National Beef Packing Company
Highlights
National Beef Packing Company (National) protests the award of contracts to Cargill Meat Solutions Corporation (Cargill) and Washington Beef, LLC (Washington) under request for proposals (RFP) No. HDEC02-05-R-0001, issued by the Defense Commissary Agency (DECA) for provision of beef products. The protester argues that the agency improperly evaluated offerors' technical proposals and past performance, failed to adequately document the evaluations, improperly waived a delivery schedule requirement for Washington, held improper discussions with Washington, and conducted an improper cost/technical trade-off in making the source selection.
B-296534, National Beef Packing Company, September 1, 2005
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Matter of: National Beef Packing Company
James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc Kelly PLLC LLP, for the protester.
David F. Dowd, Esq., William L. Olsen, Esq., and Patricia H. Becker, Esq., Mayer, Brown, Rowe & Maw LLP, for Cargill Meat Solutions Corporation; and Robert H. Koehler, Esq., Patton Boggs LLP, for Washington Beef, LLC, the intervenors.
Elliot J. Clark, Jr., Esq., Defense Commissary Agency, for the agency.
Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Challenge to technical and past performance evaluation scores is denied where the agency's evaluation of proposals was reasonable and is adequately supported by the record.
2. Protest that agency waived mandatory delivery schedule for an awardee is denied where the solicitation allowed offerors to propose alternate delivery schedules.
3. Agency's exchanges with an awardee after receipt of proposals were clarifications, which resolved a minor error, and did not constitute discussions.
DECISION
National Beef Packing Company (National) protests the award of contracts to Cargill Meat Solutions Corporation (Cargill) and Washington Beef, LLC (Washington) under request for proposals (RFP) No. HDEC02-05-R-0001, issued by the Defense Commissary Agency (DECA) for provision of beef products. The protester argues that the agency improperly evaluated offerors' technical proposals and past performance, failed to adequately document the evaluations, improperly waived a delivery schedule requirement for
The RFP sought proposals to provide beef products for DECA commissary stores located in the western region of the
The RFP advised offerors that proposals would be evaluated on the basis of technical capability and past performance, which were equally important, and price, which was equal in importance to the two combined non-price factors. The technical capability evaluation factor had four subfactors: experience, production/distribution, quality control, and additional support/promotion; the first three subfactors were of equal importance, and the last subfactor was slightly less important. The past performance evaluation factor had four subfactors: timeliness of deliveries, conformance with specifications, customer satisfaction, and business relations; the first three subfactors were of equal importance, and the last subfactor was slightly less important. The RFP required offerors to propose prices for various types of beef products based on estimated quantities for each type. The contract schedule requires weekly deliveries to the commissaries in each group on specific days of the week during specific delivery times.
Seven offerors submitted proposals by the initial proposal closing date. Contracting Officer's Statement at 2. Of the seven groups within the western region, National's proposal addressed groups one through five. Of the five groups for which National submitted proposals, Cargill submitted proposals for groups one through four, and
National | Cargill | | |
Technical Capability | |||
Experience | 27 | 25 | 28 |
Production / Distribution | 27 | 25 | 27 |
Quality Control | 26 | 26 | 25 |
Additional Support / Promotion | 17 | 16 | 17 |
Total Technical Capability Score | 97 | 92 | 97 |
Past Performance | |||
Timeliness of Deliveries | 23 | 25 | 28 |
Conformance with Specifications | 20 | 26 | 28 |
Customer Satisfaction | 20 | 26 | 28 |
Business Relations | 15 | 17 | 18 |
Total Past Performance Score | 78 | 94 | 102 |
OVERALL TOTAL SCORE | 175 | 186 | 199 |
Evaluated Price for Group 1 | $50,615,479 | [deleted] | $50,879,976 |
Evaluated Price for Group 2 | $41,183,523 | $41,027,481 | - |
Evaluated Price for Group 3 | $46,009,029 | $45,612,513 | - |
Evaluated Price for Group 4 | $54,335,643 | $53,382,412 | - |
Evaluated Price for Group 5 | $31,229,371 | - | $30,150,268 |
AR, Tab 15, SSD, at 20-21, 29, and 33.[1]
As reflected above, the National received the lowest combined technical/past performance score of the three offerors, and was higher priced for all but one of the five groups for which it submitted proposals. Based on the evaluation results and proposed prices, the agency conducted price-technical tradeoffs between the offerors' proposals. The agency awarded contracts for groups one and five to
DISCUSSION
Technical Evaluation
National argues that the agency improperly evaluated offerors' proposals under the technical evaluation factor by overstating
National specifically contends that
Past Performance Evaluation
National protests the reasonableness of the agency's evaluation of its past performance as well as Cargill's. The evaluation of past performance, including the agency's determination of the relevance and scope of an offeror's performance history to be considered, is a matter of agency discretion, which we will not find improper unless unreasonable or inconsistent with the solicitation criteria. Family Entm't Servs., Inc., d/b/a/ IMC, B-291997.4,
The record shows that the agency informed National of several problems in its past performance record during discussions, and that National failed to fully address them in its revised proposal. For example the agency found that:
National had delivery issues with some stores in the Western Pacific Region and in the
National Beef continued to have [customer satisfaction] problems with locations such as
AR, Tab 12, National Initial Past Performance Consensus Comments, at 1.
Following discussions, the agency concluded that National's responses to discussions did not warrant revision to the initial scores under the four past performance subfactors. AR, Tab 12, National Chairperson's Re-Evaluation Comments, at 1. National does not dispute the agency's determination that the firm failed to adequately address the negative past performance information identified during discussions, and thus National provides no basis to challenge the reasonableness of the agency's evaluation. On this record, we have no basis to question the agency's determination that National failed to adequately address negative information identified during discussions.
Despite the negative past performance information, the protester contends that the ratings for National were unreasonable because they gave disproportionate weight to what National characterizes as a small minority of negative references amid the firm's record of a large volume of successful deliveries. National contends that our decision in Green Valley Transport., Inc., B-285283,
With regard to Cargill's past performance, National argues that the agency gave unreasonably high past performance evaluation scores to this awardee. Offerors were instructed to provide commercial past performance references for the previous 3 years. RFP, Addendum to FAR sect. 52.212-1 Instructions to Offerors--Commercial Items, para. 5, Vol. I, sect. 2. The RFP advised offerors that the agency would also obtain references for contracts performed for DECA.
Despite the 3-year limitation generally imposed by the agency during the evaluation, the agency's past performance evaluation of Cargill discussed that firm's performance of one DECA contract for delivery of beef products for the agency's eastern region in the United States during 2000, which Cargill identified in its proposal. AR, Tab 15, Cargill Initial Past Performance Consensus Comments, at 1. This contract was performed by Cargill for approximately nine months prior to its termination as the result of a decision by our Office sustaining a protest. See Farmland Nat'l Beef, B-286607, B-286604.2,
Cargill's proposal specifically mentioned problems in performing the contract, and explained that the problems had been resolved prior to the contract's termination. Cargill's proposal stated: [deleted]. AR, Tab 7, Cargill Initial Proposal, Vol. II, at 2.
The agency claims that the eastern region contract reference did not affect the determination of Cargill's past performance score. As stated by the contracting officer: [W]hen I was briefed by the TEB [Technical Evaluation Board], this past performance information was not considered in the final technical score for past performance for Cargill based on the information provided to me. Supplemental Contracting Officer's Statement,
Cargill (formerly known as Excel) received a lower past performance score than
AR, Tab 15, SSD, at 26 (emphasis added).
Notwithstanding the agency's inconsistent statements, the SSD indicates that, if anything, there was a negative impact on Cargill's past performance score, i.e., Cargill received a lower score due to its performance of the eastern region contract.
National first argues that the agency should not have included any discussion of the eastern region contract in Cargill's past performance evaluation because the contract was performed more than 3 years ago. As explained above, however, the 3-year scope for government contract references was determined as part of the agency's internal evaluation process. The RFP stated that offerors should provide only commercial references for the prior 3 years; it did not explicitly inform offerors that the agency would limit consideration of government contract past performance references, such as Cargill's eastern region contract, to 3 years. RFP, Addendum to FAR sect. 52.212-1 Instructions to Offerors--Commercial Items, para. 5, Vol. I, sect. 2. Under these circumstances, the agency's consideration of Cargill's eastern region contract was not contrary to the stated RFP evaluation criteria.
In any case, there is no indication that Cargill benefited from the agency's evaluation of the eastern region contract. To the extent the eastern region contract past performance information had an effect on the agency's evaluation of Cargill, the protester does not demonstrate that it had a positive effect on Cargill's rating and, thus, National has not shown that it was prejudiced by the agency's actions.[4] See McDonald-Bradley, B-270126,
Finally, National argues that the agency unreasonably determined that Cargill had adequately addressed initial difficulties experienced under the eastern region contract, and thus, to the extent Cargill's performance under the contract was considered, it should have resulted in a lower past performance score. As discussed above, the agency concluded that Cargill's initial problems with contract performance were remedied by the time the contract was terminated. AR, Tab 13, Cargill Initial Past Performance Consensus Comments, at 1. Furthermore, the record indicates that the agency reduced Cargill's past performance score based on its performance of the eastern region contract. We think that the agency's evaluation was reasonable in this regard.
Waiver of Delivery Schedule
National argues that the agency improperly waived the required delivery schedule for two areas of
The agency instructed offerors that deliveries must comply with the schedule set forth in Attachment B to the RFP. As relevant to this protest issue, deliveries for commissaries in
DELIVERY SCHEDULE: The contractor shall deliver in accordance with and not deviate from the delivery schedule at Attachment B, without written consent from the Contracting Officer. Delivery is required within 7 calendar days after an order is placed for CONUS stores. Delivery is required within 14 calendar days after an order is placed for
RFP, Addendum to FAR sect. 52.212-4 Contract Terms and Conditions, para. 7.
Offerors were instructed that they must certify in their proposals that deliveries would comply with the Attachment B delivery schedule:
Review the DeCA West Region Delivery Schedule at Attachment B. This is the preferred delivery schedule and at a minimum, compliance with this schedule is mandatory for consideration for contract award. Complete the Delivery Schedule Compliance Certification at Attachment C and return with your proposal in this section of Volume I. Additionally, an offeror may propose an alternative delivery schedule for consideration. The alternate delivery schedule, and an explanation of the differences between the schedule at Attachment B and the proposed schedule, and its benefits must be clearly stated and submitted with your proposal in this section of Volume I. The government is not obligated to accept an alternate delivery schedule. The Contracting Officer will provide notification if a proposed alternate delivery schedule is determined to be acceptable.
RFP, Addendum to FAR sect. 52.212-1 Instructions to Offerors--Commercial Items, para. 5, Vol. I, sect. 2 (emphasis added). Reading these provisions in conjunction, the RFP required offerors to certify that they would make deliveries to
National points to two passages in
For Group 5, Washington Beef would request 14 to 17 days from ordering date to the store delivery. This is to assure the freshest product available is delivered to our patrons while increasing shelf life once at the store. If 14 days were strictly adhered to, products on occasion would possibly need to be pulled and shipped from existing inventories. This would mean that Washington Beef could not produce to order properly utilizing our Military production and distribution procedures.
AR, Tab 8,
The agency accepted
We conclude that
National next argues that the following portion of
All out-of-cycle or emergency orders from any DeCA commissary can be placed simply by calling our home office, sending e-mail or speaking with one of our in store representatives . . . . Concerning the commissary stores of
AR, Tab 8,
National argues that the
It is true, as the protester notes, that RFP stated that [t]he contractor shall delivery in accordance with and not deviate from the delivery schedule at Attachment B, without written consent from the Contracting Officer. RFP, Addendum to FAR sect. 52.212-4 Contract Terms and Conditions, para. 7. Nonetheless, we think that the agency's view that offerors were not required to comply with the Attachment B delivery schedule in responding to out-of-cycle or emergency orders was reasonable, because, as the agency explains, an out-of-cycle or emergency order is one that does not accord to the Attachment B delivery schedule. Under these circumstances, Washington's proposal is properly viewed as responding to the requirement to explain how offerors would address out-of-cycle orders; its statement that it would require 14-17 days to meet such orders did not fail to meet any RFP requirement and thus the agency did not waive any such requirement.
Discussions
National contends that exchanges between the agency and
FAR sect. 15.306 describes a spectrum of exchanges that may take place between an agency and an offeror during negotiated procurements. Clarifications are limited exchanges between the agency and offerors that may allow offerors to clarify certain aspects of proposals or to resolve minor or clerical errors. FAR sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency indicates to an offeror significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal's potential for award. FAR sect. 15.306(d)(3). When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range. FAR sect. 15.305(d)(1). The acid test for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to revise or modify its proposal. Park Tower Mgmt. Ltd., B-295589, B-295589.2,
The substance of
Best Value
National argues that the alleged evaluation errors discussed above and the agency's destruction of the underlying evaluator documents renders the source selection decisions unreasonable.[6] Because we find no basis to challenge the agency's evaluation of offerors and conclude that the documentation of the evaluations was adequate, there is no basis to challenge the source selection decisions. Furthermore, the SSD reasonably identifies the basis for the cost-technical tradeoffs, including discriminators between offerors' proposals that formed the basis for the source selections.[7]
The protest is denied.
Anthony H. Gamboa
General Counsel
[1] The agency's evaluation of proposals assigned total possible point values for each subfactor, consistent with their disclosed weights in the RFP: experience--30, production/distribution--30, quality control--30, additional support/promotional plan--20, timeliness of deliveries--30, conformance with specifications--30, customer satisfaction--30, and business relations--20. AR, Tab 15, SSD, at 4.
[2] The agency also awarded group six to
[3] Contrary to National's arguments, National Comments at 3, specific experience with DECA was not a prerequisite for a positive evaluation under the experience subfactor, nor, for that matter, was it a prerequisite for a positive evaluation under the separate past performance factor. See RFP--Addendum to FAR sect. 52-212-1 Instructions to Offerors--Commercial Items, para. 5, Vol. II, sect. 1; RFP, Addendum to FAR sect. 52.212-2 Evaluation--Commercial Items, para. 4.
[4] National additionally argues that the agency relied solely on the eastern region contract in determining Cargill's past performance score. The record and the agency's evaluations, however, clearly document other past performance references for Cargill within the 3-year scope of performance. Cargill's past performance references include four references for commissaries and four references for commercial contracts. AR, Tab 10, Cargill Past Performance References. Furthermore, the agency's evaluation of Cargill's past performance reflects evaluation and consideration of these contracts. AR, Tab 13, Cargill Initial Past Performance Consensus Comments, at 1.
[5] National additionally argues that the RFP language stating that [t]he Contracting Officer will provide notification if a proposed alternate delivery schedule is determined to be acceptable, means that the agency was obligated to tell all offerors in the event that any offeror's alternative schedule is approved. National Supplemental Comments,
[6] National argues that the agency's evaluation documents were inadequate because the agency destroyed the documents prepared by individual evaluators, and provided in its agency report only the consensus evaluation documents. The destruction of individual evaluator documents does not render an agency's evaluation unreasonable per se; rather, we will consider the record adequate if the consensus documents and source selection decision sufficiently document the agency's rationale for the evaluations. Joint Mgmt. and Tech. Servs., B-294229; B-294229.2,
[7] National has raised other challenges to the agency's evaluation of proposals in relation to the various issues discussed above. We have reviewed all of National's protest allegations and find all of them to be either untimely or without merit.