TITLE: B-296176.2, Clean Harbors Environmental Services, Inc., December 9, 2005
BNUMBER: B-296176.2
DATE: December 9, 2005
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B-296176.2, Clean Harbors Environmental Services, Inc., December 9, 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: Clean Harbors Environmental Services, Inc.

   File: B-296176.2

   Date: December 9, 2005

   William E. Hughes III, Esq., Whyte Hirschboeck Dudek SC, for the
   protester.

   Michael H. Payne, Esq., Payne Hackenbracht & Sullivan, for Clean Venture,
   Inc., an intervenor.

   Doris Gibson, Department of Health and Human Services, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that past performance evaluation was unreasonable is sustained
   where record shows that agency made no attempt during evaluation to assess
   the relevance of the offerors' prior contracts, notwithstanding
   solicitation term requiring such an assessment.

   DECISION

   Clean Harbors Environmental Services, Inc. protests the award of a
   contract to Clean Venture, Inc. under request for proposals (RFP) No.
   263-04-P (GG)-0061, issued by the National Institutes of Health (NIH) to
   acquire comprehensive chemical and low-level radioactive waste management
   services for NIH's main campus. Clean Harbors maintains that the agency
   misevaluated proposals in the area of past performance.[1]

   We sustain the protest.

   The RFP contemplated the award of a contract for comprehensive chemical
   and low-level radioactive waste management services at NIH's main campus
   in support of the agency's biomedical research program. Offerors were
   advised that the agency intended to make award to the firm submitting the
   proposal deemed to offer the overall "best value." For evaluation
   purposes, the RFP advised that the agency would consider the following
   three criteria, in descending order of importance: technical, cost/price
   and past performance. (The technical criterion included 11 subcriteria
   that are not relevant to this protest.)

   The RFP advised that the agency would only evaluate the past performance
   of concerns deemed to have a likelihood of receiving award based on their
   technical proposals. Offerors were to provide a list of five contracts
   completed within the last 2 years, as well as all current contracts
   similar in nature to the solicited requirement. Past performance would be
   evaluated based on information obtained from references included by the
   firms in their proposals, as well as relevant information obtained from
   other sources known to the government, for purposes of assessing the
   performance risk associated with each offeror. RFP at 120. The RFP further
   provided: "The government will consider the currency and relevance of the
   information, source of the information, context of the data, and general
   trends in the offeror's performance." Id.

   The agency received numerous proposals. After establishing an initial
   competitive range of three proposals, the agency engaged in discussions
   and obtained revised proposals. The agency then further limited the
   competitive range to two firms, the protester and the awardee, and
   obtained final proposal revisions (FPR). On the basis of the FPRs, the
   agency made award to Clean Venture, finding that its and Clean Harbors'
   proposals were technically equal, that both firms had satisfactory past
   performance, and that the Clean Venture proposal offered a cost savings
   over the Clean Harbors proposal. Clean Harbors filed a protest with our
   Office challenging the award decision. In response to that protest, the
   agency proposed to reevaluate the proposals; on the basis of this
   corrective action, Clean Harbors withdrew its earlier protest (B-296176,
   May 3, 2005). Thereafter, the agency reevaluated the proposals, concluded
   again that the firms' past performance was equal, and affirmed its
   original source selection decision. Clean Harbors again protests the
   decision to make award to Clean Venture.

   Clean Harbors, the incumbent for the requirement, asserts that the agency
   misevaluated the offerors' past performance information, specifically,
   that the agency improperly failed to take into consideration the relevance
   of the offerors' past performance references, and that this was
   inconsistent with the terms of the solicitation. Clean Harbors asserts
   that this resulted in competitive prejudice because it has more relevant
   experience, and therefore should have received a higher past performance
   rating, than Clean Venture.

   The agency, in a supplemental submission to our Office, asserts for the
   first time that, in fact, the comparative relevance of the past
   performance references in the offerors' proposals was considered, and the
   references were carefully reviewed for relevance, as well as for
   substance. Agency Supplemental Submission, Nov. 2, 2005, at 2. The agency
   therefore maintains that it met its obligation, consistent with the terms
   of the RFP to evaluate the relevance of the firms' past performance
   references.

   As a general matter, the evaluation of an offeror's past performance is a
   matter within the discretion of the contracting agency, and we will not
   substitute our judgment for reasonably based past performance ratings.
   However, we will question an agency's evaluation conclusions where they
   are unreasonable or undocumented. OSI Collection Servs., Inc., B-286597,
   B-286597.2, Jan. 17, 2001, 2001 CPD para. 18 at 6. The critical question
   is whether the evaluation was conducted fairly, reasonably, and in
   accordance with the solicitation's evaluation scheme, and whether it was
   based on relevant information sufficient to make a reasonable
   determination of the offerors' past performance. Id.

   The past performance evaluation here did not meet this standard. The
   evaluation was based on responses to past performance questionnaires the
   agency sent to each of the references included in the offerors' proposals.
   Two references for each firm (of the five solicited) submitted responses
   to the questionnaires, which the agency reviewed to arrive at a past
   performance rating for each concern. Past Performance Evaluation at 1. In
   this regard, the Revised Source Selection Determination (RSSD) shows that
   the source selection official relied only on the averaged past performance
   questionnaire numerical scores in his award deliberations, as reflected in
   the following language:

   The past performance evaluation is a tool to assess the relative risks
   associated with each offeror. The Past Performance Evaluation is based on
   information obtained from references provided by the offeror, as opposed
   to an evaluation of the offeror's written proposal. The references
   referred to in the Past Performance Evaluation give their assessment of
   similar contracts they have had with an offeror. The references were given
   the NIH Past Performance Customer Questionnaire to rate the performance of
   each offeror relative to the requirements of each contract. The average
   Past Performance numerical ratings as provided by the references are shown
   below. The differences in the past performance scores for the two
   companies were minimal. Past performance is relatively equal as shown
   below.

   RSSD at 5.

   Significantly, there is no indication--in the RSSD or elsewhere in the
   record--that the agency went beyond the questionnaires and considered the
   relevance of the offerors' past performance references. This is
   problematic because, as noted, the RFP provided for consideration of the
   relevance of the past performance information received, RFP at 137, and
   the two references received for Clean Venture--from the Smithsonian
   Institution and the Washington Metropolitan Area Transit
   Authority--involved substantially smaller, less complex contracts than the
   current requirement. Clean Venture Proposal at 106-09; AR, exh. 7, at
   2-14. There thus is reason to question the relevance of Clean Ventures'
   past performance. At the same time, the protester, as the incumbent
   contractor for the NIH requirement here, possessed arguably the most
   relevant past performance information available. However, there is no
   indication that the agency ever considered the relevance of that contract,
   either; instead, the record shows only that the agency considered the
   questionnaires for two different contracts performed by Clean Harbors, one
   for a private drug company and the other for the Army. AR, exh. 7, at 2.
   Indeed, while the agency states in its submissions to our Office that it
   considered past performance information in the proposals, in addition to
   the questionnaires, there is no support in the contemporaneous record to
   show that it considered Clean Harbors' performance as the incumbent at
   all, or for that matter, that it considered any other information included
   in the proposals or otherwise available to the agency. Rather, as
   discussed above, the record contains documentation showing only that the
   agency considered the scores derived from the questionnaire responses
   received for the two firms, and, thus, the agency's arguments during the
   protest are simply not supported by the record. We conclude that the
   agency's actions were inconsistent with the RFP, and otherwise
   unreasonable.

   We find as well that the agency's failure to consider the comparative
   relevance of the offerors' past performance could have affected its source
   selection decision; although both firms received the same past performance
   ratings, it appears, as noted, that the references relied on for Clean
   Venture's rating were smaller, less complex contracts as compared to Clean
   Harbors' incumbent contract for the very requirement being solicited. (In
   addition, to the extent that the other contracts referred to in the offers
   could have been evaluated and deemed more or less relevant, the record
   shows that the agency apparently did not consider that information in
   arriving at its ratings.) In view of the foregoing, we find that Clean
   Harbors was prejudiced by the agency's failure to evaluate the comparative
   relevance of the offerors' past performance, and sustain the protest on
   this basis.

   We recommend that the agency reevaluate the offerors' past performance,
   giving due consideration to the relevance of the offerors' prior and
   current contracts and, based on that reevaluation, make a new source
   selection determination. Should the agency find that Clean Venture's
   proposal no longer represents the best value to the government, we further
   recommend that the agency terminate that firm's contract and make award to
   Clean Harbors, if otherwise appropriate. Finally, we recommend that Clean
   Harbors be reimbursed the costs associated with filing and pursuing its
   protest, including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1)
   (2005). Clean

   Harbors' certified claim for costs, detailing the time spent and the costs
   incurred, must be submitted to the agency within 60 days of receiving of
   our decision. 4 C.F.R. sect. 21.8(f)(1).

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] Clean Harbors raised numerous additional arguments in its initial
   protest, but in its comments did not provide a substantive response to the
   agency report in any area except its assertions relating to past
   performance. Where, as here, an agency provides a detailed response to a
   protester's assertions and the protester either does not respond to the
   agency's position or provides a response that merely references or
   restates the original allegation without substantively rebutting the
   agency's position, we deem the initially-raised arguments abandoned.
   Citrus College; KEI Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD
   para. 104 at 8 n.4.