TITLE:  Mack Mechanical, Inc., B-304715, April 27, 2005
BNUMBER:  B-304715
DATE:  April 27, 2005
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   Decision

   Matter of:  Mack Mechanical, Inc. 

   File:  B-294658.2 

   Date:  April 27, 2005 

   Amanda Brantley for the protester.

   Mark G. Garrett, Esq., United States Department of Agriculture, for the
agency.

   Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency's evaluation and source selection decision were flawed
is denied where record shows that the agency's evaluation and source
selection decision were reasonable and consistent with the solicitation's
evaluation factors. 

   DECISION

   Mack Mechanical, Inc. (MMI) protests the award of a contract to Lewis &
Associates Construction Co., Inc. under request for proposals (RFP) No.
SAZ-01-04-25, issued by the United States Department of Agriculture,
Forest Service, for the Open Pond Rehabilitation Project at recreational
campsites in the Conecuh National Forest. MMI primarily objects to the
agency's evaluation of proposals and the source selection decision. 

   We deny the protest. 

   The RFP was originally issued on July 9, 2004 and contemplated the award
of a fixed-price contract for the construction of one 6-unit toilet/shower
building and a parking lot, and the installation and replacement of
electrical and water hookups. On August 23, award was made to Lewis. After
its debriefing on August 27, MMI filed a protest with our Office on
September 3. Our Office dismissed that protest on October 6, after the
agency notified us that it had decided to terminate the award to Lewis and
to amend the solicitation to revise the evaluation factors.

   On October 4, the award to Lewis was terminated, and on November 22 the
agency issued amendment No. 3 to the solicitation,which revised the
evaluation factors. Under the amended solicitation, award was to be made
to the responsible offeror whose proposal conformed to the solicitation
and was most advantageous to the government, that is, on a "best value"
basis. The revised solicitation listed the following evaluation factors in
descending order of importance: past performance on similar projects,
experience on similar projects, availability and qualifications of skilled
work force, and cost/price. [1] The original eight offerors were given
until December 7 to submit their revised proposals.

   The revised proposals were evaluated by the technical evaluation board
(TEB) and, on December 20, final revised proposals were requested and
received. The final revised proposals were reviewed for price
reasonableness.

   Based on the technical evaluation, the Lewis proposal was ranked first and
the protester's proposal was ranked second by the TEB. The TEB considered
the Lewis proposal to be superior based on the company's more than 35
years of experience and excellent past performance record. The TEB found
that Lewis' personnel were more skilled and capable of performing the
requirements in the remote areas where this work will be performed.
Although the protester's proposal was ranked second, the TEB noted that
the firm was a newly-established company with little experience and a less
skilled work force, and that the firm was rated "barely average" for past
performance. Agency Report (AR), Tab G, Technical Evaluation Board
Results.

   After a review of the recommendation by the TEB, the contracting officer
decided that, notwithstanding the protester's lower price, award to Lewis
represented the best value because Lewis was an exceptional performer and,
based on Lewis' substantially greater experience in recreational area-type
projects and its excellent past performance record, Lewis provided a
significant advantage that would allow the firm to successfully plan the
work, anticipate problems, and overcome performance obstacles in a more
efficient manner. AR, Tab F, Revised Source Selection Decision, at 3. The
agency subsequently awarded the contract to Lewis and notified all
unsuccessful offerors of the award by letter dated February 4, 2005.
Following a debriefing, MMI filed this protest with our Office on March 1.

   MMI essentially challenges the agency's evaluation and rating of the
protester's and the awardee's past performance. The protester maintains
that since both offerors received one adverse past performance reference,
the rating of the Lewis proposal as exceptional and the MMI proposal as
acceptable under the past performance factor was unreasonable. [2]

   The evaluation of technical proposals, including past performance, is a
matter within the discretion of the contracting agency. Marine Animal
Prods. Int'l, Inc. , B-247150.2, July 13, 1992, 92-2 CPD 16 at 5. In
reviewing an agency's evaluation, we will not reevaluate technical
proposals; instead, we will examine the agency's evaluation to ensure that
it was reasonable and consistent with the solicitation's stated evaluation
criteria. MAR, Inc. , B-246889, Apr. 14, 1992, 92-1 CPD 367 at 4. An
offeror's mere disagreement with the agency's evaluation does not render
the evaluation unreasonable. McDonnell Douglas Corp. , B-259694.2,
B-259694.3, June 16, 1995,

   95-2 CPD 51 at 18.

   The record shows that the protester's proposal was rated acceptable for
the past performance evaluation factor. The agency received three past
performance references for the protester, with two identified as being for
small projects. For these small projects, the protester received ratings
of above average and slightly above average. However, the one relevant
reference, while rating the protester's overall performance as average,
also contained negative comments about the protester's performance.
Specifically, this reference expressed concerns about the protester
subcontracting the work, its failure to complete the project in a timely
manner, and its inability to maintain adequate staffing. On the other
hand, the agency received four references for the awardee. The awardee
received one excellent rating, two above average ratings, and one average
rating. There were no negative comments concerning the awardee's past
performance. In sum, we find no basis to question the evaluation of Lewis'
proposal as superior to MMI's under the past performance evaluation
factor; the agency reasonably rated Lewis higher because it had more
relevant contracts, as well as overall better ratings for these contracts
and no negative comments.

   Moreover, the record shows that the past performance evaluation was not
the only determining factor for the source selection decision. As
previously stated, Lewis was selected for award not only based on its
excellent past performance record, but also based on its 35 years of
experience and its highly skilled and qualified work force. [3]
Consequently, even if we were to agree that the protester should have
received a higher rating under the past performance evaluation factor, we
have no basis to question the reasonableness of the award to Lewis.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel 

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

   [1] The original RFP stated that the following evaluation factors would be
considered, in addition to price: past performance/experience,
availability of skilled work force, and woman-owned/minority status.

   [2] In its initial protest, MMI argued that the selection decision was
improper because the agency identified a 1 percent price differential
between Lewis' and MMI's proposals when the actual differential was 5.3
percent. The record shows, however, that Lewis' final proposed price
was670,000 and MMI's was $663,500. Consequently, Lewis' price was $6,500,
or less than 1 percent, higher than MMI's; thus, the tradeoff was properly
based on the actual price difference.

   [3] In its initial protest, MMI also argued that the solicitation was
improperly amended to eliminate an evaluation factor advantageous to MMI,
specifically, the factor for woman-owned or minority-owned businesses. The
amendment changing the evaluation factors was issued on November 22, 2004.
A protest based upon alleged improprieties in a solicitation apparent
prior to the time set for receipt of proposals and filed after award, as
in this case, is untimely, and will not be considered. Bid Protest
Regulations, 4 C.F.R. 21.2(a)(1) (2005).