TITLE: B-298047.3, Family Entertainment Services, Inc., September 20, 2006
BNUMBER: B-298047.3
DATE: September 20, 2006
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B-298047.3, Family Entertainment Services, Inc., September 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: Family Entertainment Services, Inc.

   File: B-298047.3

   Date: September 20, 2006

   Michael Bornstein, Esq., Ricketts Co. LPA, for the protester.

   Johnathan M. Bailey, Esq., Bailey & Bailey, for Total Grounds Maintenance,
   LLC, the intervenor.

   Capt. John J. Pritchard, and Lt. Col. Frank A. March, Department of the
   Army, for the agency.

   John L. Formica, Esq., Guy R. Pietrovito, Esq., and James A. Spangenberg,
   Esq., Office of the General Counsel, GAO, participated in the preparation
   of the decision.

   DIGEST

   1. Protest that the agency's evaluation of the protester's past
   performance was unreasonable is sustained where the record evidences that
   the protester and awardee were not treated equally with regard to the
   agency's efforts to contact past performance references, and the record
   does not provide a reasonable explanation for the agency's conclusions
   regarding the protester's past performance, including what if any impact
   the agency's receipt of contract performance assessment reports had on its
   evaluation.

   2. Agency reasonably considered the past performance information set forth
   in the awardee's proposal where the solicitation provided for the
   consideration of past performance information regarding predecessor
   companies and key personnel, the awardee's proposal explained the
   relationship between it and the firm that had performed the contracts
   described, and nothing in the record is inconsistent with the awardee's
   representations; however, the agency failed to evaluate the awardee's past
   performance in accordance with the terms of the solicitation where there
   is no evidence that the agency, when rating the awardee's past
   performance, took into account the solicitation's provision that past
   performance information concerning predecessor companies and key personnel
   would not be as highly rated as past performance information for the
   principal offeror.

   DECISION

   Family Entertainment Services, Inc. doing business as IMC protests the
   award of a contract to Total Grounds Maintenance, LLC (TGM) under request
   for proposals (RFP) No. W911SE-06-R-0007, issued by the Department of the
   Army, for grounds maintenance services at Fort Campbell, Kentucky. The
   protester argues that the agency's evaluation of proposals was
   unreasonable.

   We sustain the protest.

   The RFP, issued on January 27, 2006 as a set-aside for small businesses in
   historically underutilized business zones, provided for the award of a
   fixed-price requirements contract for a base year with 4 option years. RFP
   at 4, 154. The solicitation stated that the contract would be awarded to
   the offeror submitting the proposal found to represent the best value to
   the government, based upon the evaluation factors of past performance and
   price. RFP at 136. The solicitation specified that in determining which
   proposal represented the best value, the agency would consider past
   performance significantly more important than price. Id.

   The agency received 11 proposals by the solicitation's closing date, of
   which 10 proposals, including those submitted by TGM and IMC, receiving
   ratings of "very good" under the RFP's past performance factor. TGM
   submitted the lowest priced proposal, with a total evaluated proposed
   price of $6,749,644; IMC's proposed total evaluated price was $7,878,280.
   Agency Report (AR), Tab 11, Source Selection Statement, at 3. The agency
   selected the proposal submitted by TGM for award, and IMC filed this
   protest following a debriefing.

   The protester argues that the agency's evaluation of its and TGM's
   proposals under the past performance factor was unreasonable. Our Office
   will examine an agency's evaluation of an offeror's past performance only
   to ensure that it was reasonable and consistent with the stated evaluation
   factors and applicable statutes and regulations, since determining the
   relative merit of an offeror's past performance is primarily a matter
   within the contracting agency's discretion. CWIS, LLC, B-287521, July 2,
   2001, 2001 CPD para. 119 at 2. The critical question is whether the
   evaluation was conducted fairly, reasonably, and in accordance with the
   solicitation's evaluation scheme, and whether it was based on relevant
   information sufficient to make a reasonable determination of the offeror's
   past performance. OSI Collection Servs., Inc., B-286597, B-286597.2, Jan.
   17, 2001, 2001 CPD para. 18 at 6. As explained below, we find that the
   agency's evaluation of IMC's past performance does not meet this standard.

   As a preliminary matter, the Army argues that IMC is not an interested
   party to protest the evaluation because it would not be in line for award
   if the award to TGM were set aside. The agency contends in this regard
   that there is another proposal that was also rated "very good" under the
   past performance factor with a lower evaluated price than the proposal
   submitted by IMC, and that this intervening offeror would be in line for
   award should IMC's protest be sustained. AR at 8. In order for a protest
   to be considered by our Office, a protester must be an interested party,
   which means that it must have a direct economic interest in the resolution
   of a protest issue. Bid Protest Regulations, 4 C.F.R. sect. 21.0(a)
   (2006); Cattlemen's Meat Co., B-296616, Aug. 30, 2005, 2005 CPD para. 167
   at 2 n.1. A protester is an interested party to challenge the agency's
   evaluation of proposals where there is a reasonable possibility that the
   protester's proposal would be in line for award if the protest were
   sustained. Transportation Research Corp., B-231914, Sept. 27, 1988, 88-2
   CPD para. 290 at 3.

   The agency's argument here ignores the fact that IMC challenges the
   propriety of the agency's evaluation of IMC's past performance as well as
   the evaluation of TGM's past performance. In this connection, the other
   proposals that were lower in price than IMC's were from offerors whose
   past performance was rated other than "exceptional," and it cannot be
   determined from the existing record that raising IMC's past performance
   rating to "exceptional" would not have led to the selection of IMC's
   proposal for award. Accordingly, we consider IMC to be an interested party
   for the purposes of pursuing this protest.

   As to the merits of the agency's actions, the solicitation's proposal
   preparation instructions required that proposals include certain past
   performance information. RFP at 131-35. Specifically, offerors were
   instructed to provide information regarding at least four of their most
   recent and relevant grounds maintenance contracts performed in the last 3
   years. This information was to include, among other things, a brief
   description of the services performed, the contracting agency for which
   the services were performed, the period of performance and contract value,
   as well as the name, address, and telephone number of the cognizant
   contracting officer's representative. Id. at 133. Offerors were also
   informed that the "evaluation of past performance will take into account
   past performance information regarding predecessor companies, key
   personnel with recent and relevant experience, or subcontractors that will
   perform major or critical aspects of the requirement." Id. at 134. The
   solicitation cautioned that this latter type of past performance
   information would "not be as highly rated as past performance information
   for the principal offeror." Id. at 137.

   IMC's proposal included information regarding four contracts. The first
   contract described was for grounds maintenance services performed for the
   Department of the Army at Fort Campbell. The proposal included a survey
   completed by the cognizant Fort Campbell contracting officer's
   representative, which rated IMC's performance as "exceptional" under each
   of the numerous questions posed by the survey. IMC's proposal also
   included information regarding its performance of grounds maintenance
   services for the Department of the Army at Fort Knox, Kentucky, and the
   Military Academy at West Point, New York, and for the Department of the
   Air Force at Whiteman Air Force Base (AFB), Missouri. The proposal
   included a copy of a contractor performance assessment report (CPAR) for
   the work performed at Whiteman AFB that rated IMC's performance as
   "exceptional" under each of the applicable categories set forth on the
   report. AR, Tab 8, IMC Past Performance Proposal and Evaluation
   Documentation.

   The record reflects that after receiving the proposals by the due date of
   May 24, the agency "gathered information when possible from the submitted
   references," and also "obtained information from the CPAR if available."
   Contracting Officer's Statement at 2. With regard to IMC's past
   performance, the record reflects that the cognizant contract specialist
   contacted or attempted to contact each of IMC's four references.

   Specifically, on May 31 the contract specialist spoke with an individual
   in the Military Academy's contracting office. During this conversation,
   the contract specialist states that she "relayed . . . the need of
   completion of the [past performance] questionnaire" and that the
   questionnaire needed to be completed and returned "within 24 hours." The
   contract specialist states that the individual at the Military Academy
   "understood the urgency," but that the contract specialist "never received
   the responding questionnaire." Statement of the Contract Specialist,
   Aug. 30, 2006, at 1.

   With regard to IMC's reference at Fort Knox, the contract specialist adds
   that on May 31 she spoke with an individual there who "agreed to get the
   questionnaire completed," and that on May 31 she also attempted to contact
   the Whiteman AFB contracting officer to provide that individual with a
   questionnaire to be completed. Statement of the Contract Specialist, Aug.
   30, 2006, at 1. The record reflects that in a subsequent e-mail to the
   Fort Knox reference the contract specialist requested that the completed
   questionnaire be returned by June 2, or within 2 days of her request.
   Statement of the Contract Specialist, Aug. 30, 2006, attach. 1. The
   contract specialist states that she did not receive a completed
   questionnaire from the Fort Knox reference, and never received any
   response from the contracting officer at Whiteman AFB. Statement of the
   Contract Specialist, Aug. 30, 2006, at 1.

   The agency did receive a completed questionnaire from the cognizant
   contracting personnel at Fort Campbell, where IMC had performed grounds
   maintenance services from March 2001 through December 2003. AR, Tab 8, IMC
   Past Performance Proposal and Evaluation Documentation. This completed
   questionnaire rated IMC's performance as "exceptional" with regard to
   every question posed. Id. The record also reflects that the agency
   received four CPARs regarding IMC's performance, with three of the CPARs
   assessing IMC's performance at Whiteman AFB, and one assessing IMC's
   performance at Fort Knox. With regard to Whiteman AFB, the CPAR assessing
   IMC's performance from June 2003 through September 2003 (the "initial"
   CPAR) rated IMC's performance as "very good," while the CPARs assessing
   IMC's performance from October 2003 through September 2004 (the second
   "initial" CPAR), and from October 2004 through September 2005 (the
   "intermediate" CPAR) each rated IMC's performance as "exceptional." The
   other CPAR received by the agency, which pertained to IMC's performance of
   grounds maintenance services at Fort Knox from July 2004 through June 2005
   (an "interim" CPAR), assessed IMC's performance as "exceptional." AR, Tab
   8, IMC Past Performance Proposal and Evaluation Documentation.

   The contracting officer completed the evaluation of IMC's past performance
   on June 8, and found all of IMC's past performance information "recent in
   accordance with the solicitation criteria" and "relevant for both
   similarity of scope and magnitude of service." AR, Tab 8, IMC Past
   Performance Proposal and Evaluation Documentation. As mentioned
   previously, the agency evaluated IMC's past performance as "very good."

   In response to the protester's argument that its past performance should
   have been rated as "exceptional" based upon the information it submitted
   with its proposal, as well as the completed questionnaire and the CPARs
   the agency received, the contracting officer explains as follows:

     While the protester, IMC[,] did submit four listings for past
     performance, the evaluator was able to verify one of these references
     after several attempts. A search of the government's [CPAR] system found
     two initials, one interim and one intermediate report, no final reports
     were found on IMC. Even though this one reference resulted in an
     "exceptional" referral, in the evaluator's judgment this did not warrant
     an exceptional rating when at least four references were required by the
     solicitation.

   Contracting Officer's Statement at 7.

   In our view, the agency's explanation as to why it rated IMC's past
   performance "very good" is unreasonable in a number of respects. First, it
   appears from the contracting officer's statement that IMC's record of past
   performance "did not warrant an exceptional rating" because only one
   reference returned a completed questionnaire and "at least four references
   were required by the solicitation," that IMC was effectively penalized
   because not all of the four references it identified in its proposal
   submitted completed questionnaires in accordance with the agency's
   requests. To the extent that the agency believes that the references'
   failure to each return a completed past performance questionnaire to the
   agency mandated a downgrading of IMC's proposal, this belief is in error.
   That is, the RFP required that offerors furnish, among other things,
   descriptions of work performed and points of contact; it in no way
   required that offerors ensure that their past performance references
   received, completed and returned the questionnaires. Cf. American Floor
   Consultants, Inc., B-294530.7, June 15, 2006, 2006 CPD para. 97 at 4-5
   (past performance evaluation which assigned a "neutral" rating to the
   protester's proposal was unobjectionable where the agency did not receive
   completed questionnaires from any of the protester's references listing
   relevant work and the solicitation provided that it was the protester's
   obligation to ensure that the past performance questionnaires were
   completed and returned). With regard to the agency's responsibilities, our
   Office has long recognized that there is no requirement that an agency
   contact all references furnished by an offeror. Advanced Data Concepts,
   Inc., B-277801.4, June 1, 1998, 98-1 CPD para. 145 at 10. Accordingly, to
   the extent that the agency believed that because of the references'
   failure to each submit a completed past performance questionnaire it was
   precluded from evaluating IMC's past performance as "exceptional" by the
   terms of the RFP, statute, or regulation, the agency was in error.

   Additionally, the agency's explanation regarding its evaluation of IMC's
   past performance, while recognizing that IMC's Fort Campbell reference
   returned a questionnaire evaluating IMC's performance as "exceptional,"
   provides no explanation for the agency's apparent failure to meaningfully
   consider the four CPARs pertaining to IMC's past performance. In this
   regard, the CPARs covered three of the four contracts described by IMC in
   its proposal (Fort Knox, Fort Campbell, and Whiteman AFB), and with one
   exception, evaluated IMC's performance as "exceptional."[1] However, there
   is no explanation in the record as to whether or how these CPARs were
   considered in evaluating IMC's past performance, or why the contracting
   officer believed that she was only able to "verify one of [IMC's]
   references," even though she had received CPARs pertaining to IMC's
   performance of three of its described contracts. That is, the agency does
   not explain why these CPARs were not considered as "verification" of IMC's
   performance of the work described in its proposal, or, to the extent that
   the agency felt it needed "final" CPARs to consider, why the agency's
   position in this regard is reasonable.

   It also appears that the agency did not treat the offerors equally in its
   efforts to contact their references. As explained above, although the
   contract specialist attempted to contact each of IMC's references by
   telephone, and was able to forward the agency's past performance
   questionnaire by e-mail to the Fort Campbell, West Point, and Fort Knox
   references, these references were instructed that they were to return the
   completed questionnaires in 1 to 2 days. The record provides no
   explanation as to why the contract specialist imposed these deadlines on
   IMC's references, nor does the record provide that the contract specialist
   made any attempt to contact any of IMC's references after June 1.

   In contrast, the record shows that a different contract specialist called
   and forwarded the past performance questionnaire by e-mail to TGM's
   references on May 31. While the references were requested to complete the
   questionnaire, no deadline for the return of the completed questionnaires
   was established. With regard to two of the three TGM references that
   subsequently returned completed questionnaires, the record establishes
   that on June 2 these references each received a second e-mail from this
   contract specialist "following up" on his request that the references
   complete the questionnaire, and requesting that they "respond by June 5,
   2006." AR, Tab 10, Total Grounds Maintenance Past Performance Proposal and
   Evaluation Documentation.

   While one may question whether the agency's actions in contacting or
   attempting to contact IMC's references constituted a "reasonable
   effort,"[2] we need not resolve this issue, given the disparate methods by
   which the agency attempted to obtain completed past performance
   questionnaires from the offerors' references. That is, as set forth above,
   the record reflects that the agency imposed relatively tight deadlines on
   IMC's references for their submission of completed past performance
   questionnaires and no follow-up contacts were attempted when IMC's
   references did not respond within the deadlines imposed, whereas no
   deadlines were initially imposed on TGM's references and follow-up
   contacts were made (and less stringent deadlines were subsequently
   imposed) when TGM's references did not respond as initially requested. It
   is fundamental that a contracting agency treat all offerors fairly, and
   based upon this record, the agency simply did not do so here.[3] See
   Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 para.
   65 at 5.

   The protester also argues that TGM's "very good" past performance rating
   was unreasonable because TGM is "a new entity and does not have the
   requisite past experience." Protest at 3; see Protester's Comments at 4-9.
   The protester concludes that TGM's proposal should have received a
   "neutral" past performance rating.

   The awardee's proposal, in setting forth the firm's past performance,
   explained that the owner and president of TGM "is also the owner and
   president of Wimsco, Inc. which has been continuously involved in grounds
   maintenance contacts with the U.S. Government since 1989." TGM's proposal
   stated that TGM would be "bidding all future contracts," and that "[o]nly
   the name has changed as all key personnel will remain the same." AR, Tab
   9, TGM Past Performance Proposal and Evaluation Documentation.

   In evaluating TGM's proposal, the agency found, consistent with TGM's
   representation, that each of TGM's references was for a contract that had
   been actually performed by Wimsco. The agency explains that during its
   evaluation of TGM's past performance it "considered Wimsco and TGM one in
   the same company . . . with the same owner and same employees."
   Contracting Officer's Statement at 7. The agency argues in its report that
   in its view, regardless of whether its conclusion that Wimsco and TGM were
   "one in the same" is correct, it properly considered Wimsco's record of
   past performance as that of a "predecessor company." Id.

   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. Trailboss Enters., Inc., B-297742, Mar. 20, 2006, 2006 CPD
   para. 64 at 4; United Coatings, B-291978.2, July 7, 2003, 2003 CPD para.
   146 at 7; see FAR sect. 15.305(a)(2)(iii). Here, the solicitation
   specifically stated that past performance regarding key personnel and
   predecessor companies would be considered. Given this and the awardee's
   representations in its proposal regarding the relationship of Wimsco and
   TGM, we see nothing unreasonable or improper in the consideration of
   Wimsco's past performance in evaluating TGM's proposal under the past
   performance factor. Trailboss Enters., Inc., supra.

   The protester nevertheless notes that despite the representations made by
   TGM in its proposal regarding the relationship of Wimsco as a predecessor
   company, one of the references listed in TGM's proposal referred to
   Wimsco's performance of a current contract, and that a CPAR for a contract
   that Wimsco completed in September 2003 identified as the "Contractor
   Representative" an individual that is not listed in TGM's proposal. The
   protester argues that this is inconsistent with TGM's representations
   regarding the relationship of TGM and Wimsco both as entities and with
   regard to key personnel. The protester concludes that "[t]he Agency's
   position that TGM and Wimsco are one and the same or in the alternative a
   predecessor firm must fail as the facts show there has been no merger,
   purchase, novation or other legal transaction between the two companies
   which would support this conclusion." Protester's Comments at 7.

   We do not find the protester's argument persuasive. TGM's proposal, as set
   forth above, acknowledged that Wimsco was the entity to which the past
   performance information applied, but that TGM would be "bidding all future
   contracts" and that "all key personnel will remain the same." AR, Tab 9,
   TGM Past Performance Proposal and Evaluation Documentation. Contrary to
   the protester's view, we do not see these representations as necessarily
   inconsistent with the fact that Wimsco is currently performing a contract
   or that an individual employed by Wimsco in 2003 is not listed on TGM's
   current organization chart.

   Nevertheless, we do not agree with the agency's determination during the
   evaluation process that its consideration of Wimsco's past performance in
   evaluating TGM's proposal was appropriate because the firms were "one in
   the same." See Contracting Officer's Statement at 7. It is apparent from
   TGM's proposal, which states that the "owner and president of Total
   Grounds Maintenance, LLC . . . is also the owner and president of Wimsco,
   Inc." and that "Total Grounds Maintenance, LLC will be bidding all future
   contracts," that Wimsco and TGM are in fact distinct entities. While we
   have no basis on this record to disagree with the agency that it could
   consider Wimsco's past performance information as that of a "predecessor
   company" to TGM with the same or similar "key personnel," we do not agree
   that TGM and Wimsco can properly be considered "one in the same." This
   distinction is important because of the solicitation's provision that
   while past performance information regarding key personnel and predecessor
   companies would be considered, such past performance information would
   "not be as highly rated as past performance information for the principal
   offeror." RFP at 137. In this regard, there is nothing in the record to
   suggest that the agency took this latter provision into account when
   concluding that TGM's proposal merited a rating of "very good" under the
   past performance evaluation factor.

   The protest is sustained.

   Because we find that the Army did not treat IMC fairly with regard to the
   efforts made in contacting or attempting to contact IMC's references and
   to receive completed past performance questionnaires, we recommend that
   the agency again attempt to contact IMC's references in a manner
   consistent with the efforts made in contacting and receiving past
   performance questionnaires from TGM's references. We also recommend that
   the agency reevaluate the past performance of IMC based upon any completed
   questionnaires received and the past performance information already in
   the record. In doing this, the agency should consider the CPARs it has
   received regarding IMC's performance, and provide a reasonable explanation
   as to how the CPARs affect the agency's past performance evaluation. The
   agency should also reevaluate TGM's proposal under the past performance
   factor, and in doing so should consider the provision in the solicitation
   stating that past information regarding predecessor companies and key
   personnel will not be as highly rated as past performance information for
   the principal offeror. Based on these reevaluations, we recommend that the
   agency make a new source selection determination. If the agency determines
   that the proposal of an offeror other than TGM represents the best value
   to the government, we recommend that the agency terminate the contract
   awarded to TGM and award a contract to the offeror whose proposal is
   selected. We also recommend that the agency reimburse the protester the
   costs of filing and pursuing the protest, including reasonable attorneys'
   fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1). In accordance
   with section 21.8(f) of our Regulations, IMC's claim for such costs,
   detailing the time expended and the costs incurred, must be submitted
   directly to the agency within 60 days after receipt of the decision.

   Gary L. Kepplinger
   General Counsel

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

   [1] The exception, of course, was the "initial" CPAR completed by
   contracting personnel at Whiteman AFB. However, we note in this regard
   that two subsequent CPARs completed by Whiteman AFB both evaluated IMC's
   performance as "exceptional." AR, Tab 9, IMC Past Performance Proposal and
   Evaluation Documentation; see Federal Acquisition Regulation (FAR)
   sect.15.305(a)(2)(i) (in a past performance evaluation "general trends in
   contractor's performance shall be considered").

   [2] Agencies are required to make a reasonable effort to contact
   references. Universal Bldg. Maint., Inc., B-282456, July 15, 1999, 99-2
   CPD para. 32 at 8 n.1.

   [3] In reaching this conclusion, we are mindful that there is no
   requirement that an agency make the same number of attempts to contact
   each offeror's references. See OSI Collection Servs., Inc.; C.B. Accounts,
   Inc., B-286597.3 et al., June 12, 2001, 2001 CPD para. 103 at 9. However,
   as indicated above, the disparate treatment here, which includes the
   imposition of tight deadlines for the submission of IMC's references'
   questionnaires in contrast to no deadlines for TGM's references'
   questionnaires, extends beyond the consideration of the number of contacts
   attempted.