for the waiver demonstrate that Tennier planned to request the waivers,
and that the agency improperly planned to grant them, before the contract
was awarded.  This argument is without merit.  DLA reports that there were
no discussions between it and Tennier prior to award with respect to
modifying any performance requirements, and ARP has provided no evidence
to the contrary or otherwise supporting its position.  This ground of
protest, based on nothing but inference and supposition, therefore
provides no basis for sustaining the protest. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The MSS is comprised of four components--patrol and cold weather
sleeping bags, a compression stuff sack (storage bag with adjustable
straps to compress the sleeping bag) and a bivy cover  (a camouflaged,
waterproof, vapor permeable outer cover that protects the sleeping bag and
occupant from rain and groundwater). 
[2] Throughout ARP's protest of its past performance evaluation, it raises
various arguments related to the agency's consideration of the past
performance of its subcontractors, including arguments that DLA did not
consider the past performance of its subcontractors.  These arguments are
without merit.  Since the solicitation did not provide that the agency
would evaluate the past performance of proposed subcontractors, DLA was
not required to do so.  Systems Mgmt., Inc.; Qualimetrics, Inc.,
B-287032.5, B-287032.6, Nov. 19, 2001, 2002 CPD P: 29 at 5.  In any case,
the record shows that DLA did consider the past performance of ARP's
proposed subcontractors in evaluating ARP's past performance. 
Supplemental Agency Report (SAR) at 7.
[3] One of the 16 contracts was terminated for the convenience of the
government.
[4] Our conclusion does not include the removable stain on the inside,
which DLA agrees should not have been listed as a major defect, or the
loose threads on the bottom of the compression sack, as DLA waived such a
defect for Tennier.