TITLE: B-297742, Trailboss Enterprises, Inc., March 20, 2006
BNUMBER: B-297742
DATE: March 20, 2006
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B-297742, Trailboss Enterprises, Inc., March 20, 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: Trailboss Enterprises, Inc.

   File: B-297742

   Date: March 20, 2006

   Julia M. I. Holden, Esq., Oles Morrison Rinker & Baker LLP, for the
   protester.

   Michael J. O'Farrell, Jr., Esq., Department of the Air Force, for the
   agency.

   Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly considered past performance record of predecessor company
   of awardee in evaluation where solicitation specifically provided that
   such information would be considered.

   DECISION

   Trailboss Enterprises, Inc. protests the award of a contract to GCH
   Services LLC under request for proposals (RFP) No. FA5240-05-R-0015,
   issued by the Department of the Air Force for transient alert services and
   supplies at Andersen Air Force Base, Guam. The protester argues that the
   agency improperly evaluated its and the awardee's past performance and
   made an unreasonable award decision.

   We deny the protest.

   The solicitation, issued August 4, 2005 as a small business set-aside,
   contemplated the award of a fixed-price contract for a base year, with
   four 1-year options. The evaluation scheme incorporated a two-step review.
   First, technical proposals were to be evaluated on a pass/fail basis
   applying four subfactors: ability to understand and meet the requirements
   of the statement of work (SOW), corporate profile/ statement of
   qualifications, scheduling methodologies, and quality control procedures.
   An unacceptable rating under any subfactor would render a technical
   proposal's final rating unacceptable. RFP at 12. Under the second step,
   the agency would evaluate the technically acceptable proposals for past
   performance, conduct a past performance/price tradeoff among those
   proposals--with past performance significantly more important than
   price--and select the technically acceptable proposal determined to
   provide the "best value." Id.

   Regarding the past performance evaluation, each technically acceptable
   offer was to receive a past performance confidence assessment rating based
   on information provided by the offeror and data independently obtained by
   the Air Force showing the offeror's past and present performance as it
   relates to the probability of successfully accomplishing the work under
   the RFP. This assessment would result in an overall risk rating of
   exceptional/high confidence, very good/significant confidence,
   satisfactory/confidence, neutral/unknown confidence, marginal/little
   confidence, or unsatisfactory/no confidence.[1] The RFP provided that
   "[p]ast performance regarding predecessor companies, key personnel who
   have relevant experience, or subcontractors that will perform major or
   critical aspects of the requirement will be considered as past performance
   information for the principal offeror." Id. at 13.

   Ten proposals were received by the September 9 amended closing date. Five
   of the proposals, including Trailboss's and GCH's, were determined to be
   technically acceptable under the first step evaluation. For the second
   step past performance evaluation, the agency reviewed the references
   provided by the offerors and Contractor Performance Assessments Reports
   obtained by the agency. In making its final selection decision, the source
   selection authority (SSA) compared the offerors' price and past
   performance ratings. This review led the SSA to reject three proposals
   (for reasons unrelated to this protest), leaving GCH's proposal--rated
   exceptional/high confidence and priced at $1,803,210.00--to be compared to
   Trailboss's, rated very good/significant confidence and lowest priced at
   $1,535,800.80. Agency Report (AR), Source Selection Decision Document, Tab
   8, at 1. In analyzing Trailboss's past performance, the SSA noted concerns
   under a prior contract regarding safety of operations, including problems
   with accountability regarding composite tool kits, unserviceable fire
   bottles, and failure to follow technical orders. Id. at 2. In contrast,
   the analysis of GCH's past performance revealed no known performance
   problems, and the SSA noted that the firm had been awarded "Contractor of
   the Year" in 2005 for its support of work at Travis Air Force Base,
   California. Id. at 3. Based on these findings, the SSA determined that
   GCH's documented record of exceptional performance justified award at its
   higher price. Award was made to GCH and, following a debriefing, Trailboss
   filed this protest in our Office.

   In its initial letter of protest, Trailboss complains generally that the
   agency "failed to consistently evaluate the past performance information
   received for Trailboss and GCH." Protest at 2. Trailboss specifically
   points only to its own evaluation, however, arguing that it was improperly
   downgraded for past performance because the agency's concerns regarding
   the firm's problems with the composite tool kits and its failure to follow
   technical orders "significantly overstate what occurred" on the project.
   Id. at 4.

   In its report on the protest, the agency provided a detailed response to
   the protester's assertions that the agency had overstated performance
   problems and misevaluated Trailboss's past performance. In its comments
   responding to the report, Trailboss did not rebut the agency's position
   and, indeed, made no mention of its initial assertion that its past
   performance was improperly downgraded. 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. We conclude
   that Trailboss has abandoned this assertion and we therefore will not
   consider it.

   Trailboss asserts in its comments on the agency report that GCH's proposal
   should have been rejected as technically unacceptable because a member of
   the evaluation team noted on his individual evaluation worksheet that GCH
   had "not met" the subfactor for the ability to understand and meet the
   requirements. Protester's Comments at 2; AR, Evaluation Documents, Tab 6,
   at 66. Trailboss also argues that the same evaluator's individual
   evaluation sheets for GCH show that he wavered between "not met" and "met"
   (ultimately indicating "met") under the scheduling methodologies
   subfactor, and notes that handwritten comments critical of GCH were marked
   out. Protester's Comments at 2. Trailboss concludes that, because the
   source selection document does not explain these concerns or explain why
   GCH's proposal was rated acceptable, the proposal should have been
   rejected.

   The agency responded to Trailboss's assertions in a supplemental report,
   explaining that, while the record does show that individual evaluators had
   initial concerns with various aspects of GCH's proposal, these concerns
   were resolved through additional review and discussion among the
   evaluation team members. Regarding the subfactor for the ability to
   understand and meet the requirements, the solicitation required that the
   proposed contract manager have a Federal Aviation Administration Airframe
   and Power Plant (A&P) license. As noted above, one evaluation team member
   determined that GCH did not meet this requirement because, as stated on
   his evaluation sheet, GCH's proposed manager would have an "A&P and or
   military license." AR, Evaluation Documents, Tab 6, at 66. The agency
   explained that, following discussions among the evaluation team members,
   it was the consensus that GCH's "and/or" language was sufficient to meet
   the requirement, Contracting Officer's Supplemental Statement of Facts, at
   1, and therefore did not render GCH's proposal technically unacceptable.
   Supplemental Report at 2-3; Contracting Officer's Supplemental Statement
   of Facts, at 1.

   In its comments on the agency's supplemental report, Trailboss merely
   restated its protest argument--that there were critical
   remarks/evaluations made by an individual evaluation team member that were
   contrary to the final evaluation scores/ determination, and that these
   inconsistencies were not explained in the source selection
   document--without taking specific issue with, or otherwise addressing, the
   agency's explanation of how it determined that GCH met the licensing
   requirement. As noted above, we view the mere restatement of a protest
   argument, without a substantive response to the agency's position, as an
   abandonment of the issue.[2]

   Trailboss argues that GCH's exceptional/high confidence past performance
   rating was unreasonable because it was based on the performance record of
   a separate firm, GCA International, Inc. The protester concludes that GCH
   should have received a neutral past performance rating.

   Agencies properly may consider the relevant experience and past
   performance history of key individuals and predecessor companies in
   evaluating the past performance of a newly-created company, since that
   experience may be useful in predicting success in future contract
   performance. United Coatings, B-291978.2, July 7, 2003, 2003 CPD para. 146
   at 7; see Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii). As
   noted above, the solicitation here specifically stated that past
   performance regarding predecessor companies would be considered as past
   performance information for the principal offeror. The record shows that
   GCH submitted with its proposal an explanation that GCH previously
   operated as GCA International, Inc., and that all current contracts and
   past performance submitted reflected GCA contracts. GCH Proposal, Factor
   III Past Performance, at 1. GCH stated in its submissions that, in
   accordance with FAR sect. 42.1205, it had submitted a request to novate
   all current contracts and that only a name change and organizational
   structure had been affected. Id. Based on this information, the agency
   used GCA's past performance in evaluating GCH. We see nothing unreasonable
   in the agency's actions.

   Trailboss asserts that the agency did not adequately scrutinize the
   relationship of the two firms, including the possible change of
   management, or adequately document its findings and determinations in this
   regard. However, Trailboss points to nothing in the record suggesting that
   the novation is invalid or that the agency otherwise improperly attributed
   GCA's past performance to GCH. Indeed, the agency had no reason to
   question GCH's representations on the face of its proposal or its
   explanation of the status of the two companies.[3] We conclude that the
   evaluation of GCH's past performance was reasonable.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] As relevant here, an exceptional/high confidence rating indicated that
   no doubt exists that the offeror would successfully perform the required
   effort; a very good/significant confidence rating indicated little doubt
   exists that the offeror would successfully perform the required effort.
   RFP at 13.

   [2] The fact that evaluators' individual ratings may differ from the final
   rating, by itself, does not warrant questioning the evaluation. Agency
   evaluators may meet to discuss the relative strengths and weaknesses of
   proposals, as was done here, in order to reach a consensus rating, which
   often differs from the ratings given by individual evaluators, since such
   discussions are intended to provide evaluators an opportunity to correct
   mistakes or misperceptions that may have occurred in the initial
   evaluation. Resource Applications, Inc., B-274943.3, Mar. 5, 1997, 97-1
   CPD para. 137 at 5. The overriding concern in the evaluation process is
   that the final ratings reasonably reflect the actual merits of the
   proposals, and not that they be mechanically traceable back to the scores
   initially given by the individual evaluators. Dragon Servs., Inc.,
   B-255354, Feb. 25, 1994, 94-1 CPD para. 151 at 11.

   [3] Moreover, while the agency thus had no reason to review the novation
   agreement, it states that, in response to the supplemental protest, it
   requested and received from the awardee a copy of the novation agreement,
   dated May 5, 2005, which the agency submitted to our Office with its
   response to the allegation.