TITLE:  MCS of Tampa, Inc., B-288271.5, February 8, 2002
BNUMBER:  B-288271.5
DATE:  February 8, 2002
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Decision

Matter of: MCS of Tampa, Inc.

File: B-288271.5

Date: February 8, 2002

Joan K. Fiorino, Esq., Valinda J. Astoria, Esq., and John C. Dulske, Esq.,
Thurman & Phillips, for the protester.

Donald C. Mobly, Esq., and Sharon A. Jenks, Esq., Department of the Air
Force, for the agency.

Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably assigned the protester's past performance a neutral
rating where the reference listed by the protester for the only contract
considered relevant

to the solicited work declined to respond to the past performance
questionnaire, despite repeated requests by the agency.

2. Agency's determination to not consider the past performance of the
protester's proposed subcontractor was reasonable where the subcontractor's
performance under the solicited work was not major or critical to the
overall effort and thus not reasonably indicative of the protester's
performance under the contract.

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) sect. 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

Notes

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.