TITLE: B-310568, Done Right Building Services, Inc., December 17, 2007
BNUMBER: B-310568
DATE: December 17, 2007
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B-310568, Done Right Building Services, Inc., December 17, 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: Done Right Building Services, Inc.

   File: B-310568

   Date: December 17, 2007

   Paul J. Hogan, Esq., Hogan & Associates, for the protester.

   Michael A. Gordon, Esq., and Fran Baskin, Esq., Holmes & Gordon, for
   NHI/Urban Services Group, Inc., the intervenor.

   Gary L. Brooks, Esq., National Archives and Records Administration, for
   the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency's evaluation of proposals and source selection are unobjectionable
   where the record does not support the protester's contention that the
   agency's evaluation and source selection evidenced bias against the
   protester and was unreasonable.

   DECISION

   Done Right Building Services, Inc. protests the award of a contract to
   NHI/Urban Services Group, Inc., under request for proposals (RFP) No.
   NAMA-07-R-0002, issued by the National Archives and Records
   Administration, for operations and maintenance services at the Franklin D.
   Roosevelt Presidential Library in Hyde Park, New York. Done Right argues
   that the agency's evaluation of its proposal and selection of NHI/Urban's
   proposal for award evidenced bias against Done Right and was unreasonable.

   We deny the protest.

   The RFP provided for the award of a fixed-price contract for a base period
   of 1 year with four 1-year options to the offeror submitting the proposal
   determined to represent the best value to the government based upon the
   evaluation factors of technical understanding and management approach
   (hereinafter technical understanding), personnel, relevant past
   performance, and price. RFP at 84. The solicitation stated that the
   non-price factors were equal in importance, and when combined, would be
   considered significantly more important than price in determining which
   proposal represented the best value. Id.

   The agency received proposals from three offerors, including Done Right
   (the incumbent contractor) and NHI/Urban. Done Right's proposal initially
   received ratings of "marginal" under each of the non-price evaluation
   factors, and was informed that its proposal was excluded from the
   competitive range. Agency Report (AR), Tab 11, Initial TEP Report, at 5-6;
   Tab 12, Competitive Range Exclusion Letter (Aug. 30, 2007). Done Right
   requested that the agency's decision to exclude its proposal from the
   competitive range be reconsidered. AR, Tab 15, Done Right Letter to Agency
   (Sept. 7, 2007). In response, the agency reevaluated Done Right's
   proposal, raised the rating assigned under the personnel factor from
   "marginal" to "acceptable," and included Done Right's proposal in the
   competitive range. AR, Tab 17, Agency Letter to Done Right (Sept. 19,
   2007). Discussions were held, and revised proposals were requested and
   received. Done Right's revised proposal was rated by the agency as
   "acceptable" under the technical understanding and personnel factors,
   "marginal" under the past performance factor and "marginal" overall, at a
   proposed price of $3,113,820. AR, Tab 20, Source Selection Decision, at 1.
   NHI/Urban's proposal received ratings of "acceptable" under the personnel
   factor, "outstanding" under the technical understanding and past
   performance factors, and "better" overall, at a proposed price of
   $3,718,240. Id. The source selection authority (SSA) found that
   NHI/Urban's proposal represented the best value to agency and documented
   the reasons why this was the case. Thus, award was made to NHI/Urban.

   Done Right argues that the agency's evaluation of its proposal and
   selection of NHI/Urban's proposal for award were unreasonable and
   evidenced bias against Done Right. With regard to the allegation of bias,
   Done Right points out that a former employee of Done Right is the
   Library's current facility manager and acted as the technical evaluation
   panel (TEP) chairperson for this acquisition, and asserts that this
   individual is biased against Done Right because he "left Done Right under
   troubling circumstances." Protester's Comments at 2. The protester
   continues by pointing to what it believes are flaws in the evaluation
   process that, in the protester's view, evidence bias. As explained in
   detail below, we have reviewed the record and find no credible evidence of
   bias or bad faith on the part of the facility manager/TEP chairperson or
   any other agency officials.

   First, in response to Done Right's general allegation of bias, the agency
   report includes the detailed declaration of the facility manager/TEP
   chairperson, as well as various other documents, including the facility
   manager/TEP chairperson's letter of resignation from Done Right. These
   documents, including the facility manager/TEP chairperson's detailed
   declaration, do not provide any support for the protester's assertion that
   the facility manager/TEP chairperson left Done Right under "troubling
   circumstances," nor do they provide any support for the protester's claim
   of bias.

   In contrast to the documents submitted by the agency, the protester has
   submitted the declarations of Done Right's president and current Library
   site supervisor, which state, in virtually identical terms, that these
   individuals had become "aware" that the facility manager/TEP chairperson
   had been "disappointed" and had expressed "anger" as to the terms of his
   previous employment at Done Right. Protester's Comments, exhs. A and B.
   These declarations are devoid of any detail or explanation as to how the
   president and site supervisor had become "aware" of the previous facility
   manager/TEP chairperson's "anger" or "disappointment," nor do they provide
   any other information in support of the protester's allegation of bias.
   Prejudicial motives will not be attributed to contracting officials on the
   basis of unsupported allegations, inference, or supposition, and these
   general and unsupported allegations provide no basis on which to question
   the propriety of the actions of the facility manager/chairperson of the
   TEP, or the agency's evaluation and selection of NHI/Urban for award. See
   McDonnell Douglas Corp., B-259694.2; B-259694.3, June 16, 1995, 95-2 CPD
   para. 51 at 28.

   A more specific and equally unsupported example of bias offered by the
   protester concerns the agency's evaluation of the proposals submitted by
   NHI/Urban and Done Right under the personnel factor. In this regard, the
   protester points out that NHI/Urban stated in its proposal that it
   recognized the "dedication of the incumbent employees and the benefits to
   Library continuity of operations of their continued service under the new
   contract," and would thus seek to "retain incumbent personnel at the
   Library." Protester's Comments at 3; see AR, Tab 9, NHI/Urban Proposal,
   sect. 2, at 1. The protester next points out, based upon its understanding
   of the record, that NHI/Urban's proposal was initially rated as
   "acceptable" under the personnel factor while Done Right's proposal was
   rated as "marginal," even though the proposals offered essentially the
   same personnel. The protester asserts that this disparate treatment
   "bolsters the evidence" of bias against Done Right during the evaluation
   and source selection processes. Protester's Comments at 3.

   We find the protester's argument here to be without merit because as set
   forth previously and demonstrated by the record, the proposals submitted
   by NHI/Urban and Done Right each ultimately received the same rating of
   "acceptable" under the personnel factor. AR, Tab 20, Source Selection
   Decision, at 1. In fact, in selecting NHI/Urban's proposal for award, the
   source selection authority specifically recognized that the proposals of
   NHI/Urban and Done Right "received the same rating" under the personnel
   evaluation factor. Id. at 4.

   The protester also points to the agency's evaluation of NHI/Urban's and
   Done Right's proposals under the past performance factor as evidencing
   bias. Specifically, the protester argues here that the agency's evaluation
   of past performance evidenced bias because the agency's evaluation of Done
   Right's proposal as "marginal" was based upon the agency's assessment of
   Done Right's performance of two contracts, rather than each of the five
   contracts referenced in Done Right's proposal, and because, in Done
   Right's view, the evaluation "focused" on "negative comments" regarding
   Done Right's performance of these contracts. Protester's Comments at 5.

   With regard to the number of contracts referenced by the agency during its
   evaluation of Done Right's proposal under the past performance factor, we
   note that although agencies are required to evaluate the past performance
   of all offerors on the same basis, there is no requirement that an agency
   contact all of an offeror's references, or that an agency contact the same
   number of references for each offeror. IGIT, Inc., B-275299.2, June 23,
   1997, 97-2 CPD para. 7 at 6. As such, the fact that the agency's past
   performance evaluation references two contracts performed by Done Right
   and five performed by NHI/Urban does not establish that the evaluation
   evidenced bias or was unreasonable. Additionally, we note that the
   contracts considered by the agency concern Done Right's performance as the
   incumbent contractor at the Library, and at another government facility at
   which Done Right's performance was considered to be similar in quality to
   that experienced by the Library officials. Given the relevance of the past
   performance information referenced by the agency to the work to be
   performed under this solicitation, the detailed and largely negative
   assessment of the protester's past performance provided by the evaluation
   documents, and the protester's failure to specifically challenge a number
   of the agency's factual representations and conclusions regarding the
   protester's past performance, we find no basis to object to the agency's
   evaluation of the protester's proposal under the past performance factor
   as "marginal," nor do we find that the agency's evaluation here evidenced
   bias.

   Finally, the protester points in a number of instances to the differing
   conclusions reached by the agency during its initial evaluation of Done
   Right's proposal and during the reevaluation of Done Right's proposal, and
   argues that because the proposal was unchanged, and the evaluation results
   differed, the evaluation must have been tainted by bias. We disagree. It
   is not uncommon that an agency, in response to a protest filed at the
   agency or at our Office, decides to reevaluate a proposal with those
   evaluation results differing from the conclusions initially reached. The
   mere fact that the evaluators reached differing conclusions does not
   establish bias, and again, while Done Right asserts that the evaluation of
   proposals and selection of NHI/Urban's proposal for award was the result
   of bias against Done Right, the protester's assertions in this regard
   amount to no more than unsupported allegations, inference, or
   supposition.[1]

   In sum, in the absence of evidence in the record that shows that the
   agency's evaluation and source selection evidenced bias against the
   protester or were unreasonable, we find no basis to object to the award.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Done Right has made a number of other related contentions during the
   course of this protest having to do with its allegations of bias on the
   part of contracting officials. Although these contentions may not be
   specifically addressed in this decision, each was considered by our Office
   and found either to be invalid with regard to the protester's primary
   argument regarding bias, or invalid or insignificant with regard to the
   merits of the evaluation and source selection based upon the record as a
   whole.