TITLE: B-296626, Firetech Automatic Sprinkler, September 22, 2005
BNUMBER: B-296626
DATE: September 22, 2005
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B-296626, Firetech Automatic Sprinkler, September 22, 2005

   Decision

   Matter of: Firetech Automatic Sprinkler

   File: B-296626

   Date: September 22, 2005

   A. W. Pharris for the protester.

   Elin M. Dugan, Esq., Department of Agriculture, for the agency.

   Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency reasonably determined, in accordance with the solicitation's
   evaluation criteria, that the awardee's superior experience and past
   performance justified award based on its slightly higher-priced quotation.

   DECISION

   Firetech Automatic Sprinkler protests the U.S. Forest Service's award to
   Concept Integrators, Inc. under request for quotations (RFQ) No.
   R5SC0605018, for construction work.

   We deny the protest.

   The RFQ, issued on January 13, 2005 under the simplified acquisition
   procedures prescribed in Federal Acquisition Regulation (FAR) part 13 and
   posted on the FedBizOpps website, sought improvements to the Information
   Center Kiosk at Bucks Lake, Plumas National Forest, Quincy, California.
   The project required construction of a roof over the existing stone veneer
   kiosk and site work to include clearing, grading, aggregate base, asphalt
   pavement, concrete, concrete staining, a trash receptacle, picnic tables,
   and the construction of a dry creek bed.

   The award was to be made on a "best value" basis considering price,
   experience and past performance. As permitted by the solicitation, the
   agency, in its evaluation, gave equal evaluation weight to these three
   factors and rated them based on a 5-point scale.[1]

   Vendors were instructed to "provide a list of all contracts completed
   within the last three years." Additionally, the RFQ advised that
   "[q]uoters with no record of past performance will receive a neutral
   rating for past performance" and that "[q]uoters with no experience in the
   type of work solicited, may list other types of contracts which exemplify
   their past performance." RFQ at 43.

   In response to the RFQ, the Forest Service received seven quotations,
   including Firetech's quotation priced at $46,405 and Concept's quotation
   priced at $47,480. Only the four lowest priced quotations were evaluated,
   as they were the only ones within the government's $50,000 budget. The
   Forest Service initially selected Concept for award on March 3, but
   decided to reevaluate the quotations of Concept and Firetech, after
   Firetech complained, and the agency confirmed, that its references had not
   been contacted during the initial evaluation. The agency thus requested
   that these two vendors submit supplemental past performance data for
   further evaluation. Contracting Officer's Statement at 2.

   Based on this reevaluation, the agency determined that Concept's
   experience and past performance were superior to Firetech's, such that
   Concept's slightly higher priced quotation represented the "best value for
   the government." Agency Report, Tab E, Source Selection Report, at 1.

   Firetech's experience rating was based on its "recent experience, which
   indicated two projects, consisting of simple maintenance work, on projects
   not yet completed." The agency found that the contracting officer's
   technical representative (COTR) on these Forest Service contracts
   "expressed a general satisfaction with the work but reported that work was
   not done in a timely manner and on both contracts extensions for
   additional time [were] needed."[2] With respect to the other two contracts
   referenced by Firetech in its quotation, the agency found that the
   contracts for "sprinkler systems installations, though very good, were not
   completed within the last three years," and therefore were not considered
   in the evaluation. Id.

   In contrast, the agency found that Concept's superior experience was a
   result of "five projects, two ongoing and three completed within the last
   two years, with experience involving both heavy maintenance and
   construction projects." With respect to past performance, the panel found
   that all of Concept's references expressed complete satisfaction or 99
   percent satisfaction and that all contracts were completed on time (except
   in one instance where poor communication with the subcontractor was the
   cause of delay, although this reference stressed the "contractor's good
   quality work."). Id.

   Firetech argues that the Corps unreasonably evaluated its experience and
   past performance, and did not give sufficient weight to its low price.

   As noted above, the procurement was conducted under simplified acquisition
   procedures. When using these procedures, an agency must conduct the
   procurement consistent with a concern for fair and equitable competition
   and must evaluate quotations in accordance with the terms of the
   solicitation. In reviewing protests of an allegedly improper simplified
   acquisition evaluation and award selection, we examine the record to
   determine whether the agency met this standard and exercised its
   discretion reasonably. Dew Drop Sprinklers & Landscaping, B-293963, July
   15, 2004, 2004 CPD para. 171 at 3.

   We first note that, contrary to Firetech's argument, the RFQ specifically
   limited the past performance and experience evaluation to contracts
   completed within the last 3 years. Thus, the agency properly did not
   consider Firetech's references for contracts completed more than 3 years
   previously.[3]

   While Firetech notes that some Forest Service representatives have, in our
   (as well as Firetech's) view, erroneously characterized its two contracts
   that were evaluated as "not relevant," the record shows that Firetech's
   experience and past performance were in fact rated based on these
   contracts. The record reflects that Firetech's experience was not rated as
   high as Concept's primarily because during the past 3 years it only
   performed two relatively low dollar value contracts that had not yet been
   completed, as compared to Concept's more extensive experience during this
   period completing larger dollar and more relevant contracts.

   While Firetech also disagrees with its past performance rating, the agency
   reasonably relied upon the comments made in the interview with the COTR
   for those contracts in rating Firetech's past performance. Since nothing
   on the face of the reference's comments reasonably would have led the
   agency to look behind them, the agency could rely on the COTR's comments
   reflecting that the work was not done in a timely manner in evaluating
   Firetech's past performance. Gulf Group, Inc., B-287697, B-287697.2,
   July 24, 2001, 2001 CPD para. 135 at 4.

   Firetech finally asserts that its lower price should have been more
   influential in determining the best value. However, agency officials have
   broad discretion in determining the manner and extent to which they will
   make use of the technical and cost evaluation results. Price/technical
   tradeoffs may be made, and the extent to which one is sacrificed for the
   other is governed by the test of rationality and consistency with the
   established factors. An agency may properly select a more highly rated
   quotation over one offering a lower price where it has reasonably
   determined that the technical superiority outweighs the price
   difference.[4] Dew Drop Sprinklers & Landscaping, supra, at 3. As
   discussed above, the agency reasonably determined that Concept's superior
   experience and past performance justified making award to that firm,
   notwithstanding its slightly higher price.[5]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The adjectival ratings for the 5 points were (1) poor, (2) marginal,
   (3) neutral or average, (4) good and (5) excellent.

   [2] In response to Firetech's allegations that the agency had
   misrepresented the COTR's assessment of its past performance, our Office
   conducted a hearing. At the hearing, the COTR persuasively confirmed that
   the record of the interview that the agency relied upon to evaluate
   Firetech's past performance accurately reflected her assessment of
   Firetech's performance.

   [3] Contrary to Firetech's assertion, nothing in the FAR requires the
   agency to consider past performance references submitted for contracts
   completed earlier than the period for which the solicitation requested
   references.

   [4] Contrary to the protester's contention, the RFQ did not suggest that
   price was a more important factor than experience or past performance.

   [5] We find no evidence to support Firetech's allegation that its
   evaluation was the result of bias against it and favoritism towards
   Concept, which has performed prior contracts with this Forest Service
   office.