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.