B-407115: Nov 2, 2012
- Full Report:
SoniTech NDT, of Broomfield, Colorado, protests the issuance of a purchase order to Sonic Inspection Corporation, of Castle Rock, Colorado, under request for quotations (RFQ) No. N40085-12-M-5108, issued by the Department of the Navy for testing of fire protection piping systems. The protester objects to the agency's evaluation of the awardee's quotation and selection decision.
We deny the protest.
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: SoniTech NDT
Date: November 2, 2012
1. In a negotiated procurement for a fixed-price purchase order, protest that the successful vendors price is unrealistically low is denied where the solicitation did not provide for the evaluation of price realism.
2. Protest objecting to the agencys evaluation of the successful vendors past performance is denied, where the agency considered the vendors history of relevant past performance and the positive comments made by the vendors references regarding its past performance.
SoniTech NDT, of Broomfield, Colorado, protests the issuance of a purchase order to Sonic Inspection Corporation, of Castle Rock, Colorado, under request for quotations (RFQ) No. N40085-12-M-5108, issued by the Department of the Navy for testing of fire protection piping systems. The protester objects to the agencys evaluation of the awardees quotation and selection decision.
We deny the protest.
The RFQ, issued as a small business set-aside under the commercial acquisition procedures of Federal Acquisition Regulation (FAR) Part 12, provided for the issuance of a fixed-price order for the non-destructive testing of fire protection piping systems using ultrasonic localized guided wave technology within buildings occupied by the Defense Information Systems Agency (DISA) and located at the Naval Support Activity in Mechanicsburg, Pennsylvania. RFQ at 2-3. Vendors were informed that the work concerned five DISA occupied buildings but did not include space within these buildings that was occupied by other tenants. In this regard, the RFP identified the amount of square footage occupied by DISA in each building. RFQ amend. 1, at 2.
Vendors were informed that selection of the successful vendor would be made on a best-value basis, considering past performance and price, which were stated to be approximately equal in value. RFQ at 52. With regard to past performance, vendors were instructed to provide information that demonstrated customer satisfaction for recent (performed within the last 3 years) and relevant contracts performed for federal agencies or commercial customers. Id. at 50. The RFQ provided that the agency would evaluate the vendors past performance as substantial confidence, satisfactory confidence, limited confidence, no confidence, or unknown confidence (neutral). RFQ at 53.
With regard to price, the RFQ requested that vendors provide a total, lump-sum price for all of the requested services. RFQ at 2. The RFQ also provided that if the lowest-priced quotation was found to have a substantial confidence performance rating, that quotation would be deemed to represent the best value to the agency. Id. at 53.
The agency received quotations from only SoniTech and Sonic. Sonic submitted the lowest-priced quotation ($70,800), and SoniTech submitted the second-lowest priced quotation ($180,000). Agency Report (AR), Tab 3, SoniTech Quotation, at 2; Tab 6, Sonic Quotation, at 1. The contracting officer evaluated the firms past performance information, and obtained several completed past performance questionnaires for each vendor. The contracting officer assessed both firms past performance as substantial confidence. Contracting Officers Statement at 3.
The contracting officer also assessed the reasonableness of Sonics low price by comparing Sonics $70,800 price with the revised independent government estimate (IGE) of $61,392.60. The contracting officer concluded that, although Sonics price was approximately 12 percent higher than the revised IGE, it was within an acceptable range and reasonable. AR, Tab 11, Price Reasonableness Determination.
The purchase order was issued to Sonic as the firm with the lowest-priced quotation that received a substantial confidence past performance assessment. This protest followed a debriefing.
The protester raises a number of challenges to the agencys evaluation of Sonics price and past performance, none of which we find to have merit.
The protester first complains that the agency failed to assess the realism of Sonics low price. The RFQ, however, did not provide for a price realism analysis. Where, as here, the award of a fixed-price contract or order is contemplated, a quotations price realism is not ordinarily considered, since a fixed-price contract or order places the risk and responsibility for contract costs and resulting profit or loss on the contractor. Beyel Bros,, Inc., B-406640, B-406640.2, July 18, 2012, 2012 CPD ¶ 211 at 4. A price realism evaluation is not required where a solicitation for a fixed-price contract does not include a requirement for such an evaluation. Id.
The protester also argues that the agencys price reasonableness analysis was flawed, because Sonics own pricing data allegedly reflects that its historical pricing for this project was substantially higher than its price quotation here and more in line with SoniTechs higher price. The purpose of a price reasonableness review in a competition for the award of a fixed-price contract or order, however, is to determine whether the prices offered are too high, as opposed to too low. Sterling Servs., Inc., B-291625, B-291626, Jan. 14, 2003, 2003 CPD ¶ 26 at 3; WorldTravelService, B-284155.3, Mar. 26, 2001, 2001 CPD ¶ 68 at 4 n.2. SoniTechs argument that Sonics price is too low concerns price realism and not reasonableness. See C.L. Price & Assocs., Inc., B-403476.2, Jan. 7, 2011, 2011 CPD ¶ 16 at 3; SDV Solutions, Inc., B-402309, Feb. 1, 2010, 2010 CPD ¶ 48 at 4. As noted above, such an analysis was not required here.
The protester also complains that the agencys affirmative determination of Sonics responsibility is unreasonable, because Sonic allegedly will not be able to perform the RFQ work within the time required at its low price. Protest at 6. We generally do not review affirmative determinations of responsibility, except in circumstances not demonstrated here. 4 C.F.R. § 21.5(c) (2012). Moreover, because Sonic is a small business, any issue concerning the awardees responsibility is a matter for the Small Business Administration under its certificate of competency program.
Past Performance Evaluation
Finally, the protester argues that Sonics past performance should not have received a substantial confidence rating, because Sonic had not performed a government project of the size and scope contemplated by the statement of work within the past 3 years. Protest at 6; Protesters Comments at 9.
In reviewing a protest challenging an agencys past performance evaluation, we will examine the record to determine whether the agencys judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD ¶ 132 at 4. A protesters mere disagreement with the agencys evaluation provides no basis to question the reasonableness of the evaluators judgments. See Citywide Managing Servs. Of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 10-11.
Here, the record does not support SoniTechs complaint. First, contrary to the protesters belief, the RFQ did not provide that the agency would only consider past performance of federal government contracts but stated that the agency would consider past performance of relevant work for federal agencies and commercial customers. See RFQ at 50. Next, the contracting officer found that Sonic had identified seven prior projects for its relevant experience, one of which had a significantly higher value than the RFQ work here or any of the experience identified by SoniTech. The contracting officer received responses to two past performance questionnaires for Sonics work as a prime contractor, which stated that Sonics performance was excellent and good, respectively. The contracting officer also received a verbal response for work that Sonic performed as a subcontractor, which indicated that Sonics performance was good. Contracting Officers Statement at 3. The contracting officer concluded from this record that Sonics past performance merited a substantial confidence rating, which we find was consistent with the RFQ criteria. Although SoniTech disagrees with this judgment, this does not demonstrate that the agencys assessment of the merits of Sonics past performance was unreasonable.
The protest is denied.
Lynn H. Gibson
 Relevant past performance was defined as non-destructive testing of fire protection piping systems using ultrasonic localized guided wave technology. RFQ at 52.
 Substantial confidence reflected the governments high expectation, based upon a vendors recent and relevant past performance, that the vendor would successfully perform the required effort. RFQ at 53.
 The initial IGE was $99,881.20, which was based in part upon information received from SoniTech. See AR at 3; Tab 8, Declaration of Engineering Technician at 1-2. After receiving quotations, the agency reviewed the IGE and determined that it was erroneously based upon all of the square footage of the five buildings and not just the space occupied by DISA. Contracting Officers Statement at 2. The IGE was then revised to $61,392.60.
 SoniTech also argued that Sonics quotation was submitted late and with inaccurate information. Protest at 6. The agency specifically responded to this allegation in its report. SoniTech abandoned this ground of protest, when it did not address the agencys response in its comments. See Cedar Electric, Inc., B-402284.2, Mar. 19, 2010, 2010 CPD ¶ 79 at 3 n.4.
 In this regard, SoniTech challenges the adequacy of the IGE and the agencys revision of the IGE after receipt of quotations. Protesters Comments at 5. These arguments also provide no basis to sustain the protest, as they all concern SoniTechs belief that Sonics price is unrealistically low. We also note that agencies are permitted to change IGEs after receipt of quotations or proposals where a review of the quotations or proposals shows that the initial IGE was incorrect in its assessment of the level of effort necessary to perform the requirement, or in its prediction of fair and reasonable prices as compared to the actual pricing disclosed by competition. Resource Ltd., B-406492, B-406492.2, June 6, 2012, 2012 CPD ¶ 195 at 5.
 SoniTech also argues that Sonic does not have the requisite integrity to be found responsible because Sonic allegedly posted confidential drawings from a past project to its publicly available website in violation of contract terms. Protesters Comments at 9. This argument, which was not raised in SoniTechs protest, is untimely. Our Bid Protest Regulations do not contemplate the unwarranted piecemeal presentation or development of protest issues. See 4 C.F.R. § 21.2(a) (2012); AINS, Inc., B-405902.3, May 31, 2012, 2012 CPD ¶ 180 at 6 n.12.