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.