MCS of Tampa, Inc.

MCS of Tampa, Inc., B-288271.5, February 8, 2002

DIGEST

Attorneys

DECISION

MCS of Tampa, Inc. protests the award of a contract to Altech Services, Inc. by the Department of the Air Force under request for proposals (RFP) No. F34608-01-R-0002, to provide operation and maintenance services for the base telecommunications system at Ellsworth Air Force Base, South Dakota.

We deny the protest.

The RFP, issued January 26, 2001 as a competitive section 8(a) set-aside, provided for the award of a fixed-price contract for a base period with four 1-year options. The successful contractor is required to provide all personnel, equipment, material, and tools to operate and maintain the base telecommunications system at Ellsworth Air Force Base, 24 hours a day, 7 days a week. This includes operations and maintenance of the switching systems, transmission equipment, customer premise equipment, and recurring support services.

Offerors were advised that the agency would use the performance/price trade-off (PPT) technique to arrive at a "best value" award decision. Under this technique, first the acceptability of each offeror's proposal is determined; the acceptable proposals are then ranked by evaluated price; and then the past performance of the offerors is evaluated and assigned performance risk ratings of exceptional/high confidence, very good/significant confidence, satisfactory/confidence, neutral/unknown confidence, marginal/little confidence, or unsatisfactory/no confidence. /1/ The RFP stated that "[i]n evaluating the proposal, strong emphasis will be placed on the record of past performance and experience on jobs of comparable complexity and similar technical requirements," and that the "organization itself will be evaluated with respect to the offeror's past experience" in performing similar technical requirements. RFP at 36. The RFP further stated:

If the lowest evaluated price, technically acceptable offeror receives a performance risk rating acceptable to the Government, this Offeror's proposal represents the greatest value in accordance with the evaluation criteria contained in this acquisition and award shall be made to this Offeror, subject to a positive responsibility determination. /2/

RFP at 34.

The RFP included detailed instructions for the preparation of proposals. The instructions requested, among other things, that the offeror submit detailed information concerning relevant contracts performed within the last 5 years, including the contract's dollar value, a description of what aspects of the contracts are deemed relevant in demonstrating ability to perform the proposed effort, as well as a name, address, telephone number and e-mail address of a point of contact for each reference. RFP at 30-31. The RFP cautioned offerors that failure to provide current addresses and phone numbers might result in an unfavorable past performance rating. RFP at 36. Offerors with no relevant past performance were asked to include data on key personnel who have relevant experience and/or subcontractors that will perform major or critical aspects of the requirement, and all offerors were requested to "[s]pecifically describe the work that major subcontractors will perform so that the evaluation team can conduct meaningful performance risk assessments on each major subcontractor." RFP at 30-31.

The agency received four proposals by the RFP's March 8 closing date. Amendment No. 2 to the RFP, issued April 23, clarified that a minimum of four full-time key personnel were required for this contract. The agency held discussions with all offerors, and final proposal revisions were requested and received on June 7.

MCS submitted references for five contracts. The Air Force considered only one of these contracts, with a private firm, to be relevant to the past performance risk assessment because it was the only one of "dollar value comparable to the complexity of this requirement." However, the relevant reference did not return the past performance questionnaire or any of the agency's telephone calls. The agency did receive two past performance surveys for MCS, one from a Navy activity and one from an Air Force activity; however, these contracts, valued at [DELETED], were not considered relevant because they were not considered comparable to the complexity of this acquisition. From these references, MCS's past performance risk assessment was rated neutral/unknown confidence "[d]ue to lack of past performance data on experience with comparable complexity and similar technical requirements." Agency Report, Tab 11, Past Performance Risk Assessment Review at 1. MCS proposed the incumbent contractor as a subcontractor, but the agency determined the proposed subcontract performance was not of a "critical nature," as compared to the work being performed under the contract by MCS's own employees, so the subcontractor's past performance was not considered in the past performance evaluation. Agency Report, Tab 12, Best Value Decision, at 2-3.

Altech received a past performance risk assessment of very good/significant confidence. Three of the seven contracts that Altech submitted as evidence of its past performance were found to be relevant, and of those three the agency received two positive past performance surveys from Air Force facilities. Agency Report, Tab 11, Past Performance Risk Assessment Review at 1.

The offerors were then evaluated as follows:

Offeror Technically Evaluated Past Performance . Acceptable Price

MCS Yes $1,343,962.56 Neutral/Unknown . Confidence

Altech Yes $1,471,637.88 Very Good/ . Significant . Confidence

Offeror A Yes [DELETED] Very Good/ . Significant . Confidence

Offeror B Yes [DELETED] Very Good/ . Significant . Confidence

Agency Report, Tab 12, Source Selection Decision, at 2. Using the PPT technique, the agency determined that Altech's proposal represented the best value to the government in view of its very good/significant confidence past performance rating that offset MCS's eight percent price advantage, given MCS's neutral/unknown past performance and the importance of reliable communications at the base. Award was then made to Altech.

MCS argues that its neutral past performance rating was unreasonable because the agency did not make an adequate effort to contact the reference for the one contract that the agency found relevant to this contract, from which MCS would have received an exemplary rating. MCS also argues that its five listed contract references were all relevant, and that the agency should have considered its proposed subcontractor and key personnel in rating past performance.

In reviewing protests against allegedly improper evaluations, it is not our role to reevaluate proposals. Rather, our Office examines the record to determine whether the agency's judgment was reasonable and in accord with the RFP criteria. North American Aerodynamics, Inc., B-285651, Sept. 15, 2000, 2000-1 CPD Para. 160 at 4.

With regard to the one contract that the agency considered relevant, the record shows that the contracting officer sent a facsimile with a past performance questionnaire to the e-mail address of the identified point of contact for the private firm and that the e-mail was returned by that firm's server with a notation that the listed e-mail address had fatal errors. Agency Report, Tab 9, Past Performance Questionnaires for MCS, at 1. The contracting officer then contacted the identified reference by telephone, resent the e-mail, and remained on the telephone until receipt of the e-mail was orally confirmed. When the e-mail was not answered within a few days, the contracting officer again contacted the reference by telephone and the contracting officer reported that the reference responded that "he would get to it." Agency's Hearing Comments at 2. The contracting officer called twice after that to inquire as to the status of the past performance questionnaire and left a message. Finally, the contracting officer called again and was informed by an unidentified administrative person that the firm would not be submitting the past performance questionnaire for MCS. Id.

For our Office to sustain a protest challenging the failure to obtain a reference's assessment of past performance, a protester must show unusual factual circumstances that convert the failure to a significant inequity for the protester. Advanced Data Concepts, Inc., B-277801.4, June 1, 1998, 98-1 CPD Para. 145 at 10. Here, we think that the agency reasonably found MCS's performance risk assessment to be neutral, as defined in the RFP, given that the agency had not received a completed past performance questionnaire on behalf of MCS for a relevant contract, after repeated attempts, and therefore, there was no past performance record for that firm. Id.

MCS also argues that the agency's determination that four of the listed references were not relevant was unreasonable because they were for work similar to the RFP work and because the agency knew from its preaward survey that MCS's performance on these contracts was satisfactory. The agency explains, and MCS does not dispute, that the responding references were for contracts of far less value than the RFP work, and MCS does not explain why its performance on these much smaller contracts was sufficiently relevant to be considered in the past performance evaluation. Moreover, the pre-award survey, which was only to assess MCS's responsibility, and which was not part of the past performance evaluation, did not gather a sufficient level of information concerning MCS's past performance for the agency to determine that these contracts were relevant.

Next, MCS argues that the contracting officer improperly determined not to evaluate and attribute the past performance of its proposed subcontractor to MCS. Federal Acquisition Regulation (FAR) Sec. 15.305(a)(2)(iii) states that a past performance "evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition."

The agency states that it determined that MCS's subcontractor "would not have a major or critical role in the performance of the contract." Agency Report, Tab 12, Source Selection Decision, at 3; Agency's Hearing Comments at 5. In response to Amendment No. 2, which put the offerors on notice of the minimum staffing requirement of four full-time employees, MCS provided a breakout of the [DELETED] full-time positions it proposed, of [DELETED] MCS employees, and [DELETED] subcontractor [DELETED]. The agency states that while all [DELETED] personnel to be employed under the contract are labeled "key personnel," the [DELETED] tasks are not considered major or critical as compared to the other contract work. According to the agency, [DELETED] primary function is to perform recurring services required by the RFP, such as installing, removing, relocating, and testing telephones for the end user. The agency states that the failure of this individual to perform his or her work would affect only the particular end users, as opposed to the more critical switch/key system maintenance performed by MCS's own employees, where the failure to adequately perform would affect the integrity of the entire base's telecommunications system. Agency Hearing Comments at 6.

MCS argues that [DELETED] is a critical position because the RFP requires this individual to operate and maintain all the telecommunications equipment. It is true that the RFP required [DELETED] to have experience in operating and maintaining all of the telecommunications equipment. RFP SOW at 2-3. However, the agency understood from MCS's initial technical proposal, responses during discussions, and final proposal revision that the primary function of this individual was to perform the recurring support services, which were not regarded as "critical." From our review of MCS's proposal and proposal revisions, we cannot say the agency's understanding was erroneous.

We think that the agency's decision not to attribute the past performance of MCS's subcontractor to MCS in rating its past performance was reasonable. The key consideration in determining whether a subcontractor's past performance should be considered is whether the experience is reasonably predictive of the offeror's performance under the contract. Strategic Res., Inc., B-287398, B-287398.2, June 18, 2001, 2001 CPD Para. 131. As indicated, the RFP stated that the "organization itself will be evaluated with respect to the Offeror's past experience." RFP at 36. Based on our review of the record, we conclude that the agency reasonably determined that MCS's subcontractor, which was to supply [DELETED] of the [DELETED] full-time employees, was not a major or critical subcontractor, and thus did not attribute the experience of this subcontractor to MCS; MCS's contesting of this point constitutes mere disagreement which does not render the agency's judgment in this regard unreasonable. Strategic Res., Inc., supra; Oceanometrics, Inc., B-278647.2, June 9, 1998, 98-1 CPD Para. 159 at 5.

MCS also contends that the proposed key personnel, who were the incumbent personnel, should have been considered in evaluating past performance. The record shows that MCS stated in its proposal that it would employ the incumbent personnel, but that it had no commitments from these personnel. MCS did not submit with its proposal past performance information for these proposed key personnel. Again, we note that the RFP stated that the "organization itself will be evaluated with respect to the Offeror's past experience." RFP at 36. Under the circumstances, the agency could reasonably determine that the past performance of these individuals was not relevant to the "organization's" past experience because this past performance was not necessarily indicative of MCS's future performance as an organization. See Blue Rock Structures, B-287960.2, B-287960.3, Oct. 10, 2001, 2001 CPD Para. 184 at 5; see Olympus Bldg. Servs. Inc., B-282887, Aug. 31, 1999, 99-2 CPD Para. 49 at 3.

MCS finally contends that the agency did not conduct meaningful discussions because it did not mention during discussions that it had not received the completed past performance questionnaire from the reference for the one contract that the agency deemed relevant to the present contract, and because the agency did not apprise MCS that its subcontractor not considered in the past performance evaluation and did not ascertain the subcontractor's significant role in performing the contract.

Even assuming the agency had a duty during discussions to point out to MCS that its relevant reference declined to respond, we cannot say that MCS was prejudiced by this failure. Although our Office conducted a hearing in connection with this protest, MCS tendered no evidence from this reference which disputes the agency's account or which shows how the reference would have responded. /3/ Moreover, while MCS states that it may have then provided another point of contact for this contract, it did not identify this alternative contact or claim that there was as appropriate a point of contact as the individual identified. Nor has MCS claimed that it could provide references on additional contracts not identified in its proposal.

Moreover, the record shows that the primary subject of discussions was the role of MCS's subcontractor; while MCS claims that the agency misunderstood MCS's role from these discussions, as noted, having reviewed the entire record, we find reasonable the agency's determination that this subcontractor's role, as described by MCS, was not sufficiently major or critical that it was required to be considered in the past performance evaluation.

The protest is denied.

Anthony H. Gamboa General Counsel

1. Neutral/unknown confidence is defined as "[n]o performance record identifiable." RFP at 34.

2. Under the RFP's evaluation scheme, award would be made to the offeror with the lowest-priced, technically acceptable proposal who received a past performance rating of satisfactory/confidence or better, and the agency states that a neutral/unknown confidence rating was "neither acceptable nor unacceptable." See Agency Report at 11. This scheme was not protested and we make no comment on its propriety.

3. Under the circumstances, we do not give significant weight to the hearing testimony of protester's representative that the reference would have reported "exemplary" performance by MCS.