TITLE: B-297758, United Paradyne Corporation, March 10, 2006
BNUMBER: B-297758
DATE: March 10, 2006
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B-297758, United Paradyne Corporation, March 10, 2006
Decision
Matter of: United Paradyne Corporation
File: B-297758
Date: March 10, 2006
Joseph Hasay for the protester.
David B. Dempsey, Esq., Kristen E. Ittig, Esq., and Anand Ramana, Esq.,
Holland & Knight LLP, for Four Winds Services, Inc., the intervenor.
Eric Kattner and Maj. Jeffrey Branstetter, Department of the Air Force,
for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Protest that past performance evaluation was unreasonable is sustained
where agency used methodology to determine performance confidence ratings
that improperly penalized offerors with relevant experience for their
non-relevant experience and that effectively gave equal weight to highly
relevant and non-relevant performance.
DECISION
United Paradyne Corporation (UPC) protests the decision not to select its
proposal for award under request for proposals (RFP) No. FA8601-05-R-0050,
issued by the Department of the Air Force for fuels management services at
Wright-Patterson Air Force Base (AFB), Ohio. The protester contends that
the Air Force's evaluation of its past performance and the agency's "best
value" tradeoff determination were unreasonable.
We sustain the protest.
The RFP, which contemplated the award of a fixed-price contract, provided
for the evaluation of proposals on the basis of three factors: mission
capability, past performance, and price. Mission capability was to be
evaluated on an acceptable/unacceptable basis, with only those proposals
receiving ratings of acceptable proceeding to evaluation of past
performance and price. Past performance and price, which were of
approximately equal weight, were to be traded off against one another in
the determination of best value.
The solicitation provided for the assignment of performance confidence
ratings to offerors based on their past performance. There were six
possible ratings, ranging from exceptional/high confidence ("Based on the
offeror's performance record, essentially no doubt exists that the offeror
will successfully perform the required effort") to unsatisfactory/no
confidence ("Based on the offeror's performance record, extreme doubt
exists that the offeror will successfully perform the required
effort").[1] RFP at 45. The RFP advised that the past performance
evaluation would be accomplished by reviewing offerors' relevant present
and recent past performance; the solicitation defined recent past
performance as work performed within the last 3 years and relevant
contracts as contracts for similar services with similar scope and
complexity. To facilitate evaluation of their past performance, offerors
were instructed to submit with their proposals a list of all relevant past
and present performance (with contact information) and to furnish
information regarding all terminated contracts since 2000. The RFP did not
specify a required minimum number of contract references.
Nine proposals were received by the July 13, 2005 closing date. All were
determined to be technically acceptable. After evaluation of past
performance and price, the source selection authority (SSA) selected the
proposal of Four Winds Services, Inc. (FWSI), to which the agency
evaluators had assigned a performance confidence rating of
satisfactory/confidence and which offered a price of $7,898,073, as
representing the best value to the government. UPC's proposal received a
performance confidence rating of very good/significant confidence and was
higher in price than FWSI's. The agency awarded FWSI a contract on
December 1. UPC requested and received an agency debriefing and then
protested to our Office on December 16.
UPC takes issue with the agency's evaluation of its past performance,
arguing that the Air Force unreasonably failed to take into account its
performance of a highly similar contract at Roosevelt Roads Naval Air
Station in Puerto Rico and that the agency did not give it sufficient
credit for its performance of contracts at Vandenberg AFB and at the
Kennedy Space Center. The protester further argues with regard to the
Kennedy Space Center contract that, even to the extent that the agency
could reasonably have viewed the effort as non-relevant, performance of a
non-relevant contract should not have negatively affected its performance
confidence rating. The protester contends that if the Air Force had
properly rated its past performance as exceptional/high confidence rather
than merely very good/significant confidence, the agency would have
determined that its combination of past performance and price represented
the best value to the government.
As a preliminary matter, the Air Force argues that UPC is not an
interested party to protest the evaluation process here because it would
not be in line for award if the award to FWSI were set aside. The agency
contends in this regard that there were other proposals that the SSA would
have selected for award before UPC's because they were lower in price than
UPC's.
In order for a protest to be considered by our Office, a protester must be
an interested party, which means that it must have a direct economic
interest in the resolution of a protest issue. Bid Protest Regulations, 4
C.F.R. sect. 21.0(a) (2005); Cattlemen's Meat Co., B-296616, Aug. 30,
2005, 2005 CPD para. 167 at 2 n.1. A protester is an interested party to
challenge the evaluation of its own proposal where there is a reasonable
possibility that the proposal would be in line for award if the protest
were sustained. Transportation Research Corp., B-231914, Sept. 27, 1988,
88-2 CPD para. 290 at 3.
We are not persuaded by the agency's argument here because it cannot be
determined from the existing record that raising UPC's performance
confidence rating to exceptional/high confidence would not have led to the
selection of UPC's proposal for award. In this connection, none of the
proposals that was lower in price than UPC's was from an offeror whose
past performance was rated exceptional/high confidence. Pointing to the
SSA's decision to select FWSI's proposal (with its satisfactory/confidence
rating) over the slightly higher priced proposal of a third offeror with a
performance confidence rating of very good/significant confidence, the Air
Force argues that it should be inferred that it "would not have been
willing to pay [a] significantly higher price" to UPC for an
exceptional/high confidence rating. Agency Report, Memorandum of Law at 5.
In essence, the agency argues that, based on the record here, there is no
reasonable possibility that it would have selected the protester's
proposal over one of the lower-priced proposals from offerors with lower
past performance ratings, if UPC's rating were raised to exceptional/high
confidence. We disagree. The agency's selection of FWSI, with a
performance confidence rating of satisfactory/confidence, over a
higher-priced offeror with a performance confidence rating of very
good/significant confidence, does not support a conclusion that there is
no reasonable possibility that the agency would have selected UPC for
award had it received a performance confidence rating of exceptional/high
confidence.
Moreover, since, as discussed in detail below, the protest involves a
challenge to the propriety of the methodology the agency used to rate past
performance, the protest in effect calls into question the evaluation of
all the offerors' past performance; thus, the appropriate remedy, if the
protest were sustained, would be reevaluation of all the offers, with
potentially new relative rankings as a result. Under these circumstances,
we conclude that the protester is an interested party to maintain the
protest.
Turning then to the merits of UPC's argument, as a general matter, the
evaluation of an offeror's past performance is within the discretion of
the contracting agency, and we will not substitute our judgment for
reasonably based past performance ratings. Clean Harbors Envtl. Servs.,
Inc., B-296176.2, Dec. 9, 2005, 2005 CPD para. 222 at 3. We will question
an agency's evaluation conclusions where they are unreasonable or
undocumented, however. OSI Collection Servs., Inc., B-286597, B-286597.2,
Jan. 17, 2001, 2001 CPD para. 18 at 6. The critical question is whether
the evaluation was conducted fairly, reasonably, and in accordance with
the solicitation's evaluation scheme, and whether it was based on relevant
information sufficient to make a reasonable determination of the offeror's
past performance. Id. As explained below, we do not think that the past
performance evaluation here meets this standard.[2]
The Air Force arrived at the performance confidence rating for each
offeror using the following methodology, which was not disclosed to
offerors in the RFP. After rating the relevance of each contract
identified by the offeror in its proposal, the Air Force averaged these
ratings to arrive at an overall "relevance" rating. It then integrated
this rating with an overall past performance rating, also obtained by
averaging the point scores on the performance questionnaires furnished by
the offeror's references. This process yielded an overall performance
confidence rating. Thus, for example, an average relevance rating of
"highly relevant" combined with an average past performance rating of
"exceptional/high confidence" yielded an overall performance confidence
rating of "exceptional/high confidence"; an average relevance rating of
"relevant" combined with an average past performance rating of
"exceptional/high confidence" yielded an overall performance confidence
rating of "very good/significant confidence"; an average relevance rating
of "somewhat relevant" combined with an average past performance rating of
"exceptional/high confidence" yielded an overall performance confidence
rating of "satisfactory/confidence"; and an average relevance rating of
"not relevant" combined with an average past performance rating of
"exceptional/high confidence" yielded an overall performance confidence
rating of "neutral/unknown confidence."
UPC identified four contracts in the section of its proposal where it was
to identify relevant contracts (the predecessor contract to the one at
issue in the protest at Wright-Patterson and contracts performed at
Edwards AFB, Vandenberg AFB, and the Kennedy Space Center); in addition,
the protester identified one terminated contract (performed at Roosevelt
Roads Naval Air Station in Puerto Rico).[3] The agency assigned the
Wright-Patterson contract a point score of 60 out of 60 possible points
for relevance; the Edwards AFB contract a relevance score of 56; the
Vandenberg AFB contract a score of 22; and the Kennedy Space Center
contract a score of 0. It did not assign the Roosevelt Roads contract a
relevance score. The agency then averaged the four scores for a relevance
score of 34.5. The agency's relevance matrix defined a score of 0-15
points as not relevant; a score of 16-30 as somewhat relevant; a score of
31-45 as relevant; and a score of 46-60 as highly relevant. Because the
averaged score (34.5) fell within the point range for relevant
performance, the Air Force assigned UPC's proposal an overall contract
relevance rating of relevant. The agency then integrated this rating with
a past performance rating for UPC of exceptional/high confidence that it
had arrived at by averaging the point scores on the past performance
questionnaires furnished by UPC's references. The result was an overall
performance confidence rating of very good/significant confidence.
Similarly, another offeror that had performed three contracts rated by the
agency as highly relevant, three contracts rated by the agency as
relevant, and five contracts rated by the agency as somewhat relevant was
assigned an overall contract relevance rating of relevant because this was
its average rating; as a result of this relevance rating, this offeror,
whose past performance was, like UPC's, rated outstanding/high confidence,
was assigned an overall performance confidence rating of only very
good/significant confidence.
We think that the agency's approach to evaluating past performance was
unreasonable because it had the effect of penalizing offerors with
relevant experience such as UPC and the other offeror noted above for
their non-relevant experience. For example, using the agency's
methodology, an offeror that had performed four highly relevant contracts
well would have received a higher performance confidence rating than an
offeror that had performed four highly relevant and four somewhat or not
relevant contracts equally well. Such a result is, in our view, clearly
irrational.
The agency's methodology is further unreasonable in that it gave equal
weight in the calculation of offerors' past performance ratings to highly
relevant and non-relevant performance. In UPC's case, for example, the
protester's performance on the predecessor contract to the effort
solicited here, for which it received a relevance score of 60 of 60, was
given the same weight in the computation of its past performance score as
its performance on the Kennedy Space Center contract (for which the
protester received a relevance score of 0) and its performance on the
Roosevelt Roads contract (for which, as discussed in greater detail below,
the protester was given no relevance score). Agency Report, Tab 3b-4.
Moreover, it was contrary to the terms of the RFP, which provided that the
past performance evaluation would be accomplished by reviewing offerors'
"relevant present and recent past performance" (emphasis added), RFP at
46, for the agency to have considered non-relevant experience in its
evaluation. In addition, the agency's failure to assess the relevance of
individual contracts in determining the weight to assign offerors'
performance of them was contrary to the direction in Federal Acquisition
Regulation sect. 15.305(a)(2)(i) that "the currency and relevance" of the
information should be considered in the evaluation of past performance.
We also agree with the protester that it was unreasonable for the agency
to have failed to consider its performance on the contract at Roosevelt
Roads Naval Air Station in evaluating its relevant experience. The agency
explains that it did not factor the Roosevelt Roads contract into its
relevance matrix because it "was submitted under a `terminated contract'
whereby a relevance determination, positive or negative, was not
calculated." Agency Report, Memorandum of Law at 6. To the extent that the
agency is arguing that it was reasonable for it to assume that terminated
contracts would be irrelevant for purposes of its performance confidence
assessment, the very fact that the agency sought information regarding
terminated contracts in the first place--under the heading "Relevant
Contracts," no less--is, in our view, evidence that the agency viewed them
as potentially relevant. Moreover, the agency did in fact obtain and
consider information regarding the protester's performance on the
Roosevelt Roads contract in its evaluation of past performance, suggesting
that it did not regard the performance as irrelevant.[4]
Because we find that the Air Force's evaluation of UPC's past performance
was unreasonable, we sustain the protest. We recommend that the agency
reevaluate the past performance of UPC and the other offerors using an
appropriate methodology, i.e., one that takes into consideration the
relevance of a particular contractual effort in determining the weight to
be assigned the offeror's performance of it. Based on that reevaluation,
we recommend that the agency make a new source selection determination. If
the agency determines that the proposal of an offeror other than FWSI
represents the best value to the government, we recommend that the agency
terminate the contract awarded to FWSI and make award to the offeror
selected. We also recommend that the agency reimburse the protester the
costs of filing and pursuing the protest, including attorneys' fees. Bid
Protest Regulations, 4 C.F.R. sect. 21.8(d)(1). In accordance with section
21.8(f) of our Regulations, UPC's claim for such costs, detailing the time
expended and the costs incurred, must be submitted directly to the agency
within 60 days after receipt of the decision.
The protest is sustained.
Anthony H. Gamboa
General Counsel
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[1] The other ratings were: very good/significant confidence;
satisfactory/confidence; neutral/unknown confidence; and marginal/little
confidence.
[2] The protester also argued that FWSI's price was unrealistically low
and that the individual who acted as the SSA had not properly been
delegated such responsibility. We will not consider the former argument
because it was not raised within 10 days after the protester was informed
of FWSI's price and thus is untimely. See Bid Protest Regulations, 4
C.F.R. sect. 21.2(a)(2). With regard to the latter argument, the agency
explains that the responsibility for source selection was orally delegated
to the individual who acted as SSA, and the protester has not demonstrated
that an oral delegation was improper.
[3] The proposal explained that the contract at Roosevelt Roads was
terminated for the convenience of the government due to closure of the
base.
[4] The agency responded to UPC's complaint that the agency had not given
it sufficient credit for its performance of contracts at Vandenberg AFB
and at the Kennedy Space Center by explaining in its report that none of
the performance elements for the Kennedy Space Center and only a portion
of the performance elements for the Vandenberg AFB contract were relevant
to the current fuel management contract. The protester did not seek to
rebut these arguments in its comments, but instead reiterated its
generalized assertion that the contracts should have been considered
relevant because they involved fuels. Where, as here, an agency provides a
detailed response to a protester's assertions and the protester either
does not respond to the agency's position or provides a response that
merely references or restates the original allegation without
substantively rebutting the agency's position, we deem the
initially-raised arguments abandoned. Clean Harbors Envtl. Servs., Inc.,
supra, at 5-6 n.1.