TITLE: The Paintworks, Inc., B-292982; B-292982.2, December 23, 2003
BNUMBER: B-292982; B-292982.2
DATE: December 23, 2003
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The Paintworks, Inc., B-292982; B-292982.2, December 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: The Paintworks, Inc.
File: B-292982; B-292982.2
Date: December 23, 2003
James S. DelSordo, Esq., for the protester.
Maj. Lawrence M. Anderson, and Capt. Kenneth L. Hobbs, Department of the
Air Force, 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
Protest of evaluation of proposals is denied where record shows agency's
evaluation was reasonable and consistent with the solicitation's
evaluation factors and applicable procurement rules.
DECISION
The Paintworks, Inc. protests the award of a contract to Meneses &
McFadden/Cartor/VHC Joint Venture (MMF) under request for proposals (RFP)
No. F61040-03-R-0008, issued by the Department of the Air Force for a
paint booth facility at Lajes Field, Azores, Portugal. Paintworks
primarily contends that the agency unreasonably credited MMF with the
experience and past performance of its subcontractor, Spray Systems, Inc.
We deny the protest.
The solicitation required installation of a paint booth facility (large
enough for oversized vehicles) on a concrete slab. Award was to be made
to the firm offering the best value to the agency in terms of technical
capability (rated on a pass/fail basis), and a tradeoff between
past/present performance and price (where performance and price were of
equal importance). For the evaluation of past/present performance,
offerors were to provide information about their relevant experience
providing paint booths or similar work; either government or private
industry references were to be provided for similar services performed
within the past 5 years. Adjectival performance ratings were to be
assigned, ranging from unsatisfactory to exceptional; firms with limited
or no recent performance experience were to be rated as neutral/unknown.
Shortly after the RFP was issued, Paintworks requested information from
the agency about local subcontractors to possibly perform some of the
work. In response, the agency issued a list of four local general
construction contractors (including MMF) that had performed work at Lajes
Field; the agency cautioned offerors that it did not endorse any of the
firms, and that the list was made available only to assist offerors in
locating local firms. Paintworks asked the agency if the listed firms
were planning to submit their own proposals under the RFP. The agency
responded that it did not know if any of the firms would do so. A site
visit was held by the agency for prospective offerors. Paintworks
personnel did not attend the site visit, but instead arranged for a
representative from one of the local firms (not MMF) to attend on its
behalf.
Four proposals were received and evaluated, and clarifications were
conducted. Paintworks' proposal, at $506,338, was rated as very good for
past/present performance. MMF's proposal, at $394,951.03, was also rated
as very good for past/present performance. On September 24, an award was
made to MMF, the firm deemed to have offered the best value to the
agency. This protest followed.
Paintworks argues that MMF has no experience installing paint booths, and
thus does not warrant a past/present performance rating of very good. In
this regard, the protester acknowledges that MMF's subcontractor, Spray
Systems, may have substantial experience manufacturing and installing
paint booths. Paintworks argues, however, that the agency unreasonably
credited MMF with the experience of its subcontractor, since the
solicitation did not expressly provide for consideration of subcontractor
experience and, in any event, while Spray Systems is manufacturing the
paint booth, MMF plans to install it.[1]
In reviewing protests against allegedly improper evaluations, it is not
our role to reevaluate proposals. Rather, our Office examines the record
to determine whether the agency's judgment was reasonable and in accord
with the RFP criteria and applicable procurement statutes and
regulations. See Rolf Jensen & Assocs., Inc.,
B-289475.2, B-289475.3, July 1, 2002, 2002 CPD P: 110 at 5. The
protester's mere disagreement with the agency's judgment does not
establish that an evaluation was unreasonable. Id.
The record here shows that in evaluating MMF's past/present performance,
the agency gave MMF credit for Spray Systems' substantial experience in
manufacturing and providing paint booths, for which Spray Systems received
ratings of very good and exceptional from each of its references.[2] The
experience of a proposed subcontractor properly may be considered in
determining whether an offeror meets experience or past performance
requirements where the solicitation does not expressly prohibit its
consideration. See Federal Acquisition Regulation
S: 15.305(a)(2)(iii); Rolf Jensen & Assocs., Inc., supra, at 6. Given the
absence of any prohibition in the RFP on consideration of a
subcontractor's relevant experience, and in view of Spray Systems'
positive references, it was reasonable for the agency to favorably
consider Spray Systems' experience in evaluating the awardee's ability to
perform the RFP's requirements.
As to the planned installation of the paint booth by MMF, the record shows
that the agency knew of MMF's abilities to perform the various trade
specialties needed to properly install the paint booth, based on MMF's
prior work for the agency, which included relevant building, electrical,
plumbing and fire suppression work. MMF's past/present performance
surveys for the work showed ratings of at least very good for MMF's
performance of each contract reviewed. In light of the RFP's provision
for the agency's consideration of a firm's similar work in assessing the
firm's ability to perform here, the similarities in the trade specialties
in MMF's prior work to those required for installation of the paint booth,
and the agency's knowledge of MMF's ability to manage and perform relevant
work, the record provides no basis to question the reasonableness of the
agency's past/present performance rating of very good for MMF.
In sum, in light of MMF's substantially lower price and favorable
past/present performance rating, which was equal to the protester's
rating, we see no basis to question the agency's determination that MMF
offered the best value to the agency.[3]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] In its protest, Paintworks also alleged that MMF has a conflict of
interest, and should be disqualified from the competition, because it had
submitted a subcontractor quote to Paintworks for concrete work. The
agency reports that, upon learning of Paintworks' protest allegation, it
investigated MMF's contacts with Paintworks and another offeror, and found
no basis to disqualify MMF. Affidavits from MMF personnel attest that
while an MMF quote for concrete work was submitted to Paintworks, the
individual who prepared that quotation did not assist in the preparation
of the MMF proposal or share any information about Paintworks with the
individual who did prepare the MMF proposal. Although the protester
generally alleges that the agency directed it to work with MMF, the
protester provides no support for its contention; as noted above, the
record also shows that all offerors were expressly advised that the
identified local firms were not endorsed by the agency. Additionally, as
the agency reports, Paintworks' proposed price for the concrete work was
significantly lower than the amount MMF had quoted to Paintworks for the
same work, indicating that the MMF quote apparently was disregarded by
Paintworks. Finally, MMF personnel attest that Paintworks was informed of
MMF's intention to submit its own proposal under the RFP, and the
protester fails to refute this position. In short, our review of the
record shows no basis to question the agency's consideration of MMF's
proposal.
[2] To the extent Paintworks argues that Spray Systems' references should
be discounted simply because they do not relate to government contracts,
this argument is without merit, since the solicitation, as stated above,
expressly provided for experience and references relating to either
government or private industry contracts.
[3] In its comments, Paintworks raised two supplemental issues challenging
the acceptability of the awardee's proposal. Based on the agency's
supplemental report on the issues, and the protester's failure to
persuasively rebut the agency's position, we find that the allegations
provide no basis to question the award. First, as to the protester's
claim that the Spray Systems' exhaust fan will only operate at 50 Hz, the
record is clear that during clarifications, MMF submitted an updated
specification sheet from Spray Systems which confirms the firm's
assurances that its exhaust fan will operate at both 50 and 60 Hz, as
required by the RFP. Second, as to the protester's contention that the
awardee took exception to the RFP's payment terms, our review of the
record fails to support the contention. As the agency points out, MMF's
acceptance of the required payment terms is demonstrated by the firm's
acknowledgment of amendment No. 1, which incorporated the agency's payment
terms (providing for invoicing for payment upon inspection and delivery at
Lajes Field).