Oahu Tree Experts, B-282247, March 31, 1999

B-282247 Mar 31, 1999 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested an Air Force contract award for ground maintenance services, contending that the Air Force: (1) improperly relied on the Contractor Performance Assessment Report (CPAR) in evaluating its past performance; (2) violated the solicitation requirements; and (3) should have amended the solicitation to incorporate answers to various questions that it had asked. GAO held that the: (1) Air Force's reliance on the CPAR was the subject of pending litigation in a federal court; (2) Air Force reasonably evaluated the protester's bid in accordance with the solicitation's evaluation criteria; and (3) protester untimely filed its protest more than 10 days after the Air Force denied its agency-level protest. Accordingly, the protest was dismissed. View Decision Matter of: Oahu Tree Experts File: B-282247 Date: March 31, 1999 DIGEST Attorneys DECISION Oahu Tree Experts protests the award of a contract to Maintenance Engineers under request for proposals (RFP) No. F64605-98-R-0035, issued by the Department of the Air Force, for ground maintenance services at Hickam Air Force Base, Hawaii. We dismiss the protest. Oahu was the incumbent contractor for the solicited services. Oahu listed the incumbent contract and five other relevant contracts as past performance references. /1/ The agency rated Oahu's past performance as "poor" under a past performance/experience factor. The agency allegedly based this rating on a Contractor Performance Assessment Report (CPAR) issued in connection with Oahu's incumbent contract, without contacting the other past performance references in Oahu's proposal. The CPAR included "marginal" ratings in two evaluated areas. During the proposal evaluation period of the instant procurement, Oahu challenged the "marginal" ratings in its CPAR in federal district court. Charles R. Tasker d/b/a Oahu Tree & Stump Removal Experts vs. United States, No. CV99 00085 (D. Haw., Feb. 2, 1999). In its complaint, Oahu alleged that the CPAR reviewing official assigned the "marginal" ratings to retaliate against Oahu, which had reported him for ethical violations. Id. at 5. Oahu requested various forms of equitable relief to correct the allegedly improper CPAR. Id. at 12-13. The complaint did not mention the instant procurement. The agency awarded the instant contract to Maintenance Engineers on March 1, 1999, and this protest was filed on March 10, five days after Oahu's debriefing. Oahu protests the agency's reliance on the CPAR in its past performance evaluation. According to Oahu, the agency was aware that the reviewing official responsible for the CPAR was biased and that the "marginal" ratings were vindictive and did not accurately reflect Oahu's performance. Protest at 2-3. We dismiss this allegation because it involves a matter that is the subject of litigation in federal court. 4 C.F.R. Sec. 21.11(b) (1999). The matter involved in this protest is whether the contracting agency knew the "marginal" CPAR ratings to be motivated by bias, instead of an impartial assessment of the protester's performance. To answer this question, our Office must first determine whether bias did, in fact, taint the ratings -- the same question posed in Oahu's federal complaint. While Oahu correctly observes that its federal complaint does not mention the instant procurement and seeks different relief (i.e., the correction of the CPAR rather than the termination of the awardee's contract), these differences do not overcome the fact that Oahu has placed the same facts in issue before both our Office and the federal court. Compare Protest at 2-3 with Charles R. Tasker d/b/a Oahu Tree & Stump Removal Experts, supra at 3-5. We therefore dismiss Oahu's protest that the agency knowingly relied on biased CPAR ratings, inasmuch as the ratings have been challenged in federal district court. See 4 C.F.R. Sec. 21.11(b); Robinson Enters.--Request for Recon., B-238594.2, Apr. 19, 1990, 90-1 CPD Para. 402 at 2. The protester also claims that the agency violated the RFP by failing to contact all of the other five relevant past performance references listed in Oahu's proposal. Protest at 2. This protest contention is based on a mischaracterization of the RFP, which provides: NOTE: The Government reserves the right to limit the number of references it decides to contact and to contract references other than those provided by the offeror. RFP Attachment 3, Instruction to Offerors. Moreover, there is no requirement that an agency contact all of an offeror's references. OMV Medical, Inc.; Saratoga Medical Center, Inc., B-281387 et al., Feb. 3, 1999, 99-1 CPD Para. at 4. Thus, this protest contention, as alleged, fails to state a legally sufficient basis for protest. See 4 C.F.R. Sec. 21.1(f), 21.5(f).