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