Matter of: ConCeCo Engineering, Inc. File: B-250666 Date: February 3, 1993
B-250666: Feb 3, 1993
Technically acceptable offeror where award on that basis was consistent with solicitation's evaluation criteria. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Third lowest offeror is not an interested party to protest the award to a small disadvantaged business concern because the protester would not be in line for award even if the protest were upheld. Negotiations are held with the firm ranked first. If the agency is unable to agree with the firm as to a fair and reasonable fee. Negotiations are terminated and the second- ranked firm is invited to submit its proposed fee. Was synopsized in the Commerce Business Daily (CBD) on May 27. The first five were of equal importance.
Matter of: ConCeCo Engineering, Inc. File: B-250666 Date: February 3, 1993
PROCUREMENT Competitive Negotiation Contract awards Administrative discretion Cost/technical tradeoffs Cost savings Agency properly awarded contract to lowest priced, technically acceptable offeror where award on that basis was consistent with solicitation's evaluation criteria. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Third lowest offeror is not an interested party to protest the award to a small disadvantaged business concern because the protester would not be in line for award even if the protest were upheld.
DECISION ConCeCo Engineering, Inc. (CCC) protests the selection by the Department of the Navy, Naval Facilities Engineering Command, of Kadlec Associates as the firm with which to negotiate an architect-engineer (A-E) contract for preparation of corrosion control and cathodic protection design, design and submittal review, and inspection and testing services at various Naval activities within a particular geographical region. CCC basically contends that the agency improperly evaluated both its and the awardee's qualifications.
We deny the protest.
Generally, under the selection procedures set forth in the Brooks Act, as amended, 40 U.S.C. Secs. 541 et seq. (1988), and its implementing regulations, Federal Acquisition Regulation (FAR) part 36.6, the contracting agency must publicly announce requirements for A-E services. An A-E evaluation board established by the agency evaluates the A-E performance data and statements of qualifications already on file, as well as those submitted in response to the announcement of the particular project, and selects at least three firms for discussions. The board recommends to the selection official, in order of preference, the firms most qualified to perform the required work. Negotiations are held with the firm ranked first. If the agency is unable to agree with the firm as to a fair and reasonable fee, negotiations are terminated and the second- ranked firm is invited to submit its proposed fee. See generally FAR part 36.6; ARTEL, Inc., B-248478, Aug. 21, 1992, 92-2 CPD Para. 120; James W. Hudson & Assocs., B-243277, July 5, 1991, 91-2 CPD Para. 29.
The procurement, referenced as solicitation No. N62470-92-R-7507, was synopsized in the Commerce Business Daily (CBD) on May 27, 1992. The synopsis stated that the agency intended to award an indefinite quantity, firm, fixed-price contract for the design services. The synopsis invited consulting engineering firms to submit a completed Standard Form (SF) 254 (A-E and Related Services Questionnaire) and an SF 255 (A-E Related Services for Specific Project Questionnaire) on which firms provide their qualifications. The CBD notice also stated that firms submitting their qualifications would be evaluated under seven factors; of these seven evaluation factors, the first five were of equal importance, with the last two being of lesser importance. The seven evaluation factors were, in order: (1) specialized experience; (2) professional qualifications and technical competence in the type of work required; (3) ability to perform the work to schedule; (4) past performance; (5) acceptability of the firm's internal quality control program; (6) firm location; and (7) volume of work previously awarded to the firm by the Department of Defense (DOD).
In response to the CBD notice, 13 firms submitted qualifications statements. The Navy convened a six-member preselection or "slate board" for purposes of selecting a "slate" of firms for recommendation to the selection board. After reviewing the submissions of all 13 firms which had responded to the CBD notice, on July 29 the slate board recommended 4 firms, including the protester and Kadlec, to the selection board for interviews. The agency's five-member selection board reviewed both the slate board's report and the qualifications statements of the four firms; on September 1, the selection board conducted telephone interviews with those firms. At the conclusion of the review, Kadlec was ranked first and CCC was ranked fourth of the four firms. By letter dated September 14, the agency notified the protester that, although it was considered highly qualified, Kadlec, and not the protester, was the firm selected for negotiations. On October 1, CCC filed this protest challenging the evaluation of its qualifications; the protester primarily contends that its qualifications exceed those of Kadlec.
In reviewing a protest of an agency's selection of a contractor for A-E services, our function is not to reevaluate the offeror's capabilities or to make our own determination of the relative merits of competing firms. Rather, the procuring officials enjoy a reasonable degree of discretion in evaluating the submissions, and our review examines whether the agency's selection was reasonable and in accordance with the published criteria. ARTEL, Inc., supra; James W. Hudson & Assocs., supra; Ward/Hall Assocs. AIA, B-226714, June 17, 1987, 87-1 CPD Para. 605. A protester's mere disagreement with the agency's evaluation does not show that it is unreasonable. IDG Architects, 68 Comp.Gen. 683 (1989), 89-2 CPD Para. 236.
Here, we have reviewed the SF 255s of both CCC and Kadlec; the slate board report; the selection board report; and CCC's interview report. These materials simply do not show that the agency's evaluation of the firms was either unreasonable or inconsistent with the criteria set forth in the CBD synopsis.
Evaluation factor (1) required firms to demonstrate specialized experience in the design of corrosion control and cathodic protection systems, including design in remote, cold and hot weather locations; preparation of detailed cost estimates for construction; and conduct or support of sole-source construction negotiations. Evaluation factor (2) evaluated firms on their professional qualifications and technical competence in the type of work required, including experience on the projects listed in evaluation factor (1), and knowledge of electrical and corrosion control design criteria and standards.
CCC contends that the agency favorably rated only Kadlec's "in-house" cost estimating capability, even though CCC has a similar capability. CCC states that not only did it provide information concerning its cost estimating experience in its SF 255, it also provided supplemental information on the subject in its interview presentation. CCC concludes that its cost estimating capability is at least equivalent to that of Kadlec.
The agency reports that CCC's SF 255 contained only a statement that all of its projects included detailed cost estimates, and that all of its principals and project engineers were fluent in their preparation. In contrast, the agency states that Kadlec's SF 255 contained a detailed discussion of its cost estimating experience and included examples. The agency reports that because CCC's SF 255 did not indicate any cost estimators, the slate board recommended that the firm's cost estimating capability be clarified during the interview; however, no additional information on the subject was presented.
The record does not support CCC's argument that the agency improperly rated Kadlec higher on the basis of its in-house cost estimating capabilities than it rated CCC. The record shows that Kadlec's SF 255 contained more detailed information regarding its cost estimating capabilities than did CCC's, and that the information provided in CCC's interview presentation was the same as that submitted in CCC's SF 255. Based on the record, we conclude that the agency's evaluation of the firms based on this subfactor was reasonable.
CCC complains that the agency's request that it further explain its sole- source construction negotiations experience in the interview is evidence of bias, since Kadlec was not asked for this additional information. The record shows that CCC's SF 255 merely stated that over the past 5 years it had performed such negotiations for contracts totalling $1 million. Because the slate board was concerned that this experience was not described in detail, its report recommended that the firm be asked to elaborate on this experience in the interview. In contrast, Kadlec's SF 255 included a specific example of such experience and thus was considered sufficiently detailed. The record shows that CCC did not submit additional information concerning its sole-source construction negotiations in the interview; consequently, we find that the agency's evaluation under this subfactor was reasonable.
With regard to the protester's challenge to the agency's evaluation of the awardee, the record shows that the selection board ranked Kadlec the highest of the four firms based primarily on its superior experience in the field. CCC argues that the agency should have limited its consideration of Kadlec's experience to the years of experience of its principals alone, rather than the combined experience of its principals and consultants. According to CCC, the agency improperly found Kadlec's experience to be more extensive than CCC's because, it states, Kadlec is a "two-man operation" with no prior experience with one of its listed subcontractors. However, no evaluation factor required a minimum number of years of experience, either in-house or by a consultant, and the agency reasonably considered the experience of all the personnel to be used on the project. Similarly, the evaluation factors did not require consultants and prime contractors to have shared experience on prior projects or to have previously worked together; on the contrary, evaluation factor (2) specifically states that it is looking for experience "with present and other firms."
CCC raises numerous other examples of what it argues is an unreasonable evaluation of its proposal relative to Kadlec's. As noted above, the primary basis for the agency's selection of Kadlec was its superior experience in the field, and we have found no basis to challenge the evaluation in this area. The additional issues that the protester raises either did not affect the selection decision, or simply are not supported by the record. For example, CCC asserts that the selection board erroneously reported that its change order rate was less than 1 percent, not the actual figure of less than .1 percent. While the selection board's report does use the wrong figure, it goes on to state that the firm appears to have a satisfactory level of performance; consequently, the error was harmless.
CCC also contends that the agency improperly used two unpublished evaluation factors to evaluate the firms: design experience in hot and cold regions of the Atlantic and sole-source negotiations experience in remote cold weather regions. The record shows that the boards' statements on these issues are merely factual recitations of the experience reflected in each firm's SF 255 without further comment, and the agency's consideration of such experience was clearly proper under evaluation factor (1), which specifically referred to the firms' design experience in remote, cold and hot weather locations.
Evaluation factor (6) evaluated firms on their locations. CCC's SF 255 indicated that the firm and its consultants were located in California, and the slate board report recommended that the firm be asked to address how it intended to cover the areas located within the Atlantic region during the interview. CCC complains that the agency improperly expressed concern over its location while finding no problem with Kadlec's location in Michigan and other states; CCC argues that the agency should not have considered Kadlec's past performance on Navy contracts in the Atlantic region in connection with this evaluation factor.
The agency reasonably considered the fact that Kadlec was able to successfully perform prior, similar contracts from its location, especially in light of the fact that evaluation factor (4) required the agency to consider past performance in terms of repeat business with government customers. The record also shows that CCC presented information during the interview that apparently eliminated the agency's concern over its location; consequently, CCC's argument that it was evaluated differently from Kadlec to its detriment is without basis.
CCC also argues that the agency improperly considered letters of recommendation submitted by Kadlec as part of its SF 255. While CCC contends that these letters were attachments to Kadlec's SF 255 and thus explicitly precluded from consideration by the terms of the CBD synopsis, the record shows that those letters were submitted by Kadlec as part of block 10 of its SF 255, which invited firms to provide any additional information they wished to support their qualifications. Since the CBD synopsis stated that block 10 narrative discussion could be contained on both the SF 255 form itself and on plain bond paper, and since evaluation factor (4) specifically provided for the evaluation of letters of recommendation, the agency's consideration of such letters was proper.
Finally, CCC argues that the application of evaluation factor (7), volume of work previously awarded to the firm by the DOD, should have "weighed heavily" in its favor. The CBD synopsis, however, specifically stated that this factor was one of the least important of the seven evaluation factors. As for CCC's contention that Kadlec improperly reported only the DOD contract it was awarded within the past year, this statement was not improper, since the agency was required to consider the volume of work given to A-E firms only during the previous 12 months. Department of Defense Federal Acquisition Regulation Supplement Sec. 236.602-1.
The protest is denied.