TITLE:  SWR, Inc.--Protest and Costs, B-294266.2; B-294266.3; B-294266.4, April 22, 2005
BNUMBER:  B-294266.2; B-294266.3; B-294266.4
DATE:  April 22, 2005
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   Decision

   Matter of: SWR, Inc.--Protest and Costs

   File: B-294266.2; B-294266.3; B-294266.4

   Date: April 22, 2005

   Benjamin M. Bowden, Esq., Albrittons, Clifton, Alverson, Moody & Bowden,
PC, for the protester.

   J.R. Cohn, Esq., and Julius Rothlein, Esq., U.S. Marine Corps, for the
agency.

   Susan K. Chelsea, Esq., McCullogh & Associates, APC, for Starlight
Corporation, Inc., an intervenor.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Determination that protester's technical proposal was unacceptable was
reasonable where evaluation board found that protester's proposal included
numerous weaknesses, including flawed plans for decentralized project
management and tool accountability.

   2.  Evaluation of protester's past performance was unobjectionable where
agency reasonably concluded that more recent poor performance at one of
the solicitation performance sites was more probative of protester's
record than performance on other contracts more remote in time or of
shorter duration. 

   3.  Request that GAO recommend payment of costs associated with prior
successful protest is denied where claim was filed with contracting agency
more than 60 days after protester's counsel received protected copy of
protest decision; delay in receipt of publicly-releasable version of
decision did not toll period for filing, and there is no evidence of
compelling reason beyond protester's control that prevented it from timely
filing the claim. 

   DECISION

   SWR, Inc. protests the award of a contract to Starlight Corporation, Inc.
under request for proposals (RFP) No. M00146-04-R-9024, issued by the U.S.
Marine Corps (USMC) for the washing of various aircraft at three Marine
Corps Air Stations (MCAS) in North and South Carolina.  SWR challenges the
agency's technical evaluation and seeks reimbursement of its costs
incurred in pursuing an earlier protest concerning this requirement.

   We deny the protest and the request for reimbursement.

   The RFP contemplated the award of a fixed-price contract for a base year,
with four 1-year options, to clean, wash, lubricate, and inspect various
fixed and rotary-wing aircraft at three USMC installations--MCAS Cherry
Point, North Carolina, MCAS New River, North Carolina, and MCAS Beaufort,
South Carolina.  SWR was the incumbent contractor at MCAS Cherry Point and
its work there represented some five percent of the current requirement;
the remaining 95 percent of the requirement was performed at all three
installations by large businesses under two delivery orders.  Prior to
issuing the RFP, USMC performed market research as to whether to set the
procurement aside for Historically Underutilized Business Zone (HUBZone)
small business concerns.  Based on its research, the agency decided to
issue the RFP as a 100-percent small business set-aside.  SWR challenged
the agency's decision in a protest filed in our Office.  We sustained the
protest, finding that the agency had not reasonably considered whether a
HUBZone set-aside was required, and recommended as corrective action that
the contracting officer reasonably consider whether fair market price
offers would be obtained from at least two capable HUBZone small business
concerns.  SWR, Inc., B-294266, Oct. 6, 2004, 2004 CPD P 219.  In response
to our recommendation, the contracting officer conducted additional
research and evaluated submissions from interested firms before
determining to continue the requirement as a small business, rather than a
HUBZone, set-aside.  Agency Report (AR) Tab 29. 

   Proposals were to be evaluated under a price factor and three technical
factors--management plan (40 points), corporate experience (40 points),
and past performance (20 points).  The technical factors, when combined,
were approximately equal in weight to price.  Award was to be made to the
offeror whose proposal was found to be the "best value" to the
government.  Proposals were to be scored on a five-point scale for each
technical factor, and these scores then were divided by five and
multiplied by the individual factor weights to arrive at final scores.

   Ten offerors, including SWR and Starlight, submitted proposals, which were
evaluated by the technical evaluation board (TEB).  In its initial
evaluation, the TEB found five proposals, including Starlight's, to be
technically acceptable; SWR's was among those evaluated as technically
unacceptable.  Based on these initial evaluations, the contracting officer
determined not to conduct discussions.  The results of the TEB's consensus
evaluation, showing final calculated scores, are as follows: 

   +------------------------------------------------------------------------+
|                                     |SWR               |Starlight      |
|-------------------------------------+------------------+---------------|
|Management Plan (40 points)          |8                 |32             |
|-------------------------------------+------------------+---------------|
|Corporate Experience (40)            |16                |40             |
|-------------------------------------+------------------+---------------|
|Past Performance (20)                |8                 |20             |
|-------------------------------------+------------------+---------------|
|Total (100)                          |32                |92             |
|-------------------------------------+------------------+---------------|
|Price                                |$4,087,663        |$5,810,580     |
+------------------------------------------------------------------------+

   Based upon her review of the TEB report and a detailed tradeoff analysis,
the contracting officer, as source selection authority, concluded that
Starlight's proposal represented the best value to the government and made
award to that firm.  After receiving a debriefing, SWR filed this
protest.  

   TECHNICAL EVALUATION

   SWR challenges the evaluation of its proposal on numerous grounds.  In
reviewing a protest of an agency's proposal evaluation, our review is
confined to a determination of whether the agency acted reasonably and
consistent with the terms of the solicitation and applicable statutes and
regulations.  United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD P
75 at 10-11.  We have considered all of SWR's arguments, and find that
none has merit.  This decision addresses SWR's most significant arguments.
[1]

   The evaluation was reasonable.  The TEB found that SWR's proposal of
decentralized control provided flexibility for local management and
decision making authority, but concluded that complete autonomy of the
sites would not provide for coordination among sites and would not provide
the benefits of having a single person supply oversight of all three
sites.  TEB Report, attach. 2 at 10 of 23.  The TEB was primarily
concerned with the excessive responsibilities placed on each PM.  In this
regard, each PM not only was responsible for human resources, finance,
contract administration, safety, hiring, training, and scheduling of
workflow, but was "dual-hatted" as the quality control manager, "fully
equipped to monitor all technical aspects of program performance,
including inspection of subcontractor efforts."  SWR Proposal at 3-4; TEB
Report, attach. 2 at 10 of 23.  While SWR proposed "full corporate
support" (SWR Proposal at 5), we note that its corporate headquarters is
in Alabama and the performance sites are in North and South Carolina. 
Given the extent of each PM's responsibilities and SWR's proposed
decentralized approach to management, the agency could reasonably conclude
that there was some question whether the PMs could effectively ensure that
requirements were met and provide supervision and oversight.  TEB Report,
attach. 2 at 10 of 23. 

   The agency also identified a management plan weakness concerning the
failure of SWR's tool plan to mention how tools and equipment would be
marked or identified for accountability.  TEB Report, attach. 2 at 11 of
23.  SWR asserts that this weakness was unwarranted because its tool plan
in fact is "virtually" the same as Starlight's, and the agency did not
assign a similar weakness to the awardee's proposal.  Supplemental Protest
at 2. 

   The evaluation in this area was unobjectionable.  The RFP required
offerors to include a plan for an "effective tool and equipment control
program to preclude tools and equipment being left in or around
aircraft."  RFP at 22.  While the two offerors' tool plans are similar in
that neither specifically describes how tools will be marked or
identified, it is plain that the agency was concerned with the issue of
accountability for tools, and Starlight's plan is significantly more
detailed in this regard.  For example, while both plans call for use of
[deleted] for each wash and [deleted], Starlight's plan includes
additional layers of accountability.  In particular, [deleted].  In our
view, the agency reasonably concluded, in essence, that SWR's proposal was
weaker in the area of tool accounting than Starlight's. 

   Past Performance

   SWR asserts that the past performance evaluation--under which its proposal
was assigned a score of 2 of the 5 available raw points--was flawed
because it was inconsistent with the agency's assessment that SWR's
performance record was overall more favorable than unfavorable.  In the
protester's view, such a record warranted a rating of at least 3 points,
since the source selection plan (SSP) indicated that 3 points was the
appropriate score for proposals reflecting past performance that was more
favorable than unfavorable.  When multiplied by the appropriate weighting
factor, this increased rating would result in a score of 12 (of the 20
available) points, and would make its proposal technically acceptable. 

   As with all evaluation challenges, we will review a challenge to a past
performance evaluation to ensure that it was reasonable and consistent
with the RFP's evaluation criteria.  DGR Assocs., Inc., B-285428,
B-285428.2, Aug. 25, 2000, 2000 CPD P 145 at 11.  

   SWR's assertion that the agency deviated from the SSP, even if correct,
does not provide a basis for sustaining the protest.  This is because
alleged deficiencies in the application of an agency's SSP--as opposed to
deviations from the solicitation's evaluation scheme--do not alone provide
a basis for questioning the validity of an evaluation; such plans are
internal agency instructions and do not give outside parties any rights. 
Mandex, Inc.; Tero Tek Int'l, Inc., B-241759 et al., Mar. 5, 1991, 91-1
CPD P 244 at 7. 

   In any case, we note that SWR's argument is based solely on the first
sentence of the SSP's guidance for a 3-point rating and ignores the two
other considerations in assigning a 3-point rating-- there is "little
potential risk anticipated with timely performance of required services,
or little expectation of degradation of performance," and "minor
performance problems . . . were corrected."  SSP at 6.  While SWR's past
performance overall was more favorable than unfavorable, the agency found
that its most relevant past performance record ran afoul of these two
considerations.  In this regard, the TEB reviewed three of SWR's aircraft
washing contracts, two of which reflected overall good to excellent
performance.  However, its work on the Cherry Point MCAS--one of the three
RFP performance sites--was rated poor to marginal and the past performance
respondents stated that they would not award SWR another contract.[2]  AR,
Tab 13.  The TEB viewed the Cherry Point performance as more probative of
SWR's likelihood of successful performance than SWR's other contracts
since, at the time of the evaluation, one of the other contracts had been
completed nearly 3 years before and SWR had been performing the other for
less than 1 year.  TEB Report, attach. 3, at 4 of 7.  SWR's performance
problems at Cherry Point amply support the TEB's assessment of increased
performance risk.  For example, the record showed SWR had failed to staff
the wash rack on a number of occasions; failed to keep the contracting
officer's representative informed of issues of concern; failed to
communicate with the contracting office in a clear and businesslike manner
or to be cooperative in negotiating contract modifications; billed the
government for aircraft that were not washed; and placed charges against
the contract specialist's credit card without authorization.  Id.  In view
of SWR's poor to marginal performance at Cherry Point, the TEB reasonably
assigned SWR a past performance rating of 2 instead of 3 points. 

   SWR denies the accuracy of the negative information in its Cherry Point
performance history and asserts that it is based on exaggeration and
misunderstanding.[3]  For example, with regard to the unauthorized use of
the contract specialist's credit card, SWR notes that the agency admits
that the use was "just premature."  SWR Comments at 3.  A past performance
evaluation may be based on a reasonable perception of inadequate prior
performance, regardless of whether the contractor disputes the agency's
interpretation of the underlying facts.  PharmChem, Inc., B-292408.2,
B-292408.3, Jan. 30, 2004, 2004 CPD P 60 at 13.  The agency reports, and
SWR does not dispute, that SWR was told each month what credit card number
to charge and what amount had been approved.  Contrary to instructions,
SWR retained the card number and placed charges on two occasions prior to
obtaining approval.  AR, Tab 10, at 4, Tab 21.  We see nothing
unreasonable in the agency's determining that making charges to a
government credit card prior to obtaining authority is a significant
performance problem. 

   SWR asserts that it should have been provided an opportunity to respond to
the negative past performance information.  This assertion is without
merit.  Where, as here, an award is made on the basis of initial
proposals, without discussions, offerors may be given the opportunity to
clarify adverse past performance information to which the offeror has not
previously had an opportunity to respond.  Federal Acquisition Regulation
(FAR) S 15.306(a)(2).  Here, SWR was well aware of the agency's views on
the quality of its past performance at Cherry Point and had discussed
these matters with USMC officials prior to the closing date.  Further, the
RFP called for offerors to address past performance problems and
corrective actions in their proposals.  RFP at 19.  While SWR acknowledged
its problems, it suggested they were the result of a "communications
breakdown" that SWR would take steps to alleviate; it did not provide a
detailed rebuttal of the agency's views.  SWR Proposal at 15.  Given the
permissive language of FAR S 15.306(a)(2) and the fact that, in any case,
SWR was given ample opportunity to comment upon the past performance
information, SWR's continued disagreement with the agency's assessment did
not require the agency to provide an opportunity for SWR to provide still
more information.  Hanley Indus., Inc., B-295318, Feb. 2, 2005, 2005 CPD P
20 at 3-4. 

   REQUEST FOR REIMBURSEMENT OF COSTS

   SWR requests that we recommend that the agency reimburse its protest
costs, including attorneys' fees, incurred in filing and pursuing its
protest in SWR, Inc., supra.  As discussed above, in that decision we
sustained SWR's protest of USMC's decision not to set the procurement
aside for HUBZone small business concerns.  Our decision--reflecting the
requirements of our Bid Protest Regulations--directed SWR to submit its
certified claim for costs to the agency within 60 days after receiving our
decision.  Id. at 8; see 4 C.F.R. S 21.8(f)(1). 

   SWR's counsel received a copy of our protected decision on October 6,
2004, but did not transmit its claim for costs until December 14; the
claim was received by USMC on December 16.  SWR concedes that the claim
was not filed within the required 60 days, but requests that our Office
nevertheless recommend payment because:  the delay was due to counsel's
mistake, the claim was presented less than 30 days after release of the
redacted decision, and the agency was not prejudiced by the delay.  Cost
Claim at 2-3. 

   In requiring that a claim for protest costs be filed with the agency
within 60 days, our Regulations warn that "[f]ailure to file the claim
within that time may result in forfeiture of the protester's right to
recover its costs."  4 C.F.R. S 21.8(f)(1).  While forfeiture is not
automatic, neither our Regulations nor our prior decisions recognize an
exception to the 60-day filing requirement based on when a protester
receives a redacted version of the protest.  Although we have indicated
that an untimely claim may be considered where good cause is shown, we
have construed that term to mean that some compelling reason beyond the
control of the protester prevented it from timely filing the claim. 
Keeton Corrections, Inc.--Costs, B-293348.3, Oct. 25, 2004, 2004 CPD P 213
at 3.  Here, there is no evidence, and SWR does not assert, that SWR could
not have filed a documented, substantiated claim within the required time
period.  We note, moreover, that when SWR received the redacted decision
on November 17, it still had 18 days to file its cost claim.  SWR has
offered no explanation as to why it did not have sufficient time after
receiving the redacted version to complete and timely file its claim with
the agency. 

   The protest and request for reimbursement are denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] One of SWR's challenges to the technical evaluation is untimely. 
Under our Bid Protest Regulations, to be timely, a protest must be filed
not later than 10 days after the basis of protest is known or should have
been known.  4 C.F.R. S 21.2(a)(2) (2005).  SWR asserts that the agency
improperly evaluated proposals under the corporate experience factor based
on offerors' experience with aircraft washing contracts worth at least $1
million.  In SWR's view, this aspect of the evaluation should have been
disclosed in the RFP because it is allegedly inconsistent with the past
performance criterion, which only calls for experience with contracts
worth $50,000.  While SWR raised this issue in a supplemental protest,
ostensibly based on its review of the agency report, the record shows that
it was aware of this basis of protest prior to that time.  In this regard,
SWR's debriefing letter attached a complete copy of its evaluation,
including the stated weakness that SWR had no "documented corporate
experience performing contracts that are both similar in scope (aircraft
washing) and similar in size (at least $1 million per year) to the
solicitation."  Debriefing at 4.  Since SWR knew that the TEB had
evaluated its corporate experience on this basis, it was required to
protest on this basis within 10 days; its supplemental protest, filed some
6 weeks later, was well beyond this time, making it untimely and not for
consideration. 

   [2] SWR asserts that this assessment is misleading given the agency's
post-evaluation award of a sole-source contract to SWR based on its
"satisfactory" performance.  Protest at 5.  We find nothing misleading or
contradictory.  The sole-source contract was awarded while SWR's prior
protest was pending; SWR was selected because its contract was due to
expire and there was insufficient time to locate another contractor,
negotiate a price, and transition that contractor.  USMC Urgency
Determination.  While the agency stated that SWR's performance was
"satisfactory," this assessment was qualified by the agency's notation
that SWR had "exhibited numerous performance problems under its [contract
and] [i]n total, its overall performance . . . [was] marginal."  Id. 

   [3] SWR asserts that the agency's past performance respondents/evaluators
were biased against it.  Government officials are presumed to act in good
faith, and a protester's claim that contracting officials were motivated
by bias or bad faith must be supported by convincing proof; our Office
will not attribute unfair or prejudicial motives to procurement officials
on the basis of inference or supposition.  Shinwha Elecs., B-290603 et
al., Sept. 3, 2002, 2002 CPD P 154 at 5 n.6.  SWR's disagreement with the
evaluators' assessments do not establish bad faith or bias, and it has
presented no other evidence supporting its claim.