TITLE: B-298697, HoveCo, November 14, 2006
BNUMBER: B-298697
DATE: November 14, 2006
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B-298697, HoveCo, November 14, 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: HoveCo

   File: B-298697

   Date: November 14, 2006

   Henry E. Steck, Esq., Harrison Steck, P.C., for the protester.

   Maj. Jeffrey Branstetter, Department of the Air Force, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Protest arguing that proposal should have received performance confidence
   rating of unknown confidence rather than little confidence is denied where
   record clearly establishes that protester suffered no prejudice as a
   result of the little confidence rating.

   DECISION

   HoveCo protests the award of a contract to Porter Manufacturing
   Corporation under request for proposals (RFP) No. FA8533-05-R-76816,
   issued by the Department of the Air Force for the design and production of
   a trailer-mounted fuel dispensing system. The protester takes issue with
   the agency's evaluation of its past performance.

   We deny the protest.

   BACKGROUND

   The RFP contemplated the award of a 5-year (basic year, plus four ordering
   periods) fixed-price, requirements contract. The solicitation advised
   offerors that award would be made to the offeror whose proposal conformed
   to all solicitation requirements and was found to represent the best value
   to the government. Best value was to be determined on the basis of a
   trade-off between past performance and price, with past performance
   considered significantly more important than price.

   The solicitation provided for the assignment of performance confidence
   ratings to offerors based on their past performance. Six ratings were
   possible: high confidence, significant confidence, satisfactory
   confidence, unknown confidence, little confidence, and no confidence. RFP
   amend. 3, at 45. Of relevance to this protest, the RFP defined ratings of
   satisfactory, unknown, and little confidence as follows:

     Satisfactory Confidence: Based on the offeror's performance record, the
     government has confidence that the offeror will successfully perform the
     required effort. Normal contractor emphasis should preclude any
     problems.

     Unknown Confidence: No performance record identifiable (see FAR
     15.305(a)(2)(iii) and (iv).

     Little Confidence: Based on the offeror's performance record,
     substantial doubt exists that the offeror will successfully perform the
     required effort.

   Id.

   The RFP provided for a "relevancy determination" of each offeror's present
   and past performance in accordance with the following highly detailed
   criteria:

     Very Relevant: Present and/or past performance efforts that involved
     essentially the same magnitude of work and complexities that this
     solicitation requires and included the design and production (including
     remanufacturing and/or overhaul) of a mobile, trailer-mounted fuel
     dispensing system capable of delivering no less than 10 GPM [gallons per
     minute] through a standard service station type fuel dispensing nozzle,
     and such system has an automated fuel billing and metering capability.

     Relevant: Present and/or past performance efforts that involved much of
     the magnitude of work and complexities that this solicitation requires
     and included the production (including remanufacturing and/or overhaul)
     of a mobile fluid dispensing system capable of delivering no less than
     10 GPM through a standard service station type nozzle, and such system
     has a fluid metering capability.

     Somewhat Relevant: Present and/or past performance efforts that involved
     some of the magnitude of work and complexities that this solicitation
     requires and included the production (including remanufacturing and/or
     overhaul) of a fluid dispensing system capable of delivering no less
     than 10 GPM through a standard dispensing nozzle, and such system has a
     metering capability.

     Not Relevant: Present/past performance efforts involved little or none
     of the magnitude of effort and complexities this solicitation requires.

   Id. at 44.

   Three proposals were received by the May 15, 2006 closing date.[1] The
   agency conducted discussions with the offerors and requested final
   proposal revisions. After reviewing HoveCo's final past performance
   information, the performance confidence assessment group (PCAG) assigned
   the protester's proposal a performance confidence rating of little
   confidence. The PCAG explained that HoveCo had identified only one prior
   contract as relevant, and that, in keeping with the RFP's relevancy
   criteria, it had determined that effort to be only somewhat relevant since
   it did not involve a fuel dispensing system using a standard service
   station type nozzle. The PCAG further noted that HoveCo had failed to
   demonstrate either experience as a prime contractor or experience in
   establishing, operating or managing manufacturing and production work.
   PCAG Report at 3-5. Based on the shortcomings in HoveCo's experience, the
   PCAG concluded that there existed substantial doubt that it would be able
   to perform the solicited effort successfully.[2]

   Final evaluated prices and performance confidence ratings for the three
   offerors were as follows:

   +------------------------------------------------------------------------+
   |Offeror             |Perf. Conf. Rating           |Price                |
   |--------------------+-----------------------------+---------------------|
   |HoveCo              |Little Confidence            |$5,122,008           |
   |--------------------+-----------------------------+---------------------|
   |Porter              |Satisfactory Confidence      |$5,450,002           |
   |--------------------+-----------------------------+---------------------|
   |Offeror A           |Unknown Confidence           |$9,531,956           |
   +------------------------------------------------------------------------+

   Source Selection Decision Document at 4-6. The Source Selection Authority
   (SSA) determined that Porter Manufacturing's combination of performance
   confidence and price represented the best value to the government, and on
   August 17, the Air Force awarded Porter a contract.

   DISCUSSION

   HoveCo argues that, because Federal Acquisition Regulation (FAR) sect.
   15.305(a)(2)(iv) provides that an offeror without a record of relevant
   past performance may not be rated favorably or unfavorably with regard to
   past performance, it should not have received the unfavorable rating of
   little confidence based on its lack of relevant experience.

   The protester is in essence arguing that due to its lack of relevant
   experience, it should have received the neutral rating of unknown
   confidence.[3] It is clear from the record that the SSA would not have
   selected HoveCo for award even if the protester had received a performance
   confidence rating of unknown confidence, however; thus, it is apparent
   that the protester suffered no prejudice as a result of receiving the
   little confidence rating. See GC Servs. Ltd. P'ship, B-298102, B-298102.3,
   June 14, 2006, 2006 CPD para. 96 at 7-8 (prejudice is an essential element
   of every viable protest). In this connection, it is clear from the source
   selection decision document that the SSA considered Porter Manufacturing's
   proposal to be worth its higher price because Porter had demonstrated
   through its present and past performance that it had the capabilities and
   experience necessary to handle the requirement. Id. at 7. In other words,
   the SSA focused on the advantages associated with Porter's greater
   experience and not simply the difference between the two offerors'
   performance confidence ratings in selecting Porter's proposal as
   representing a better value to the government. Those relative advantages
   would remain the same regardless of whether HoveCo's proposal was assigned
   a rating of little confidence or a rating of unknown confidence. Under
   these circumstances, we see no reasonable possibility that the SSA would
   have selected HoveCo even if it had received a rating of unknown
   confidence.

   HoveCo also argues that the SSA erred in finding that it had not provided
   targets for small disadvantaged business (SDB) participation. (The RFP
   provided for evaluation of the extent of participation by SDB firms as
   part of the past performance evaluation. RFP amend. 3, at 45.) According
   to HoveCo, it did provide a target for SDB participation, which was zero
   percent.

   The parties disagree as to whether HoveCo, as a small business, was
   required to furnish targets for SDB participation, and whether zero
   percent was an acceptable target. We need not address these arguments,
   however, because it is clear from the record that HoveCo would have
   received the same performance confidence rating (of little confidence)
   based on the shortcomings in its experience, regardless of whether its SDB
   participation targets were considered acceptable. In this connection, the
   PCAG makes no reference to the protester's failure to furnish SDB targets
   in the section of its report where it explains the basis for its rating of
   the protester's performance as little confidence. PCAG Report at 5. In
   other words, even assuming that the protester is correct that the agency
   erred in finding that it was required to, but had not furnished targets
   for SDB participation, the protester suffered no prejudice as a result.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] The agency reports that the RFP was originally set aside for small
   businesses, but that when only one proposal was received by the originally
   established closing date of September 9, 2005, the agency issued an
   amendment that removed the set-aside and set a new closing date.

   [2] The quality of the protester's performance did not contribute to the
   rating of little confidence; according to the PCAG, the references who
   submitted responses rated HoveCo's performance as satisfactory to very
   good, with "many laudatory comments." Id. at 5.

   [3] To the extent that the protester argues, citing Braswell Servs. Group,
   Inc., B-278921.2, June 17, 1998, 98-2 CPD para. 10 and Joint Mgmt. & Tech.
   Servs., B-294229, B-2942292, Sept. 22, 2004, 2004 CPD para. 208, that it
   should have received a rating of satisfactory confidence (rather than
   unknown confidence) to reflect its status as an offeror without relevant
   past performance, we disagree. Both of the cases cited by the protester
   are distinguishable from the case at hand. In Braswell, we found that the
   agency had not improperly equated a rating of neutral with a rating of
   satisfactory where the agency's definition of satisfactory reflected an
   average evaluation with no strengths or weaknesses and was thus closest to
   a neutral assessment. Similarly, in Joint Mgmt. & Tech. Servs., we found
   that where past performance was to be rated on a 10-point scale that did
   not include a neutral rating, it was proper for the agency to assign the
   midpoint score of 5, which equated to a rating of satisfactory, to an
   offeror without a record of past performance. In the case at hand, in
   contrast to the above cases, the solicitation included a rating that
   clearly equated to a neutral assessment, i.e., unknown confidence;
   moreover, a rating of satisfactory confidence, as defined by the
   solicitation, was clearly a favorable, as opposed to merely a neutral,
   rating.