TITLE: B-298872.3, Frontier Systems Integrators, LLC, February 28, 2007
BNUMBER: B-298872.3
DATE: February 28, 2007
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B-298872.3, Frontier Systems Integrators, LLC, February 28, 2007

   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: Frontier Systems Integrators, LLC

   File: B-298872.3

   Date: February 28, 2007

   T. Michael Guiffre, Esq., James N. Schwarz, Esq., and Elizabeth M. Gill,
   Esq., Patton Boggs LLP, for the protester.

   David B. Dempsey, Esq., Kristen E. Ittig, Esq., David J. Craig, Esq., and
   Stuart W. Turner, Esq., Holland & Knight LLP, for Chenega Security and
   Protection Services, LLC, an intervenor.

   Damon Martin, Esq., and David Nimmich, Esq., Naval Facilities Engineering
   Command, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Agency reasonably decided not to attribute to the awardee the past
   performance information of its parent company where awardee's proposal
   indicated that parent's role was limited to providing administrative
   support functions and reflected that it would have no role in performing
   the actual security guard functions required by the agency.

   2. Protest that awardee's proposal should have been rated "unacceptable"
   for failing to comply with solicitation requirement that offerors submit
   "at least" three relevant past performance questionnaires is denied where
   past performance was evaluated according to a pass/fail evaluation scheme
   and was therefore ultimately a matter of responsibility and the protester
   did not challenge the agency's affirmative determination of responsibility
   with respect to the awardee.

   DECISION

   Frontier Systems Integrators, LLC protests the award of a contract to
   Chenega Security and Protection Services, LLC (CSPS) under request for
   proposals (RFP) No. N40085-06-R-1126, issued by the Department of the
   Navy, Naval Facilities Engineering Command, for security guard services.
   Frontier argues that the Navy improperly evaluated CSPS's proposal.

   We deny the protest.

   The RFP, issued as a competitive set-aside under section 8(a) of the Small
   Business Act, contemplated the award of a "combination firm-fixed
   price/indefinite quantity contract" for security guard and patrol services
   at the Naval Station Newport Complex, Newport, Rhode Island, with a 1-year
   base period of performance and four 1-year options.

   As amended, the RFP provided that "[t]he Government will select the lowest
   price technically acceptable offer whose proposed approach provides a high
   degree of confidence that the contractor is capable of meeting or
   exceeding the performance objectives and standards at a realistic and
   reasonable cost to the Government." RFP at 55. Technical acceptability was
   to be determined with respect to three technical evaluation factors: (1)
   technical approach/management; (2) corporate experience; and (3) past
   performance.[1] As it relates to the protest issues raised, the corporate
   experience factor provided as follows:

     Offerors shall provide information on a maximum of twenty (20)
     guard/security services contracts completed within the past five years,
     including current (on-going) contracts. Contracts must be similar in
     size, scope, and complexity as the current requirement. Include a short
     description, contract number, title, location, and a list of clients and
     points of contact on individual contracts with accurate telephone
     numbers. Offerors may include past experience information regarding
     predecessor companies and key personnel who have relevant experience.

   RFP at 57.

   The past performance factor provided as follows:

     Offerors shall clearly demonstrate a history of performance on contracts
     of similar scope, size, and complexity to this requirement. The
     Government will consider any 1) information supplied by the offeror, 2)
     information obtained by references provided by the offeror, 3) other
     relevant past performance and experience obtained from other sources and
     date bases known to the Government. The Government will use this
     information to determine if the record indicates accomplishing
     performance objectives, any problems and corrective actions taken on
     prior contracts, standards of good workmanship, foreseeing and
     controlling costs, adhering to schedules, a reputation for reasonable
     behavior, and generally a business-like concern to the customer's
     interest.

     Offerors shall be responsible for ensuring that the references submit
     completed questionnaires of at least three similar projects performed
     within the last five years.

   RFP at 57.

   By the RFP's closing date, the Navy had received several proposals,
   including those from CSPS and Frontier. The Navy initially rated CSPS as
   unacceptable under the past performance factor because none of CSPS'
   references returned their past performance questionnaires and the agency,
   therefore, did not have any past performance information for CSPS. As a
   consequence, Frontier was determined to have submitted the lowest priced
   technically acceptable proposal.[2]

   On September 14, the Navy notified all offerors that Frontier had been
   selected for award. Subsequently, however, the Navy concluded that it had
   erred in evaluating CSPS as unacceptable under the past performance factor
   and determined that CSPS should have received a "neutral" rating under
   this factor instead. With a "neutral" rating, CSPS became the lowest
   priced technically acceptable offeror, and the Navy notified Frontier that
   CSPS would receive the award.

   Upon learning of the agency's revised award decision, Frontier filed a
   protest with our Office. In response to Frontier's protest, the Navy
   represented that it intended to reevaluate proposals and make a new award
   decision. Based on the agency's representations, we dismissed the protest
   as academic.

   In its reevaluation, the Navy rated CSPS as acceptable under all of the
   technical evaluation factors. With regard to the corporate experience
   factor, the Navy concluded that CSPS did not itself have any relevant
   experience and declined to attribute to CSPS, the experience of its parent
   company, Chenega Corporation, which CSPS had indicated in its proposal
   would play a role in its performance of the contract. The agency decided
   not to attribute Chenega's experience to CSPS because Chenega was going to
   perform a limited administrative role in performance of the prospective
   contract, specifically, accounting, payroll support, and certain quality
   control certification functions. Agency Report (AR) at 8; AR, exh. 14,
   Second Source Selection Board Report at 4-5. In rating CSPS as acceptable
   under the corporate experience factor, the Navy did, however, consider the
   experience of CSPS' proposed key personnel and major subcontractor,
   Wackenhut Services, Inc., which was to provide 49 percent of the direct
   labor costs under the contract. AR at 11; AR, exh. 14, supra. In its
   proposal, CSPS detailed the experience of its three top corporate officers
   as well as the experience of Wackenhut, and the Navy concluded that CSPS'
   key personnel and Wackenhut had extensive experience in the security field
   with contracts of similar or greater size, scope, and complexity as
   compared to the prospective contract. Id.

   The Navy also did not attribute information concerning Chenega to CSPS in
   its evaluation of CSPS' past performance, and determined that CSPS did not
   have any relevant past performance of its own. However, the Navy did
   receive four past performance questionnaires regarding Wackenhut's past
   performance and found two of the four to be relevant. Based on these two
   questionnaires for Wackenhut, which reflected excellent past performance
   ratings, the Navy revised its prior "neutral" past performance rating for
   CSPS to a rating of "acceptable." Because CSPS had submitted the lowest
   priced technically acceptable proposal, the Navy affirmed its prior award
   decision to CSPS. This protest followed.

   Frontier maintains that CSPS should have been rated as unacceptable under
   the past performance factor. According to Frontier, because CSPS relied on
   its parent corporation, Chenega, to establish its corporate experience and
   past performance, it was improper for the agency to disregard "a wealth of
   information in the public record concerning [Chenega's] poor performance
   on substantially similar contracts." Protest at 9. Assuming that the
   agency reasonably did not impute Chenega's information to CSPS, Frontier
   argues in the alternative that CSPS could not have been found acceptable
   under the past performance factor because the Navy received and considered
   only two relevant past performance questionnaires, not three as required
   by the RFP.

   As an initial matter, even assuming that the Navy acted improperly in
   deciding not to consider information relating to CSPS' parent corporation,
   Chenega, in its evaluation of CSPS' past performance, Frontier has failed
   to provide any evidence to suggest that had the Navy considered Chenega's
   past performance, CSPS would have received a rating of "unacceptable"
   under the past performance factor. Rather, Frontier simply relies on its
   bald assertion that there is a "wealth" of public information concerning
   Chenega's poor performance on similar contracts, which would have led to a
   rating of unacceptable. Such unexplained, unsupported, and undocumented
   assertions fail to provide sufficient evidence for a finding by our Office
   that the Navy's evaluation was materially and prejudicially unreasonable
   or inconsistent with procurement laws or regulations. See 4 C.F.R.
   sections 21.1(c)(4) and (f) (2006); Bella Vista Landscaping, Inc.,
   B-291310, Dec. 16, 2002, 2002 CPD para. 217 at 5 n.4.

   In any event, we see nothing improper in the Navy's decision not to
   consider the past performance information of CSPS' parent corporation in
   its evaluation of CSPS's past performance. An agency may attribute the
   experience or past performance of a parent or affiliated company to an
   offeror where the firm's proposal demonstrates that the resources of the
   parent or affiliate will affect the performance of the offeror.
   Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at
   4. The relevant consideration is whether the resources of the parent or
   affiliated company--its workforce, management, facilities, or other
   resources--will be provided or relied upon for contract performance, such
   that the parent or affiliate will have meaningful involvement in contract
   performance. Id. at 5.

   In challenging the agency's decision not to attribute the past performance
   information of CSPS' parent company, Chenega, Frontier points to numerous
   sections of CSPS' proposal referencing the experience and capabilities of
   Chenega. Frontier also highlights the fact that the relevant experience of
   CSPS' key employees involved work they had performed on behalf of Chenega,
   as well as the fact that CSPS intended to rely on a personnel database
   maintained by Chenega for recruiting purposes.[3] When taken together,
   Frontier contends that CSPS' proposal shows that Chenega will maintain a
   significant role in performing the required guard and security services
   contract. CSPS' proposal, however, clearly identified Chenega's role under
   the contract as limited to providing support type functions, i.e.,
   accounting, invoicing, payroll, and quality control certification, and
   clearly explained that CSPS and Wackenhut personnel were to manage and
   perform all of the required guard and security services. CSPS Proposal at
   39. Based on these clear and unequivocal representations in CSPS's
   proposal, the Navy reasonably determined that Chenega would not have a
   meaningful role in performing the primary services required by the agency
   and therefore acted properly in not attributing to CSPC the experience or
   past performance history of its parent corporation.

   Frontier also argues that CSPS should have received a rating of
   "unacceptable" under the past performance factor because CSPS provided
   only two past performance questionnaires, not three as Frontier contends
   was required by the RFP. In support of its argument, Frontier points to
   the section of the RFP stating that offerors were responsible for ensuring
   that the agency receive completed past performance questionnaires for "at
   least three similar projects performed within the last five years." RFP at
   57. The record reflects that, while the agency found that CSPS had no
   record of past performance itself, the Navy received four past performance
   questionnaires concerning CSPS' major subcontractor, Wackenhut, and found
   two of the four to be relevant. AR, exh. 14, Second Source Selection Board
   Report, at 5. Based on these two references regarding Wackenhut's past
   performance, which reflected excellent ratings, the Navy rated CSPS' past
   performance as "acceptable."

   The Navy does not challenge the assertion that it received only two
   relevant past performance questionnaires when it evaluated CSPS as
   acceptable under the past performance factor; rather, the Navy contends
   that the solicitation requirement for three relevant questionnaires was
   not a material requirement since it did not affect the price, quantity,
   quality, or delivery of the services required and, as a consequence, CSPS'
   failure to provide three relevant past performance questionnaires did not
   compel a past performance rating of "unacceptable." In this regard, the
   Navy notes that the questionnaires were merely one tool with which to
   assess an offeror's past performance. The Navy also contends that failing
   to provide the requisite number of relevant questionnaires at most should
   result in CSPS receiving a past performance rating of "neutral," since,
   under Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iv), an
   offeror without a record of past performance, or for whom past performance
   information is not available, may not be rated favorably or unfavorably.
   Thus, with its neutral rating, CSPS would still have been the awardee.

   We conclude that the informational defect alleged by Frontier concerning
   CSPS' past performance does not, by itself, provide a basis for sustaining
   Frontier's protest, since, as discussed below, the agency's acceptability
   determination with respect to CSPS' past performance was ultimately a
   matter of CSPS' responsibility. As a consequence, the Navy retained the
   discretion to find CSPS' past performance acceptable, notwithstanding the
   language in the RFP concerning the number of questionnaires offerors were
   to submit as part of their past performance evaluation.

   Where an agency utilizes a lowest price technically acceptable source
   selection process, the FAR provides that past performance need not be an
   evaluation factor at all. However, when it is included, it cannot be
   utilized for the purpose of making a "comparative assessment"; rather,
   past performance is to be determined solely on a pass/fail basis. FAR
   sect. 15.101-2. Our Office has long held that pass/fail evaluations of
   capability issues, such as past performance, are tantamount to
   responsibility determinations, with the result that a rating of
   "unacceptable" in these areas is the same as a determination of
   nonresponsibility. See, e.g., Phil Howry Co., B-291402.3, B-291402.4, Feb.
   6, 2003, 2003 CPD para. 33. Consistent with this premise, in the context
   of a lowest price technically acceptable evaluation scheme, where the
   contracting officer determines that a small business' past performance is
   not acceptable, "the matter shall be referred to the Small Business
   Administration for a Certificate of Competency determination."[4] FAR
   sect. 15.101-2(b)(1).

   By including past performance as an evaluation factor in the RFP's lowest
   price technically acceptable evaluation scheme here, the Navy essentially
   carved out one element of a responsibility determination and utilized it
   as an evaluation factor in this set-aside. This, however, did not alter
   the fact that the pass/fail past performance evaluation in this context
   remained a matter of responsibility since, if the Navy had found CSPS'
   past performance "unacceptable," it would have been required to submit
   that determination to the Small Business Administration for a certificate
   of competency (COC) review. Since past performance ultimately is a matter
   of responsibility, the agency could look beyond an offeror's compliance
   with the informational requirements set forth in the RFP, and therefore
   retained the discretion to find CSPS' past performance acceptable despite
   CSPS' failure to submit three past performance questionnaires. Because
   Frontier has not in any way challenged the Navy's affirmative
   determination of responsibility with respect to CSPS, but instead only
   challenged CSPS' failure to comply with the informational requirements
   under the past performance evaluation factor, there is no basis for our
   Office to conclude that the award to CSPS was improper.

   Citing our decisions in Prudent Techs., Inc., B-297425, Jan. 5, 2006, 2006
   CPD para. 16 and Menendez-Donnell & Assocs., B-286599, Jan. 16, 2001, 2001
   CPD para. 15 at 3 n.1, Frontier suggests that CSPS' past performance
   evaluation was not a matter of responsibility but rather a question of
   technical acceptability and, as a consequence, the Navy would not have
   been required to refer CSPS to SBA for a COC review. Prudent Techs., Inc.
   and Menendez-Donnell & Assocs. are distinguishable, however, since, unlike
   the case at hand, the protesters in those cases disregarded the
   solicitation regarding the submission of specific information required by
   the agency for the purpose of evaluating experience or past performance
   and, based on this failure, their proposals were found to be technically
   unacceptable. In these cases, the agency did not have any basis to assess
   or judge the protesters' capabilities because of their failure to comply
   with solicitation requirements. Here, in contrast to the cited cases where
   the protesters did not submit the required information, CSPS made an
   effort to comply with all of the RFP's informational requirements, and in
   fact submitted four past performance questionnaires. It was only as a
   result of the Navy's assessment of the information provided by CSPS that
   CSPS was deemed to have submitted only two "relevant" questionnaires.
   Notwithstanding this conclusion, however, the Navy determined that CSPS
   was capable of performing the work and its past performance acceptable--a
   determination ultimately regarding CSPS' responsibility.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The RFP also indicated that the technical factors were of equal weight
   and that when combined they were equal in weight to price. RFP at 55.
   Including information concerning the relative "weights" of the evaluation
   factors suggested that the agency intended to perform a price/technical
   tradeoff in selecting the awardee and was therefore inconsistent with the
   language in the RFP indicating that award was to be made to the lowest
   priced technically acceptable offer. This apparent inconsistency, however,
   was never challenged and the record demonstrates that the agency did not
   conduct a tradeoff but rather made award to the lowest priced technically
   acceptable offeror.

   [2] Frontier's price was $26,171,375.07 and CSPS' price was
   $25,430,927.67.

   [3] Frontier also asserts that the workforce proposed by CSPS will
   actually be employees of Chenega, relying on two phrases in CSPS' proposal
   concerning supervision of Chenega and Wackenhut employees. Those phrases
   are taken out of context and fail to establish that Chenega will be the
   actual employer.

   [4] As an aside, at least in the context of set-asides for small business
   concerns, we question the purpose of including past performance as a
   separate evaluation factor where a pass/fail rating scheme is utilized
   since the past performance evaluation is ultimately reduced to a matter of
   the firm's responsibility. This is particularly so given the difficulties
   associated with how to consider a "neutral" rating in the context of a
   pass/fail evaluation, which, as noted above, is the rating required for
   firms without any past performance record or where the record is not
   available. FAR sect. 15.305(a)(2)(iv).