B-400782, CCITE/SC, November 21, 2008
Decision
Cammy
C. Ticknor for the protester.
Maj. LaChandra C. Richardson, Department of the Air Force, for the agency.
Frank Maguire, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly assessed relevance
of protester’s past performance submissions by applying criteria on an
individual, contract-by-contract, basis--rather than applying criteria cumulatively,
as protester argues agency should have done--where agency applied relevance
criteria based on only reasonable interpretation of solicitation.
DECISION
CCITE/SC, of
The RFP sought personnel for 10 different
positions/employee classes, RFP at 3-30, and provided that award would be made
on a “best value” basis considering three factors--technical, past performance,
and price.
The RFP required, inter alia, that offerors submit past performance information. Specifically, it required offerors to “Provide a list of no more than five (5) of the most relevant contracts performed for Federal agencies and commercial customers within the last two (2) years,” and defined relevance as follows:
VERY RELEVANT | Contractor has provided all of the services in this PWS [performance work statement] and has provided all of the positions/employee classes. |
RELEVANT | Contractor has provided some of the same services in this PWS and has provided at least 7 of the positions/employee classes. |
SOMEWHAT RELEVANT | Contractor has provided similar services as the ones in the PWS. Must apply to at least 5 of the same or related positions/employee classes. |
NOT RELEVANT | Contractor has not provided any similar services as the ones in the RFP, or the services were similar but apply to less than 5 of the positions in the RFP. |
The protester submitted information with regard to four
contracts. Agency Request for Summary
Dismissal at 4. The agency rated two of
the contracts not relevant--because they only covered two similar positions/employee
classes, while seven were required for a contract to be considered relevant--and
two somewhat relevant-- because they covered five of the positions/employee
classes.
CCITE/SC contends that its prior contracts improperly were rated somewhat relevant or not relevant, because the agency’s method for determining the number of positions/employees covered by the contracts was incorrect. Protest at 1‑2. More specifically, the protester asserts that the RFP “did not require offerors to provide numbers of employees per contract referenced to be considered recent and relevant,” id. at 2, but, rather, allowed for considering the positions/employees covered by the submitted contracts cumulatively. CCITE/SC states that the four prior contracts it submitted, considered cumulatively, provided “some of the same services” as set forth in the PWS and provided at least seven of the positions/ employee classes required by the RFQ. Protest at 2-4. CCITE/SC concludes that this should have been sufficient for the four contracts to be rated at least relevant, which would have improved its performance confidence assessment.
Where a dispute exists as to the meaning of solicitation
language, we will resolve the matter by reading the solicitation as a whole and
in a manner that gives effect to all provisions of the solicitation. See Honeywell Regelsysteme GmbH,
B-237248,
We find the protester’s interpretation of the RFP untenable. While the RFP did not expressly state that contracts would be evaluated separately, we think that was the import of the relevant provisions. As noted, the RFP advised offerors to provide “five (5) of the most relevant contracts performed,” and then listed the descriptions of the four relevance categories. This reference to “relevant contracts,” followed by a listing of the relevance categories, made it sufficiently clear, we think, that relevance was to be determined for each contract. This view is reinforced by the further statement that “submitting less than three (3) recent and relevant surveys will receive a neutral rating”; again, this was sufficient, we think, to indicate that the agency would be assessing relevance on a contract-by-contract basis, since such an individual assessment would be necessary to determine whether “less than three (3) recent and relevant” contracts had been submitted. At a minimum, even if it could be said that the RFP was unclear on this point, there certainly was no reasonable basis for the protester to simply assume that relevance would be assessed cumulatively for purposes of determining how many positions/employees were covered by the contracts, given the absence of any indication that the agency intended to follow such an approach. It is worth noting that the term cumulative is not used in this provision. This being the case, to the extent the protester believed prior contracts should be evaluated cumulatively for relevance, it was required to challenge the RFP on this basis prior to the closing time for receipt of proposals. Bid Protest Regulations, 4 C.F.R. sect. 21.2 (a)(2) (2008). We conclude that the agency reasonably evaluated the relevance of CCITE/SC’s prior contracts, consistent with the terms of the RFP, and properly assigned CCITE/SC a neutral performance confidence assessment.
CCITE/SC
contends that the agency improperly failed to take into account information
from “other sources such as other Federal Government offices and commercial
sources” to assess its past performance, as also required under section C.3(b)
of the RFP, and differs with the agency with regard to whether it contacted
appropriate points of contact related to CCITE/SC’s past performance
submissions. Protest at 3-5. Prejudice is an essential element of every
viable protest, and where none is shown or otherwise apparent, we will not
sustain a protest, even if the agency’s actions may arguably have been
improper. TELESIS Corp., B‑299804,
The protest is denied.
Gary L. Kepplinger
General Counsel