TITLE: B-295582.4, Brewbaker White Sands JV, October 5, 2005
BNUMBER: B-295582.4
DATE: October 5, 2005
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B-295582.4, Brewbaker White Sands JV, October 5, 2005

   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: Brewbaker White Sands JV

   File: B-295582.4

   Date: October 5, 2005

   F. Randolph Burroughs, Esq., Burroughs & Rhodes, for the protester.

   Maj. Lawrence M. Anderson and Eric Beckstrom, Esq., 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 award to offeror that submitted slightly lower-rated,
   lower-priced proposal in a best value procurement is proper where record
   shows source selection authority performed a rational integrated
   assessment of proposals and reasonably determined that (1) both offerors'
   past performance proposals were essentially equal in terms of performance
   risk, and (2) despite protester's higher adjectival rating for past
   performance, price premium involved in an award to the protester on the
   basis of its slightly higher-rated, higher-priced proposal was not
   warranted given the acceptable level of technical competence available at
   the awardee's lower price.

   DECISION

   Brewbaker White Sands JV protests the award of a contract to NASCENT Group
   JV under request for proposals (RFP) No. FA801-04-R-0004, issued by the
   Department of the Air Force for Simplified Acquisition of Base Engineering
   Requirements (SABER) services at Holloman Air Force Base, New Mexico. The
   protester contends that the agency failed to follow the RFP's evaluation
   terms, since past performance was the most important evaluation factor,
   and the protester's proposal received a higher adjectival rating for past
   performance, but the award was made to NASCENT on the basis of its
   slightly lower-rated, lower-priced proposal.

   We deny the protest.

   The RFP, issued on May 10, 2004, contemplated the award of a fixed-price,
   indefinite-delivery, indefinite-quantity contract for a base year and 4
   option years for a broad range of maintenance, repair, minor
   construction/alteration and renovation work.[1] RFP at 139. The following
   evaluation factors were provided: technical, past performance, and price.
   Offers found to be technically acceptable were to be evaluated for past
   performance and price, with past performance more important than price.
   RFP at 142. Offerors were advised that

        [t]he government will consider awarding to an Offeror with higher
        qualitative merit and/or experience and past performance, provided the
        difference in price is commensurate with added value. Conversely, the
        Government will consider making award to an Offeror whose offer has lower
        qualitative merit and/or relevant experience and past performance if the
        price differential between this Offeror's proposal and other proposals
        warrant[s] doing so.

   Id. Both the protester's and NASCENT's technical proposals were evaluated
   as acceptable.

   Brewbaker White Sands received favorable ratings of very good to
   exceptional from its past performance references, and was rated
   exceptional for past performance by the evaluators, although the
   evaluators noted that no past performance information was referenced for
   the joint venture separate from its individual members, and that only
   limited government contract experience was identified for the joint
   venture's members. The evaluators also noted that several of the
   protester's references could not be reached for comments to support their
   unexplained high ratings.

   NASCENT's past performance reference ratings were also favorable,
   predominantly in the very good to exceptional range; NASCENT's past
   performance was given an overall rating of very good. While two reference
   questionnaires were incomplete and discounted, and a third, less favorable
   one, was also discounted after the awardee explained that it pertained to
   a different entity, the evaluators noted that the offeror's other past
   performance reviews were favorable and demonstrated relevant experience,
   including two other SABER contracts.

   Price proposals containing proposed price coefficients (multipliers to be
   applied to standard unit prices at estimated quantities provided in the
   RFP, and reflecting the offeror's profit, general and administrative
   expenses, overhead, and mobilization costs) were to be evaluated for
   reasonableness. Offerors were also required to provide for evaluation
   prices for design task line items related to the different levels of SABER
   tasks anticipated by the agency.

   NASCENT's pricing coefficients were lower than those proposed by the
   protester, resulting in an evaluated price of $109,502,000 for the firm.
   The Brewbaker White Sands proposal was evaluated at $115,410,050. Both
   firm's evaluated prices were considered reasonable. For the design task,
   the protester's price was evaluated at $91,800 for the sum of the design
   line items and NASCENT's price was evaluated at $5,625; NASCENT had
   proposed a price of "$0.00" for several of the design line items,
   explaining to the agency that under its SABER contracts, it considers the
   type of design work it priced at zero dollars to be inherent to the
   overall SABER services to be provided by the firm.

   The SSA in her source selection decision document (SSDD) compared the past
   performance strengths, weaknesses, and adjectival evaluation ratings noted
   for each of the offerors' proposals, and considered whether the higher
   evaluation rating and associated past performance strengths warranted the
   payment of the price premium associated with an award to the protester.
   For instance, the SSA noted that while the protester's past performance
   proposal was credited for one of its members' (White Sands) incumbent
   contract for the services, and that favorable past performance ratings had
   been given for a variety of work by each of the joint venture's individual
   members, no past performance information was available to assess the
   performance capability of the joint venture offeror itself. The SSA also
   pointed out a lack of any support from several references for the
   protester for favorable ratings it received, lessening the usefulness of
   those ratings. There was also a concern that only limited information
   about Brewbaker's individual past performance was provided, and that,
   other than the White Sands incumbent contract for the services, the record
   did not demonstrate government contract experience for the protester.
   Accordingly, the SSA concluded that the protester's past performance
   rating was "barely Exceptional." SSDD at 5.

   As for NASCENT's past performance, the record shows that the majority of
   past performance reference ratings were all very good to exceptional, and
   that several of the references rated work performed by the same joint
   venture (rather than its individual members) pursuing the current award
   including two similar SABER contracts. The SSA also recognized favorably
   that one of the awardee's joint venture members "has a proven track record
   for taking over failing ventures and developing successful joint
   ventures." Id. at 4. Based on these considerations, the SSA concluded that
   NASCENT's past performance deserved a "strong overall `Very Good' rating."
   Id. Given their comparative strengths, the SSA reasoned that both offerors

        are essentially equal in their ability to provide the required service to
        the government . . .[b]oth offerors have demonstrated ability to perform
        to the required task magnitude . . . and there is little difference in the
        risk posed to the government, leaving price as the factor with primacy
        when determining best value to the government.

   Id. at 5.

   Noting that the RFP provides for award to an offeror with a lower past
   performance rating if the price differential associated with a
   higher-rated proposal warrants doing so, the SSA determined that, in light
   of the offerors' essentially equal ability to successfully perform the
   work, the price premium associated with the protester's proposal was not
   warranted; the SSA concluded that the NASCENT proposal offered the best
   overall value to the government. The agency awarded a contract to NASCENT
   on June 27, 2005. This protest followed.

   Brewbaker White Sands contends that the agency failed to evaluate the
   proposals for award in accordance with the RFP, since the RFP's evaluation
   scheme provided that past performance was more important than price. In
   this regard, the protester contends that, despite its higher price, it
   should have been awarded the contract since it received a higher
   adjectival rating for past performance.

   In reviewing a protest against an agency's evaluation of proposals and
   award, including tradeoff determinations, we examine the record to
   determine whether the agency's judgment was reasonable and consistent with
   the solicitation's evaluation criteria and applicable statutes and
   regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18,
   2000, 2000 CPD para. 132 at 4. An agency may properly select a
   lower-rated, lower-priced proposal where it reasonably concludes that the
   price premium involved in selecting a higher-rated proposal is not
   justified in light of the acceptable level of technical competence
   available at a lower price. Bella Vista Landscaping, Inc., B-291310, Dec.
   16, 2002, 2002 CPD para. 217 at 4. A protester's mere disagreement with
   the agency's determinations as to the relative merit of competing
   proposals and its judgment as to which proposal offers the best value to
   the agency, does not establish that the evaluation or source selection was
   unreasonable. Weber Cafeteria Servs., Inc., B-290085.2, June 17, 2002,
   2002 CPD para. 99 at 4. Our review of the record here supports the
   reasonableness of the agency's comparative review of the merits of the
   proposals, its price/past performance tradeoff, and the award decision.[2]

   In its comments on the agency report, which included the full evaluation
   record and source selection decision documentation, the protester does not
   persuasively refute the noted strengths in the evaluation record of the
   awardee's past performance, the reasonableness of the SSA's consideration
   of the two past performance proposals as being essentially equal, or the
   SSA's concerns about the protester's limited joint venture and government
   contract experience (and the limited supporting commentary for high past
   performance ratings). Rather, the firm generally alleges that because the
   RFP provided that past performance is the most important factor for award,
   and because it received a higher past performance adjectival rating, it
   should have been selected for award. We disagree.

   It is well-established that adjectival ratings are merely guides to
   intelligent decisionmaking; they do not mandate automatic selection of a
   particular proposal. See Calspan Corp., B-255268, Feb. 22, 1994, 94-1 CPD
   para. 136 at 10. Rather, selection officials must decide whether the
   different ratings show technical superiority and what that difference may
   mean in terms of contract performance in determining whether a price
   premium associated with that superiority is warranted. See Computer Tech.
   Servs., Inc., B-271435, June 20, 1996, 96-1 CPD para. 283. Here, as
   discussed above, the SSA performed a comprehensive integrated assessment
   of the proposals and concluded that in terms of performance risk, based on
   a comparative review of the offerors' past performance, the proposals were
   essentially equal, making price the determinative factor for award.
   Neither the protester, nor our review of the record, provides a basis to
   question the reasonableness of that determination.

   As set forth above, while the protester's past performance had noted
   strengths, the SSA also noted its related weaknesses and the agency's
   concerns about the offeror's limited relevant experience as a joint
   venture and government contractor. Conversely, while the awardee's past
   performance was rated as very good, rather than exceptional, the SSA noted
   the strengths of the firm's past performance and its direct relevance to
   the current SABER contract. Moreover, the protester provides no basis to
   challenge the reasonableness of the SSA's determination that, given
   NASCENT's lower price, and the acceptable level of technical competence
   and the high probability of successful performance by this experienced
   SABER contractor, any technical superiority that might be associated with
   the slightly higher adjectival rating received by the protester does not
   justify the payment of the price premium associated with an award to that
   offeror. Therefore, whether the SSA viewed the proposals as essentially
   technically equal, making price the proper basis of selection, or
   concluded that the adjectival ratings of the proposals did not warrant
   paying the price premium associated with the Brewbaker White Sands
   proposal, we find nothing improper in the SSA's selection decision.[3] Id.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] We note, as a matter of background, that Brewbaker White Sands
   originally protested a December 9, 2004 award to NASCENT under this RFP;
   that protest was dismissed as academic after the agency agreed to
   reevaluate the proposals. The protester then challenged the agency's
   subsequent selection of NASCENT for award; that protest was dismissed as
   academic when the agency agreed to provide a new source selection
   authority for a final award decision. The current protest relates to the
   new source selection authority's selection of NASCENT for award.

   [2] We also note that to the extent the protester alleges that the
   procurement was tainted by bias by the SSA, the protester has not provided
   any support for the contention; our Office will not attribute unfair or
   prejudicial motives to procurement officials on the basis of inference or
   supposition. ACC Constr. Co., Inc., B-289167, Jan. 15, 2002, 2002 CPD
   para. 21 at 4. We point out that while the protester questions certain
   similarities in the final and previous SSDDs, the agency has explained
   that the similarities, which appear in the SSDD's procurement history
   provisions, stem from the use by both SSAs of a standard form for that
   purpose. The agency reports, however, that each SSA's review of the
   proposals and evaluation record for technical merit and price, and the
   analysis supporting the award decision, are not based on any standard
   provisions, but rather reflect each SSA's independent review and
   consideration of the procurement record.

   [3] To the extent that the protester generally challenges the adequacy of
   the price evaluation, our review of the record shows no valid basis of
   protest. For instance, although the protester alleges that the awardee's
   price proposal should have been rejected for submitting an offer of
   "$0.00" for several design line items, there is nothing improper in an
   offeror electing not to charge for certain items or services; where, as
   here, an offeror indicates a commitment to furnish the item in question by
   inserting "$0.00" in its proposal, its proposal is compliant. GTSI Corp.,
   B-286979, Mar. 22, 2001, 2001 CPD para. 55 at 6. Further, it is
   insufficient for a protester to challenge the propriety of a fixed-price
   contract award on the ground that the awardee submitted a below-cost
   proposal; fixed-price contracts generally are not subject to adjustment
   during performance, and NASCENT, not the agency, will bear the financial
   risk, if any, including a low profit margin. SatoTravel, B-287655, July 5,
   2001, 2001 CPD para. 111 at 4-5 n.3. The protester also provides no
   support for its contention that the awardee's pricing is unbalanced; there
   has been, for instance, no showing of any overstatement of prices. See RFP
   at 139; Federal Acquisition Regulation sect. 15.404-1(g). Lastly, the
   protester gives no support for, or showing of prejudice related to, its
   contention that it was unreasonable for the agency to use a pricing
   formula for evaluation purposes that resulted in evaluated prices in
   excess of the contract's maximum price.