TITLE: B-299344, J. Womack Enterprises, Inc., April 4, 2007
BNUMBER: B-299344
DATE: April 4, 2007
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B-299344, J. Womack Enterprises, Inc., April 4, 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: J. Womack Enterprises, Inc.

   File: B-299344

   Date: April 4, 2007

   Robert E. Bergman, Esq., for the protester.

   Maj. Kevin J. Wilkinson and Capt. David M. Creed, Department of the Air
   Force, 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

   Protest that agency improperly considered adverse past performance
   information in evaluating the protester's proposal is denied where the
   agency's evaluation was based on a reasonable perception of the
   protester's inadequate prior performance.

   DECISION

   J. Womack Enterprises, Inc. protests the award of contracts to RCA
   Contracting, Inc. and MAPCO, Inc. by the Department of the Air Force under
   request for proposals (RFP) No. FA8501-05-R-0008 for mechanical/electrical
   type construction projects at Robins Air Force Base (AFB), Georgia. Womack
   argues that the Air Force improperly evaluated its past performance, that
   the agency acted with bad faith due to race and gender bias, that the Air
   Force's evaluation of its past performance was tantamount to a
   determination of nonresponsibility, and that the award decision was
   improper.

   We deny the protest.[1]

   BACKGROUND

   The Air Force issued the RFP on May 2, 2006, as a set-aside for
   historically underutilized business zone (HUBZone) small businesses,
   contemplating the award of indefinite-delivery/indefinite-quantity
   contracts for mechanical and electrical type construction projects at
   Robins AFB, with a base period of 1-year plus four 1-year option
   periods.[2] The RFP provided that award would be made to the offeror whose
   proposal represented the "best value" to the government and identified two
   evaluation factors: past performance and price. Past performance was
   identified as "significantly more important than price" for the purposes
   of a tradeoff in connection with the best value determination. RFP at 38.

   With respect to the past performance factor, the RFP provided that the Air
   Force would assess an offeror's ability to successfully accomplish the
   proposed effort by evaluating the "offeror's demonstrated record of
   contract compliance in supplying products and services that meet users'
   needs." RFP at 38. Based on this assessment, the Air Force would assign
   each offeror an overall "confidence" rating of: high confidence,
   significant confidence, satisfactory confidence, unknown confidence,
   little confidence, or no confidence. RFP at 40.

   In order to evaluate past performance and assign a confidence rating, the
   RFP instructed offerors to provide "FACTS Sheets" containing information
   concerning their present and past performance history. RFP at 34.
   Specifically, offerors were required to provide "FACTS Sheets" on up to
   four contracts, either active or completed within the past 3 years, that
   the offeror had performed and which it considered to be relevant to the
   work under the RFP.[3] In evaluating offerors' performance information,
   the RFP identified the following degrees of relevance: very relevant,
   relevant, semi-relevant, and not relevant. RFP at 38. The RFP also
   required offerors to provide the same past performance information for
   "critical subcontractors" and indicated that the agency would consider the
   performance of these "critical subcontractors," as well as performance
   information pertaining to key personnel.[4] The RFP further indicated that
   in evaluating past performance the agency would consider customer past
   performance questionnaires, Contractor Performance Assessment Reporting
   System records, as well as information "obtained from other sources" and
   "the source of the information" received. RFP at 35, 38.

   With respect to price, the RFP provided that proposals would be evaluated
   for reasonableness and balance, and that a total evaluated price would be
   calculated for evaluation purposes based upon the offeror's total price
   for the base period and all option periods.

   The agency received four proposals, including the proposals from Womack
   (teamed with A-1 Mechanical/Electrical, LLC), RCA, and MAPCO, by the June
   19 due date for the receipt of initial proposals. Womack identified two
   contracts regarding its own performance; the Air Force past performance
   evaluation team (the Performance Confidence Assessment Group (PCAG)) found
   one contract to be "relevant" and the other, a contract with Valdosta
   State University (VSU) in Georgia which involved the "installation of new
   chiller and cooling tower, and supporting electrical system
   modifications," to be "very relevant." Agency Report (AR), Tab 17, PCAG
   Report, at 6.

   With respect to the "very relevant" VSU contract, the Air Force received a
   customer questionnaire rating Womack's performance as "marginal" in most
   respects and indicating that the customer would not award another contract
   to Womack. The PCAG contacted this reference who then identified numerous
   failings in connection with the contract. Among other things, he indicated
   that Womack had subcontracted all the work to "A-1 [Service Co.]," "no one
   [was] available from A-1 at the time of start-up of their new chiller
   [and] [t]hey had to get a mechanic to do the start-up," there were
   problems with paying subcontractors, the project had been "turned over to
   a bonding company," "they didn't have a mechanical contractor's license
   yet the majority of the work was mechanical," and "[t]hey cause[d] damage
   to a wall around the cooling tower and would not accept responsibility."
   AR, Tab 17, PCAG Report, at 7.

   Womack's proposal also identified contract references for its "teaming
   partner," A-1 Mechanical/Electrical, and "critical subcontractors" L&C
   Electrical Service, MBM Construction, and Hamlin Air Conditioning and
   Sheet Metal. As it relates to the protest, the Air Force received two
   customer reference questionnaires for work performed by A-1
   Mechanical/Electrical reflecting excellent ratings. These questionnaires
   had been completed by Womack's proposed subcontractor, MBM. The Air Force
   also received two questionnaires regarding a contract for HVAC repair at
   Robins AFB, which the Air Force deemed to be "very relevant"; these
   questionnaires rated A-1 Mechanical/Electrical's performance as
   satisfactory, but identified weaknesses with its "management of project
   milestones" and "number of personnel." The agency also received another
   questionnaire for a project that the agency considered "relevant," which
   rated A-1 Mechanical/Electrical's overall performance as "satisfactory."
   AR, Tab 8, Womack's Past Performance Information, at 59.

   In evaluating Womack's performance history, the agency also independently
   obtained information regarding a contract for construction of a warehouse
   addition at Robins AFB, to include mechanical and electrical work, which
   had been performed by the firm "A-1 Service Co., Inc." Specifically, the
   Air Force received a questionnaire rating A-1 Service's performance as
   "unsatisfactory" and stating that the contractor failed to return phone
   calls and failed to provide warranties or required "as-built drawings."
   The questionnaire also identified payment problems with one of the
   subcontractors.

   Upon completing an initial review of proposals, the Air Force decided to
   hold discussions with offerors and during the course of these discussions
   specifically notified Womack of the adverse past performance information
   the agency had received regarding the firm's performance of the VSU
   contract, as well as the problems identified with A-1 Service Co.'s
   performance of the warehouse addition work at Robins AFB. In response to
   the VSU contract, Womack confirmed that the work had been subcontracted to
   the firm A-1 Service, but denied the allegations of poor performance or
   problems. Womack stated that "A-1 had no problems paying their
   [subcontractors]," the project had not been "turned over to the bonding
   company," "[a]ll licenses have always been kept up to date," and "[a]ll
   damage to property was corrected." AR, Tab 11, Womack Evaluation Notices,
   at 49. Womack added that it believed the reference "was not satisfied with
   an out of town contractor being awarded this project . . . [and] tried to
   persuade Womack to use his contractor from the area." Id. at 50. With
   regard to the warehouse addition work at Robins AFB, Womack simply stated
   as follows: "This project was [an] A and E design project done by A-1
   Service [Co.], Inc. A-1 Service Co., Inc. is not a team member for this
   proposal." AR, Tab 11, Womack Evaluation Notices, at 51.

   Given Womack's denial of the concerns raised regarding the VSU contract,
   the PCAG contacted the primary point of contact identified by Womack for
   the VSU contract in order to obtain an "independent opinion" of Womack's
   performance. The individual contacted confirmed that Womack had
   subcontracted the work to A-1 Service Co. and indicated that he considered
   the project "satisfactory" in the end, but that the experience with the
   contractor led them to "rewrite[] their [p]re qualification program in an
   effort to not go [through] this experience again." AR, Tab 8, Womack's
   Past Performance Information, at 14. The person contacted further
   indicated that the "biggest problems were paperwork in general" and
   described the individual whom Womack had proposed as its senior project
   manager and chief estimator (M.W. Maddox) as a "roadblock." Id. The PCAG
   member who conducted the interview ultimately concluded that the reference
   supported the general opinion expressed in the customer
   questionnaire--that they would not want to do business with the contractor
   again. Id.

   The PCAG also examined whether consideration of the Robins AFB warehouse
   addition contract was appropriate in light of Womack's assertion that A-1
   Service had not been proposed as a member of its team. In this regard,
   based on its review of information contained in the Central Contractor
   Registration database, other government contracts, and state business
   filings, the PCAG found that G.R. "Ricky" Maddox is the Chief Executive
   Officer (CEO) of A-1 Mechanical/Electric, as well as the primary point of
   contact for government business and past performance for A-1 Service Co.;
   that M.W. "Matt" Maddox, the brother of Ricky Maddox, is the CEO and Chief
   Financial Officer of A-1 Service Co., a manager of A-1
   Mechanical/Electric, and senior project manager and chief estimator for J.
   Womack Enterprises; that A-1 Service and A-1 Mechanical/Electrical share
   the same office address; and that Ricky Maddox and J. Womack, the
   President and CEO of J. Womack Enterprises, also share the same address.
   Based on this information, the PCAG concluded that the information it had
   learned regarding the performance of A-1 Service on the Robins AFB
   contract was relevant to its evaluation of Womack's past performance and
   should be considered. AR, Tab 17, PCAG Report, at 19-20.

   Based on Womack's past performance record (considering the record of A-1
   Mechanical/Electrical and A-1 Service), the Air Force assigned Womack a
   past performance rating of "little confidence." In the Air Force's view,
   Womack's past performance information reflected some history of failing to
   pay subcontractors, to properly address warranty issues, to fulfill
   contractual requirements, and to return customer phone calls. Due to the
   various deficiencies attributed to Womack in the past performance
   information it had received, the Air Force had "substantial doubt"
   regarding Womack's ability to successfully perform the contract
   requirements. In reaching this conclusion, the Air Force gave little or no
   weight to the two excellent questionnaire ratings it had received
   regarding Womack's teaming partner, A-1 Mechanical/Electrical, since the
   questionnaires had been completed by another member of Womack's team, MBM,
   a proposed "critical subcontractor," and were, in the Air Force's view,
   potentially biased due to MBM's stake in the outcome of the
   competition.[5] AR, Tab 17, PCAG Report, at 20.

   Considering the past performance evaluations and pricing of all the
   offerors, the Air Force made its source selection decision and concluded
   that because of MAPCO's and RCA's higher past performance ratings ("high
   confidence" and "significant confidence," respectively)[6] their proposals
   represented the best value to the government, notwithstanding their higher
   prices ($25,467,450 and $25,662,050, respectively), when compared with
   Womack's lower past performance rating of "little confidence" and lower
   price ($23,164,300). AR, Tab 18, Source Selection Decision. Upon learning
   of this decision and after receiving a debriefing from the Air Force,
   Womack filed this protest.

   Past Performance

   Womack argues that the Air Force's evaluation of its past performance was
   unreasonable and fraught with bias, bad faith, and "malicious ill will."
   Comments at 6. By way of example, Womack asserts that the Air Force failed
   to consider past performance information concerning other relevant
   contracts performed either by A-1 Mechanical/Electrical or A-1 Service at
   Robins AFB which were relevant to the subject RFP. In its protest, but not
   in its proposal, Womack attached past performance information in
   connection with numerous other contracts. Womack argues that the Air
   Force's bias, bad faith, and malice are further reflected by its reliance
   on the negative past performance information regarding the VSU contract
   and the Robins AFB warehouse addition contract. In this regard, Womack
   denies the underlying concerns raised in connection with both contracts
   and maintains that such concerns had never been raised by the customer
   with Womack or A-1 Services during or after performance. With regard to
   the VSU contract, Womack specifically argues that the conclusions reached
   by the Air Force were unfounded given the information provided. Regarding
   the Robins AFB warehouse addition contract, Womack suggests that it should
   not have been downgraded based on the concerns about A-1 Service's
   performance since, as proposed here, Womack is the prime contractor and
   A-1 is "a subcontractor at the most." Comments at 3. Moreover, Womack
   argues that the Air Force acted "maliciously" in disregarding the
   excellent evaluations of A-1 Mechanical which had been completed by its
   team member, MBM.

   Where a solicitation requires the evaluation of offerors' past
   performance, we will examine an agency's evaluation only to ensure that it
   was reasonable and consistent with the solicitation's evaluation criteria
   and procurement statutes and regulations, since determining the relative
   merits of offerors' past performance information is primarily a matter
   within the contracting agency's discretion. The MIL Corp., B-297508,
   B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 10; Hanley Indus., Inc.,
   B-295318, Feb. 2, 2005, 2005 CPD para. 20 at 4. In this regard, an
   agency's past performance evaluation may be based on a reasonable
   perception of inadequate prior performance, regardless of whether the
   contractor disputes the agency's interpretation of the underlying facts,
   Ready Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001 CPD para.
   90 at 5, and the protester's mere disagreement with the agency's judgment
   is not sufficient to establish that the agency acted unreasonably.
   Birdwell Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD
   para. 129 at 5. Here, our review of the record establishes that the
   agency's evaluation of Womack's past performance was reasonable and
   consistent with the RFP's evaluation terms.

   As an initial matter, Womack argues that in evaluating its past
   performance, the Air Force unreasonably failed to consider other positive
   indications of its past performance. However, the information was not
   considered because it was included only in Womack's protest, not in
   Womack's proposal. In any event, much of the information provided by
   Womack in its protest was not eligible for consideration since it either
   was beyond the 3-year window of consideration or not relevant; further, in
   some instances, the information reflects "marginal" ratings for Womack's
   performance and, thus, actually supports the agency's rating. CO Statement
   at 10-12.

   Womack also challenges the validity of the underlying adverse past
   performance information which led to its rating of "little confidence";
   Womack essentially denies the accuracy of the allegations.[7] However,
   with respect to the information concerning A-1 Service's performance of
   the Robins AFB warehouse addition contract, Womack did not dispute the
   accuracy of the information when the Air Force raised the issues with
   Womack during discussions. Rather, Womack simply noted that A-1 Service
   was not a member of its proposed team, thereby suggesting that the
   information was not relevant to the agency's evaluation of its proposal.
   Upon further investigation, however, the Air Force determined that A-1
   Service's performance should be attributed to Womack given the close
   affiliation and the overlapping key personnel between A-1 Service, Womack,
   and its teaming partner, A-1 Mechanical/Electrical. Womack has not
   disputed the reasonableness of the agency's determination in this regard;
   in fact, the firm corroborates the agency's conclusions regarding
   affiliation and relationship of the companies in its protest
   submissions.[8] Since the allegations were not rebutted by Womack, we
   conclude that the agency reasonably considered these allegations as
   accurate in evaluating Womack's past performance.

   Womack did challenge the validity of the adverse information regarding its
   performance of the VSU contract in its response to the discussion
   questions raised by the Air Force. Given the conflicting views, the Air
   Force conducted an interview with another individual to obtain yet another
   assessment of Womack's performance, which in the agency's view
   corroborated the negative evaluation of Womack's performance and the
   conclusion that the customer would not award Womack another contract.
   Womack argues that the interview information does not support the initial
   negative assessments of A-1 Service's performance, nor does it support the
   conclusion that the customer would not award Womack another contract.
   While the interview information may not support every detail of the
   initial evaluation, which the agency received, the overall tenor of the
   information does support the assessment of Womack's performance as
   "marginal." In this regard, the interview contact noted paperwork,
   communication, and performance problems under the contract. In addition,
   the contact specifically indicated that the customer had implemented
   changes to its contractor prequalification process so that it would not
   repeat the experience it had with Womack, reasonably leading the agency to
   conclude that the customer was not satisfied with Womack's performance and
   would not do business with the firm again. Thus, notwithstanding Womack's
   contentions to the contrary, we believe the record shows that the agency
   acted reasonably in its assessment of Womack's performance of the VSU
   contract.

   We also conclude that the agency acted reasonably by not crediting Womack
   with the positive past performance questionnaires completed by MBM
   regarding the performance of A-1 Mechanical/Electrical. The Federal
   Acquisition Regulation (FAR) sect. 15.305(a)(2)(i), provides that, in
   evaluating past performance information, the "source of the information"
   shall be considered. Moreover, the RFP expressly stated that the Air Force
   would consider the "source" of the past performance information received.
   RFP at 38. Consistent with this notion, the Air Force reasonably
   questioned the validity of the responses, given MBM's role on Womack's
   team as a "critical subcontractor" with an obvious stake in the outcome of
   the competition.

   Regarding Womack's allegations that the Air Force's evaluations were
   motivated by bias and bad faith, we find these allegations to be
   unfounded. Government officials are presumed to act in good faith, and a
   protester's claim that contracting officials were motivated by bias or bad
   faith must be supported by convincing proof; our Office will not attribute
   unfair or prejudicial motives to procurement officials on the basis of
   inference or supposition. Shinwa Elecs., B-290603 et al., Sept. 3, 2002,
   2002 CPD para. 154 at 5 n.6. Here, the protester has provided no evidence
   of bad faith; rather, it draws an inference from a series of facts to
   support its allegations and essentially asks that we assume bad faith.[9]
   The protester's conclusion that these actions demonstrate bad faith
   constitutes speculation, and is insufficient to support a finding of bad
   faith. As discussed above, our review of the record shows that the
   agency's evaluation of the protester's past performance was reasonable and
   supported by the record.

   Responsibility

   Womack also argues that by its evaluation, the Air Force essentially found
   the firm nonresponsible, and by implication, the matter should have been
   referred to the Small Business Administration (SBA) for review under the
   certificate of competency program. See Federal Acquisition Regulation
   sect. 19.602-1(a). This argument is without merit. An agency may use
   traditional responsibility factors, such as past performance, as technical
   evaluation factors where, as here, a comparative evaluation of those areas
   is to be performed. Advanced Res. Int'l, Inc.--Recon., B-249679.2, Apr.
   29, 1993, 93-1 CPD para. 348 at 2. A comparative evaluation means that
   competing proposals will be rated on a scale relative to each other,
   rather than on a pass/fail basis. Dynamic Aviation--Helicopters, B-274122,
   Nov. 1, 1996, 96-2 CPD para. 166 at 3. No SBA referral is required where a
   small business offeror's proposal is not evaluated as unacceptable and is
   not selected for award because another offeror's proposal is evaluated as
   superior under a comparative analysis or because of a cost/technical
   tradeoff analysis. Capitol CREAG LLC, B-294958.4, Jan. 31, 2005, 2005 CPD
   para. 31 at 6-8. Here, the assessment of Womack's past performance was
   part of a comparative, best value evaluation, not a responsibility
   determination, and Womack's past performance was not evaluated as
   unacceptable. Accordingly, no referral to SBA was required.

   Tradeoff

   As a final matter, Womack objects to the Air Force's tradeoff decision,
   arguing that it did not make award to the responsible firm with the lowest
   price. Where, as here, the RFP allows for a price/technical tradeoff, the
   selection official has discretion to select a higher-priced but
   technically higher-rated proposal, if doing so is reasonably found to be
   justified. 4-D Neuroimaging, B-286155.2, B-286155.3, Oct. 10, 2001, 2001
   CPD para. 183 at 10. The RFP provided that past performance was
   significantly more important than price, and consistent with the RFP, the
   Air Force made award to firms with higher past performance ratings as
   compared to Womack, notwithstanding Womack's lower price. We have no basis
   to question the Air Force's decision in this regard.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The GAO attorney handling the case conducted an "outcome prediction"
   alternative dispute resolution (ADR) conference with the parties, advising
   them that the protest was likely to be denied for the reasons set forth in
   this decision. The protester informed our Office that it did not intend to
   withdraw its protest based on this ADR session, but would rather obtain a
   written decision on the merits of its case.

   [2] The RFP provided for multiple awards and the agency explains that the
   work will be issued on a task order basis with the task orders competed
   among the awardees. RFP at 38; Contracting Officer's (CO) Statement at 1.

   [3] Offerors were further required to provide a spreadsheet listing all
   the contracts they were performing or had performed within the last 3
   years. RFP at 35.

   [4] "[C]ritical subcontractor" was defined as "an entity (subcontractor,
   teaming contractor and/or joint venture partner), other than the offeror
   itself, that will perform specific technical aspect(s) . . . that you
   consider critical to program success." RFP at 38.

   [5] In evaluating Womack's past performance, the Air Force found that
   Womack's other critical subcontractors, MBM, L&C Electrical Service, and
   Hamlin Air Conditioning and Sheet Metal, had very good to excellent past
   performance. AR, Tab 17, PCAG Report, at 20. The Air Force concluded,
   however, that the portion of the contract work proposed to be performed by
   these subcontractors was relatively small; thus, their ratings were not
   sufficient to overcome the Air Force's concerns about Womack's performance
   history in the aggregate. Id.

   [6] The record indicates that the Air Force did not receive any adverse
   past performance information regarding the awardees. AR, Tab 18, Source
   Selection Decision Document, at 4.

   [7] In its report, the agency provided several contemporaneous contracting
   documents supporting the comments included in the questionnaire. For
   example, the agency included a memorandum by the contracting office
   detailing problems with A-1 Service making subcontractor payments,
   providing warranties, addressing problems raised, and returning phone
   calls. AR, Tab 8, Womack's Past Performance Information, at 5-8.

   [8] For example, in its protest, Womack highlights the performance ratings
   of several contracts performed by A-1 Service, which it contends supports
   the notion that it should have received a past performance rating of
   "satisfactory confidence." Protest at 9 and attachments.

   [9] For example, Womack argues that the Air Force's bad faith is evidenced
   by its decision not to credit Womack with the positive past performance
   questionnaires completed by MBM, a decision that we conclude was
   reasonable, as noted above, given MBM's stake in the outcome of the
   competition.