R.C.O. Reforesting, B-280774.2, November 24, 1998

B-280774.2 Nov 24, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Source selection official is not bound by the recommendations or evaluation judgments of lower-level evaluators. Was reasonable and consistent with solicitation providing for consideration of past performance. 2. R.C.O. alleges that the evaluation of proposals was improper and that the agency unreasonably declined to award a third contract. Which was to be "secondary to technical factors" in the selection decision. These three "exceptional" proposals were second (Summitt). The protester asserts that the agency should not have considered the termination of a prior contract for default in the past performance evaluation. Since R.C.O.'s appeal of the termination action is still pending. The protester asserts that the awardees are "presently involved in serious legal disputes. View Decision Matter of: R.C.O. Reforesting File: B-280774.2 Date: November 24, 1998 DIGEST Attorneys DECISION R.C.O. Reforesting protests the award of 5-year multitask contracts for reforesting work to Summitt Forests, Inc., and Redding Tree Growers Corp. under request for proposals (RFP) No. R5-14-98-039, issued by the Forest Service. R.C.O. alleges that the evaluation of proposals was improper and that the agency unreasonably declined to award a third contract, to the protester. We deny the protest. The agency issued the RFP for award of fixed-price indefinite-delivery, indefinite-quantity contracts for silviculture services--including tree planting, seeding, and precommercial thinning--within Six Rivers and Klamath National Forests. RFP Sec. C.1(a), L.4; Determination for Award at 1. The RFP, Sec. M.8, M.9, provided for consideration of technical factors, as well as price, which was to be "secondary to technical factors" in the selection decision. Technical factors included the following: record of past performance; technical approach; production capability and capacity; and organization/management. RFP Sec. M.8(b). For the evaluation of past performance, section M.8(b)(1) of the solicitation required offerors to list all contracts or work experience, completed in the last 5 years, with references which they felt qualified them to be successful in performance of the required effort. Twelve firms submitted offers on June 11, 1998. An evaluation panel assigned a rating of "exceptional" to the proposals submitted by Summitt, Redding, and R.C.O. These three "exceptional" proposals were second (Summitt), third (Redding), and fourth (R.C.O.) low in price. The contracting officer reviewed the evaluation and ascertained that the evaluators had not considered the recent default termination of one of R.C.O.'s contracts. Determination for Award at 1. Taking the termination into account as part of the evaluation of R.C.O.'s proposal under the past performance factor, the contracting officer reduced the rating of R.C.O.'s technical proposal from "exceptional" to "acceptable." Id. Since Redding and Summitt had received the highest technical ratings and had submitted the lowest prices (except for one offeror not at issue here), she awarded them contracts on August 5, 1998. Id. R.C.O. received a debriefing on August 17 and filed this protest with our Office 2 days later. The protester asserts that the agency discriminated against it by changing its technical rating from "exceptional" to "acceptable" and by awarding only two contracts under the RFP, instead of three. The protester asserts that the agency should not have considered the termination of a prior contract for default in the past performance evaluation, since R.C.O.'s appeal of the termination action is still pending; further, the protester asserts that the awardees are "presently involved in serious legal disputes," which the agency should have considered in its evaluation of the proposals of Redding and Summitt. Protest at 3. The record here indicates that, on May 14, 1997, the agency terminated for default R.C.O.'s contract No. 52-9JNE-7-13, involving tree planting in the Sierra Cascade Province; the agency found that many of the trees to be planted had disappeared and that the protester had apparently buried some of them in holes next to trees actually planted. Forest Service letter, May 14, 1997 at 1. R.C.O. made reference to the termination in its proposal, noting that it had brought a challenge to the agency's action, which was still pending. The contracting officer here participated in an investigation conducted prior to the termination and, based on her personal knowledge of the default, considered it under the past performance evaluation of R.C.O.'s proposal.