Sam Facility Management, Inc.

B-292165, Sam Facility Management, Inc., July 11, 2003

Decision

Matter of: Sam Facility Management, Inc.

File: B-292165

Date: July 11, 2003

Charles E. Saunders, Esq., for the protester.
Damon A. Martin, Esq., and Javier E. Gonzalez, Esq., Department of the Navy, 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

Protesters proposal was reasonably excluded from the competitive range where the proposal failed to include information requested by the solicitation, was reasonably evaluated as deficient in certain areas, and was relatively high in price.

DECISION

Sam Facility Management, Inc. protests the exclusion of its proposal from the competitive range, and subsequent award of a contract to Excell Management Corporation, under request for proposals (RFP) No. N62477-03-R-0509, issued by the Department of the Navy, for grounds maintenance services at the Naval Academy Complex, Annapolis, Maryland. Sam contends that the agencys evaluation of its and Excells proposals, and the determination to exclude its proposal from the competitive range, were unreasonable.

We deny the protest.

The RFP, issued October 25, 2002 as a section 8(a) set-aside, sought proposals for grounds maintenance services, including mowing, plant maintenance, weeding and fertilization, flower bed planting and maintenance, policing of grounds and leaf removal, street sweeping, snow and ice removal, irrigation, and maintenance of
athletic fields.[1] The RFP provided for the award of a fixed'price contract including indefinite-quantity work for a base period of 1 year with four 1-year options. Award was to be made to the offeror whose proposal was determined to represent the best value to the government. The solicitation set forth three evaluation factors: technical/management, past performance, and price. The technical/management factor was comprised of the following equally weighted subfactors: relevant experience; project staffing; corporate management support; and support for small business, women-owned business and small disadvantaged business program. The technical/management and past performance factors were of equal importance to each other, and considered together, [were] of equal importance to Price. RFP M.3. The RFP included detailed instructions regarding the preparation of proposals. The solicitation stated, for example, as follows:

Each technical proposal shall be precise, detailed, and complete as to clearly and fully demonstrate a thorough knowledge and understanding of the requirements. As a minimum, the proposal must contain sufficient detail so that it may be evaluated in accordance with the EVALUATION FACTORS provision, Section M.
RFP L, FAC 5252.215-9300, Content of Proposals.

Eight offerors, including Sam and Excell, submitted proposals by the November 29, 2002 closing date. The offerors technical and cost proposals were forwarded to the cognizant technical evaluation board (TEB) and cost evaluation panel (CEP).[2] Sams proposal was evaluated as unacceptable under the technical/management factor, neutral under the past performance factor, and unacceptable overall, at a total evaluated price of $14,448,733 (the second highest received). Sams proposal was rated unacceptable under each of the four subfactors comprising the technical/management factor, with the exception of the support for small business subfactor, under which Sams proposal was rated acceptable. Agency Report (AR), Tab 5, TEB Report, at 3, 13-14; CEB Report, at 1.


Excells proposal was evaluated as marginal under the technical/management factor, and good under the past performance factor, at a total evaluated price of $10,133,663 (the second lowest received). Excells proposal was rated as acceptable under the relevant experience subfactor of the technical/management factor, marginal under the project staffing subfactor, excellent under the corporate management support subfactor, and acceptable under the support for small business subfactor. AR, Tab 5, TEB Report, at 3, 7-9; CEB Report, at 1.

The agency included Excells proposal, as well as the proposal submitted by another offeror (that was evaluated as marginal overall under the technical/management factor, neutral under the past performance factor, at a total evaluated price of $12,183,045), in the competitive range. Discussions were held with the two competitive range offerors, and final proposal revisions were requested and received. Excells final revised proposal, which was selected for award, was evaluated as exceptional overall under the technical/management factor, and good under the past performance factor, at a total price of $9,344,017. AR, Tab 7, Post-Negotiation BCM, at 2.

Sam contends that the agencys evaluation of its proposal was unreasonable under each of the evaluation factors, and that but for the agencys unreasonable evaluation, its proposal would have been included in the competitive range.

In reviewing an agencys decision to exclude a proposal from the competitive range, we look first to the agencys evaluation of proposals to determine whether the evaluation had a reasonable basis. Although in reviewing an agencys evaluation we will not independently determine the merits of a proposal, we will examine the record to ensure that the evaluation was reasonable and consistent with the evaluation criteria. The judgments involved in the evaluation of proposals are subjective by their nature; nonetheless, the judgments must be reasonable and must bear a rational relationship to the announced criteria upon which competing offers are selected. Essex Electro Engrs, Inc., B-284149; B-284149.2, Feb. 28, 2000, 2000 CPD 72 at 6.

An offeror must submit an initial proposal that is adequately written and that affirmatively states its merits, or run the risk of having the proposal rejected as technically unacceptable. Agencies may exclude proposals with significant informational deficiencies from further consideration whether the deficiencies are attributable to omitted or merely inadequate information addressing fundamental factors. Generally, offers that are technically unacceptable as submitted and would require major revisions are not required to be included in the competitive range for discussion purposes. Id.

Sam first challenges the price evaluation. In its protest, Sam challenges the Navys criticism of Sams price calculations, that is, that Sam improperly rounded down certain of the quantities set forth in the RFP, asserting that its pricing was correct. Protesters Comments at 3. Regardless of the merits of this dispute, it is apparent that it has relatively little effect on Sams price and does not affect the competitive range determination. The only other point raised in Sams protest concerning the price evaluation was that Sams proposed price of $14,448,733 was closer to the Navys independent government estimate (IGE) of $15,227,107, than Excells initial proposed price of $10,133,663. That is, except to compare Excells total price to the IGE, Sams counsel, despite having access to Excells proposal and all of the evaluation documentation including the CEB report and the agencys price realism analysis, does not otherwise comment on the reasonableness of Excells price or take issue with any aspect of the CEB report or other agency findings with regard to the offerors proposed prices. As such, the protesters statements, in our view, only serve to reinforce the agencys determination that Sams proposal (which was approximately 43 percent and 19 percent higher in price than, respectively, Excells and the other competitive range offerors proposals) was not competitive vis- -vis either of the competitive range offerors with regard to price.

Sam also protests the evaluation of the relevant experience subfactor of the technical/management factor. With regard to this subfactor, the RFP requested that offerors include in their proposals information regarding five recurring or fully completed grounds maintenance, and maintenance of athletic fields, projects . . . completed within the past five (5) years or, if the projects are current service contracts, which are at least 50% complete. The solicitation added, among other things, that an evaluation [p]reference will be given to those experienced in grounds projects of similar size, staffing requirements, scope, function, complexity and contract duration. The RFP also requested here that offerors explain [their] financial capability by providing current credit rating, lines of credit, sources of funds and proposed means for financing any resulting contract, including bank references as applicable. RFP M.3.

In evaluating Sams proposal under this subfactor, the agency found that the [p]rojects submitted were not of the size and scope of this solicitation. For example, the agency noted that the six projects listed by Sam that fell within the time parameters set forth in the solicitation each had an annual value as reported by Sam that ranged from $25,000 to $200,000. Additionally, the agency found that two of the projects were for snow and ice removal only. The agency also commented here that Sams proposal did not evidence athletic field maintenance experience, and that Sams proposal failed to provide any financial figures or references as requested by the RFP. AR, Tab 5, TEB Report, at 13.

Sam complains that the agency failed to consider one project listed that, according to Sam, had an annual value of approximately $900,000. The protester adds that although its relevant experience does not include the maintenance of athletic fields as specified in the solicitation, it has maintained a golf course which requires a much higher standard and quality of maintenance than any other type of athletic field. Protesters Comments at 6.

While it appears that Sam may be correct that the agency failed to consider the project listed by Sam with an annual value of approximately $900,000, we cannot find, based upon this record, that this omission had any material impact on the agencys evaluation. The fact remains that neither this nor the other projects listed by Sam had annual values anywhere near Sams proposed price of approximately $2.9 million per year. Additionally, and as noted by the agency, two of the projects listed by Sam involved only snow and ice removal, as opposed to the comprehensive grounds maintenance services to be performed under this RFP. Moreover, although Sam clearly disagrees, we cannot find unreasonable the agencys view that Sams experience in maintaining a golf course does not equate to experience maintaining numerous different athletic fields such as those at the Naval Academy Complex (which include baseball, softball, lacrosse, volley ball, and track fields). Finally, Sams proposal simply failed to include the requested information regarding its financial capability. Accordingly, we find reasonable the agencys evaluation of Sams proposal under the relevant experience subfactor as unacceptable.

The protester also challenges the agencys evaluation of Excells proposal under the relevant experience subfactor. Specifically, Sam points out that three of the contracts detailed by Excell in its proposal were awarded in October 2001, and had a base period of 1 year with three or four 1-year option periods, depending on the contract. Protesters Comments at 6; AR, Tab 4, Excells Proposal, Relevant Experience. The protester argues that the agency improperly considered these three contracts in evaluating Excells proposal because, in the protesters view, the contracts are not either fully completed or 50 percent complete as required by the RFP. We disagree with the protesters interpretation of the terms of the solicitation. In our view, because each of these contracts had a base period of 1 year and the base contract period had been completed by the time of Excells submission of its proposal, the contracts were appropriate for consideration by the agency.

Sam protests the evaluation of its proposal under the project staffing subfactor. With regard to this subfactor, the solicitation requested that offerors demonstrate the ability to sustain the loss of key personnel without a loss, temporary of otherwise, of services to the Government. The RFP also informed offerors that they were to describe and explain [their] proposed staffing by full time equivalent numbers, position titles, relative skill levels, types (e.g., tractor operators) to accomplish the work. Additionally, proposals were to describe and explain [their] proposed staff for the indefinite quantity work set forth in the solicitation, and [i]ndicate where these people are on the organization chart. RFP M.3

The agency found, in evaluating Sams proposal under this subfactor, that it did not address loss of key personnel as required, but rather addressed loss of labor positions. The agency also found that Sams proposed staffing failed to address the sports field crew, fixed price tree work, and street sweeping, and failed to include on its organization chart the personnel proposed for performance of the indefinite-quantity work. The agency noted that Sams proposed staffing of [DELETED] full-time equivalents (FTE) including key personnel, and [DELETED] working FTEs to perform the services, was unacceptable. AR, Tab 5, TEB Report, at 13.

Sam argues that, contrary to the agencys determinations, its proposal did in fact address the loss of key personnel as requested. Protesters Comments at 7; see AR, Tab 3, Sams Proposal, at 13. The protester also contends that the agencys evaluation of its proposal under the project staffing subfactor evidences unequal treatment vis- -vis Excells proposal, given that Excells initial proposed was rated as marginal under the project staffing subfactor, even though Excell proposed only 21.52 FTEs. Protesters Comments at 7; see AR, Tab 5, TEB Report, at 8, 13.

With regard to this subfactor, we note that the protester does not challenge or otherwise assert that the agency erred with regard to the other aspects of Sams proposal for which it was downgraded. Additionally, based on our review, we agree with the agency that Sams proposal, while addressing the loss of labor positions during the performance of the contract, provided no explanation as to how Sam would sustain the loss of key personnel without a loss, temporary of otherwise, of services to the Government, as required by the solicitation. RFP M.3. As to Sams claim of unequal treatment with regard to the staffing levels proposed by it and Excell, the record reflects that agency also found Excells initial proposed staffing to be low (as was Sams), and that Excells initial proposals slightly higher rating of marginal is attributable to the TEBs finding of significantly more deficiencies with Sams proposal under the project staffing subfactor, as discussed above. Thus, we find the agencys evaluation under this subfactor to be reasonable.

Sam also challenges its proposals rating of unacceptable under the corporate support subfactor. Here, the RFP required that proposals include an on-site organizational chart that, among other things, clearly show[s] organizational relationships, lines of authority and responsibility, and span of control. The RFP added that the chart was also to identify by position and title [f]irst-line supervisors of each organizational component. Proposals were also to include an explanation as to why the offeror felt that it had sufficient experience to perform the contract, as well as Occupational Safety and Health Act (OSHA) incidents rates for the last five years. RFP M.3.

The agency found in evaluating Sams proposal that its on-site organizational chart failed to address lines of authority and responsibility, as well as first-line supervisors, as required. Additionally, the agency found deficient Sams explanation as to why it felt it had the experience to perform the contract, and noted that the proposal failed to include Sams OSHA incident rates. AR, Tab 5, TEB Report, at 13.

Again, based upon our review of the record, we cannot find the agencys evaluation of Sams proposal as unacceptable under the corporate management support evaluation subfactor to be unreasonable. In this regard, the protester does not dispute the agencys determination that its proposal failed to include OSHA incident rates, or that Sams explanation as to whether it has adequate experience to perform the contract was deficient. Rather, Sam only asserts that, contrary to the agencys evaluation, the on-site organizational chart it included in its proposal details the lines of authority, responsibility, and first line supervisor. Protesters Comments at 7. However, based on our review, we agree with the agency that Sams proposed lines of authority and responsibility and first line supervisors were, at best, unclear from its chart.[3]

Sam protests the agencys evaluation of its proposal under the past performance factor as neutral. Here, according to the contemporaneous evaluation record, [n]o past experience evaluations were submitted on behalf of [Sam], AR, Tab 5, TEB Report, at 14, and the protester simply contends it has confirmed that all its questionnaires were submitted and that all of them, including Bethesda, showed a rating of excellent. Protesters Comments at 4. Given that the record does not support the protesters assertion and that the protester has not provided any evidence, or even any explanation, as to how it allegedly confirmed that the agency did in fact receive all [of Sams] questionnaires, we decline to consider this wholly unsupported argument further.

Sam also challenges the good rating assigned Excells past performance, citing an incident of allegedly poor performance by Excell on a Navy contract. Excell received references ranging from good to excellent on relevant contracts. It is unclear from the record whether the Excell contract that Sam refers to was considered by the Navy during its evaluation of Excells past performance, since the contract number provided by Sam does not match any of the contracts referenced by Excell in its proposal. To the extent that it concerns one of the contracts used as a past performance reference, Sam has not shown why the agency evaluators here had reason to question the validity of the past performance references they received regarding Excells past performance. In this regard, we have held that where the agency has no reason to question the validity of the past performance information it may rely on the information furnished without verifying it.[4] Lynwood Mach. & Engg, Inc., B'285696, Sep. 18, 2000, 2000 CPD 113 at 7; SDA Inc., B-256206; B'256075, May 2, 1994, 94-2 CPD 71 at 7 n.9.

Finally, Sam argues that one of the TEP members, who also serves as the contracting activitys small business specialist, is biased against the firm. In this regard, the son of Sams president submitted an affidavit in which he states that he overheard this individual state that he almost caused her to lose her job and was going to make sure that the firm never got another contract. Protesters Affidavit 4. In response, the agency small business specialist submitted an affidavit in which she states that she never stated she would see to it that the firm never got another contract and never made any statement that could be reasonably construed as the protester is alleging. Agency Small Business Specialists Affidavit 2, 3, 4.

Our review of the record leads us to conclude that we need not resolve this dispute because, even if the protester is correct, we do not find any possible prejudice to the protester. As is the case in all protests, where the record does not demonstrate that, but for the agencys actions, the protester would have a reasonable chance of receiving award, we will not sustain a protest, even if a deficiency in the procurement is found. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Here, as noted above, the materials that formed the basis of this decision were provided to Sams counsel, under a protective order issued by our Office, and Sam was given every opportunity to point out inaccuracies or errors in those materials. Although Sam disagrees with many of the agencys conclusions, it has not shown that the statements upon which the conclusions were based were inaccurate or false, or that the conclusions themselves were unreasonable. Because we generally presume that contracting officials act in good faith, Indian Affiliates, Inc., B-243420, Aug. 1, 1991, 91-2 CPD 109 at 5, and since Sam has been given every reasonable opportunity to demonstrate that it was harmed by unfair or improper bias--and has failed to make any such showing--we have no basis to conclude that the protester was not treated fairly by the Navy in this procurement. IGIT, Inc., B-275299.2, June 23, 1997, 97-2 CPD 7 at 9-10.

The protest is denied.

Anthony H. Gamboa
General Counsel

These subcontracts may be awarded on a competitive or noncompetitive basis. Federal Acquisition Regulation 19.800. A partnership agreement between the SBA and the Department of Defense permits, as planned here, a direct award by the contracting agency to the selected section 8(a) concern. Defense Federal Acquisition Regulation Supplement 252.219'7009.
[2] The TEB evaluated technical/management proposals using the following adjectival ratings: exceptional, acceptable, marginal, and unacceptable. In addition, proposals were evaluated under the past performance factor as excellent/low performance risk, good/moderate performance risk, poor/very high performance risk, and neutral/neutral performance risk.
[3] The protester also objects to the evaluation of its and Excells proposals as acceptable under the support for small business, women owned business and small disadvantaged business program subfactor. The protester contends here that while both firms are small disadvantaged businesses, only it is also women-owned, and argues that because of this its proposal should have been rated higher than Excells under this subfactor. Protesters Comments at 5. We need not consider the merits of the agencys evaluation here. In our view, any slight upward adjustment to Sams rating under this subfactor that may be warranted because it is a women-owned SDB would not require the inclusion of Sams proposal in the competitive range, given its relatively high price and unacceptable ratings under the remaining technical/management evaluation subfactors.
[4] To the extent that the Excell contract to which Sam refers was not considered by the agency here, our Office has recognized in certain limited circumstances that an agency evaluating an offerors past performance has an obligation (as opposed to discretion) to consider outside information bearing on the offerors past performance. International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD 114 at 5. Where we have charged an agency with responsibility for considering such outside information, the record demonstrated that the information in question was simply too close at hand to require offerors to shoulder the inequities that spring from an agencys failure to obtain, and consider, the information. Id., TRW, Inc., B'282162, B-282162, June 9, 1999, 99-2 CPD 12 at 4-5. However, the close at hand information in these cases generally concerned contracts for the same services with the same procuring activity, or at least information personally known to the evaluators. TRW, Inc., supra; see Morrison Knudsen Corp., B-280261, Sept. 9, 1998, 98-2 CPD 63 at 5-6. Here, the protester has not shown, and the record does not evidence, that the contract on which Excell allegedly had an instance of poor performance was for the same services with the same procuring activity, or involved information personally known to the evaluators. The protesters assertion that the evaluators or contracting officer should have been aware of this contract because it involved the Navy does not establish that the information was so close at hand that it should have been obtained or was improperly ignored.