TITLE: B-297849, TVI Corporation, April 19, 2006
BNUMBER: B-297849
DATE: April 19, 2006
*****************************************
B-297849, TVI Corporation, April 19, 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: TVI Corporation

   File: B-297849

   Date: April 19, 2006

   Paul F. Khoury, Esq., and Michael S. Caldwell, Esq., Wiley Rein & Fielding
   LLP, for the protester.

   Richard P. Rector, Esq., and Eric M. O'Neill, Esq., DLA Piper Rudnick Gray
   Cary US LLP, for 3M Canada Company, an intervenor.

   Jeffery I. Kessler, Esq., and Caridad Ramos, Esq., U.S. Army Materiel
   Command, 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

   1. Agency's evaluation of protester's proposal as moderate risk--rather
   than as an unknown risk--under past performance factor was unreasonable,
   where protester tendered a large amount of past performance information,
   almost all of which the agency determined to be either not recent or not
   relevant; solicitation required agency to assign an unknown risk rating
   where offeror tendered "little or no" recent, relevant past performance
   information.

   2. Agency improperly rated awardee's proposal neutral--instead of
   downgrading it--under small business participation factor, where record
   shows that awardee did not meet criteria established in solicitation for
   assignment of neutral rating, and did not offer meaningful small business
   participation plan.

   DECISION

   TVI Corporation protests the award of a contract to 3M Canada Company
   under request for proposals (RFP) No. W52H09-05-R-0142, issued by the
   Department of the Army, Tank, Automotive and Armaments Command, to acquire
   a quantity of C2A1 filtration canisters. TVI asserts that the agency
   misevaluated the proposals.

   We sustain the protest.

   The C2A1 filtration canister is a critical life safety component used in
   various models of nuclear, biological and chemical protective masks. The
   RFP contemplated the award of a fixed-price,
   indefinite-delivery/indefinite-quantity contract to provide the canisters
   for a base period, with four 1-year options.

   Award was to be made to the firm submitting the proposal deemed to offer
   the "best value" to the government, considering several non-price
   factors--technical, past performance and small business participation--and
   price. The technical and past performance factors were equal in
   importance, while the small business participation factor was less
   important than the technical and past performance factors, but slightly
   more important than price. Agency Report (AR), exh. 2a, at 1. The
   technical factor was comprised of three subfactors: design, carbon fill,
   and manufacturing capability. The design subfactor was to be rated on a
   go/no-go basis, while the carbon fill and manufacturing capability
   subfactors were to be rated adjectivally (excellent, good, marginal, or
   unacceptable). Id. at 1-2. The past performance factor was to be rated as
   very low risk, low risk, moderate risk, high risk, or unknown risk. Id. at
   2. Finally, the small business participation factor was to be rated as
   excellent, good, adequate, marginal, poor, or neutral. Id. at 3-4.

   The agency received three proposals, including the protester's and 3M's.
   The agency determined that all three were in the competitive range,
   engaged in discussions, and obtained revised proposals, which it rated as
   follows:

   +------------------------------------------------------------------------+
   |   Evaluation Factor    |   3M Canada   |      TVI      |   Offeror A   |
   |------------------------+---------------+---------------+---------------|
   |Technical               |               |               |               |
   |------------------------+---------------+---------------+---------------|
   |Design                  |      Go       |      Go       |      Go       |
   |------------------------+---------------+---------------+---------------|
   |Technical (Overall)     |   Excellent   |   Excellent   |     Good      |
   |------------------------+---------------+---------------+---------------|
   |Carbon Fill             |   Excellent   |   Excellent   |   Excellent   |
   |------------------------+---------------+---------------+---------------|
   | Manufacturing Capacity |   Excellent   |   Excellent   |   Adequate    |
   |------------------------+---------------+---------------+---------------|
   |Past Performance        |   Low Risk    | Moderate Risk | Moderate Risk |
   |------------------------+---------------+---------------+---------------|
   |Small Business          |    Neutral    |   Excellent   |   Excellent   |
   |Participation           |               |               |               |
   |------------------------+---------------+---------------+---------------|
   |Evaluated Price         |$255,001,021.92|$258,716,465.95|$292,709,024.59|
   +------------------------------------------------------------------------+

   The competition for contract award therefore was extremely close between
   3M and TVI in terms of both price and non-price factors. The agency made
   award to 3M, finding that the firm's proposal offered the best overall
   value to the government. Following the award announcement and debriefing,
   TVI filed this protest.

   PAST PERFORMANCE

   TVI asserts that the agency improperly rated its proposal moderate risk,
   rather than unknown risk, under the past performance factor, since the RFP
   contained a strict definition of "recent and relevant" past performance,
   and the overwhelming majority of the past performance information TVI
   submitted did not meet the definition. TVI notes in this connection that
   it is a newly-formed concern. TVI also points out that, prior to the final
   evaluation, the agency had rated TVI's proposal as unknown risk.

   In reviewing an agency's evaluation of past performance, we will examine
   the evaluation to ensure that it was reasonable and consistent with the
   solicitation, applicable statutes and regulations. Acepex Mgmt. Corp.,
   B-283080 et al., Oct. 4, 1999, 99-2 CPD para. 77 at 3.

   The evaluation here was not reasonable. The solicitation provided that, in
   evaluating past performance, the agency would consider "recent and
   relevant" past performance information, which was defined as performance
   of contracts within the last 3 years that were for the same or similar
   items (that is, filtration items using carbon bed filling and comparable
   gas life testing skills) and had a value of at least $1 million. AR, exh.
   2b, at 2. The RFP further provided that, for newly-formed entities, the
   agency would consider information relating to contracts performed by
   predecessor concerns or contracts performed or supported by the offeror's
   key personnel. Id. The RFP also included definitions for each of the past
   performance risk ratings that could be assigned. For the moderate risk
   rating, the solicitation provided: "Based on the offerors past
   performance, some doubt exists that the offeror will successfully perform
   the required effort." AR, exh. 2a, at 2. For the unknown risk rating, the
   RFP provided: "The offeror had little or no recent/relevant past
   performance upon which to base a meaningful performance prediction." Id.

   In its initial evaluation of TVI's past performance, the agency assigned
   the firm an unknown risk rating, finding that none of the five contract
   references provided by TVI in its proposal fit the definition of relevant
   contracts because none was for the manufacture of an item that included
   filters. AR, exh. 8, at 12. The agency also appears to have determined at
   that point in its evaluation that TVI's management team, engineering team,
   and key personnel had experience directly related to military canisters,
   but that this experience did not qualify as recent (the evaluators noted
   that TVI's key personnel who had experience with the C2A1 canister
   performed those activities from 1990 to 1996). Id.

   Thereafter, the agency engaged in discussions with TVI, during which there
   were several exchanges relating to the firm's past performance, with a
   focus on recent and relevant contracts performed by TVI's key personnel
   and subcontractors. AR, exhs. 6-6e. Following discussions, the agency
   assigned the firm a past performance rating of moderate risk. The
   narrative portion of the agency's evaluation materials analyzing the
   information provided during discussions states as follows:

     The offeror confirms that it has not manufactured or provided C2A1
     canisters or similar items on contracts over $1,000,000. TVI Corporation
     is considered to be a "newly formed entity" for the production of
     canisters. Although TVI has not provided relevant contract references
     that demonstrate they have successfully manufactured or provided the
     C2A1 canister or similar items on contracts over $1,000,000, a review of
     the information provided by TVI suggests that their key personnel have
     extensive knowledge in the manufacture of carbon bed type canisters.
     [Key employee No. 1] had contract experience on C2A1 awards made by the
     U.S. Government under Rock Island contracts during 1990 to 1997.
     Although they are relevant, they fall outside the definition of recent
     past performance. [Key employee No. 2's] experience is relevant and
     recent. He designed and advised on the production line for the C2A1
     canisters produced by [deleted]. [Elsewhere in the agency's evaluation
     report, key employee 2's work is further detailed; he worked with
     [deleted] in connection with that firm's manufacture of the C2A1
     canister under one contract for the Austrian military during 2004-05,
     and a second contract worth just over $1 million with [deleted] for the
     manufacture of the C2A1 canister. AR, exh.. 8, at 21.] [deleted] and
     Calgon are suppliers to TVI and do not manufacture the C2A1 canister or
     a similar item; however, as subcontractors they are providing their
     expertise to TVI. (Note: All offerors will be utilizing Calgon as a
     subcontractor.)key personnel and subcontractors.

     The rating of Unknown Risk that was established on 18 August 2005 is
     changed. Based on TVI being a "newly formed entity" and in the review of
     the key personnel and subcontractor expertise, supporting rationale was
     provided for a rating of "Moderate Risk" for TVI.

   AR, exh. 8, at 22-23.

   Similarly, the source selection official found that the experience of
   TVI's key personnel working on contracts for the production of the C2A1
   canister (except for Key Employee No. 2 noted above) did not qualify as
   recent experience as defined in the RFP, and that TVI's subcontractors
   (Calgon Carbon and [deleted]) had not performed contracts that met the
   RFP's definition of relevant contracts. AR, exh. 10, at 16. He also found,
   however, that TVI's lack of past performance in manufacturing the C2A1
   canister was an element in his determination that the TVI proposal merited
   a moderate risk rating. Specifically, the source selection official found
   as follows:

     TVI Corporation confirmed that it has not manufactured or provided C2A1
     Canisters or similar items on contracts over $1,000,000. TVI has
     recently produced approximately 500 C2A1 Canisters on its automated
     production line. Based on TVI being a "newly formed entity" and its key
     employee experience and subcontractors [the experience of which was
     found elsewhere in the source selection decision not to be recent,
     relevant experience], some doubt exists that the offeror will
     successfully perform the required effort. I concur with the evaluator[s]
     that TVI merits a rating of "Moderate Risk."

   AR, exh. 10, at 17.

   We find the agency's assignment of a moderate risk rating to be
   problematic. As noted, the agency determined that only one of TVI's key
   employees' work was both relevant and recent within the meaning of the
   RFP's definition. To the extent that the agency found any of TVI's past
   performance information recent and relevant, it was limited to this one
   individual's performance in connection with two contracts, only one of
   which was specifically identified as meeting the RFP's $1 million
   threshold for relevance. In particular, the record shows that he worked to
   design a production line for [deleted], and also advised in the design and
   manufacture of C2A1 canisters by [deleted]. [deleted] manufactured C2A1
   canisters under two prior contracts (only one of which is noted as meeting
   the $1 million relevance threshold), which were completed without any
   performance problems; at least one of the contracts was described as
   resulting in deliveries ahead of schedule, with excellent quality. AR,
   exh. 8, at 21. There does not appear to be anything negative in the
   information reviewed by the agency with respect to this individual's work.

   The RFP specifically provided for the assignment of an unknown risk rating
   where the offeror was found to have "little or no" recent or relevant past
   performance upon which to base a meaningful performance prediction. While
   "no" past performance information is easily understood as a complete
   absence of past performance information, the question of what constitutes
   "little" past performance information is at issue here. As noted, the
   agency considered the past performance of only one of TVI's key employees
   (out of 11 individuals whose resumes were included in the firm's
   proposal), while rejecting the remaining information relating to its other
   key employees, all of its prior subcontractors, and its prime contracts as
   either not relevant or not recent. To the extent that this individual's
   past performance information was reviewed, there is nothing in the record
   to show why the agency considered the information as predictive of a
   moderate risk of unsuccessful performance of the requirement by TVI; the
   agency simply did not articulate a nexus between the information reviewed
   with regard to this individual's experience and its evaluation conclusion.
   It certainly is not clear how the positive past performance information
   found in connection with this individual could reasonably translate into
   the negative past performance rating assigned; while a limited quantity of
   positive information might not be sufficient to warrant assigning an
   offeror a positive, rather than neutral, past performance rating, absent
   some compelling justification, positive information should not result in a
   negative rating. Under the circumstances, we conclude that the agency
   should have assigned an unknown risk rating to TVI, since there was little
   information to consider, and the information considered apparently did not
   provide the basis upon which the agency made its performance prediction.
   We therefore find the agency's assignment of a moderate risk rating
   unreasonable given the terms of the RFP.

   SMALL BUSINESS PARTICIPATION PLAN

   TVI protests that the agency improperly assigned the 3M proposal a neutral
   rating under the small business participation evaluation factor. In this
   regard, the solicitation provided for a neutral rating where:

     Foreign firm (offeror) has held no past government contract(s) subject
     to FAR sect. 52.219-8 or 52.219-9. Foreign firm (offeror) indicates no
     opportunity for using SBs [small businesses], VOSBs [veteran-owned small
     businesses], SDVOSBs [service-disabled veteran-owned small businesses],
     HUBZone SBs [historically underutilized business zone small businesses],
     SDBs [small disadvantaged businesses], WOSBs [women-owned small
     businesses], and HBCU/MIs [historically black colleges and
     universities/minority institutions] as all contract work will be
     performed completely outside the United States and no meaningful
     subcontract opportunities exist.

   AR, exh. 2a, at 4. TVI asserts that 3M does not meet any of the criteria
   outlined in the RFP for the assignment of a neutral rating under the small
   business participation factor. According to the protester, 3M has had
   prior contracts that were subject to Federal Acquisition Regulation (FAR)
   sections 52.219-8 (utilization of small business concerns) and 52.219-9
   (small business subcontracting plan); 3M plans (indeed, is required) to
   have at least a portion of the contract performed within the U.S. because
   all offerors were required to use Calgon Carbon, a U.S. concern, as a
   supplier of one of the canister's components; and 3M actually states in
   its proposal that, if necessary, it has meaningful opportunities to
   subcontract some of the work to small business concerns.

   The agency, while conceding that the applicable FAR clauses have been
   incorporated into two prior 3M contracts, states that it did not consider
   3M to have been "subject to" those clauses, since the clauses were not
   enforced due to 3M's status as a foreign concern. As for the subcontracts
   with U.S. concerns, the agency states that 3M was directed by the terms of
   the solicitation to use Calgon Carbon, a large U.S. business, and that a
   second subcontract, with another large U.S. concern, Lydall Corporation,
   is necessary because Lydall is the primary approved source for a component
   that it manufactures (the particulate filter media); the agency notes in
   this respect that TVI also proposed Lydall as a subcontractor for the
   particulate filter media. Finally, as for opportunities to use small U.S.
   concerns, the agency maintains that 3M's proposal states that, because it
   has developed a supply chain of Canadian concerns, it does not have
   meaningful opportunities to subcontract with small U.S. concerns. The
   agency notes further that, because the offerors were directed to use
   Calgon Carbon as a subcontractor, this cannot be viewed as presenting a
   meaningful opportunity for subcontracting with a U.S. small business and,
   as for Lydall, since its subcontract represents only 2.5 percent of the
   total contract values, it also does not represent a meaningful
   subcontracting opportunity.

   We agree with the protester that 3M meets none of the criteria outlined in
   the RFP for a neutral rating. First, as noted, the agency concedes that
   the applicable FAR small business subcontracting clauses were included in
   two prior 3M contracts. Thus, while the agency may have chosen not to
   enforce the clauses, we do not think it was reasonable for the agency to
   conclude that 3M has never held past government contracts that were
   "subject to" the applicable FAR clauses. Second, the record shows that the
   current contract will not be performed entirely outside of the U.S. At
   least two U.S. concerns--Calgon Carbon and Lydall--are participating in
   performance of the contract as 3M subcontractors, and even if those firms
   are large businesses, it remains that a portion of the contract is being
   performed within the U.S.

   Finally, as TVI notes, 3M's proposal does indicate that the firm has the
   ability to make meaningful small business subcontracting opportunities
   available, should it elect to do so. In this regard, the 3M proposal
   specifically states:

     3M Canada does have access to 3M Company. 3M Company is our US parent
     company and 3M Company has an established Small Business plan that could
     be leveraged to access potential small business concerns. Within this
     solicitation, 3M Canada is not committing to achieving any U.S. small
     business participation but certainly, should opportunities arise where
     3M Canada can take advantage of a small business concern(s), then that
     opportunity will be investigated and evaluated against existing
     suppliers.

   AR, exh. 4a, at 1. It is therefore clear that meaningful subcontracting
   opportunities existed for 3M through its parent company.

   Since we find that 3M did not satisfy the RFP criteria for a neutral
   rating under the small business participation plan factor, it was
   unreasonable for the agency to assign 3M that rating.[1] Accordingly, we
   also sustain this aspect of TVI's protest.

   Given that TVI's proposed price was only approximately 1.45 percent higher
   than 3M's (and price was the least important evaluation factor); that the
   proposals were ranked equal under the technical evaluation factor; and
   that TVI's proposal was rated excellent under the small business
   participation factor, it is not possible to determine from the record
   which proposal would be found to be the best value after the evaluation
   errors are corrected. We therefore conclude that there is a reasonable
   possibility that the evaluation errors resulted in competitive prejudice
   to TVI; that is, but for the evaluation errors, TVI would have had a
   substantial chance of receiving the award. See McDonald Bradley, B-270126,
   Feb. 8, 1996, 96-1 CPD para. 54 at 3; Statistica, Inc. v. Christopher, 102
   F.3d 1577, 1581 (Fed. Cir. 1996).

   RECOMMENDATION

   We recommend that the agency reevaluate the proposals in a manner
   consistent with the discussion above and make a new source selection
   decision based on the results of that reevaluation. Should the agency
   conclude that an offeror other than 3M is in line for award, we recommend
   that the agency terminate 3M's contract for the convenience of the
   government and make award to that other offeror, if otherwise proper.
   Finally, we recommend that TVI be reimbursed the costs of filing and
   pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. sect.
   21.8(d)(1) (2005). TVI's certified claim for costs, detailing the time
   spent and the costs incurred, must be submitted to the agency within 60
   days of receiving our decision. 4 C.F.R. sect. 21.8(f)(1).

   The protest is sustained.

   Anthony H. Gamboa
   General Counsel

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

   [1] Given 3M's failure to meet the criteria for a neutral rating and the
   fact that it offered no small business subcontracting participation in its
   proposal, it appears that it would have been appropriate to downgrade 3M
   under this factor. In this regard, we note that the RFP provided for a
   rating of poor where

     [o]fferor demonstrates little or no commitment to using SBs, VOSBs,
     SDVOSBs, HUBZone SBs, SDBs, WOSBs, and HBCU/MIs. There is no evidence
     that the offeror met his prior goals and/or shows no serious commitment
     and did not provide adequate justification for not doing so. Based on
     the proposal and/or past performance history, there is negligible
     likelihood that anything other than a token portion of the work will be
     performed in this sector. . . .

   AR, exh. 2a, at 4.