TITLE: B-298576, Singleton Enterprises, October 30, 2006
BNUMBER: B-298576
DATE: October 30, 2006
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B-298576, Singleton Enterprises, October 30, 2006

   Decision

   Matter of: Singleton Enterprises

   File: B-298576

   Date: October 30, 2006

   Arthur Wayne Singleton for the protester.

   Stanley M. Wyre, Esq., Stanley M. Wyre Associates, L.L.C., for Chezcore,
   Inc., the intervenor.

   Ruth Kowarski, Esq., General Services Administration, for the agency.

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

   DIGEST

   Solicitation provision stating that under the solicitation's past
   performance evaluation factor the agency would evaluate the "offeror's
   actions under previously awarded contracts" created a latent ambiguity
   where in addition to the agency's intended meaning that only the offeror's
   corporate past performance would be considered, the solicitation was
   reasonably read by the protester as providing for the evaluation of the
   past performance of the proposed subcontractors that will perform major or
   critical aspects of the work required.

   DECISION

   Singleton Enterprises protests the award of a contract to Chezcore, Inc.
   under request for proposals (RFP) No. GS-05P-06-SVC-3022, issued by the
   General Services Administration (GSA) for exterior masonry repair to a
   federal building in Battle Creek, Michigan. The protester argues that the
   agency's evaluation of proposals under the solicitation's past performance
   factor was unreasonable.

   We sustain the protest.

   The RFP provided for the award of a fixed-price contract to the offeror
   whose proposal represented the best value to the government based upon the
   evaluation factors of past performance and price. The solicitation
   specified that in determining which proposal represented the best value,
   the agency would consider past performance to be significantly more
   important than price.

   As relevant here, the solicitation required that proposals include certain
   past performance information. Specifically, the RFP included "Past
   Performance Reference Sheet[s]" to be completed by the offerors for each
   of their references. The RFP stated that "offerors cannot use the same
   reference/contact person more than once," and that each offeror "must
   provide a minimum of three customer references for past performance
   evaluations," although each offeror could submit as many as six
   references. RFP, Supp. Instructions to Offerors, at 3. The solicitation
   listed the type of information that the agency would consider in
   evaluating past performance, such as "[t]he offeror's overall quality of
   performance," and specified that the past performance would be considered
   relevant if it met the following three listed criteria:

      1) The contract was to perform brick and/or limestone repairs
         (replacing, patching, dismantling, repairing, tuckpointing, sealing, etc.)

      2) Past contracts were completed no more than five years from the
         closing date of this solicitation.

      3) Current contracts are [at] least 80% complete.

   RFP, Supp. Instructions to Offerors, at 3. The solicitation concluded here
   by admonishing offerors that the "failure of the offeror to provide a
   minimum of three relevant references that [met] the [three] criteria [for
   relevance], and/or the inability of the Government to complete a minimum
   of three reference checks, after making a reasonable effort to do so,
   [would] result in the offeror being rated as `neutral' on past
   performance." Id. at 3-4.

   The agency received nine proposals by the solicitation's closing date.
   Chezcore's proposal received a "very good" rating under the past
   performance factor at a total evaluated price of $1,278,592 and
   Singleton's lower-priced proposal received a "neutral" rating under the
   past performance factor.[1]

   Singleton's proposal included completed past performance reference sheets
   regarding two contracts that had been performed by Singleton and three
   contracts that had been performed by Singleton's proposed "major
   subcontractor." The record reflects that the past performance information
   pertaining to Singleton's proposed subcontractor was not considered by the
   agency in evaluating Singleton's proposal under the past performance
   factor "because [it was] for a subcontractor . . . and not the named
   offeror." Singleton's proposal thus "received a `neutral' rating in terms
   of past performance, since [Singleton] did not provide a minimum of three
   relevant references." [2] Agency Report (AR), Tab 9, Source Selection
   Decision, at 4. The agency selected Chezcore's proposal, rather than
   Singleton's lower-priced proposal, for award, and this protest followed.

   Singleton argues that the agency "did not properly evaluate Singleton's
   past performance by failing to take into account past performance
   information regarding Singleton's subcontractor who would perform major or
   critical aspects of the solicitation's requirements." Protest at 4. In
   this regard, the protester points out that Federal Acquisition Regulation
   (FAR) sect. 15.305(a)(2)(iii) states that a past performance "evaluation
   should take into account past performance information regarding
   predecessor companies, key personnel who have relevant experience, or
   subcontractors that will perform major or critical aspects of the
   requirement when such information is relevant to the instant acquisition."
   The protester also points out that the RFP did not state that the agency
   would not consider the past performance of proposed subcontractors in
   evaluating past performance, and that our Office has previously found that
   the past performance of a proposed subcontractor may be considered in
   determining whether an offeror meets experience or past performance
   requirements in a solicitation where the solicitation does not expressly
   prohibit its consideration. Protester's Comments at 1, 3; see The
   Paintworks, Inc., B-292982; B-292982.2, Dec. 23, 2003, 2003 CPD para. 234
   at 3.

   The agency responds by pointing out that it "never stated in the RFP that
   the past performance of other than the offeror would be considered," and
   that the RFP did not specifically "request that the offerors submit past
   performance information for proposed major subcontractors." Contracting
   Officer's Statement at 7; see AR at 4. The agency notes that our Office
   has recognized that FAR sect. 15.305(a)(2)(iii), cited by the protester,
   does not mandate that agencies consider the past performance of
   subcontractors, but only states that agencies "should" consider such
   information. AR at 6, citing MW-All Star Joint Venture, B-291170.4, Aug.
   4, 2003, 2004 CPD para. 98 at 4 and TyeCom, Inc., B-287321.3, B-287321.4,
   Apr. 29, 2002, 2002 CPD para. 101 at 6. The agency thus concludes that
   "the only reasonable construction of the [RFP's] past performance
   evaluation clause is that only prime contractor past performance
   information would be considered by GSA in evaluating offers," and that
   Singleton's protest is an untimely challenge of an alleged impropriety
   apparent from the solicitation. AR at 5; see Bid Protest Regulations, 4
   C.F.R. sect. 21.2(a)(1) (2006).

   We agree with the protester that FAR sect. 15.305(a)(2)(iii) suggests, as
   evidenced by the word "should," that agencies consider in their
   evaluations the past performance of proposed "subcontractors that will
   perform major or critical aspects of the requirement." In addition, as
   correctly noted by the protester, our Office has found an agency's
   consideration of a proposed subcontractor's past performance when
   evaluating an offeror's proposal under a past performance factor
   permissible in the same circumstances as here, that is, where the
   solicitation neither prohibited nor mentioned the evaluation of such
   information. AC Techs., Inc., B-293013, B-293013.2, Jan. 14, 2004, 2004
   CPD para. 26 at 3; The Paintworks, Inc., supra. To put it another way, our
   Office, based upon applicable caselaw, statute, and regulation, would have
   found it unobjectionable had the agency chosen to consider the past
   performance of Singleton's subcontractor when evaluating Singleton's
   proposal.

   The fact remains, however, that the solicitation referred to the agency's
   evaluation of the "offeror's" past performance and did not specifically
   request information on the past performance of subcontractors.
   Additionally, the agency is correct in pointing out that the consideration
   of subcontractor past performance, as set forth in FAR
   sect. 15.305(a)(2)(iii), is not mandatory. MW-All Star Joint Venture,
   supra; TyeCom, Inc., supra; see Olympus Bldg. Servs., Inc., B-282887, Aug.
   31, 1999, 99-2 CPD para. 49 at 3-4 (RFP's past performance evaluation
   factor providing that key personnel past performance would not be
   considered was found to be reasonably based and not prohibited by
   regulation).

   Although in the agency's view the solicitation provided that the agency
   would consider only the corporate past performance information of the
   "offeror," and the agency report makes it clear that the agency intended
   such a reading, we also, for the reasons stated above, find the
   protester's interpretation of the solicitation that it would also permit
   the evaluation of subcontractor past performance to be reasonable.[3]
   Because we believe that both the agency's and protester's interpretations
   of the RFP are reasonable, this indicates an ambiguity in the RFP with
   respect to information that the agency would consider in performing its
   past performance evaluation. An ambiguity exists where two or more
   reasonable interpretations of the terms or specifications are possible. A
   party's particular interpretation need not be the most reasonable to
   support a finding of ambiguity; rather, a party need only show that its
   reading of the solicitation provisions is reasonable and susceptible of
   the understanding it reached. DynCorp Int'l LLC, B-289863; B-289863.2, May
   13, 2002, 2002 CPD para. 83 at 8; Aerospace Design & Fabrication, Inc.,
   B-278896.2 et al., May 4, 1998, 98-1 CPD para. 139 at 13.

   With that in mind, we must determine whether the ambiguity is latent or
   patent since, if patent, it would have had to be protested prior to the
   closing date for the submission of proposals in order to be considered
   timely. Ashe Facility Servs., Inc., B-292218.3; B-292218.4, Mar. 31, 2004,
   2004 CPD para. 80 at 11; see 4 C.F.R. sect. 21.2(a)(1). A patent ambiguity
   exists where the solicitation contains an obvious, gross, or glaring error
   (e.g., where the solicitation provisions appear inconsistent on their
   face), while a latent ambiguity is more subtle. Ashe Facility Servs.,
   Inc., supra. Since Singleton's interpretation of the RFP did not directly
   conflict with any of the other solicitation provisions, and the ambiguity
   came to light in the context of the agency's past performance evaluation,
   we conclude that the ambiguity here was latent rather than patent.
   Singleton's protest is thus timely. Id.

   As indicated, the agency intended the solicitation to provide that only
   the offeror's past performance, and not that of proposed subcontractors,
   would be considered by the agency in evaluating proposals and in making
   its source selection. The protester states that, had it been aware prior
   to the closing date for the receipt of proposals of the agency's intended
   meaning, it would have protested the propriety of that aspect of the RFP.
   Protester's Comments at 1. Given the protester's position here, and the
   indicated intent of FAR sect. 15.305(a)(2)(iii)--which by using the term
   "should" advises agencies that they should consider in their evaluations
   the past performance of proposed "subcontractors that will perform major
   or critical aspects of the requirement" unless they have a reasonable
   basis for not doing so--the propriety of the agency's decision not to
   follow the approach advised in the FAR cannot be assumed. In our view,
   there is thus a reasonable possibility that a timely protest would have
   ultimately led to the agency's adopting the FAR's recommended approach.
   Even if it did not, so that the procurement was conducted under the
   agency's current approach (but unambiguously stated), the protester would
   have had an opportunity to submit a proposal consistent with that
   approach. In view of the potentially different outcome associated with
   this necessarily speculative analysis, we find a reasonable possibility
   that the protester was prejudiced by the agency's actions.

   We recommend that the agency review its position that it will consider
   only the offerors' corporate past performance and not the past performance
   of major subcontractors or subcontractors that will perform critical
   aspects of the requirement, amend the solicitation so that it clearly
   advises offerors of what information the agency will consider in
   performing its evaluation under the past performance factor, and reopen
   the competition. The agency should evaluate proposals submitted in
   response to the solicitation as amended, and make a new source selection
   determination. If the agency determines that the proposal of an offeror
   other than Chezcore represents the best value to the government, we
   recommend that the agency terminate the contract awarded to Chezcore 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 its protest, including reasonable attorneys' fees. 4 C.F.R. sect.
   21.8(d)(1). In accordance with section 21.8(f) of our Regulations,
   Singleton'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.

   The protest is sustained.

   Gary L. Kepplinger

   General Counsel

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

   [1] The protester proceeded with its protest pro se and, therefore, did
   not have an attorney who could obtain access to non-public information
   pursuant to the terms of a protective order. Accordingly, our discussion
   of the evaluation and source selection is necessarily general in nature to
   avoid reference to non-public information. Our conclusions, however, are
   based on our review of the entire record, including non-public
   information.

   [2] The agency also considered only one of the references provided by
   Singleton pertaining to contracts it had completed because the two
   references submitted by Singleton, while for different contracts with work
   performed on different buildings in different states, listed the same
   "customer" and "contact person." AR, Tab 9, Source Selection Statement, at
   4; see AR, Tab 5a, Singleton's Proposal; RFP, Supp. Instructions to
   Offerors, at 3 ("offerors cannot use the same reference/contact person
   more than once"). Singleton does not contest the propriety of this agency
   action. Protest at 2.

   [3] This situation is distinguishable from decisions such as Blue Rock
   Structures, Inc., B-287960.2, B-287960.3, Oct. 10, 2001, 2001 CPD para.
   184. In Blue Rock, we found the agency's assignment of a "neutral" rating
   to the protester's proposal under the past performance factor reasonable,
   given the fact that Blue Rock was a newly-formed entity, and the
   experiences of its key personnel were reasonably found by the agency to be
   inadequate to demonstrate that the newly formed firm would successfully
   function as a corporate entity or successfully perform the contract. Blue
   Rock Structures, Inc., supra, at 3-4. In Blue Rock, the agency actually
   considered the past performance information regarding the firm's key
   personnel, and made an individualized determination that the information
   was inadequate, whereas, here, the agency categorically refused to
   consider information regarding the offerors' proposed subcontractors' past
   performance without having specifically stated in the solicitation that it
   would not consider a proposed subcontractor's past performance.