Xtreme Concepts Inc

B-413711 Dec 19, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Xtreme Concepts Inc. (Xtreme), of Birmingham, Alabama, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. W91278-16-R-0038, issued by the Department of the Army, Corps of Engineers, for the installation of transformers at Millers Ferry Powerhouse, in Camden, Alabama. Xtreme challenges the agency's evaluation of past performance and its failure to conduct discussions with Xtreme. We sustain the protest. View Decision Decision Matter of:  Xtreme Concepts Inc File:  B-413711 Date:  December 19, 2016 Marshall Yates, Esq., for the protester. Kathleen Miller, Esq., and Stephen Sowell, Esq., Department of the Army, Corps of Engineers, for the agency. Lois Hanshaw, Esq., and Glenn G. Wolcott, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency improperly eliminated protester’s proposal from the competitive range where that elimination was based solely on the protester’s neutral past performance rating. DECISION Xtreme Concepts Inc. (Xtreme), of Birmingham, Alabama, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. W91278-16-R-0038, issued by the Department of the Army, Corps of Engineers,for the installation of transformers at Millers Ferry Powerhouse, in Camden, Alabama.  Xtreme challenges the agency’s evaluation of past performance and its failure to conduct discussions with Xtreme. We sustain the protest. BACKGROUND On June 9, 2016, the RFP was issued as a small business set-aside, and in accordance with the commercial item procedures of Federal Acquisition Regulation (FAR) part 12 and the simplified acquisition procedures of FAR part 13.  RFP at 1, 3.  The RFP contemplated award of a fixed-price contract, on the basis of a best-value tradeoff that considered the following:  (1) proposal compliance review; (2) technical proposal evaluations; (3) price analysis; and (4) technical-price tradeoff analysis.  Id. at 120.  For the technical proposal evaluations, the RFP stated that proposals would be assigned adjectival ratings with regard to the following evaluation factors:  (1) past performance of the prime contractor;[1] (2) technical approach for work; (3) technical approach for schedule; and (4) technical data for transformers.  Id. at 125.  The solicitation stated that the prime contractor’s past performance was the most important factor, and that the other three factors were equal to each other and all were less important than past performance.  Id. at 125. As relevant here, the RFP required the submission of past performance information for the prime contractor; stated that the contractor that was listed on and signed the Standard Form (SF) 1449 would be considered the prime contractor; and provided that only the prime contractor’s past performance information would be evaluated.  Id. at 120, 125.  The RFP advised that if an offeror intended to submit a proposal as a joint venture (JV), the JV was required to obtain a Data Universal Number System (DUNS) number and be registered in the System for Award Management.  Id. at 123.  With regard to discussions, the RFP stated that, in accordance with FAR provision 52.212-1, the agency intended to make award without discussions, but reserved the right to conduct discussions if it was determined to be in the government’s best interest.[2]  Id. at 130.  The RFP provided that, if discussions were determined to be necessary, they would include only those firms whose proposals were the most highly rated and were considered to have a reasonable chance for award.  Id. On August 17, the agency received a small number of proposals.[3]  As relevant here, Xtreme’s proposal included an SF 1449 that identified Xtreme as the offeror, was signed by Xtreme’s vice‑president,and listed only Xtreme’s DUNS number (as opposed to a JV’s DUNS number).  Agency Report (AR), Tab 7, Xtreme Proposal, at 8.  The proposal also expressly identified Xtreme as the prime contractor, naming another firm as a subcontractor.  Id. at 4.  That is, Xtreme’s proposal reflected a prime contractor/subcontractor relationship, and was not submitted on behalf of a JV.  Nonetheless, with its proposal, Xtreme submitted five past performance references for contracts performed by Xtreme’s proposed subcontractor.  AR, Tab 9, Xtreme Past Performance Proposal, at 7, 15, 23, 29, 38. In evaluating proposals, the source selection evaluation board (SSEB) determined that Xtreme was the prime contractor and, consistent with the terms of the solicitation, concluded that none of its subcontractor’s past performance information could be considered.  Id.