TITLE: B-298841; B-298841.2, John Blood, December 21, 2006
BNUMBER: B-298841; B-298841.2
DATE: December 21, 2006
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B-298841; B-298841.2, John Blood, December 21, 2006

   Decision

   Matter of: John Blood

   File: B-298841; B-298841.2

   Date: December 21, 2006

   John Blood for the protester.

   Azine Farzami, Esq., Department of Agriculture, for the agency.

   Nora K. Adkins, Esq., and James Spangenberg, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Under tree thinning solicitation that requested a housing plan be
   provided with the quotation, awardee's quotation stated that its workers
   would camp on-site, but did not address or indicate that it would not
   comply with the housing provisions of the Migrant and Seasonal Worker
   Protection Act, 29 U.S.C. sections 1801-1872 (2000), and was therefore not
   unacceptable; the agency did not have duty to specifically confirm prior
   to award that awardee would comply with the Act during contract
   performance.

   2. Agency may properly consider an evaluator's personal knowledge of and
   documented past experiences with a vendor in a past performance
   evaluation.

   DECISION

   John Blood protests the agency's evaluation of quotations received in
   response to solicitation No. AG-82MK-S-06-0019, issued by the Forest
   Service, United States Department of Agriculture, for tree thinning to
   protect area properties and power lines from wildfires in three units in
   the Gunnison Ranger District of the Grand Mesa, Uncompahgre and Gunnison
   National Forests in Colorado.

   We deny the protests.

   The request for quotations (RFQ), issued as a small business set-aside
   under simplified acquisition procedures, contemplated the award of a
   fixed-price order to the vendor whose quotation represented the best value
   to the government. Quotations were to be evaluated based on price, and the
   following four technical criteria listed in descending order of
   importance: technical capability, past performance, quality control plan,
   and proposed work plan and schedule; price was to be given the same
   evaluation weight as the combined weight of the technical criteria. RFQ
   sect. M.1.1. The past performance criterion states, "Includes number of
   planting contracts performed in the last three years, references and
   telephone numbers." RFQ sect. M.1.1.2. The proposed work plan and schedule
   criterion was to be "evaluated for conformance with the minimum production
   as stated in the contract. Also include plans for housing workers on the
   resulting contract." RFQ sect. M.1.1.4.

   The agency received five quotations. Mr. Blood submitted the lowest-priced
   quotation at $19,654.40 and Native Ecology's quotation of $19,717.00 was
   second low. Native Ecology's quotation was evaluated with "outstanding"
   technical capability, "acceptable" past performance, "outstanding" quality
   control plan, "acceptable" proposed work plan and schedule, and
   "outstanding" overall. Agency Report, Tab J, Consensus Rating Sheet. Mr.
   Blood's quotation was rated with "acceptable" technical capability,
   "marginal" past performance, "acceptable" quality control plan,
   "acceptable" proposed work plan and schedule, and "acceptable minus"
   overall. Agency Report, Tab H, Consensus Rating Sheet. Of the vendors'
   quotations, Native Ecology's was ranked first technically and Mr. Blood's
   was ranked fourth. Agency Report, Tab K, Purchasing Agent's Report. Based
   on the foregoing, the purchasing agent determined that Native Ecology's
   quotation represented the best value to the government. These protests
   followed.

   Mr. Blood first argues that the agency erred in evaluating the awardee's
   quotation's housing plan under the proposed work plan and schedule
   criterion.

   Section H.4 of the draft contract included in the solicitation details the
   applicable camping and worksite provisions. This section also states, "The
   contractor shall provide a general plan with the technical proposal, and
   shall provide a more specific plan based on items awarded, prior to start
   [of] work." RFQ sect. H.4.

   The work plan in Native Ecology's quotation in response to this criterion
   only stated with regard to a housing plan, "[w]orkers will camp on-site."
   Agency Report, Tab J, Native Ecology's Quotation at Work Plan. Mr. Blood's
   quotation similarly stated, "This [contractor] will camp in a self
   contained fifth wheel on site," and indicated that "[n]o `outdoor' fires
   are necessary" and that he "has never had problems complying with the
   camping rules." Agency Report, Tab H, John Blood's Quotation, at 4.

   Mr. Blood asserts that in the performance of this contract Native Ecology
   will be using migrant workers subject to the Migrant and Seasonal
   Agricultural Worker Protection Act (MSPA). 29 U.S.C. sections 1801-1872
   (2000). The draft contract includes at section H.7 "Labor Standards for
   Contracts Involving Migrant and Seasonal Agricultural Workers." Section
   H.7(d)(4) provides that migrant and seasonal agricultural workers can only
   be housed "in a commercial establishment" unless a certification has been
   obtained from the Department of Labor (DOL) allowing other housing
   arrangements. This section further states, "Within 10 days after award,
   and prior to the issuance of notice to proceed, the contractor must notify
   the contracting officer of the planned worker housing site." Mr. Blood
   asserts that Native Ecology has received no appropriate certification from
   DOL and its quotation should therefore have been considered
   unacceptable.[1]

   However, nothing in Native Ecology's quotation indicates that it will not
   comply with the MSPA. Even assuming that it intends on using covered
   workers in the performance of this contract, which neither its nor Mr.
   Blood's quotation states will be the case, the RFQ's instructions do not
   require that a vendor demonstrate compliance with the MSPA, but only that
   a general housing plan be provided. Under section H.7, any required MSPA
   housing plan and certification are only required to be provided after
   award. Thus, Native Ecology's quotation was not unacceptable and the
   agency had no duty to specifically confirm prior to award that Native
   Ecology would comply with the MSPA contract requirements. Native Ecology's
   actual compliance with section H.7 is a matter of contract administration
   not for consideration by our Office. See Sealift, Inc., B-298588, Oct. 13,
   2006, 2006 CPD para. 162 at 3.

   Mr. Blood also asserts the agency erred in evaluating his past performance
   as "marginal." He alleges that the agency improperly relied on the prior
   knowledge of an evaluator, who had inspected Mr. Blood's work on a
   previous contract, to evaluate its past performance and did not rely upon
   the contracting officer representative's report for that contract. Mr.
   Blood notes that the contracting officer representative rated Mr. Blood's
   performance as satisfactory, see Supplemental Agency Report, Tab F,
   Contractor Performance Report, and assertedly had more accurate knowledge
   of Mr. Blood's performance on that contract and recognized that incomplete
   specifications inhibited Mr. Blood's work.

   The record shows that two evaluators rated Mr. Blood's past performance
   and the consensus rating of his past performance was "marginal." One
   evaluator, who did not have personal knowledge of Mr. Blood's past
   performance, rated it as "acceptable minus" because of reported "safety
   concerns" with his "tree felling practices." Agency Report, Tab H, Rating
   Sheet Evaluator 1. The other evaluator had personal knowledge of Mr.
   Blood's past performance and rated it "marginal minus." Agency Report, Tab
   H, Rating Sheet Evaluator 2. The second evaluator explained, "[My] first
   hand knowledge of Mr. Blood differs from his bid submission. Monarch Pass
   project took additional time from original contract [specifications] and
   reworking of the units was required." Id. The second evaluator served as
   an inspector of Mr. Blood's work on the Monarch Fuels Reduction Project,
   which involved thinning and pruning, and was involved with the project on
   a regular basis. The evaluator/inspector completed 7 of the 18 daily
   diaries for the contract, all of which note dismay with Mr. Blood's work
   schedule and tree felling practices. Agency Supplemental Report, Tab E,
   Contract Daily Diaries. The evaluator/inspector in various places notes:
   "Mr. Blood's work is unacceptable," "Mr. Blood continues to slip further
   behind his schedule, " "distance that slash has been dragged ... is still
   an issue," "I mentioned the same pocket of trees that need work from our
   last visit," "[he] has not gone back to clean up." Id. The final
   inspection report completed by a different inspector found Mr. Blood's
   work to be "acceptable but by a very small margin. Less than acceptable
   areas are small enough and dispersed enough to make it more expensive to
   the [government] to continue trying to bring things up to standards." Id.
   at 2.

   The evaluation of past performance, including the agency's determination
   of the relevance and scope of the vendor's performance history to be
   considered, is a matter of agency discretion, which we will not find
   improper unless unreasonable, inconsistent with the solicitation criteria,
   or undocumented. IGIT, Inc., B-275299.2, June 23, 1997, 97-2 CPD para. 7
   at 5. If at the time the award selection is made, the contracting officer
   has no reason to question the validity of the past performance information
   furnished, he or she can rely upon this information without further
   investigation. John Blood, B-290593, Aug. 26, 2002, 2002 CPD para. 151 at
   4. In fact, an evaluator's personal knowledge of an vendor may properly be
   considered in a past performance evaluation, notwithstanding the
   protester's disagreement with this individual's conclusions, since an
   agency may rely upon its reasonable perception of inadequate past
   performance, even where the contractor disputes the agency's position. See
   MAC's Gen. Contractor, B-276755, July 24, 1997, 97-2 CPD para. 29 at 3-4;
   Omega World Travel, Inc., B-271262.2, July 25, 1996, 96-2 CPD para. 44 at
   4. Based on this record, the agency could reasonably rate Mr. Blood's past
   performance as marginal.[2]

   The protests are denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Mr. Blood asserts that although he will camp on-site, he will not camp
   his employees.

   [2] Mr. Blood also argues that its negative past performance rating
   constituted a determination of nonresponsibility of a small business that
   was required to be referred to the Small Business Administration (SBA) for
   consideration under the SBA's certificate of competency procedures.
   However, where, as here, a vendor's past performance is determined
   unsatisfactory pursuant to a best value evaluation scheme, the matter is
   one of relative technical merit, not responsibility, and does not require
   referral to the SBA. John Blood, supra, at 4 n.2.