TITLE: B-310808, Daylight Tree Service & Equipment, LLC, January 29, 2008
BNUMBER: B-310808
DATE: January 29, 2008
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B-310808, Daylight Tree Service & Equipment, LLC, January 29, 2008

   Decision

   Matter of: Daylight Tree Service & Equipment, LLC

   File: B-310808

   Date: January 29, 2008

   Scott Muir, for the protester.

   Melissa McClellan, Esq., U.S. Department of Agriculture, Forest Service,
   for the agency.

   Paula J. Haurilesko, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that the agency improperly considered the past performance of
   another company in evaluating protester is denied where the two companies
   shared the same address, telephone number, and point of contact, and where
   the protester included contacts from contracts performed by the affiliated
   company in its references.

   DECISION

   Daylight Tree Service & Equipment, LLC, protests the award of a contract
   to Woolery Timber Management by the U.S. Department of Agriculture Forest
   Service under request for proposals (RFP) No. AG-9A63-S-07-0088, for tree
   and vegetation mastication services. Daylight contends that the Forest
   Service improperly evaluated Daylight's proposal using past performance
   information for another company.

   We deny the protest.

   The Forest Service issued on July 25, 2007, the RFP for a firm fixed-price
   contract for the mastication of overstocked trees, woody material, and
   other vegetation in a section of the Tahoe National Forest. RFP at 3. The
   RFP contemplated awarding to the offeror whose proposal provided the best
   value to the government, and stated that the award would be based on a
   trade-off between price and non-price factors, comparing the relative risk
   of poor or nonperformance with the price. Id. at 41. The non-price
   factors, (1) organizational experience, (2) organizational past
   performance, (3) local community economic enhancement, and (4)
   understanding of the government's requirements, were to be of
   approximately equal value to each other, and when combined, were to be of
   approximately equal value to price. Id. Under the past performance
   evaluation factor, the RFP required the offerors to provide references for
   work performed during the past 3 years. Id.

   The Forest Service received seven proposals in response to the RFP.
   Contracting Officer's (CO) Statement at 1. The Forest Service provided the
   sections of the proposals pertaining to the non-price evaluation factors
   to the evaluation team for review. Id. Two members of the evaluation team
   recognized Daylight's operations manager as the president of Associated
   Arborists, Inc., and noted that Daylight's address and telephone number
   were the same as that listed for Associated Arborists on prior Forest
   Service contracts. Agency Report (AR), Memorandum of Law, at 5-6.
   Consequently, the evaluation team assumed that Daylight and Associated
   Arborists were successor and predecessor companies, and rated Daylight's
   past performance based on their personal experience with Associated
   Arborists. CO Statement at 1. Daylight received a neutral rating in the
   past performance evaluation factor based on instances of poor performance
   by Associated Arborists, but received a satisfactory rating overall,
   indicating that it adequately met the requirements of the evaluation
   factors. AR, Tab 3, CO's Decision Letter, at 1, 2.

   The Forest Service awarded the contract to Woolery Timber Management, and
   Daylight filed an agency-level protest. AR, Tab 3, Daylight Protest, Sept.
   27, 2007, at 1. In response to the protest, the Forest Service contacted
   some of the references listed in Daylight's proposal. AR, Tab 1,
   Memorandum of Law, at 4. Two of the references stated that they were
   unfamiliar with the work of Daylight, but recognized the name of
   Daylight's operations manager in connection with Associated Arborists and
   provided past performance information with regard to Associated Arborists.
   Id. at 6. Subsequently, the Forest Service denied Daylight's protest. AR,
   Tab 3, CO's Decision Letter, at 4.

   Daylight filed a protest challenging its past performance evaluation with
   this office, arguing only that the evaluation was flawed because it and
   Associated Arborists are not the same company.[1] Protest at 1. The Forest
   Service argues that, by listing references in its proposal that pertain to
   contracts performed by Associated Arborists, Daylight itself apparently
   considered the past performance of Associated Arborists relevant to the
   performance of Daylight, and therefore the Forest Service reasonably
   considered Associated Arborists' performance. AR, Tab 1, Memorandum of
   Law, at 6.

   In our view, the evaluation team reasonably included the past performance
   information of Associated Arborists in its assessment of Daylight's past
   performance. The use of the same address and telephone number for both
   companies, combined with the same person representing the companies,
   strongly suggest that the two companies are, if not predecessor and
   successor companies, then at least close affiliates, and therefore, the
   past performance of Associated Arborists could appropriately be considered
   in evaluating Daylight's proposal. As proof that Daylight and Associated
   Arborists are not the same company, Daylight merely asserts that it has
   been awarded contracts by the Forest Service since 2005. However, it has
   provided no explanation as to how the two companies shared the same
   address and telephone number while remaining separate entities.

   Moreover, the Federal Acquisition Regulation (FAR) directs agencies to
   take into account past performance information of predecessor companies,
   key personnel who have relevant experience or subcontractors when such
   information is relevant to an acquisition. FAR sect. 15.305(a)(2)(iii).
   Daylight's operations manager had also been president of Associated
   Arborists. Therefore, the experience of Associated Arborists under his
   leadership is relevant to the performance of Daylight. See, e.g., United
   Coatings, B-291978.2, July 7, 2003, 2003 CPD para. 146 at 6-7 (past
   performance of a new company based on the experience key individuals
   gained through prior employment with another, affiliated company is
   relevant). Finally, the fact, undisputed by Daylight, that it included
   contacts for work performed by Associated Arborists in its references
   reinforces the conclusion that consideration of Associated Arborists' past
   performance in evaluating Daylight's proposal was appropriate.

   To the extent that Daylight argues that the Forest Service improperly
   waited until after Daylight filed an agency-level protest before
   contacting its references, relying instead on the personal experiences of
   the evaluation team with regard to the performance of Associated
   Arborists, we find that the agency's actions were not improper. With
   regard to the evaluation team relying on its own knowledge, we have held
   that an evaluator's personal knowledge of an offeror may be properly
   considered in a past performance evaluation. Omega World Travel, Inc.,
   B-271262, July 25, 1996, 96-2 CPD para. 44 at 4. Here, the evaluation team
   provided documentation from prior contracts with Associated Arborists that
   support the personal knowledge. In light of our conclusion that it was
   reasonable to attribute Associated Arborists' past performance to
   Daylight, the Forest Service properly relied on the personal experiences
   of the evaluation team with Associated Arborists. With regard to the
   Forest Service contacting Daylights references after the agency-level
   protest was filed, we do not find it improper, and note that those
   Daylight-provided references confirmed Daylight's affiliation with
   Associated Arborists.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] We note that in Daylight's comments on the Agency Report, it raises
   the argument that the technical evaluation of its equipment also was
   incorrect. Comments on AR at 2. However, as this issue was not raised
   during its initial protest to our Office and Daylight was aware of this
   issue prior to filing with our Office, the issue is untimely. Under our
   Bid Protest Regulations, to be timely, a protest must be filed within
   10 days after the basis of protest is known or should have been known. 4
   C.F.R. sect. 21.2(a)(2) (2007).