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
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[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.