United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

Decision

Matter of: Phoenix Management, Inc.

File: B-405980.7; B-405980.8; B-405980.9

Date: May 1, 2012

Gerald H. Werfel, Esq., Pompan, Murray & Werfel, PLC, for the protester.

Greg Harding, Esq., and Jared Minsk, Esq., Department of the Air Force, for the 

agency.

Mary G. Curcio, Esq., and David A. Ashen, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest that agency unreasonably evaluated awardee’s past performance is denied 

where decision to rate one reference relevant and one somewhat relevant was 

based on the work performed under each of the contracts compared to the work that 

was being solicited.

DECISION

Phoenix Management, Inc. (PMI), of Austin, Texas, protests the Department of the 

Air Force’s award of a contract to Data Monitor Systems, Inc. (DMS), of Oklahoma 

City, Oklahoma, under request for proposals (RFP) No. FA8101-11-R-0002, for fuels 

management services at Tinker Air Force Base. PMI protests that the agency 

unreasonably evaluated the past performance of DMS, violated the Procurement 

Integrity Act, and acted in bad faith.

We deny the protest. 

BACKGROUND

Award was to be made to the technically acceptable offeror that provided the “best 

value” to the government based on a trade-off between past performance and price. 

RFP, Addendum to FAR 52.212-2 at 1. There were six technical subfactors:

program management and orientation; manpower and organization chart; quality 

control; safety; environmental; and mission essential contractor services (MECS). 

Id. at 2. With respect to past performance, the solicitation provided that the agency 

would consider the past performance of the offerors and their joint venture partners 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-405980.7 et al. 

or major subcontractors. Id. at 9. The solicitation further provided that the agency 

would consider whether the past performance was recent and relevant, as well as 

the quality of performance. Id. at 8-10. 

Eight offerors responded to the solicitation. Following the evaluation of proposals, 

discussions, and the submission and evaluation of final proposal revisions (FPR), 

award was made to DMS. PMI protested the award. In response, the agency 

determined to take corrective action, including requesting the submission of revised 

FPRs with respect to past performance. As a result, our Office dismissed the 

protests on December 5, 2011. 

Following the submission and evaluation of the revised past performance FPRs, PMI 

and DMS were both rated acceptable for the technical factor and substantial 

confidence for past performance.1 Since DMS offered to perform for $18,469,993 

and PMI for $21,766,728, the agency affirmed its award to DMS as providing the 

best value to the government. 

PAST PERFORMANCE

PMI protests that the evaluation of substantial confidence with respect to DMS’s past 

performance was unreasonable because, according to PMI, DMS did not have 

relevant experience with respect to maintaining MECS. In this regard, the 

solicitation provided for the evaluation of information submitted by offerors and their 

references regarding offerors’ past performance/experience as it applies to each of 

the evaluation subfactor areas, including MECS. MECS, in turn, generally was 

defined as maintaining mission essential contractor services during an extended 

event, such as a pandemic, as well as acquiring essential personnel and resources, 

identification and preparedness of personnel for relocation or working at home, alert 

and notification procedures for mobilizing essential personnel, and communicating 

expectations during a crisis. RFP, Addendum to FAR 52.212-1, at 9, 18-27; RFP,

Addendum to FAR 52.212-2, at 7-12.

In challenging the agency determination that DMS had past performance relevant to 

MECS, PMI asserts that the agency failed to consider the magnitude of the contracts

under which past performance was being considered as compared to the magnitude 

of the contract to be awarded. In this regard, DMS was evaluated as having only 

two past performance contract references relevant to MECS, including base 

operations and support contracts performed at Dobbins and Grissom Air Force 

bases. PMI notes that the agency considered the Dobbins contract relevant and the 

Grissom contract only somewhat relevant, even though the Dobbins contract is 

 1 The possible past performance ratings were substantial confidence, satisfactory 

confidence, limited confidence, no confidence, and unknown confidence. 
Page 3 B-405980.7 et al. 

worth [REDACTED], or about one fifth of the value of the contract to be awarded 

under the current solicitation, and the Grissom contract is worth between 

[REDACTED] and [REDACTED]. DMS Past Performance Summary. In PMI’s 

view, both contracts should have been assigned the same relevancy rating based on 

contract value. PMI further notes that under the Dobbins contract DMS received a 

quality rating of exceptional, while under the Grissom contract DMS received a 

quality rating of marginal. PMI concludes that either both contracts were relevant 

and the overall substantial confidence rating for DMS was unreasonable because on 

one relevant contract DMS received a marginal rating, or both were only somewhat 

relevant in which case the substantial confidence rating was unreasonable because 

DMS did not have significant relevant experience under the MECS subfactor. 

In response, the agency explains that in evaluating the past performance of DMS, it 

considered the two contracts referenced by PMI, plus the eight contracts submitted 

on behalf of DMS’s proposed subcontractor. The agency found that based on these 

contracts the DMS team had relevant past performance in each of the six task areas 

covered by the technical subfactors. With respect to the Dobbins and Grissom 

contracts, the agency advises that the contract values were considered in assigning

the relevancy rating, but the contracts were assigned different relevance ratings 

because on the Dobbins contract DMS performed all the tasks that would be 

performed under the current solicitation, while on the Grissom contract it performed 

only some of the tasks that would be performed. 

An agency's evaluation of past performance, including its consideration of the 

relevance, scope, and significance of an offeror's performance history, is a matter of 

discretion which we will not disturb unless the assessments are unreasonable or 

inconsistent with the solicitation criteria. Family Entertainment Servs., Inc., d/b/a 

IMC, B-291997.4, June 10, 2004, 2004 CPD ¶ 128 at 5. A protester's mere 

disagreement with such judgment does not provide a basis to sustain a protest. 

Birdwell Bros. Painting & Refinishing

We find no basis to disturb the agency’s decision to rate DMS substantial confidence 

for past performance. First, we disagree with PMI that the agency was required to 

consider both the Dobbins and Grissom contracts as either relevant or somewhat 

relevant based solely on the magnitude of the contracts, as related to the work under 

the current solicitation. Specifically, the solicitation provided that in determining 

relevancy, the agency would consider “similar service, similar complexity of the 

effort, breadth and depth of skills, similar contract scope and type, contract 

magnitude and schedule.” RFP, Addendum to FAR 52.212-2 at 38. Thus, 

magnitude was only one element to be considered in determining whether a contract 

was relevant with respect to the current solicitation; the type of work performed was 

also to be considered. 

, B-285035, July 5, 2000, 2000 CPD ¶ 129 at 5. 

As to PMI’s other specific contentions, the agency found the Dobbins contract was 

relevant because at Dobbins DMS performed all fuels functions and filled all key 

personnel positions related to their portion of the proposed current Tinker effort, 
Page 4 B-405980.7 et al. 

such that the Dobbins effort was similar in scope, magnitude of effort and complexity 

to the proposed effort. In contrast, the agency found the Grissom contract was only 

somewhat relevant because at Grissom DMS performed some, but not all of the 

tasks that it would perform under the current solicitation. Source Selection Decision 

(SSD) at 21. In our view, the agency’s evaluation in this regard was consistent with 

the evaluation approach set forth in the solicitation and otherwise reasonable.2

PROCUREMENT INTEGRITY

As noted, the agency notified our Office on December 1, 2011, that it would take 

corrective action on PMI’s earlier protests, allowing offerors to submit a revised FPR 

for past performance, reevaluating past performance, and making an award decision 

based on the reevaluation. On December 16, the agency requested offerors to 

submit the revised past performance proposals by December 21. According to PMI, 

however, at a holiday luncheon on December 14, an Air Force employee told a PMI 

employee that the award to DMS would stand. PMI asserts that this incident 

demonstrates that the agency violated the Procurement Integrity Act, 41 U.S.C. § 

2102 (a)(1) (2011). 

The Procurement Integrity Act prohibits certain designated personnel from knowingly 

disclosing source selection information before the award of a contract to which the 

information relates. 41 U.S.C. § 2102 (a)(1). When a contracting officer receives 

information of a possible violation of the act, he must determine if the possible 

violation has any impact on the pending award decision. 48 C.F.R. § 3.104-7(a). If 

the contracting officer concludes that there is no impact, he is required to forward the 

information to a designated official. Id. If that individual concurs, the contracting 

officer may proceed with the procurement. Id. 

Here, the agency followed the required procedures. Specifically, after the alleged 

violation was reported to the contracting officer, she interviewed the Air Force 

employee at the luncheon, who denied having told the PMI employee that the award 

to DMS would stay in place, and in fact denied having any knowledge of the source 

selection process. COS at 17. The agency also interviewed members of the 

evaluation team and other management personnel who denied providing the agency 

employee with any source selection information. Id.

 2 In its comments submitted on March 19, 2012, PMI for the first time challenges the 

evaluation of DMS’s past performance on additional grounds, including that the 

evaluation ignored agency concerns as to whether DMS or its subcontractor would 

perform certain work. Since PMI did not raise this issue within 10 days of 

February 10, when it received the documents on which it is based, this protest 

ground is untimely under our Bid Protest Regulations. See 4 C.F.R. § 21.2(a)(2) 

(2011). 

at 18. Based on this 
Page 5 B-405980.7 et al. 

information, the contracting officer concluded that no violation had occurred and the 

procurement could proceed. The head of the contracting activity approved this 

result. Id. To ensure fairness, however, the agency appointed a new evaluation 

panel. 

On this record, we find no basis to conclude that the agency acted unreasonably. In 

this regard, even if a violation of the Procurement Integrity Act had occurred, the 

agency, as indicated above, can proceed with the procurement if the violation did not 

impact the procurement. 48 C.F.R. § 3.104-7(a). Here, the agency appointed a new 

team to evaluate offerors’ past performance information. As discussed above, we 

found that the evaluation of DMS’s past performance was reasonable. Accordingly, 

there is no basis to conclude that any violation that may have taken place before the 

new proposals were received impacted the procurement. 

PMI also asserts that the conversation at the holiday party demonstrates that the 

agency did not intend to take corrective action in good faith because it had already

decided to keep DMS’s contract in place at least 2 days before it requested the past 

performance FPRs. However, as discussed above, the Air Force investigated the 

matter and found no wrongdoing. There is no suggestion in this record that the 

agency was biased or acted in bad faith.

The protest is denied.

Lynn H. Gibson

General Counsel