TITLE:  Air Shunt Instruments, B-293766, June 4, 2004
BNUMBER:  B-293766
DATE:  June 4, 2004
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Air Shunt Instruments, B-293766, June 4, 2004

   Decision
    
    
Matter of:   Air Shunt Instruments
    
File:            B-293766
    
Date:              June 4, 2004
    
Henry Nakkashian for the protester.
Isaac Johnson, Jr., Esq., Department of Homeland Security, U.S. Coast
Guard, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Protest challenging past performance evaluation is denied where record
fails to demonstrate that the protester was prejudiced by agency*s
miscalculation of protester*s on-time delivery rate under prior contracts
or that agency improperly attributed quality deficiencies to the
protester.
DECISION
    
Air Shunt Instruments protests the evaluation of its proposal and the
award of a contract to InAir Aviation Services under request for proposals
(RFP) No. DTCG38-03-R-H00002, issued by the U.S. Coast Guard, Aircraft
Repair and Supply Center (ARSC), for the rework of C130 aircraft
electronic components.The protester takes issue with the agency*s
evaluation of its past performance.
    

   We deny the protest.
    
The RFP, which was issued as a small business set-aside, contemplated the
award of a fixed-price requirements contract for a base period of 1 year,
plus four 1-year option periods.  Offerors were to furnish prices (on a
per-unit and hourly labor-rate basis) for the repair of altitude
indicators, horizontal indicators, and air speed computers.  The
solicitation, as amended, provided for single or multiple awards to the
offeror(s) whose offer(s) represented the *best value* to the government. 
Technical factors, consisting of past performance, deficiency reports, and
delivery data, and price were to be of equal weight in the evaluation. 
The RFP stated that offerors had to receive a satisfactory past
performance rating to be considered for award and instructed offerors to
provide at least three references capable of verifying the offeror*s
experience in performing the required work.
    
Sixteen offerors submitted proposals prior to the August 25, 2003 closing
date.  The contracting officer determined that while Air Shunt had
submitted the lowest prices for the altitude and horizontal indicators,
its past performance was unsatisfactory, and it therefore would not be in
the government*s best interest to award to it.  The contracting officer
further determined that InAir*s combination of past performance and price
represented the best value to the government.  On February 26, 2004, the
agency awarded a contract to InAir.  On March 3, Air Shunt protested to
our Office.
    
In evaluating the protester*s past performance, the agency contract
specialist contacted the three references identified by Air Shunt in its
proposal and audited Air Shunt*s performance on three ARSC contracts.[1] 
According to the protester, two of its references were for work on
altitude indicators and one was for work on horizontal indicators.  One of
Air Shunt*s references responded to the contract specialist*s inquiry with
*no comment*; as a result, the agency assigned Air Shunt a past
performance rating of neutral for the contract.  Another reference
responded that his company had ceased doing business with Air Shunt in the
late 1990s due to quality issues; the agency assigned Air Shunt a rating
of unsatisfactory for this contract.  The third reference stated that Air
Shunt had met delivery schedules and had no quality deficiency reports
(QDR) associated with its performance; this reference rated Air Shunt as a
favorable contractor, leading the agency to assign Air Shunt a past
performance rating of satisfactory for this contract.
    
With regard to the three ARSC contracts that the agency audited, none was
for work identical to that solicited here.  One of the contracts, No.
DTCG38-01-D-H00005, was for the rework of air speed indicators.  Based on
her review of the delivery orders issued under that contract, the contract
specialist determined that Air Shunt had an 83 percent on-time delivery
rate and a QDR rate of 10.9 percent, leading the Coast Guard to rate Air
Shunt*s performance under the contract as marginally satisfactory.  The
second ARSC contract that the agency audited, No. DTCG-00-D-H00013, was
for the rework of power supplies and altitude alerters.  The contract
specialist determined that Air Shunt*s on-time delivery rate for this
contract was 60 percent, and the agency again assigned the protester*s
performance a rating of marginally satisfactory.  With regard to the third
ARSC contract, No. DTCG38-01-D-H202032, for the rework of hover/taxi
lights used on HH65 aircraft, the cognizant contracting office reported
that Air Shunt had a late rate of 81 percent and had not improved its
performance when given the chance, leading the contracting office to
choose not to exercise remaining contract year options.  The agency rated
the protester*s performance on this contract as unsatisfactory.
    
The protester takes issue with the Coast Guard*s evaluation of its past
performance, arguing that the agency miscalculated its on-time delivery
rate under contract Nos.
--H00005 and --H00013 and unfairly construed the issuance of QDRs under
those contracts as indicative of negative performance on its part.  The
protester also argues that the agency should not have rated as
unsatisfactory its performance for the company that indicated that it no
longer did business with Air Shunt. 
    
Where a solicitation requires the evaluation of offerors* past
performance, we will examine an agency*s evaluation only to ensure that it
was reasonable and consistent with the stated evaluation criteria, since
determining the relative merits of offerors* past performance information
is primarily a matter within the contracting  agency*s discretion.  Thomas
Brand Siding Co., Inc., B-286914.3, Mar. 12, 2001, 2001 CPD P: 53 at 4. 
Here, as explained below, while the agency erred in one aspect of its past
performance evaluation, we think that its overall rating of the
protester*s past performance as unsatisfactory was reasonable.[2]
    
First, the protester alleges that the agency miscalculated its on-time
delivery rate under contract Nos. --H00005 and --H00013 by using the date
that the agency shipped the items requiring repair to it (as opposed to
the date that it received the items) as the performance start date and the
date that the agency accepted the items after repair (as opposed to the
date that the agency received the items back) as the delivery date.  The
agency denies that it used the dates alleged by the protester in its
calculations, however; according to the contracting specialist, she used
the date that Air Shunt received the item for repair, as reported to her
by the protester, as the performance start date (except in instances in
which the protester failed to report the date, in which event she added 2
weeks for delivery time to the performance period) and the date that the
item was received back at ARSC as the delivery date.  Accordingly, the
record does not support the protester*s assertions regarding the
methodology used by the agency to calculate on-time delivery rates.
    
The protester further asserts that the agency miscalculated its on-time
delivery rate by failing to take into account *all the extensions and
modifications requested and [received] by Air Shunt Instruments to
increase the deliveries because of parts procurements.*  Protester*s
Comments, Apr. 8, 2004.  Air Shunt has offered no detail regarding the
extensions that it allegedly sought and obtained, however; thus we have no
basis upon which to conclude that the agency erroneously failed to
consider them in calculating the protester*s on-time delivery rate.  It is
the protester*s burden to present sufficient evidence to prove its case,
Waugh Controls Corp., B-216236.2, Apr. 18, 1985, 85-1 CPD P: 441 at 4, and
where it fails to do so, we will not find in its favor.[3]
    
The protester further complains that the agency *automatically blamed* it
for units that failed to pass operational testing after repair without
determining whether the failure to pass the testing was linked to the
repair.  Air Shunt fails to describe any specific instances in which QDRs
were issued for deficiencies unrelated to the repairs that it had
performed, however.  Accordingly, even assuming for the sake of argument
that the protester is correct in alleging that the agency automatically
construed the issuance of all QDRs as indicative of negative performance
on its part, it has not demonstrated that any quality deficiencies were in
fact improperly attributed to it.
    
In connection with its complaint that the agency should not have rated as
unsatisfactory its performance for the company that reported that it no
longer did business with Air Shunt due to quality issues, the protester
argues that the Coast Guard was supposed to ask the reference about the
protester*s performance in repairing the parts at issue in this
solicitation, as opposed to requesting an overall assessment of the
company.  The contracting specialist responds that when she contacted Air
Shunt*s references, she queried them about Air Shunt*s performance under
the contracts that Air Shunt identified in its proposal, inquiring as to
the percentage of late deliveries and the number of deficiency reports
filed and action taken for correction.  Since the reference furnished the
information that it no longer does business with Air Shunt due to quality
issues in response to the contracting specialist*s inquires regarding the
protester*s performance, we think that the agency reasonably interpreted
the comment as bearing on the quality of Air Shunt*s past performance.
    
Finally, regarding the allegation raised by the protester in its April 6
comments that the agency considered only one contract in evaluating
InAir*s past performance, the contracting officer*s Justification for
Award (a redacted version of which was furnished to the protester)
demonstrates that this allegation is factually incorrect.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The agency explains that the *audits* it refers to involved reviewing
every delivery order issued under the contracts for compliance with the
terms of the contract.
[2] As a preliminary matter, the agency argues that Air Shunt*s protest
should be dismissed for failure to comply with the requirements of our Bid
Protest Regulations, 4 C.F.R. S: 21.1(c) (2004), which require that a
protest include the street address, electronic mail address, and telephone
and facsimile numbers of the protester ((c)(1)); be signed by the
protester or its representative ((c)(2)); establish that the protester is
an interested party for the purpose of filing a protest ((c)(5));
establish that the protest is timely ((c)(6)); request a ruling by the
Comptroller General ((c)(7)); and state the form of relief requested
((c)(8)).  We do not think that dismissal of the protest based on these
alleged deficiencies is warranted given that none of the omissions
materially affected the agency*s ability to respond to the protest. 
Further, neither the allegation that the protest fails to establish the
protester is an interested party nor the allegation that the protest fails
to establish its timeliness warrants dismissal given that there is no
indication on the face of the protest--and the agency itself does not
assert--that the protester is not interested or that the protest is
untimely.
[3] We do think that the contracting officer erred in her calculation of
Air Shunt*s late delivery rate under contract No. *00005 by overlooking
the fact that the due date for one of the purportedly late orders, No.
DTCG38-01-F-H10510, had been modified and by mistaking the date that
another purportedly late order, No. DTCG38-03-F-H10503, was received.  In
the latter connection, the chart submitted by the contracting officer as
an attachment to her April 20 letter shows that the five items repaired
under the order were due on May 9, but not received until May 19; the
records from the Aviation Maintenance Management Information System
submitted by the Coast Guard show a receipt date for each of these items
as April 9, however, a date consistent with the protester*s asserted
shipment date of April 4.  We are not persuaded that the error, which
resulted in Air Shunt*s late delivery rate under contract No. *00005 being
overstated by approximately 9 percent, had a prejudicial impact on the
evaluation of Air Shunt*s performance under the contract, however, given
that the protester also had a QDR rate under the contract that the agency
characterized as high.