B-310808, Daylight Tree Service & Equipment, LLC, January 29, 2008
Decision
Matter of: Daylight Tree Service & Equipment, LLC
Scott
Muir, for the protester.
Melissa
McClellan, Esq., U.S. Department of Agriculture, Forest Service, for the
agency.
Paula J. Haurilesko, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that the agency improperly considered the past performance of another company in evaluating protester is denied where the two companies shared the same address, telephone number, and point of contact, and where the protester included contacts from contracts performed by the affiliated company in its references.
DECISION
Daylight Tree Service & Equipment, LLC, protests the award of a contract to Woolery Timber Management by the U.S. Department of Agriculture Forest Service under request for proposals (RFP) No. AG-9A63-S-07-0088, for tree and vegetation mastication services. Daylight contends that the Forest Service improperly evaluated Daylight’s proposal using past performance information for another company.
The Forest Service issued on
The Forest Service received seven proposals in response to
the RFP. Contracting Officer’s (CO)
Statement at 1. The Forest Service
provided the sections of the proposals pertaining to the non-price evaluation
factors to the evaluation team for review.
The Forest Service awarded the contract to Woolery Timber
Management, and Daylight filed an agency-level protest. AR, Tab 3, Daylight Protest,
Daylight filed a protest challenging its past performance evaluation with this office, arguing only that the evaluation was flawed because it and Associated Arborists are not the same company.[1] Protest at 1. The Forest Service argues that, by listing references in its proposal that pertain to contracts performed by Associated Arborists, Daylight itself apparently considered the past performance of Associated Arborists relevant to the performance of Daylight, and therefore the Forest Service reasonably considered Associated Arborists’ performance. AR, Tab 1, Memorandum of Law, at 6.
In our view, the evaluation team reasonably included the past performance information of Associated Arborists in its assessment of Daylight’s past performance. The use of the same address and telephone number for both companies, combined with the same person representing the companies, strongly suggest that the two companies are, if not predecessor and successor companies, then at least close affiliates, and therefore, the past performance of Associated Arborists could appropriately be considered in evaluating Daylight’s proposal. As proof that Daylight and Associated Arborists are not the same company, Daylight merely asserts that it has been awarded contracts by the Forest Service since 2005. However, it has provided no explanation as to how the two companies shared the same address and telephone number while remaining separate entities.
Moreover, the Federal Acquisition Regulation (FAR) directs
agencies to take into account past performance information of predecessor
companies, key personnel who have relevant experience or subcontractors when
such information is relevant to an acquisition.
FAR sect. 15.305(a)(2)(iii). Daylight’s
operations manager had also been president of Associated Arborists. Therefore, the experience of Associated
Arborists under his leadership is relevant to the performance of Daylight. See, e.g., United Coatings,
B-291978.2,
To the extent that Daylight argues that the Forest Service
improperly waited until after Daylight filed an agency-level protest before
contacting its references, relying instead on the personal experiences of the
evaluation team with regard to the performance of Associated Arborists, we find
that the agency’s actions were not improper.
With regard to the evaluation team relying on its own knowledge, we have
held that an evaluator’s personal knowledge of an offeror may be properly
considered in a past performance evaluation.
Omega World Travel, Inc., B-271262,
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]
We note that in Daylight’s comments on the Agency Report, it raises the argument
that the technical evaluation of its equipment also was incorrect. Comments on AR at 2. However, as this issue was not raised during
its initial protest to our Office and Daylight was aware of this issue prior to
filing with our Office, the issue is untimely.
Under
our Bid Protest Regulations, to be timely, a protest must be filed within 10 days
after the basis of protest is known or should have been known. 4 C.F.R. sect. 21.2(a)(2) (2007).