Coburn Contractors, LLC
B-408279.2: Sep 30, 2013
- Full Report:
Coburn Contractors, LLC, of Montgomery, Alabama, protests the award of a contract to Abrams Group Construction, LLC, of Pace, Florida, under request for proposals (RFP) No. VA-247-11-RP-0508, issued by the Department of Veterans Affairs (VA), for construction and maintenance services for the Central Alabama Veterans Health Care System (CAVHCS) medical centers in Tuskegee and Montgomery. The protester challenges the agency's technical evaluations and selection decision.
We sustain the protest in part and deny it in part.
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.
Matter of: Coburn Contractors, LLC
Date: September 30, 2013
1. Protest that agency used unstated evaluation criteria in assessing a weakness in protesters proposal for failure to submit a list of subcontractors is sustained where the solicitation did not require offerors to identify proposed subcontractors.
2. Protest of awardees technical evaluation is denied where, consistent with the solicitation, awardee met an office location requirement prior to contract award.
Coburn Contractors, LLC, of Montgomery, Alabama, protests the award of a contract to Abrams Group Construction, LLC, of Pace, Florida, under request for proposals (RFP) No. VA-247-11-RP-0508, issued by the Department of Veterans Affairs (VA), for construction and maintenance services for the Central Alabama Veterans Health Care System (CAVHCS) medical centers in Tuskegee and Montgomery. The protester challenges the agencys technical evaluations and selection decision.
We sustain the protest in part and deny it in part.
The RFP was set-aside for service-disabled, veteran-owned small businesses and provided for the award of a fixed-price, indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base year and 4 option years. RFP at 1, 5-6, 22-23. The solicitation stated that award would be made on a best value basis considering experience/ capability, past performance, and price. Id. at 9. The RFP also stated that price was not significantly more important than the non-price evaluation factors, which were approximately equal in weight. Id.
With respect to the experience/capability factor, the RFP identified what would be evaluated by listing detailed items that the offerors were to provide in their technical proposals. Id. at 10. For example, offerors were to describe their experience managing construction projects and their current workload; identify proposed key personnel; and submit staffing, quality control, and safety plans, among other things. Id. Significantly, however, neither this evaluation factor, nor any other evaluation factor, required that offerors submit a list of proposed subcontractors with their proposals; instead, the RFP stated that the selected [c]ontractor shall submit a list of subcontractors to be used on each individual task order. Id. at 17. The solicitation also required--prior to contract award--that the contractor be located within an area permitting a maximum 2-hour response time to the CAVHCS medical centers, either through a main or satellite office. RFP, attach., General Requirements, § 1.2(c).
The agency received proposals from 15 offerors, including Coburn Contractors and Abrams Group, which were evaluated as follows:
Very Low Risk
Overall Technical Rating
Average Price Coefficient
Agency Report (AR), Exh. 9, Price Negotiation Memorandum, at 2-3.
A source selection evaluation board (SSEB) evaluated and rated offerors technical proposals, identifying strengths and weaknesses under each non-price factor. See AR, Exh. 7, SSEB Report. As relevant here, under the experience/ capability factor, the evaluators found that Coburns proposal demonstrated an understanding of the requirement and met performance standards, and the SSEB identified a number of strengths in that regard. Id. at 6. The SSEB identified only one weakness under the experience/capability factor--that Coburns proposal did not include a list of subcontractors. Id. The SSEB rated Coburns experience/ capability as satisfactory, rated its past performance as average risk, and, based on those two ratings, rated Coburns technical proposal satisfactory overall.
The evaluators found that Abramss technical proposal demonstrated a good understanding of the requirement and that its approach exceeded performance standards. Id. at 5. The SSEB identified no weaknesses in Abrams proposal under the experience/capability factor, and assessed three strengths under that factor, including that Abrams effectively described the availability of key personnel and subcontractors. See id. The SSEB rated Abrams experience/capability as good, rated its past performance as very low risk, and rated Abramss technical proposal good overall.
The contracting officer, who was the source selection authority (SSA) for this procurement, reviewed and agreed with the SSEBs evaluations, and she conducted price evaluations. See AR, Exh. 3, Source Selection Plan, at 4; Exh. 9, Price Negotiation Memorandum. While she acknowledged that Coburns price coefficient was lower than Abrams price coefficient, the contracting officer found that the slight price difference (.06 percent) did not warrant accepting Coburns lower-rated, higher risk proposal. See AR, Exh. 9, Price Negotiation Memorandum, at 3. She acknowledged that Abrams proposal received the highest overall technical rating of all offers, and determined that its technical superiority was worth the slight price premium to lessen the risk of disrupting hospital operations and impacting patient care and safety. See id. The contracting officer concluded that Abrams proposal presented the best combination of experience and past performance, and offered the best value to the government. Id. Award was made to Abrams Group and this protest followed.
Coburn Construction protests its technical evaluation, as well as the awardees technical evaluation, and the VAs source selection decision. As discussed below, we sustain Coburns protest of its technical evaluation. However, we find that the protest of the awardees technical evaluation lacks merit, and we deny that aspect of Coburns protest.
Coburn asserts that the VA improperly evaluated Coburns experience/capability based on an unstated evaluation criterion. Protest at 8-9. The protester argues that the RFP did not require offerors to submit a list of subcontractors, but that the RFP only requires the successful contractor to submit a list of subcontractors for each individual task order. Id. The protester points out that failure to submit a subcontractor list was the sole weakness assessed against Coburns proposal under the experience/capability factor, and it argues that, but for this improper assessment, Coburn would have received a higher rating under that factor, and overall, because the agency identified other strengths in Coburns proposal. Comments at 5. Coburn contends that the VAs best value determination and source selection decision was flawed because it was based on improper technical evaluations. Id. at 2-4; Protest at 9-10.
The VA concedes that the RFP did not identify submission of a subcontractor list as an evaluation criterion. AR at 7-8; Contracting Officers (CO) Statement at 1. However, the agency argues that, contrary to the protesters belief, Coburns negative past performance rating, not its failure to include a subcontractor list, contributed to Coburns overall satisfactory rating. The agency suggests that the protester was not prejudiced by the SSEBs assessment of a weakness under the experience/capability factor, because it was not assessed as a significant weakness and because it did otherwise impact Coburns overall rating. See AR at 7-8, 11.
In reviewing protests of an agency's evaluation, our Office does not reevaluate proposals, rather, we review the evaluation to determine if it was reasonable, consistent with the solicitations evaluation scheme, as well as procurement statutes and regulations, and adequately documented. Wackenhut Servs., Inc., B-400240, B-400240.2, Sept. 10, 2008, 2008 CPD ¶ 184 at 6; Cherry Road Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD ¶ 197 at 6.
Here, the RFP explicitly stated that [t]he contractor shall submit a list of subcontractors to be used on each individual task order. RFP at 17 (emphasis added). As the protester points out, and the agency acknowledges, the RFP did not require offerors, in their proposals, to list their proposed subcontractors. Nor did the RFP state that the agency would evaluate proposals in that regard. As described above, the solicitation indicated that the agency would evaluate a list of items that offerors were to provide in their technical proposals. Id. at 9-11. Specifically, the RFP enumerated six criteria under the experience/capability evaluation factor that offerors were to address in their proposals: experience and capability managing construction projects; proposed key personnel; current workload and staffing; quality control; infection control; and safety. Id. at 10. Nowhere does the RFP instruct or otherwise suggest that offerors were to identify or list proposed subcontractors, either under the experience/capability evaluation factor, or the past performance and price factors.
Contrary to the agencys arguments, it is uncertain whether Coburns experience/ capability rating, and ultimately Coburns overall rating, would have remained the same, where only one weakness was assessed, improperly, against Coburns proposal, and where it was otherwise assessed multiple strengths. In other words, we have no basis--and we decline the VAs invitation--to speculate about how the SSA would have viewed the relative merits of Coburns and Abrams proposals; we cannot conclude that the agencys source selection decision would not have proceeded differently given the paucity of information in the contemporaneous record regarding the agencys cost/technical trade-off. Since we resolve any doubts regarding competitive prejudice in favor of the protester, and since the protester has shown a reasonable possibility that it was prejudiced by the VAs action, we sustain Coburns protest that the agency applied an unstated evaluation criterion in evaluating the protesters technical proposal. See Kellogg, Brown & Root Servs., Inc.--Recon., B-309752.8, Dec. 20, 2007, 2008 CPD ¶ 84 at 5.
Coburn also argues that the VA should have rejected Abrams proposal, because its office locations did not permit Abrams personnel to arrive at CAVHCS medical centers within 2 hours, as required by the RFP, according to the protester, at the time of proposal submission. Protest at 6-8, citing RFP at 7, 10; Comments at 7. This argument lacks merit.
As noted above, the RFP explicitly provides that the contractor must be located, either by virtue of its main office or a satellite office, within an area permitting a maximum 2-hour response time to the medical centers, and that the office must be operational prior to award of the contrac[t]. RFP, attach., General Requirements, § 1.2(c) (emphasis added). The record here shows that Abrams notified the VA on February 27, 2013, of Abrams new central Alabama office, and award was made to the firm on April 5. AR at 6; Exh. 10, Award Notification; Exh. 14, Awardees Local Address. In other words, Abrams met the 2-hour location requirement in advance of contract award, consistent with the terms of the RFP. Accordingly, this protest ground is denied.
We recommend that the agency reevaluate Coburns technical proposal under the experience/capability evaluation factor consistent with our decision, and make a new source selection determination if necessary. We also recommend that Coburn be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys fees. Bid Protest Regulations, 4 C.F.R. § 21.8(d)(1) (2013). Coburn should submit its certified claims for costs directly to the contracting agency within 60 days after receipt of this decision. Id., § 21.8(f)(1).
The protest is sustained in part and denied in part.
Susan A. Poling
 Offerors were required to propose price coefficients for normal working hours and other-than-normal working hours for each performance period, and an overall price coefficient for overhead and profit for all performance periods. RFP at 5, 8, 12, 20. The RFP indicated that the selected contractors coefficients would be multiplied by unit prices in the RS Means Facilities Construction Cost Data Book, a trade publication, to calculate a price for individual task orders. See id. at 12-15.
 Specifically, the SSEB assessed as strengths that Coburn is currently working on an ID/IQ task order, that it has successfully completed projects for CAVHCS, and that its key personnel have experience directly related to the requirement. AR, Exh. 7, SSEB Report, at 6.
 The terms offeror and contractor are not used interchangeably throughout the RFP, but are consistently used in provisions and requirements that apply, respectively, to those submitting proposals versus the anticipated contract awardee. See generally RFP.
 We recognize that we denied an earlier protest of the contract award in this procurement by another protester. United Contracting, LLC, B-408279, June 25, 2013, 2013 CPD ¶ 150. In that case, however, the record showed that the agency reasonably assessed multiple weaknesses in that protesters proposal for failing to comply with the RFPs explicit requirements and evaluation provisions regarding offerors ID/IQ contractor experience, key personnel workload, and past performance magnitude. Id. at 4-5.