TITLE: B-297960, Del-Jen International Corporation, May 5, 2006
BNUMBER: B-297960
DATE: May 5, 2006
********************************************************
B-297960, Del-Jen International Corporation, May 5, 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: Del-Jen International Corporation

   File: B-297960

   Date: May 5, 2006

   William A. Roberts, III, Esq., Richard B. O'Keeffe, Esq., and William J.
   Grimaldi, Esq., Wiley Rein & Fielding LLP, for the protester.

   Thomas P. Humphrey, Esq., Amy E. Laderberg, Esq., and Matthew J. Bonness,
   Esq., Crowell & Moring LLP, for GS21, LLC, an intervenor.

   Maj. Jeffrey Branstetter and Thomas E. Sheldon, Esq., Department of the
   Air Force, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   In a negotiated procurement that provided for a pass/fail technical
   evaluation and a tradeoff between past performance and price, with past
   performance being significantly more important than price, agency
   reasonably awarded a contract to the higher-priced offeror where the
   agency found, based upon the protester's performance of its incumbent
   contract, that the protester presented more performance risk than the
   awardee.

   DECISION

   Del-Jen International Corporation protests the award of a contract to
   GS21, LLC under request for proposals (RFP) No. FA5240-05-R-0012, issued
   by the Department of the Air Force for supply and transportation services
   at Andersen Air Force Base, Guam. Del-Jen alleges that the agency
   improperly evaluated its proposal, as well as the awardee's proposal, and
   thus reached an improper source selection decision.

   We deny the protest.

   The Air Force issued the solicitation on June 29, 2005, seeking proposals
   for supply and transportation services at Andersen Air Force Base, Guam,
   in the following five functional areas: (1) supply; (2) vehicle fleet
   management (including maintenance); (3) vehicle operations; (4) traffic
   management office; and (5) combat readiness. The RFP provided for the
   award of a fixed-price contract for a 2-year base period, plus four 1-year
   option periods, as well as the opportunity to earn additional "award term"
   periods based on successful performance. Award was to be made on a "best
   value" basis to the firm whose proposal was determined to be the "most
   advantageous to the Government, price and other factors considered." RFP
   at 78.

   The RFP set forth three evaluation factors: (1) technical capability, (2)
   past performance, and (3) price. Under the RFP, technical capability was
   to be evaluated solely to determine whether or not an offeror met minimum
   standards--a pass/fail evaluation. Acceptable proposals under the
   technical capability factor would then be subject to a tradeoff between
   past performance and price with past performance considered "significantly
   more important than price." RFP at 80.

   The solicitation provided for the assignment of performance confidence
   ratings to offerors based on their past performance. There were six
   possible ratings, including, as it relates to the protest,
   exceptional/high confidence ("Based on the offeror's performance record,
   essentially no doubt exists that the offeror will successfully perform the
   required effort"); very good/significant confidence ("Based on the
   offeror's performance record, little doubt exists that the offeror will
   successfully perform the required effort"); and satisfactory/confident
   ("Based on the offeror's performance record, some doubt exists that the
   offeror will successfully perform the required effort").[1] RFP at 80-81.
   The RFP advised that the past performance evaluation would be accomplished
   by reviewing offerors' relevant present and recent past performance; the
   solicitation defined recent past performance as work performed within the
   last 3 years. "Relevant" was defined as "information that has a logical
   connection with the following: Ground Passenger Transportation, Cargo
   Transportation Service, Vehicle Management, Vehicle Maintenance, Personal
   Property, Passenger Travel, Supply Support, Supply Mobility and
   Contingency Supply." RFP at 80. The RFP further provided that relevance
   would also be determined based on dollar value and size of the work
   performed, and stated that "relevant past performance may be considered
   more favorably than less relevant performance." Id.

   The RFP indicated that, in evaluating past performance, the agency would
   consider information obtained from various sources, including, but not
   limited to, "offeror-provided references, Past Performance Information
   Retrieval System (PPIRS), Defense Contract[] Management Command (DCMC)
   channels, and interviews with program managers and contracting officers or
   other sources known to the Government." Id. In order to facilitate the
   past performance evaluation, the RFP required offerors to submit with
   their proposals a list of relevant contract references, with specific
   information for each reference, including, among other things, the
   contracting agency/customer, contract dollar value, period of performance,
   and "[c]omments regarding any known performance deemed unacceptable to the
   customer, or not in accordance with the contract terms and conditions."
   RFP at 73. Offerors were required to explain how the contracts performed
   in connection with their references were relevant to the RFP's
   requirements, which might "include a discussion of efforts accomplished by
   the offeror to resolve problems encountered on prior contracts . . . ."
   Id.

   To the extent an offeror's past performance record reflected performance
   problems, the RFP stated that the Air Force would consider "the number and
   severity" of the problems and corrective actions taken. It further stated
   that "[o]fferors will have the opportunity to address any negative or
   adverse past performance information received during this evaluation
   (subject to the restrictions of FAR 15.306(e)(4)), for which they have not
   had an opportunity to address in the past." RFP at 81.

   Seven proposals were received by the August 30, 2005 closing date. Five
   were determined to be technically acceptable, including those of GS21 and
   Del-Jen. In evaluating offerors' past performance, the Air Force assigned
   GS21 a performance confidence rating of very good/significant confidence,
   while Del-Jen received a rating of satisfactory/confident. Based on
   consideration of three of the five remaining proposals--one proposal was
   determined to have an unreasonable price and another had been assigned a
   "neutral" past performance rating--the source selection authority (SSA)
   selected GS21's higher-rated, higher-priced ($55,108,688) proposal, as
   representing the best value to the government, as opposed to the lower-
   rated and lower-priced proposals of Del-Jen ($53,178,688) and the third
   remaining offeror. Upon learning of the agency's decision to make award to
   GS21, Del-Jen requested and received an agency debriefing and then filed
   its protest with our Office.

   Technical Evaluation

   Del-Jen challenges the agency's evaluation of its proposal in several
   respects. With regard to the technical evaluation, Del-Jen argues that the
   Navy did not adhere to the pass/fail evaluation scheme set forth in the
   RFP, but rather penalized Del-Jen for not proposing more than the minimum
   standards and innovative solutions, which was manifested through a
   lowering of Del-Jen's past performance score. In reviewing a protest of an
   agency's proposal evaluation, our review is confined to a determination of
   whether the agency acted reasonably and consistent with the terms of the
   solicitation and applicable statutes and regulations; it is not our role
   to reevaluate proposals. The protester's mere disagreement with the
   agency's judgment does not establish that an evaluation was unreasonable.
   Hanford Envtl. Health Found., B-292858.2, B-292858.5, Apr. 7, 2004, 2004
   CPD para. 164 at 4.

   As support for its contention, Del-Jen relies on statements allegedly made
   by the Air Force during its debriefing. According to Del-Jen, during the
   debriefing, the Air Force stated that "minimal success is not what we're
   looking for" and "we're looking beyond the minimum for innovative and
   creative ways of doing the job." Protest at 14. Based on these statements
   Del-Jen surmises that the Air Force employed a "secret evaluation
   criterion, which measured [Del-Jen's] technical solution beyond the
   explicitly stated minimum standards." Id.

   The agency maintains that it evaluated Del-Jen's proposal under the
   technical factor solely on a pass/fail basis, and to the extent the
   statements alleged by Del-Jen were made during its debriefing, they
   "reflect[ed] the Air Force's intent to award a contract to [the] offeror
   that offered the best value to the Government, not as a comparison of
   technical proposals." Agency Report, Tab 2, Contracting Officer's (CO)
   Statement of Facts, at 3.

   To the extent the remarks alleged were in fact made during the debriefing,
   they are unclear and perhaps were, understandably, misconstrued by the
   protester.[2] Nevertheless, Del-Jen's reliance on these statements is
   misplaced. Our Office is primarily concerned with the evaluation record,
   not comments made during a debriefing, since a debriefing is only an
   explanation of the agency's evaluation and source selection decision, not
   the evaluation or decision itself. EER Sys., Inc., B-290971.3, B-290971.6,
   Oct. 23, 2002, 2002 CPD para. 186 at 13; Tulane Univ., B-259912, Apr. 21,
   1995, 95-1 CPD para. 210 at 5-6.

   Here, contrary to Del-Jen's assertions otherwise, there is no evidence in
   the record that the agency evaluated offerors' technical proposals on
   other than a pass/fail basis. According to Del-Jen, the Air Force's
   improper technical evaluation is evidenced by the Air Force's evaluation
   of its past performance. Specifically, Del-Jen contends that the improper
   downgrading of its proposal for failing to propose innovative solutions or
   a "higher quality product" is evidenced by the fact that the Air Force
   considered the "quality" of Del-Jen's performance on its prior contracts
   when it evaluated Del-Jen's past performance, as opposed to simply
   considering the degree of doubt as to whether Del-Jen would or would not
   get the job done. Protester's Supplemental Comments at 5. This argument,
   however, is wholly unpersuasive given the nature of the past performance
   evaluation, which in this case was designed to consider whether an offeror
   would "successfully perform," not, as Del-Jen suggests, to simply
   determine whether an offeror would or would not "get the job done." By the
   terms of the RFP, the past performance evaluation was qualitative in
   nature. The logical extension of Del-Jen's interpretation of the
   solicitation would be to reduce the past performance evaluation to a mere
   pass/fail analysis, a result clearly not intended by the solicitation.

   Past Performance

   Del-Jen challenges the Air Force's past performance evaluation. Regarding
   its own evaluation, Del-Jen contends that, contrary to the provisions of
   the RFP, the Air Force did not provide Del-Jen with an opportunity to
   address negative past performance information to which it had not
   previously had the opportunity to respond. Del-Jen further argues that the
   weaknesses identified in the past performance evaluation of its proposal
   were not documented, not supported by the record, and inconsistent with
   Del-Jen's "exceptional" past performance. As to the evaluation of GS21's
   past performance, Del-Jen argues that the Air Force improperly evaluated
   the relevance of GS21's past performance, failed to properly consider
   "multiple flaws" in GS21's past performance, and unequally evaluated
   offerors' past performance by considering certain issues in the evaluation
   of Del-Jen's past performance, while ignoring the same issues in GS21's
   past performance evaluation.

   At the heart of Del-Jen's past performance evaluation challenge is the Air
   Force's consideration of Del-Jen's performance as the incumbent contractor
   under the current Andersen supply and transportation services contract.
   The record reflects that the Air Force did in fact consider Del-Jen's
   performance as the incumbent contractor on the Andersen contract, albeit
   based on the evaluators' personal knowledge of Del-Jen's performance, and
   through their discussion of five 2005 contract deficiency reports issued
   in connection with Del-Jen's performance under the Andersen contract, as
   well as their discussion of "status of service" delivery summaries, which
   rated Del-Jen's performance in various performance categories for fiscal
   years 2004 through July 5 of fiscal year 2005. AR, Tab 2, CO Statement, at
   6. As a general matter, the record considered by the Air Force reflects
   that Del-Jen has had significant performance problems, as assessed by the
   Air Force, in its performance of the Andersen contract.

   Specifically, the first contract deficiency report reflected numerous
   cited failures in tracking delayed maintenance, resulting in a drop in the
   "vehicle in commission" rate to 56 percent capability of handling heavy
   aircraft--below the 90 percent capability required under the
   contract--"which caused severe mission degradation to Andersen's fire
   fighting capabilities." AR, Tab 2, attach. 1. The second deficiency report
   noted violations of the "terminal security program," a quality control
   concern. AR, Tab 2, attach. 2. The third report indicated that Del-Jen had
   failed to keep proper account of equipment, updates were not provided in a
   timely manner, and despite requests to be informed where standards could
   not be met, Del-Jen failed to provide information until the government
   identified defects during inspections. The fourth report noted performance
   problems with Del-Jen's accounting for and maintaining supplies in
   accordance with shelf-life limitations, a quality control concern in the
   Air Force's view, and further noted that Del-Jen failed to implement
   corrective actions. The fifth report was based on a finding that
   classified items, which were described as "extremely important" for
   security issues, were identified as missing during an inspection, and
   further indicated that Del-Jen had failed to implement corrective actions.
   Id. The Air Force's monthly pass/fail summary reports of status of
   delivery of required services under the Andersen contract further
   reflected numerous failures by Del-Jen in the various contract areas
   during fiscal year 2004 through July 5 of fiscal year 2005. Throughout
   this period, Del-Jen received a total of 86 service failures and there was
   not a single month that Del-Jen received a pass for all required services.
   AR, Tab 2, CO Statement, attach. 2.

   In challenging its past performance evaluation, Del-Jen first argues that,
   contrary to the requirements of the RFP, it was not provided an
   opportunity to address the negative past performance information in
   connection with its performance of the Andersen contract. As noted above,
   the RFP provided the Air Force would afford offerors the opportunity to
   address negative past performance information "which they have not had an
   opportunity to address in the past." RFP at 81. The record, however,
   reflects that during performance of the Andersen contract, Del-Jen was in
   fact afforded numerous opportunities to respond to the Air Force's
   negative assessment of its performance. Specifically, Del-Jen responded to
   the contract deficiency reports, as well as the monthly status of delivery
   summary reports, in writing and during monthly Business Requirements
   Advisory Group (BRAG), meetings. See, AR, Tab 2, CO Statement, attach. 2;
   AR, Tab 12. Since Del-Jen had been provided with the opportunity to
   address the agency's concerns in connection with performance under the
   Andersen contract during contract performance, the Air Force was not
   required to afford Del-Jen a second opportunity to address them during the
   conduct of this procurement. See PharChem, Inc., B-292408.2, B-292408.3,
   Jan. 30, 2004, 2004 CPD para. 60 at 12-13.

   Del-Jen also suggests that because the negative information was not the
   subject of an official 2004[3] Contractor Performance Assessment Reporting
   System (CPARS) report, thus depriving Del-Jen of an opportunity to respond
   to the negative assessments through the formal CPARS process, it was
   inappropriate for the Air Force to consider Del-Jen's performance problems
   in connection with the Andersen contract. Del-Jen maintains that the Air
   Force should have instead looked to its 2003 CPARS report, which reflected
   a positive performance rating for Del-Jen.

   Since, as discussed above, the Air Force had provided Del-Jen with
   opportunities to address the Air Force's negative assessments of its
   performance under the Andersen contract, the question for our Office is
   whether it was legally improper for the Air Force to have considered its
   own negative assessment of Del-Jen's performance absent the formalities of
   the CPARS process. We have held that it is proper for agency contracting
   officials to consider and rely on their personal knowledge of an offeror's
   past performance where a solicitation contains past performance as an
   evaluation factor. See, e.g., Independence Constr., Inc., B-292052, May
   19, 2003, 2003 CPD para. 105 at 2 n.2; HLC Indus., Inc., B-274374, Dec. 6,
   1996, 96-2 CPD para. 214 at 6. Thus, we conclude that notwithstanding
   whether the information was included in a CPARS report, it was proper for
   the Air Force's evaluators to have considered their personal knowledge of
   Del-Jen's performance on the Andersen contract. In addition, to the extent
   Del-Jen contends that the Air Force inappropriately failed to prepare a
   CPARS report in connection with its performance under the Andersen
   contract for 2004, this challenge pertains to a matter regarding the
   administration of Del-Jen's Andersen contract and, as a consequence, it is
   not subject to review by our Office.[4] See GAO Bid Protest Regulations
   sect. 21.5(a) (2006). Moreover, it was not unreasonable for the Air Force
   to rely on Del-Jen's more recent poor performance on the incumbent
   contract as opposed to its less recent good performance, as reflected in
   its 2003 CPARS report, to predict Del-Jen's likely future success on the
   Andersen contract. See ProServe Corp., B-247948 et al., Oct. 5, 1992, 92-2
   CPD para. 225 at 5.

   Del-Jen also argues that the agency's assessment of its past performance
   was undocumented, unsupported and inconsistent with its record of
   "exceptional" contract performance. Del-Jen more specifically argues that
   while the Air Force purported to base its (merely) satisfactory rating on
   problems with staffing and quality control, the evaluators' comments and
   source selection report are devoid of any discussion of quality control
   problems. As a general matter, where an agency fails to document or retain
   evaluation records, it bears the risk that there may be inadequate
   supporting rationale in the record for its evaluation and source selection
   decision and that we will not conclude that there is a reasonable basis
   for the agency's evaluation or decision. Southwest Marine, Inc.; American
   Sys. Eng'g Corp., B-265865.3; B-265865.4, Jan. 23, 1996, 96-1 CPD para.
   56. However, we will not disrupt an agency's procurement merely because
   the agency has failed to adequately document its evaluation or source
   selection decision, where the record otherwise shows the evaluation or
   source selection decision to be reasonable. Id.

   Here, while the contemporaneous narrative description of the Air Force's
   evaluation of Del-Jen's past performance is thin, it is nonetheless
   supported by and consistent with the record. Specifically, with regard to
   Del-Jen's record of quality control, the record of the Air Force's
   assessment of Del-Jen's strengths and weaknesses under the past
   performance factor reveals that the evaluators considered Del-Jen's
   contractor deficiency reports, which principally concerned problems with
   Del-Jen's quality control, as well as the fact that Del-Jen had failed to
   maintain a quality control plan or program in connection with its Andersen
   contract. The contracting officer further explained that the evaluators
   discussed the status of delivery reports in connection with the evaluation
   of Del-Jen's performance on the Andersen contract. AR, Tab 2, CO Statement
   at 6. Moreover, communications between Del-Jen and the Air Force regarding
   Del-Jen's performance on the Andersen contract reveal numerous discussions
   of Del-Jen's quality control problems. AR, Tab 12. To the extent Del-Jen
   argues that the Air Force placed too much emphasis on the problems with
   the Andersen contract in light of its exceptional record of performance on
   other contracts,[5] such that there was "no doubt" that Del-Jen would
   successfully perform the follow-on Andersen contract, Protest at 24, it
   was reasonable for the Air Force to place particular emphasis on Del-Jen's
   performance as the incumbent contractor since performance on such
   contracts may be viewed as a more accurate indication of likely future
   performance than performance on other contracts. Cortez, Inc., B-292178 et
   al., July 17, 2003, 2003 CPD para. 184 at 9. Second, we view Del-Jen's
   argument in this regard as essentially disagreement with the Air Force's
   judgment, which does not render it unreasonable.

   Evaluation of GS21

   As a final matter, Del-Jen challenges the Air Force's evaluation of GS21's
   past performance. First, Del-Jen argues that the Air Force improperly
   failed to recognize the limited relevance of GS21's past performance,
   since GS21's past performance record was based primarily on its
   performance of Navy contracts. According to Del-Jen, Air Force contracts
   are more relevant to the performance of the Andersen contract than the
   Navy contracts performed by GS21. Since its own performance record was
   based on performance of more relevant Air Force contracts, Del-Jen
   maintains that it was unreasonable for the Air Force to have rated GS21
   more highly.

   While Del-Jen asserts that Air Force contracts are of greater relevance,
   this conclusion was not required by the terms of the RFP. Rather,
   relevance of past performance information was based primarily on the type
   of work performed, i.e., ground passenger transportation, cargo
   transportation service, vehicle management, vehicle maintenance, personal
   property, passenger travel, supply support, support mobility and
   contingency, and supply, not the agency for which the work was done. Thus,
   the Air Force was not required, as Del-Jen suggests, to have given it a
   superior rating, or GS21 a lower rating, simply because Del-Jen's past
   performance was in connection with Air Force contracts and GS21's past
   performance was not. See East Slope Conservation Servs., B-282661.2,
   July 1, 1999, 99-2 CPD para. 9 at 2.

   Second, Del-Jen argues that the Air Force ignored multiple flaws in GS21's
   past performance, resulting in a flawed evaluation as well as unequal
   treatment since the Air Force had downgraded Del-Jen for the same past
   performance problems. Contrary to Del-Jen's allegations, however, the
   record reflects that the Air Force did in fact identify specific
   weaknesses in evaluating GS21's past performance; these weaknesses,
   however, were simply not comparable to the negative information in
   connection with Del-Jen's past performance. Specifically, in evaluating
   GS21's past performance, the Air Force noted the following weaknesses:
   "vehicle maintenance issues"; that it was "not comfortable" with its
   experience in certain areas; that GS21's contracts have been on very small
   fleets; and that its main experience was in dealing with the Navy. AR, Tab
   4, Snapshot of GS21. The Air Force, however, also identified numerous
   strengths, including "very good past performance rating." In fact, unlike
   Del-Jen, all of GS21's past performance information was overall very
   positive.

   Del-Jen more specifically identifies particular "issues" in GS21's CPARS
   reports regarding the areas of shipping, management, billing and personnel
   quality. The overall reports, and in several instances the tenor of the
   comments upon which Del-Jen relies, in fact reflect positively on GS21.
   For example, Del-Jen cites a comment contained in one of GS21's CPARS
   reports as an example of a "shipping issue" in connection with GS21's past
   performance. Del-Jen, however, cited only a small portion of the comment
   to our Office--in its full text, the CPARS report comment reflects
   positively on GS21. Specifically, the relevant report states as follows:

     Despite the increase of operations during after Operation Enduring
     Freedom and the 2004 Summer Olympics in Greece, the contractor met all
     obligations and on several occasions went above requirements to ensure
     the mission was fulfilled. Contractor is indeed part of the command team
     as several noteworthy accomplishments were made during the reporting
     period. Personal property and cargo shipments increased from the
     original needs and occasionally were routed incorrectly to Souda en
     route to Cyprus, which is not a part of Greece. Even though the contract
     doesn't call for the contractor to reroute and process such cargo, the
     contractor did so with professionalism.

   AR, Tab 4, CPARS Report for Contract N6817101D4043, NSA Souda Bay, Crete,
   Greece at 3. The Air Force reasonably read this comment as reflecting
   positively on GS21, indicating GS21's willingness to perform "above and
   beyond" the requirements of its contract. In sum, based on our review of
   the record as a whole, we conclude that the agency reasonably evaluated
   the proposals of Del-Jen and GS21.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The other ratings were: neutral/unknown confidence; marginal/little
   confidence; and unsatisfactory/no confidence.

   [2] Del-Jen opines that the alleged misevaluation under the technical
   factor was the result of misleading instructions given to the evaluators
   through a briefing document, stating that "technical capability and past
   performance [are] significantly more important than price." AR, Tab 6,
   Source Selection Briefing, at 4. According to Del-Jen, this statement led
   the evaluators to believe that the technical evaluation was not merely a
   pass/fail determination, but rather required a comparative evaluation.
   Del-Jen, however, failed to note that the briefing document also clearly
   informed the evaluators that in evaluating offerors' technical proposals,
   they were to "rate each proposal as technically acceptable or not
   technically acceptable," thus leaving no doubt as to the proper basis of
   the technical evaluation. Id.

   [3] Del-Jen's 2005 CPARS report is in process and according to Del-Jen, it
   will reflect Del-Jen's exceptional performance under the contract. Protest
   at 16 n.5.

   [4] The record is unclear as to why the Air Force decided not to prepare a
   CPARS report in connection with Del Jen's performance under the Andersen
   contract for 2004. While Del-Jen asserts that the Air Force did not
   prepare a 2004 CPARS report for the Andersen contract because the
   contracting officer believed that Del-Jen was not receiving a fair
   assessment by the customer and that the evaluation was "tainted," Protest
   at 23 n.8, the contracting officer denied Del-Jen's characterization and
   explained that it was decided not to issue the 2004 report in an effort to
   salvage a working relationship, which had become "non-existent," between
   Del-Jen and the customer, who had rated Del-Jen's performance as 100
   percent unsatisfactory. AR, Tab 2, CO Statement at 7.

   [5] We note that Del-Jen's past performance record, as reflected in
   questionnaires and CPARS ratings, did in fact reflect highly favorably on
   Del-Jen.