B-194762, SEP 24, 1979

B-194762, SEP 24, 1979

DIGEST: EVALUATION OF COMPETITORS FOR ARCHITECTURAL ENGINEERING CONTRACT IS REASONABLE AND COMPLIES WITH POLICY EXPRESSED IN BROOKS BILL, 40 U.S.C. SECS. 541, ET SEQ. (1976).

LEYENDECKER & CAVAZOS:

LEYENDECKER & CAVAZO (L&C) PROTESTS THE SELECTION BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF ANOTHER ARCHITECTURAL AND ENGINEERING (A/E) FIRM FOR A POST OFFICE RENOVATION PROJECT IN LAREDO, TEXAS. L&C CONTENDS THAT THE EVALUATION CRITERIA WERE NOT PROPERLY APPLIED. IN RESPONSE TO L&C'S ALLEGATIONS, WE HAVE REVIEWED GSA'S EVALUATION AND IN EACH INSTANCE FIND SUBSTANTIAL SUPPORT FOR THE EVALUATORS' CONCLUSIONS. CONSEQUENTLY, WE HAVE FOUND NO BASIS UPON WHICH WE MIGHT QUESTION EITHER GSA'S EVALUATION OF L&C OR THE PROPRIETY OF THE AWARD TO ANOTHER FIRM, ASHLEY, HUMPHRIES & PARTNERS, INC. (AHP).

WE NOTE AT THE OUTSET THAT OUR REVIEW IS LIMITED TO EXAMINING WHETHER THE SELECTION OF AN A/E CONTRACTOR IS REASONABLE. WE WILL QUESTION THE AGENCY'S JUDGMENT ONLY IF IT IS SHOWN TO BE ARBITRARY. SEE SRG PARTNERSHIP, PC, B-188444, JUNE 17, 1977, 77-1 CPD 438; BOYLE ENGINEERING CORPORATION, B-183355, JUNE 10, 1975, 75-1 CPD 354.

FEDERAL PROCUREMENT OF A/E SERVICES IS GOVERNED BY THE PROVISIONS OF THE BROOKS BILL, 40 U.S.C. SECS. 541, ET SEQ. (1976). GENERALLY, THE SELECTION PROCEDURES PRESCRIBE THAT THE REQUIREMENT FOR A/E SERVICES BE PUBLICLY ANNOUNCED. THE CONTRACTING AGENCY THEN REVIEWS STATEMENTS OF QUALIFICATIONS AND PERFORMANCE DATA ALREADY ON FILE AND STATEMENTS SUBMITTED BY OTHER A/E FIRMS RESPONDING TO THE PUBLIC ANNOUNCEMENT. DISCUSSIONS MUST BE HELD WITH "NO LESS THAN THREE FIRMS REGARDING ANTICIPATED CONCEPTS AND THE RELATIVE UTILITY OF ALTERNATIVE METHODS OF APPROACH" FOR PROVIDING THE SERVICES REQUESTED. THE CONTRACTING AGENCY THEN RANKS IN ORDER OF PREFERENCE, BASED ON PUBLISHED CRITERIA, NO FEWER THAN THE THREE FIRMS CONSIDERED MOST QUALIFIED. NEGOTIATIONS ARE HELD WITH THE HIGHEST-RANKED A/E FIRM. IF THE PROCURING AGENCY IS UNABLE TO REACH AGREEMENT WITH THAT FIRM ON A FAIR AND EQUITABLE PRICE, NEGOTIATIONS ARE TERMINATED AND THE SECOND-RANKED FIRM IS INVITED TO SUBMIT ITS PROPOSED FEE.

WE THINK GSA'S CONDUCT OF THIS PROCUREMENT COMPLIED WITH THESE REQUIREMENTS. PUBLIC NOTICE OF THE PROJECT APPEARED IN THE COMMERCE BUSINESS DAILY ON FEBRUARY 13, 1979, IN AN ANNOUNCEMENT WHICH SPECIFIED THE FOLLOWING EVALUATION CRITERIA:

"*** SELECTION TO BE BASED UPON: PROJECT TEAM (25%). KEY PERSONNEL AND THEIR TIME COMMITMENT TO THESE PROJECTS, THEIR QUALIFICATIONS AND RELEVANT INDIVIDUAL EXPERIENCE. DESIGN MANAGEMENT (20%). PROJECT MANAGEMENT PLANS, PAST COORDINATION, SCHEDULING, COST CONTROL METHODS, PRODUCTION FACILITIES, CAPABILITIES AND TECHNIQUES. DESIGN ABILITY (25%). VISUAL AND NARRATIVE EVIDENCE OF PROPOSED TEAMS ABILITY WITH RESPECT TO INNOVATION AND MEETING TIME AND COST RESTRAINTS. EXPERIENCE (20%). PAST PERFORMANCE ON LIKE PROJECTS WITH GOVERNMENT AND PRIVATE INDUSTRY. SPECIAL CONSIDERATION (10%). DEMONSTRATES DESIRE AND ABILITY TO SATISFACTORILY COMPLETE PROJECTS UNDER CRITICAL TIME TABLES. CONSIDERATION IS LIMITED TO FIRMS HAVING AN EXISTING ACTIVE DESIGN PRODUCTION OFFICE WITHIN THE CORPORATE LIMITS OF THE CITY OF LAREDO TEXAS. JOINT VENTURES WILL NOT BE CONSIDERED. ***"

ONE OF THE FIVE RESPONDING A/E FIRMS WAS ELIMINATED FOR FAILURE TO HAVE A LOCAL OFFICE. A GSA-APPOINTED COMMITTEE EVALUATED AND RANKED THE REMAINING FOUR FIRMS, WITH AHP BEING THE HIGHEST RANKED. AHP MAINTAINS A BRANCH OFFICE IN LAREDO. THE GSA REGIONAL ADMINISTRATOR APPROVED THE COMMITTEE'S RANKINGS. AFTER PRICE NEGOTIATIONS, THE CONTRACT WAS AWARDED TO AHP ON APRIL 19, 1979.

THE PROTESTER CONTENDS THAT AHP'S BRANCH OFFICE DOES NOT SATISFY THE THRESHOLD REQUIREMENT FOR A LAREDO OFFICE OR, ALTERNATIVELY, THAT L&C IS BETTER QUALIFIED UNDER THIS CRITERIA BECAUSE ITS LAREDO HOME OFFICE IS LARGER THAN AHP'S BRANCH OFFICE. THE GEOGRAPHICAL LIMITATION, HOWEVER, REQUIRED ONLY THAT A RESPONDING A/E FIRM HAVE AN ACTIVE DESIGN OFFICE IN LAREDO, WITHOUT DISTINGUISHING BETWEEN A HOME OR BRANCH OFFICE. CONSIDERING THIS QUESTION, GSA'S EVALUATORS NOTED THAT THE LAREDO TELEPHONE BOOK SHOWS ADDRESSES IN THE CITY FOR BOTH AHP AND ONE OF ITS PRINCIPALS AND THAT THIS SAME PRINCIPAL WAS DESIGNATED BY AHP AS ONE OF THE KEY PROJECT PERSONNEL; THIS SAME PARTY IS SHOWN IN THE ROSTER OF REGISTERED ARCHITECTS FOR THE STATE OF TEXAS AS RESIDENT IN LAREDO AND AHP'S STATEMENT OF QUALIFICATIONS SHOWS THAT THIS INDIVIDUAL HAS MANAGED OTHER DESIGN EFFORTS IN LAREDO. IN THESE CIRCUMSTANCES, WE THINK GSA WAS REASONABLE IN CONCLUDING THAT AHP MAINTAINED AN ACTIVE DESIGN OFFICE IN LAREDO.

L&C'S SECOND PRINCIPAL OBJECTION PERTAINS TO APPLICATION OF THE EXPERIENCE AND KEY PERSONNEL CRITERIA OF THE ANNOUNCEMENT. L&C ARGUES THAT IT HAS MORE PROFESSIONAL-LEVEL PERSONNEL IN LAREDO AND THAT IT HAS BEEN IN PRACTICE FOR 30 YEARS LONGER THAN AHP, WHICH WAS FORMED IN 1978.

THE YEARS THAT A FIRM HAS BEEN IN EXISTENCE WAS ONLY A MINIMAL CONSIDERATION FOR WHICH FIRMS COULD RECEIVE UP TO 3 POINTS, OUT OF A TOTAL OF 100, BASED ON THEIR FALLING INTO ONE OF THREE CATEGORIES. L&C RECEIVED TWO POINTS BASED ON ITS QUALIFICATIONS STATEMENT WHICH SHOWED THAT L&C WAS FORMED IN 1971. AHP RECEIVED ONE POINT.

MORE IMPORTANTLY, HOWEVER, WE NOTE THAT L&C'S STATEMENT OF QUALIFICATIONS SHOWS THAT ONLY ONE PRINCIPAL WOULD BE EMPLOYED ON THIS PROJECT AND DOES NOT DETAIL THE QUALIFICATIONS OF THE OTHER PERSONNEL L&C INTENDED TO PROVIDE. THIS LAST OMISSION IS PARTICULARLY IMPORTANT BECAUSE THE INITIAL PAGE OF THE STATEMENT OF QUALIFICATIONS FORM CONTAINS A LIST OF PERSONNEL CATEGORIES NEXT TO EACH OF WHICH IS A BLANK FOR THE NUMBER OF PERSONNEL THE FIRM EMPLOYS IN THAT CATEGORY; THERE IS NO CATEGORY FOR GRADUATE ARCHITECTS-IN-TRAINING AND THE RECORD INDICATES THAT THEY ARE NORMALLY COUNTED AS DRAFTSMEN. ALTHOUGH OFFERING A SIMILAR NUMBER OF PERSONNEL FOR THIS PROJECT, IN ITS SUBMISSION AHP IDENTIFIED ITS "DRAFTSMEN" TO BE USED ON THIS PROJECT AS GRADUATE ARCHITECTS-IN-TRAINING, A HIGHER SKILL CATEGORY, WHILE L&C DID NOT. SIMILARLY, AHP PROVIDED ADDITIONAL MATERIALS ADDRESSING EACH OF THE STATED EVALUATION CRITERIA, PARTICULARLY THE PERSONNEL INVOLVEMENT AND COST MANAGEMENT ASPECTS, WHILE L&C DID NOT SUBMIT ANY SUCH INFORMATION FOR EVALUATION. BASED ON THE INFORMATION BEFORE IT, WE THINK THE GSA'S EVALUATION OF THESE CRITERIA WAS REASONABLE.

L&C ALSO SUGGESTS THAT IT WAS INAPPROPRIATE FOR GSA TO AWARD THE CONTRACT TO A NONMINORITY-OWNED FIRM. HOWEVER, SINCE THE ADVERTISEMENT CONTAINED NO EVALUATION FACTORS RELATING TO THE MINORITY STATUS OF A/E FIRMS, AND THE RANKING OF THE FIRMS MUST BE BASED ON THE PUBLISHED CRITERIA, SEE 40 U.S.C. SEC. 544 (1976), IT WOULD HAVE BEEN IMPROPER FOR GSA TO HAVE GIVEN L&C COMPETITIVE ADVANTAGE BECAUSE OF ITS MINORITY STATUS. COMPARE METRO CONTRACT SERVICES, INC., B-191138, JULY 5, 1978, 78-2 CPD 6. FURTHERMORE, ALTHOUGH GSA DOES AWARD SOME A/E CONTRACTS TO MINORITY AND DISADVANTAGED FIRMS THROUGH THE SBA'S SECTION 8(A) PROGRAM, THE CONTRACTING OFFICER CONCLUDED THAT THIS PROCUREMENT WAS NOT SUITABLE FOR AN 8(A) SET-ASIDE BECAUSE SBA HAD APPROVED ONLY ONE A/E FIRM (NOT L&C) IN THE STATE OF TEXAS FOR 8(A) PARTICIPATION. THE DECISION NOT TO UTILIZE THE 8(A) PROGRAM FOR THIS PROCUREMENT IS WITHIN THE CONTRACTING OFFICER'S DISCRETION AND IS NOT SUBJECT TO OUR REVIEW, ABSENT EXCEPTIONS NOT PRESENT HERE. SEE AETNA AMBULANCE, ET AL., B-190187, MARCH 31, 1978, 78-1 CPD 258, AND CASES CITED THEREIN.

WE THINK THAT GSA'S EVALUATION WAS CONSISTENT WITH THE PUBLISHED CRITERIA AND IN ACCORD WITH THE POLICY EXPRESSED IN THE BROOKS BILL. IN THESE CIRCUMSTANCES, WE FIND NO BASIS UPON WHICH WE MIGHT QUESTION EITHER THE EVALUATION OF THE COMPETITORS OR THE AWARD TO AHP.

THE PROTEST IS DENIED.