TITLE: B-299599, Beck's Spray Service, Inc., June 18, 2007
BNUMBER: B-299599
DATE: June 18, 2007
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B-299599, Beck's Spray Service, Inc., June 18, 2007

   Decision

   Matter of: Beck's Spray Service, Inc.

   File: B-299599

   Date: June 18, 2007

   Gregory M. Beck for the protester.

   Rod Thomas, for Thomas Helicopters, Inc., an intervenor.

   Sherry Kinland Kaswell, Esq., and Alton E. Woods, Esq., Department of the
   Interior, for the agency.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Evaluation of protester's technical proposal, resulting in score of
   less than half the available points, was unobjectionable where proposal
   lacked information on prior experience with required navigation system and
   ground operations, most past performance references were of limited
   relevance, and single responding reference stated it would hire offeror
   again "with hesitation."

   2. Where solicitation provided for comparative evaluation and identified
   experience and past performance as technical evaluation factors, and
   agency in fact evaluated proposals on comparative basis, agency's
   downgrading of protester's proposal under identified factors did not
   constitute nonresponsibility determination, and thus was not subject to
   regulations applicable to such determinations.

   DECISION

   Beck's Spray Service, Inc. protests the award of a contract to Thomas
   Helicopters, Inc. under request for proposals (RFP) No. NAR070059, issued
   by the Department of the Interior, Bureau of Land Management (BLM), for
   aerial spraying of herbicide. Beck's challenges the evaluation of its
   proposal and the source selection.

   We deny the protest.

   The RFP sought proposals for all labor, equipment, tools, materials,
   supervision, supplies, and incidentals for aerial spraying of
   government-furnished herbicide on approximately 28,472 acres of land
   located in and around BLM's Boise, Idaho field office. Award was to be
   made on a "best value" basis, with proposals evaluated under three
   factors--experience/technical capability, past performance, and price. The
   non-price factors, combined, were significantly more important than price.

   Three firms submitted proposals, including Beck's and Thomas, and all
   three were considered acceptable. Beck's proposal offered the lowest
   price, but received the lowest technical score based on its submission of
   abbreviated experience information and its limited past performance with
   herbicide applications. Thomas's proposal offered the second-lowest price
   and received the highest technical score based on its high degree of
   experience and highly favorable past performance recommendation. The
   contracting officer selected Thomas's proposal as the best value based on
   her determination that its technical advantage over Beck's (and the other
   offeror's) proposal more than justified its higher price. After receiving
   a debriefing, Beck's filed this protest.

   Beck's asserts that the technical evaluation was flawed under the
   experience and past performance factors. In the protester's view, the
   agency failed to recognize its long flying experience, including global
   positioning system (GPS) experience, and its good past performance record.
   In considering a protest of an agency's proposal evaluation, our review is
   confined to determining whether the evaluation was reasonable and
   consistent with the terms of the solicitation and applicable statutes and
   regulations. United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD
   para. 75 at 10-11. The evaluation here was unobjectionable.

   EXPERIENCE

   Under the experience factor, offerors were required to address: their
   experience and knowledge of their differentially corrected GPS (DGPS)
   guidance system, including where and for whom the system was used; the
   applicator's actual experience and company experience with forestry,
   rangeland, and chemical applications in agricultural projects; method of
   distribution; experience with equipment used on the project; work crew
   experience; experience with remote locations in difficult terrain; and
   safety and spill containment equipment. Regarding the DGPS system, the
   agency states that it is important to performance because it provides both
   a documented record of the herbicide application and proof of coverage for
   contract payment purposes. In the agency's view, use of the DGPS requires
   experience, and knowledge of the system is "paramount" to making it
   function properly.[1] Supplemental Agency Report at 1.

   The agency downgraded Beck's proposal--it received 19 of the 45 available
   points--for failure to satisfactorily address the elements listed above.
   In this regard, Beck's proposal indicated long-term experience in spray
   operations, but its narrative of required information was very brief,
   covering only 1 1/2 pages. Thus, for example, although Beck's proposal
   indicated extensive herbicide spraying experience in three states, it
   provided little information on its method of distribution; no information
   on spraying in remote locations and/or difficult terrain; was silent with
   regard to safety and spill containment equipment; and failed to mention
   its work crew or work crew experience. Further, while Beck's proposal
   mentioned extensive flying and mapping experience with a GPS, it also
   indicated that it was new to the DGPS, having purchased it in December
   before submitting its proposal in February, and identified only one aerial
   seeding job using the system. An offeror has the burden of submitting an
   adequately written proposal and runs the risk that its proposal will be
   evaluated unfavorably where it fails to do so. Carlson Wagonlit Travel,
   B-287016, Mar. 6, 2001, 2001 CPD para. 49 at 3, 6. Since Beck's proposal
   failed to provide all of the information required by the RFP, and since
   Beck's lacked DGPS experience, there is no basis for us to object to the
   agency's downgrading the firm's proposal under the experience factor.

   PAST PERFORMANCE

   Under the past performance factor, offerors were required to list
   references for contracts and subcontracts for similar services completed
   in the past 5 years, as well as for current contracts and subcontracts.
   For each reference, offerors were required to identify the name of the
   contracting activity, contract type, total contract value and work, as
   well as contact information. Beck's listed 10 references, including
   itself, but failed to list the contract type and value for any of them,
   which, the agency found, made it difficult to evaluate the size, scope,
   and difficulty of each project. Source Selection Statement at 3. The
   evaluators contacted two of Beck's references for BLM herbicide contracts,
   under which Beck's was a subcontractor. The agency reports that one
   reference did not return a voicemail message. The second reference was
   unable to provide information on Beck's ground operations because Beck's
   had used the prime contractor's ground crew rather than its own; stated
   that Beck's had not used DGPS on the contract and had trouble with the
   swath width as a result; and stated that it would hire Beck's again, but
   "with hesitation." Source Selection Statement at 2. The evaluators
   concluded that Beck's list of prior contracts failed to provide adequate
   information showing that the projects were similar to the one here and
   that Beck's had the necessary expertise, experience, or qualifications to
   perform. Based on this lack of information, the limited relevance of most
   of Beck's references, and the single responding reference's qualified
   endorsement of Beck's performance, the agency assigned Beck's proposal
   only 18 of the 35 available points under the past performance factor.
   Since the record confirms the presence of these deficiencies in Beck's
   proposal, we have no basis to question the evaluation in this area.

   Beck's asserts that the agency should have contacted more of its
   references. However, unless the solicitation specifies otherwise, there is
   no legal requirement that all, or any specific number, of listed
   references be included in a review of past performance. Advanced Data
   Concepts, Inc., B-277801.4, June 1, 1998, 98-1 CPD para. 145 at 10.
   Further, an agency is only required to make a reasonable effort to contact
   an offeror's references and, where it is unable to contact some
   references, it properly may evaluate the offeror based on the references
   received. See Universal Bldg. Maint., B-282456, July 15, 1999, 99-2 CPD
   para. 32 at 8 n.1. Most of Beck's references were not contacted because
   either Beck's proposal only identified the prime contractor, and not the
   customer; the referenced contracts were viewed as not relevant because
   they concerned seeding work instead of herbicide application; and/or the
   referenced contracts predated Beck's recent acquisition of a DGPS system.
   We find nothing unreasonable in the agency's judgment regarding the
   contacting of Beck's references. Moreover, in view of the limited
   relevance and lack of customer information for the majority of Beck's
   references, there is no reason to believe that contacting those references
   would have provided more favorable past performance information. We note,
   furthermore, that it appears the agency treated all offerors equally; it
   successfully obtained past performance information from one reference for
   each offeror.[2]

   NONRESPONSIBILITY

   Beck's argues that the agency's downgrading its proposal based on
   experience and past performance was tantamount to a nonresponsibility
   determination, and violated Federal Acquisition Regulation (FAR)
   sections 9.104-1(c) and 9.105-1(a)(b), which outline standards and
   information necessary for making responsibility determinations. In
   particular, Beck's notes the evaluation panel's finding that its price was
   50 percent below the government estimate, and its inference that Beck's
   did not understand the scope and complexity of the project.

   This argument is without merit. The agency denies making a determination
   that Beck's is not responsible, and the record does not reflect any such
   determination. Contracting Officer's Statement at 6. Rather, the agency
   downgraded Beck's proposal under the experience and past performance
   evaluation factors pursuant to its best value determination. In this
   regard, an agency properly may incorporate traditional responsibility
   factors--such as experience and past performance--into a proposal 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, Nov. 1, 1996, 96-2 CPD para. 166 at 3. The agency
   ultimately found that Thomas's proposal was technically superior to
   Beck's, and that this advantage outweighed Beck's lower price.[3] The
   evaluators' observations that Beck's proposal deficiencies indicated a
   lack of understanding were legitimately related to the evaluation under
   the technical capability factor, and did not constitute a
   nonresponsibility determination.[4]

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] The evaluation panel noted that use of the DGPS also was connected to
   liability issues and referred to significant litigation (not involving
   Beck) pending in Idaho over alleged improper application of another
   chemical treatment. In its comments, Beck's asserts that this criticism is
   improper because the problems in Idaho were attributable to herbicide
   application under improper conditions, not the failure to use DGPS.
   Initial Comments at 2-3. The agency responds that the pending litigation
   is an example of why it is important to require accurate application and
   documentation of chemical spray contracts. Supplemental Agency Report at
   2. Regardless of the ultimate cause of the improper application, the
   agency reasonably downgraded Beck's proposal for failure to provide
   information demonstrating DGPS experience, as specifically required by the
   RFP.

   [2] Beck's asserts that it was treated disparately because the evaluation
   report indicated that more than one reference was used in evaluating the
   awardee's past performance. The agency explains that the report contained
   a typographical error, and that it in fact used only one reference for the
   awardee.

   [3] Beck's asserts that the quickness of the evaluation (3 days), use of a
   single past performance reference, reliance on offerors' asserted
   competence and honesty, and Thomas's higher price together indicated a
   "conflict of interest" in the government-contractor relationship. We fail
   to see how any of these considerations evidences an impermissible
   conflict. For example, neither the quick review of proposals for
   relatively small projects, nor the consideration of offeror
   representations as to experience is unusual in federal procurements.

   [4] We note that, even though the agency questioned the protester's
   understanding based on its below-estimate price, it received the maximum
   evaluation credit (20 points) for price.