TITLE: B-297524; B-297524.2, NVT Technologies, Inc., February 2, 2006
BNUMBER: B-297524; B-297524.2
DATE: February 2, 2006
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B-297524; B-297524.2, NVT Technologies, Inc., February 2, 2006

   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: NVT Technologies, Inc.

   File: B-297524; B-297524.2

   Date: February 2, 2006

   Jeffrey A. Lovitky, Esq., for the protester.

   James J. McCullough, Esq., and Steven A. Alerding, Esq., Fried, Frank,
   Harris, Shriver & Jacobson LLP, for SelectTech Services Corporation, an
   intervenor.

   Maj. Jeffrey Branstetter, 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 agency's evaluation of past performance and source selection
   decision is denied where record shows that the evaluation and award
   decision were reasonable, consistent with the terms of the solicitation,
   and in accordance with applicable procurement rules.

   DECISION

   NVT Technologies, Inc. protests the award of a contract to SelectTech
   Services Corporation under request for proposals (RFP) No.
   FA8601-05-R-0034, issued by the Department of the Air Force for
   facility/laboratory management and equipment maintenance services at the
   Air Force Research Laboratories at Wright-Patterson Air Force Base, Ohio.
   NVT challenges the agency's evaluation of the proposals, primarily
   contending that its past performance was unreasonably downgraded for
   failure to demonstrate a greater degree of relevance to the current
   requirements, and that the awardee's proposal is unacceptable for taking
   exception to material terms of the solicitation.[1]

   We deny the protests.

   The RFP, issued on May 24, 2005, contemplates the award of a
   time-and-materials, indefinite-delivery/indefinite-quantity contract for a
   base year and 3 option years. RFP at 35. Offerors were advised that their
   proposals were to "include sufficient detail for effective evaluation and
   for substantiating the validity of stated claims," and that award would be
   made to the offeror providing the agency with "the greatest confidence
   that it will best meet or exceed the requirements affordably." Id. at
   37, 54. The following three evaluation factors, listed in descending order
   of importance, were provided: mission capability (to be evaluated for
   technical acceptability only), past performance, and price. A price/past
   performance tradeoff was to be conducted if the lowest-priced proposal was
   not rated exceptional for past performance. Id. at 53, 55.

   The RFP advised that the past performance evaluations would be based on
   the offerors' proposals, past performance reference questionnaires
   received, and data obtained from other sources. Offerors were to provide
   descriptions of the work they performed in order for the agency to assess
   the efforts' relevance to the current performance requirements; the RFP
   specifically cautioned, however, that the agency would not be bound by an
   offeror's opinion of the relevance of its past performance efforts. Id.
   Offerors were to provide contract information and references for up to
   three recent customers with relevant work of similar scope and complexity,
   in sufficient detail to demonstrate the ability to perform the proposed
   effort. Id. at 42, 46. Reference questionnaires were to be reviewed for
   the quality of work performed; ratings of exceptional, very good,
   satisfactory, marginal, and unsatisfactory were to be assigned to indicate
   the overall quality of the contractor's work efforts. Separately, the
   relevance of those efforts was to be assessed; ratings of highly relevant
   (involving essentially the same magnitude of effort and complexity),
   relevant (much of the same magnitude of effort and complexity), somewhat
   relevant (some of the magnitude of effort and complexity), and not
   relevant (little of the magnitude of effort and complexity) were to be
   assigned. Id. at 57-58. Applying the relevance ratings to the quality
   assessments, the agency formulated a performance confidence rating for
   each proposal; the ratings included exceptional/high confidence
   (indicating essentially no doubt that the offeror will successfully
   perform the required effort); very good/significant confidence (little
   doubt of successful performance); satisfactory/confidence (some doubt of
   successful performance); marginal/little confidence (substantial doubt of
   successful performance, and where changes in the offeror's processes may
   be necessary); and unsatisfactory/no confidence (extreme doubt of
   successful performance).

   The agency reports that while NVT's past performance quality assessment
   was satisfactory, it received a relatively low relevance rating (of
   somewhat relevant) since its work descriptions were vague and did not
   support a higher relevance rating. Due to the low relevance rating, the
   NVT proposal received an overall performance confidence rating of
   marginal/little confidence. SelectTech (an incumbent contractor for much
   of the work required under the RFP) submitted the lowest price of all of
   the offerors and received higher past performance ratings for quality and
   relevance than NVT. SelectTech's proposal received an overall performance
   confidence rating of satisfactory/confidence. A price/past performance
   tradeoff was subsequently conducted between the SelectTech proposal and
   the third lowest-priced proposal, which received the same past performance
   rating as SelectTech's. NVT's second-lowest priced proposal was not
   considered in the tradeoff with SelectTech's proposal, since SelectTech
   had a higher past performance rating than NVT, and proposed a lower price.
   In light of SelectTech's satisfactory past performance confidence rating
   and its lower price, the source selection official determined that its
   proposal offered the best value to the government. An award was made to
   that firm on October 12. This protest followed.

   NVT primarily contends that the agency's evaluation of the relevance of
   its past performance was conducted on an unequal basis (because four past
   performance reference questionnaires were considered for SelectTech while
   only three were considered for NVT), and unfairly advantageous to
   SelectTech (because two of the individuals who submitted past performance
   references for SelectTech were on the agency's evaluation team for this
   procurement).[2] Based on our review of the record in this case, we find
   no reason to question the propriety of the evaluation or award decision.

   In reviewing protests against allegedly improper evaluations, it is not
   our role to reevaluate proposals. Rather, our Office examines the record
   to determine whether the agency's judgment was reasonable, and in accord
   with the RFP criteria and applicable procurement statutes and regulations.
   See DeLeon Technical Servs., Inc., B-293783, June 4, 2004, 2004 CPD para.
   145 at 2. The protester's mere disagreement with the agency's judgment
   does not establish that an evaluation was unreasonable. UNICCO Gov't
   Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD para. 134 at 7.

   NVT does not challenge the quality assessment of the firms' past
   performance or the fact that SelectTech's past performance was rated
   higher than NVT's based upon consistently high ratings and highly
   favorable commentary received from SelectTech's past performance
   references. Rather, the protester questions the reasonableness of the
   agency's evaluation of the relevance of NVT's past performance efforts,
   for which it received a rating of only somewhat relevant. In particular,
   the protester contends that the agency failed to appropriately consider
   the additional past performance information NVT provided in its final
   proposal revision (FPR) in response to having been told during discussions
   that its relatively low relevance rating was due to the vagueness of the
   past performance descriptions in the firm's initial proposal.[3]

   In its FPR, the protester provided a chart listing the titles of the
   general categories and subtasks of the RFP's performance work statement,
   as well as a brief narrative providing a general overview of the
   contracts. NVT FPR at III-6-14. The chart listed in the FPR provided
   separate columns for each of NVT's three referenced past performance
   efforts; in these columns, NVT placed a checkmark next to each general
   task that the protester believed was performed under any of the three
   contracts. The agency contends that the chart provides, at best, only the
   most general description of work performed as it presents only the general
   categories of work listed in the RFP's performance work statement, without
   elaborating (either on the chart or in the narratives) about the specific
   projects and work actually performed under those categories and subtasks,
   in order for the agency to assess if the work performed is directly
   relevant to the identified tasks. Moreover, as evidenced by the chart in
   its FPR, NVT itself contends that only about half of the RFP's performance
   work tasks were performed under two of the three contracts (while all of
   the tasks were allegedly performed under its third contract). Since the
   record supports the agency's finding that the protester's proposal and FPR
   failed to provide sufficiently detailed descriptions of work to either
   allow for a more comprehensive relevance review or support a higher
   relevance rating, and since it is clear that, even under NVT's
   self-assessment, as many as half of the requirements were not involved in
   two of its three contracts, we see no basis to question the agency's
   assessment of the work presented as "somewhat relevant" to the current
   requirements.[4]

   NVT next alleges that the past performance evaluation was improper since,
   although the RFP provided that past performance information was to be
   limited to work performed for three prior customers, four SelectTech
   reference questionnaires were reviewed and given equal weight by the
   evaluators, including two questionnaires that were submitted for the same
   contract. Only three questionnaires were received and evaluated for NVT.
   In this regard, NVT suggests that SelectTech received the benefit of
   having one highly-rated relevant contract (its previous contract for much
   of the work required under the RFP) being considered twice in the
   evaluation. Additionally, NVT argues that the two reference questionnaires
   for the incumbent contract should not have been considered because they
   were submitted by individuals who were members of the evaluation team for
   the current procurement.

   Evaluators may consider personal knowledge of an offeror in a past
   performance evaluation, see Independence Constr., Inc., B-292052, May 19,
   2003, 2003 CPD para. 105 at 2, and thus we see nothing improper in an
   evaluator serving as a past performance reference where, as here, there
   has been no showing of improper influence on the evaluation or award
   determination. See George A. Fuller Co., B-247171.2, May 11, 1992, 92-1
   CPD para. 433 at 4-5. With regard to NVT's other argument--that it was
   improper for the agency to consider two references for the same contract,
   both of which came from members of the evaluation team--it is clear that
   NVT was not prejudiced by any alleged error in this area. Specifically,
   even if NVT is correct and the agency properly could consider only three
   past performance references, then only one of the two challenged
   references/evaluators' ratings would need to be removed from the
   evaluation record, given our conclusion above that it was not improper to
   consider references from individuals serving on the evaluation team.
   Further, our review of the record shows that removing the higher scoring
   of the two evaluator references clearly would not change SelectTech's past
   performance adjectival rating, or its position (vis-`a-vis NVT) as the
   higher-rated, lower-priced offeror in line for award under the RFP's
   evaluation scheme. A showing of competitive prejudice is a necessary
   element of a viable basis of protest, see McDonald-Bradley, B-270126, Feb.
   8. 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102
   F.3d 1577, 1581 (Fed. Cir. 1996), and the protester has made no such
   showing here.

   NVT next contends that the awardee's FPR must be rejected for failure to
   comply with certain requirements of the RFP.[5] In particular, NVT
   challenges the acceptability of the SelectTech FPR because it incorporated
   the model contract previously provided by the agency to all offerors with
   a cover page (SF33) labeled "draft." NVT states that by including the
   document, which deletes several solicitation provisions that are not
   needed for the resulting contract but which were in the original RFP,
   SelectTech failed to demonstrate compliance with all RFP provisions. The
   protester's contentions in this regard provide no basis to question the
   propriety of the award.

   First, as the agency explains, all offerors, including NVT, were given the
   same copy (marked "draft") of the model contract prior to the submission
   of FPRs in order to confirm the agency's intentions regarding the terms of
   the resulting contract under the RFP. Since SelectTech's FPR included a
   fully completed, signed copy of its SF33 agreeing to perform the services
   required by the RFP, we cannot agree with the protester that inclusion of
   the model contract's "draft" SF33 cover page (which, again, was supplied
   in that form by the agency to all offerors) rendered the awardee's FPR
   unacceptable for failure to otherwise commit to the terms of the
   solicitation. Also, while NVT complains that certain representations and
   certifications were deleted from the model contract, and thus were omitted
   from the SelectTech FPR (e.g., representations regarding recovery of
   facilities capital cost of money and payments to influence federal
   transactions), the protester simply has not shown that the provisions in
   question are material, or that it was in any way prejudiced by any
   differences between the standard clauses contained in the RFP and in the
   model contract.[6]

   The protests are denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] In its initial protest, NVT argued that the agency failed to
   competitively rank all proposals, failed to properly evaluate NVT's price
   proposal, improperly coached the awardee to lower its price to be
   competitive with NVT's price, and failed to give the protester an
   opportunity to explain any unsatisfactory past performance. NVT failed to
   respond to the agency's report on these issues; accordingly, we consider
   them to be abandoned. See The Big Picture Co., Inc., B-220859.2, Mar. 4,
   1986, 86-1 CPD para. 218 at 5.

   [2]NVT raised numerous other contentions which we have reviewed but
   decline to discuss in detail since the record shows that they are either
   factually incorrect, speculative, or did not result in any prejudice to
   NVT. For example, while NVT alleges that the awardee's proposal must be
   rejected for that firm's failure to complete and sign its Standard Form
   (SF) 33, our review confirms that not only did SelectTech properly
   complete and sign its SF33 (and that, contrary to the protester's
   allegations, SelectTech also properly signed its acknowledgments of
   receipt of the amendments), but that the NVT proposal was submitted
   without a completed or signed SF33 (and without required signed amendment
   acknowledgements). Additionally, while NVT generally suggests that
   SelectTech was given advance information about the procurement, nothing in
   the record supports the protester's speculation. Rather, NVT's contention
   appears to be based on a strained interpretation of a statement in
   SelectTech's proposal regarding the firm's asserted preparedness to meet
   an agency's needs as soon as it learns of the agency's requirements; the
   agency and intervenor state that the alleged improper communications did
   not occur and the protester provides no evidence to suggest otherwise. See
   Robert Wall Edge--Recon., 89-1 CPD para. 335 at 2.

   [3] NVT argues that a lack of contemporaneous documentation in the record
   indicates that its FPR was not considered by the agency prior to award.
   The agency, however, has explained that, because the firm's FPR did not
   provide any additional information to support a change to its relevance
   rating, no documentation was generated to confirm its review. We also note
   that although NVT generally suggests that the agency's source selection
   decision improperly relied on a meaningless, mechanical application of
   point scores, the record shows that the offerors' past performance point
   scores, ultimately converted to adjectival ratings, were based on
   narratives in the evaluation record and reference questionnaires, and that
   the source selection decision document contains a lengthy narrative
   analysis of proposals.

   [4] This is especially so given that, as stated above, the next highest
   relevance rating of "relevant" would require a determination that "much"
   (not "some") of the work under the three contracts was similar in scope
   and complexity. Past performance evaluations ratings in this regard are,
   at least in part, subjective in nature, and, contrary to the protester's
   position otherwise, we do not find unreasonable the view that if, at best,
   half of the tasks under two of three contracts had been performed, such a
   record warrants a determination that "some" rather than "much" of the work
   was similar to the RFP's requirements.

   [5] The protester also alleges that, since SelectTech took exception to
   certain payment terms in the RFP, its initial proposal was not acceptable.
   The record confirms, however, that the noted exceptions were withdrawn in
   the firm's FPR.

   [6] For instance, NVT complains that a payments clause in the original
   RFP, Federal Acquisition Regulation sect. 52.232-7(a)(2), was changed from
   a mandatory requirement for the agency to retain 5 percent of payments to
   the contractor (up to $50,000), to a discretionary one in the model
   contract (allowing the agency, in its discretion, to retain such funds).
   The protester, however, has not shown any prejudicial effect from this
   change, e.g., how it would have prepared its proposal differently in view
   of the changed language.