Affolter Contracting Company, Inc.

B-410878,B-410878.2: Mar 4, 2015

Additional Materials:

Contact:

Ralph O. White
(202) 512-8278
WhiteRO@gao.gov

Kenneth E. Patton
(202) 512-8205
PattonK@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Affolter Contracting Company, Inc., of La Marque, Texas, protests the award of a contract to Coastal Dredging Company, Inc., of Slidell, Louisiana, under request for proposals (RFP) No. AG-7217-S-14-0007, issued by the United States Department of Agriculture (USDA), Natural Resources Conservation Service, for shoreline and marsh restoration. The protester contends that the agency unreasonably evaluated its technical approach, past performance, and key personnel/project management plan, resulting in a flawed best-value tradeoff and source selection decision.

We deny the protest.

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.

Decision

Matter of: Affolter Contracting Company, Inc.

File: B-410878; B-410878.2

Date: March 4, 2015

Marguerite K. Kingsmill, Esq., and John W. Bihm, Esq., Kingsmill Riess, L.L.C., for the protester.
Jonathan D. Shaffer, Esq., and Mary Pat Buckenmeyer, Esq., Smith Pachter McWhorter PLC, for Coastal Dredging Company, Inc., the intervenor.
Antonio T. Robinson, Esq., United States Department of Agriculture, for the agency.
Pedro E. Briones, Esq., and Nora K. Adkins, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging the agency’s evaluation of the protester’s technical approach, past performance, and key personnel/project management plan is denied where the evaluations and source selection decision were reasonable and consistent with the solicitation’s terms.

DECISION

Affolter Contracting Company, Inc., of La Marque, Texas, protests the award of a contract to Coastal Dredging Company, Inc., of Slidell, Louisiana, under request for proposals (RFP) No. AG-7217-S-14-0007, issued by the United States Department of Agriculture (USDA), Natural Resources Conservation Service, for shoreline and marsh restoration. The protester contends that the agency unreasonably evaluated its technical approach, past performance, and key personnel/project management plan, resulting in a flawed best-value tradeoff and source selection decision.

We deny the protest.

BACKGROUND

The procurement, which was set aside for small businesses and conducted under Federal Acquisition Regulation (FAR) Part 15, sought construction services to restore shorelines and marshes in and around Lake Lery in Plaquemines Parish, Louisiana. RFP at 3, 20, 76. The solicitation contemplated the award of a fixed-price contract with a period of performance of 420 calendar days from the issuance of a notice to proceed. Id. at 3. Award is to be made on a best-value basis considering (in descending order of importance) technical approach, past performance, key personnel/project management plan, and price. Id. at 40, 76-77.

With regard to technical approach, the solicitation required offerors to provide a narrative description of their planned means and methods of accomplishing the work with a Gantt chart identifying all activities and milestones.[1] See id. at 52. The solicitation advised that offerors would be evaluated on the completeness, accuracy, and understanding of the following 12 technical approach subfactors: (1) excavation of flotation access channels; (2) geotextile installation; (3) management of construction activities, including field (i.e., onsite) office(s) and staging areas; (4) surveying; (5) constructing lake rim embankments; (6) hydraulic dredging for marsh creation; (7) installation, protection, and maintenance of staff gauges;[2] (8) protection of existing vegetation, structures, and utilities; (9) type, size, and quantity of proposed equipment by work phase; (10) labor mix, including crews, daily shifts, and subcontracting for each work phase; (11) identification, by work phase and by CLIN,[3] whether activities are self-performed or subcontracted; and (12) submission of a fenced Gantt chart that identifies milestones and all activities, and describes the offeror’s assumptions regarding timing, weather, workable days, and potential delays, among other things. See RFP at 45-46, 52-54; § J, attach. 2, Constr. Specifications (Specs); § J, attach. 3, Constr. Drawings.

With regard to past performance, offerors were to submit, for themselves and for their proposed subcontractors, past performance information, including client questionnaires, for no more than six current or past (performed within the last 10 years) contracts that demonstrate the capabilities and experience to successfully perform projects that are similar in scope, features, complexity, magnitude, and schedule to the requirement. RFP at 45-52. The agency’s evaluation of an offeror’s past performance information would assess the relevance of the offeror’s recent efforts to the requirement and determine how well an offeror performed on past contracts. Id. at 79-80.

Under the key personnel/project management plan factor, the solicitation required offerors to identify specified key personnel and submit a detailed project management plan for managing concurrent construction phases, including procedures for staying on schedule, forecasting work, quality control, and project safety, among other things. Id. at 54-55. As relevant here, offerors were to provide letters of availability (for themselves and for all subcontractors) for all labor, material, and equipment required for all work phases, as well as lists of current and anticipated projects, including their description, location, dollar value, and performance period. Id. at 55. The agency’s evaluation would consider whether an offeror demonstrated the necessary structure, experience, and qualified resources within its proposed organization to effectively manage, control, administer and execute the construction operations, safety and quality control program, and subcontracts. Id. at 85.

The agency received four proposals, including from Affolter Contracting and Coastal Dredging, which were evaluated by a technical evaluation board (TEB) as follows:


 

Coastal

Affolter

Offeror C

Offeror D

Past Performance Relevance

Somewhat

Somewhat / Not Relevant

Somewhat

Relevant

Past Performance Confidence

Satisfactory

Satisfactory

Limited

Limited

Technical Approach

Acceptable

Marginal

Acceptable

Marginal

Key Personnel / Project Mgmt. Plan

Marginal

Marginal

Marginal

Marginal

Overall Risk

Moderate / High

High / High

Moderate / High

High / High

Price

$21,588,049

$19,315,120

$29,270,692

$24,147,000


Agency Report (AR), Tab 11, TEB Report, at 51-52; Tab 12, Price Analysis, at 1. The TEB’s evaluation ratings were documented in a lengthy report that included narrative assessments of strengths and weaknesses for each proposal. See generally AR, Tab 11, TEB Report.

With regard to Affolter’s proposal, the TEB’s ratings reflected evaluator concerns over its understanding of the complexity of project requirements. Id. at 31. The TEB’s overall assessment of Affolter’s technical proposal explained:

The proposal provided a limited level of confidence that Affolter understands the complexity of the proposed work and can effectively construct the [project]. The Offeror’s past performance only provided limited information and the technical proposal provided very limited information on the details to complete the work in accordance with the plans and specifications and had 9 out of the 12 technical evaluation criteria rated as marginal. In consideration of all technical factors, the Government has a low expectation that the Offeror would successfully perform the required effort. The risk of unsuccessful performance is high.

Id. at 31-32.

In contrast, the TEB found that Coastal had a satisfactory record of past performance and that its technical proposal provided acceptable details for completing the work according to the plans and specifications. Id. at 42. The TEB concluded that it had a moderate expectation that Coastal would successfully perform the effort with a low/moderate risk of unsuccessful performance. Id. Accordingly, the TEB recommended award to Coastal. Id. at 42, 57-58.

The agency’s contract specialist reviewed the TEB report and conducted her own, independent, integrated assessment of proposals. AR, Tab 13, Source Selection Decision (SSD), at 31. She also conducted a price analysis, comparing offerors’ prices to each other and to an independent government estimate. Id. at 27-31; see AR, Tab 12, Cost Analysis. After comparing proposals’ strengths, weaknesses, and prices, the contracting specialist determined that Coastal provided the best combination of risk (relative to the evaluation factors, and overall) and a reasonable price, and recommended award to the firm. See AR, Tab 13, SSD, at 31. The contracting officer agreed, and award was made to Coastal. Id. at 31-33. This protest followed.

DISCUSSION

Affolter protests the evaluation of its technical approach, past performance, and key personnel/project management plan, as well as USDA’s best-value tradeoff and source selection decision.[4] While our decision does not specifically discuss each and every argument, or every technical aspect thereof, we have considered all of the protester’s assertions, and find none furnishes a basis for sustaining the protest.

Technical Approach

The protester challenges the agency’s assessment of numerous weaknesses and argues that the weaknesses, and resulting evaluation ratings, reflect evaluation errors, the application of unstated evaluation factors, and unequal treatment (in favor of Coastal). See Protest at 8-15; Comments at 6-18. USDA maintains that it performed a comprehensive technical evaluation, assessed the disputed weaknesses reasonably, and evaluated proposals in a manner consistent with the RFP’s requirements and specifications. See Supp. AR at 10, 17, 34-15. The agency argues that the protester’s evaluation ratings and weaknesses reflect poor proposal drafting and numerous ambiguities, including inconsistent use of industry terminology, and (in contrast to Coastal’s proposal) a lack of detail regarding equipment, surveying, and various procedures. See id. at 9-10, 34; AR at 5-16; Contracting Officer (CO) Supp. Statement at 21.

The protester tacitly acknowledges a number of inconsistencies in its technical proposal, but argues that TEB evaluators were “nitpicking,” reading isolated statements in Affolter’s technical proposal out of context, and, as discussed below, “cherry-picking” specifications after-the-fact to defend or “correct” its unreasonably assessed marginal ratings. See Protester’s Comments at 6-7; Protester’s Supp. Comments at 1, 9, 15. Affolter claims that many aspects of its technical proposal should have been clear to the TEB despite any minor inconsistencies.[5] See, e.g., Protester’s Supp. Comments at 16. Based upon our review of the record, we find the agency’s evaluation unobjectionable. By way of example, we discuss a few representative weaknesses below.

In reviewing protests of an agency’s evaluation, our Office does not reevaluate proposals, rather, we review the record to determine if the evaluation was reasonable, consistent with the solicitation’s evaluation scheme, as well as procurement statutes and regulations, and adequately documented. See 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. An agency’s evaluation of technical proposals is primarily the responsibility of the contracting agency, since the agency is responsible for defining its needs and identifying the best method of accommodating them. Wyle Labs., Inc., B-311123, Apr. 29, 2008, 2009 CPD ¶ 96 at 5-6.

The solicitation instructed offerors to specifically address, in a detailed narrative, all techniques, equipment, software, material, labor, scheduling, production times, production rates, sequence of work, etc., proposed to complete the work according to the solicitation’s plans and specifications. RFP at 43, 52-53, 78. Offerors were advised that their proposals should be clear and concise, include sufficient detail to effectively evaluate and substantiate an offeror’s claims, and provide a convincing rationale for how the offeror intends to meet the requirements. Id. at 44.

The RFP stated that technical proposals would be evaluated for their completeness, accuracy, and understanding of each subfactor, and that thorough, detailed, and complete narratives and schedules would be rated more highly than those not providing sufficient detail or discussion of the proposed approach, techniques, and methodology for completing the work according to specifications. Id. at 84. Offerors were warned that failure to include adequate information may result in a proposal being found unacceptable under an evaluation factor. Id.

As relevant here, the RFP’s technical specifications required the use of geodetic datums (specifically, NAV83 for horizontal datum, and NAVD88, Geoid 03, for vertical datum). Id., § J, attach. 2, Spec. No. 9.a(3)(d), at 139; see § J, attach. 3, Constr. Drawings, Vicinity Map, at 1 (elevations based on NAVD88). The specifications stated, emphatically, that “[w]ater elevations shall not be used as a primary control for any surveys to be used for payment, for setting any structures such as staff gauges or dewatering structures, or for any before-dredge or final surveys.”[6] RFP § J, attach. 2, Spec. No. 9.a(3)(d), at 139 (emphasis in original).

The evaluators assessed the following weakness in Affolter’s technical proposal regarding these specifications: “[t]he narrative indicates they [Affolter] plan on using water elevations to determine elevations for excavation; this is not allowed per the specifications.” AR, Tab 11, TEB Report, at 33 (emphasis added). The agency explains that the weakness was based on Affolter’s description that its [DELETED] (proposed for excavating flotation access channels, under subfactor no. 1) is equipped with “[DELETED] to track [DELETED] location and digging depths relative to local tidal datum during all operations.” CO Supp. Statement at 6-7, citing AR, Tab 7, Protester’s Tech. Proposal, at 106 (emphasis added).

Affolter disputes this weakness, arguing that evaluators erred in their assessment because they misunderstood Affolter’s proposal. Protester’s Comments at 8. According to the protester, the sentence quoted above only “describes features of Affolter’s [DELETED], not Affolter’s excavation techniques, and the Agency quotes that sentence completely out of context.” Protester’s Supp. Comments at 7. The protester urges that it was unreasonable for agency evaluators to assume Affolter “planned” to use anything except geodetic datums, not water elevations, because its technical proposal explicitly states that all “required surveys and control points will be referenced to NAV83 [and] NAVD88,” and because “every vertical reference specified in Affolter’s proposal referenced the required NAVD88” datum. Id. at 6-7 (emphasis in original).

In our view, the agency’s assessment of a weakness was reasonable. In this regard, the agency concluded that this portion of Affolter’s proposal, which described the means and methods to complete the excavation of flotation access channels, was ambiguous and contradictory because it referenced NAV83 and NAVD88 but also included a statement that it would be utilizing local tidal datum during all operations. CO Supp. Statement at 7. Furthermore, the record demonstrates--contrary to Affolter’s allegation that every vertical reference in its proposal specified NAVD88 datum--that Affolter referenced water elevations under the hydraulic dredging for marsh creations subfactor (no. 6). See AR, Tab 11, TEB Report, at 36 (noting that Affolter referenced the wrong datum, proposing to use mean water level instead of NAVD88); Tab 7, Protester’s Tech. Proposal, at 111 (material [DELETED] will be placed at a target elevation of [DELETED] mean low water). Although the protester believes that this weakness was unreasonable, we are not prepared to conclude that the agency’s evaluation was inconsistent with the RFP’s evaluation criteria, which, as discussed above, stated that technical proposals would be evaluated for completeness and accuracy, and that thorough, detailed narratives would be rated more highly than less detailed narratives. It is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. See, e.g., International Med. Corps, B-403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 8.

As another example, with regard to the elevations specified for the lake rim embankments (subfactor no. 5), the protester disputes a weakness assessed for citing an incorrect elevation, but insists that, despite the “typo,” it should have been clear to evaluators that Affolter would meet the requirement based on earlier elevation references in that section of its proposal. AR, Tab 11, TEB Report, at 36; Protester’s Supp. Comments at 16; Supp. CO Statement at 14. Likewise, with regard to marsh creation, the protester suggests that its proposal to begin hydraulic dredging in [DELETED] (which the evaluators assessed as a weakness because of water depths in that area, AR, Tab 11, TEB Report, at 36) “obviously” meant the [DELETED], not the [DELETED]. Protester’s Supp. Comments at 16. Again, we find that the agency’s decision to assess a weakness because of ambiguities in Affolter’s proposal was reasonable. Agencies are not required to piece together general statements and disparate parts of protester’s proposal to determine the protester’s intent. See, e.g., Optimization Consulting, Inc., B-407377, B-407377.2, Dec. 28, 2012, 2013 CPD ¶ 16 at 9 n.17 (agency not required to infer information from an inadequately detailed proposal).

With regard to numerous other weaknesses challenged by Affolter, we also find the agency’s evaluation was reasonable. In this regard, the agency provided explanations for each of the protester’s challenges, many of which the protester does not substantively dispute or address. For example, while Affolter complains that it was assessed a weakness for not proposing “backup equipment,” the protester does not dispute the agency’s assertion that Affolter did not propose enough [DELETED] according to the proposed sequence of events and schedule as listed in its Gantt chart. Compare CO Supp. Statement at 16-17 with Protester’s Comments at 17.

Similarly, the agency explains that Affolter’s technical proposal suggested that it would not follow the dredge access route specified in the solicitation drawings. CO Supp. Statement at 9. The protester complains that this explanation was not contemporaneously documented, and asserts that it did not propose to deviate from the specified access routes.[7] Protester’s Supp. Comments at 10. However, the protester does not substantively respond to the agency’s argument that TEB evaluators could not ascertain, from Affolter’s proposal, how it would move between specified points identified in the RFP drawings. See id. Also, the protester does not persuasively rebut the agency’s contention that Affolter did not address how it would begin dredging in [DELETED] of the project plan before (as reflected in Affolter’s proposal) [DELETED] that area would be excavated. See CO Supp. Statement at 16.

The protester also disputes the weaknesses assessed with regard to its proposed management activities and field offices (subfactor no. 3), but does not address the assertion that its proposal was ambiguous regarding the number of buildings proposed, did not specify its staging area, or provide details on its arrangements with private landowners.[8] Compare Protester’s Comments at 12-13 with CO Supp. Statement at 11, 21 and Protester’s Supp. Comments at 13. Furthermore, Affolter disputes assessed weaknesses regarding its division of work (subfactor no. 11), but does not address the contracting officer’s assertion that its proposal failed to identify division of labor by CLIN and work phase, as required by the solicitation.[9] Compare Protester’s Comments at 17 with CO Supp. Statement at 17 and Protester’s Supp. Comments at 17.

Unstated Evaluation Criteria

The protester further argues that the agency applied unstated evaluation criteria in evaluating Affolter’s technical proposal. Agencies are required to evaluate proposals based solely on the factors identified in the solicitation, and must adequately document the bases for their evaluation conclusions. Intercon Assocs., Inc., B-298282, B-298282.2, Aug. 10, 2006, 2006 CPD ¶ 121 at 5. Although we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria, undocumented, or not reasonably based. Sonetronics, Inc., B-289459.2, Mar. 18, 2002, 2002 CPD ¶ 48 at 2, 3.

For example, the protester complains that it was improperly assessed a weakness for not providing a daily work schedule, because the solicitation did not expressly require one. See Protester’s Comments at 11; Supp. Comments at 11. We find that not only was this weakness properly assessed, see supra n. 9 (agency concluded that proposal did not provide sufficient detail to permit a determination that Affolter proposed sufficient crews to perform work), it was reasonably and logically related to the RFP’s instructions to address labor mix, work crews, and daily shifts (subfactor no. 10). While agencies are not permitted to use unstated evaluation factors, an agency properly may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even when they are not expressly identified as evaluation criteria. MINACT, Inc., B-400951, Mar. 27, 2009, 2009 CPD ¶ 76 at 3; USGC Inc., B-400184.2 et al., Dec. 24, 2008, 2009 CPD ¶ 9 at 6.

Unequal Treatment

The protester also argues that the agency evaluated Affolter’s and Coastal’s proposals unequally under a number of evaluation factors. For example, the protester recognizes that its technical proposal contained inconsistencies between its narratives and Gantt chart (subfactor no. 12) with regard to Affolter’s proposed excavation sequence (under subfactor no. 1). See Protester’s Comments at 11; AR, Tab 11, TEB Report, at 33 (assessing weakness because narrative sequence does not align with the Gantt chart). However, the protester asserts that the two offerors were evaluated disparately because both their proposals contained similar inconsistencies. Protester’s Comments at 9, 20; see AR, Tab 11, TEB Report, at 48 (weaknesses assessed in Coastal’s Gantt chart).

It is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria. See, e.g., Brican Inc., B-402602, June 17, 2010, 2010 CPD ¶ 141 at 4.

The contemporaneous record does not support Affolter’s assertion that its technical proposal was evaluated unequally compared to Coastal’s proposal. Contrary to the protester’s assertion that both offerors contained similar inconsistencies in their Gantt charts, the contemporaneous record shows that the TEB found many more inconsistencies in Affolter’s chart, including its failure to follow its narrative for lake rim embankments, floatation access channels, geotextiles, and containment dikes. See AR, Tab 11, TEB Report at 38-39, 48-49. Moreover, the record shows that the TEB assessed offsetting strengths to Coastal for its Gantt chart (which the protester does not challenge), including that it accounted for all major portions of work and--unlike the protester’s--was consistent with the technical narrative. Id.

The record also does not support Affolter’s argument that it was evaluated disparately with regard to surveying equipment (under subfactor nos. 4, 9). Contrary to the protester’s argument, Affolter did not “propose[] the same equipment” as Coastal. See Protester’s Supp. Comments at 14; Protester’s Comments at 13. Rather, the record supports the agency’s arguments that Coastal’s proposal provided much greater detail regarding its proposed equipment than Affolter did. See CO Statement at 36; CO Supp. Statement at 12, 21; compare AR, Tab 9, Coastal’s Proposal, at 153-54 (survey equipment by type and model number), 158 (marine equipment), 159 (magnetometer details), 162-66 (listing embankment construction equipment and providing detailed information for proposed staff gauges), 172-75 (identifying subcontractor’s dredges by vessel name and providing technical specifications and depictions for each) with Tab 7, Protester’s Tech. Proposal, at 106-113. Furthermore, the protester does not rebut the agency’s argument that the RFP specified the use of real time kinematic (RTK) surveying equipment, which is more accurate than the [DELETED] proposed by Affolter, and that Affolter failed to specify whether it would be using a proton or cesium magnetometer, also required by the RFP. Compare CO Supp. Statement at 12 (citing Spec. No. 9.a(3)(d)) with Protester’s Supp. Comments at 14.

In sum, we find no basis to question the agency’s assignment of multiple weaknesses to Affolter’s proposed technical approach. As discussed above, the record demonstrates that the agency’s evaluation was reasonable, even-handed, and consistent with the solicitation’s evaluation criteria. The protester’s myriad allegations to the contrary only reflect its disagreement with the agency’s evaluations, which provides no basis to question the reasonableness of the agency’s judgments.[10] See Citywide Managing Servs. of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 10-11; see, e.g., Mike Kesler Enter., B-401633, Oct. 23, 2009, 2009 CPD ¶ 205 at 3-4 (agency reasonably determined that protester’s proposal did not provide sufficient detail and was technically unacceptable where proposal lacked clear and consistent language and information necessary to determine if the proposal would function as proposed); QinetiQ North America, Inc., B-405163.2 et al., Jan. 25, 2012, 2012 CPD ¶ 53 at 15 (protest of agency’s technical evaluations denied where record shows that agency reasonably evaluated proposals consistent with evaluation criteria, extensively documenting qualitative differences between the protester’s and awardee’s proposals).

Past Performance

Affolter next contends that it merited a higher past performance relevancy rating because it submitted projects involving “nearly identical” tasks, schedule density, and equipment covering the “entire scope and all features” of the requirement.[11] Protest at 6-7; Protester’s Comments at 6. The protester also alleges that the agency did not consider the experience of Affolter’s proposed subcontractor. Protest at 6.

The agency disputes that the protester’s projects were nearly identical to the requirement, including its tasks, scopes, and project schedule, and disputes the contention that it failed to evaluate the experience of Affolter’s proposed subcontractor. AR at 4.

The evaluation of an offeror’s past performance, including the agency’s determination of the relevance and scope of an offeror’s performance history, is a matter of agency discretion, which we will not find improper unless it is inconsistent with the solicitation’s evaluation criteria. National Beef Packing Co., B-296534, Sept. 1, 2005, 2005 CPD ¶ 168 at 4; see MFM Lamey Group, LLC, B-402377, Mar. 25, 2010, 2010 CPD ¶ 81 at 10.

The RFP stated that past performance would be evaluated to determine the relevance of offerors’ recent efforts to the requirement, including the similarity, complexity, dollar value, and degree of subcontracting, and to determine how well an offeror performed on past contracts. RFP at 79-80. The solicitation provided for greater consideration (and higher ratings) for certain projects, including experience in marsh creation and construction of earthen embankments and containment dikes in coastal marine environments. Id. at 81. The RFP stated that offerors demonstrating successful completion of all of the same features of this requirement would be rated more highly. Id. Offerors were warned that the agency would base its evaluation on information presented in the offeror’s proposal, and warned not to assume that the agency had prior knowledge of their facilities and experience. Id. at 44.

We find that the agency evaluated Affolter’s past performance reasonably and consistent with the solicitation provisions above. Significantly, Affolter does not dispute the agency’s assertion that the protester did not show experience constructing earthen embankments and containment dikes in a costal marine environment, or provide sufficient details of its experience excavating flotation access channels in a marine coastal environments. Compare AR at 4 with Protester’s Comments at 4-6. Moreover, the protester does not dispute that Affolter only provided limited details on two of its subcontractor’s projects, which were much smaller in scope or involved very different soil types. AR at 4. Affolter also concedes that one of its projects is smaller in scope than the requirement, and, as the agency points out, only its proposed subcontractor showed experience with marsh creation, not the protester itself. Id. at 3; Protest at 6; Protester’s Comments at 5. Contrary to the protester’s assertion, the record also shows that the agency did consider the past performance and experience of Affolter’s proposed subcontractor.[12] AR, Tab 11, TEB Report, at 32.

Based on our review of the contemporaneous record, we conclude that Affolter’s protest of its past performance evaluation amounts to little more than disagreement with its evaluation ratings and the agency’s evaluation conclusions. The evaluation of experience and past performance, by its very nature, is subjective, and an offeror’s disagreement with an agency’s evaluation judgments does not demonstrate that those judgments are unreasonable. Glenn Def. Marine-Asia PTE, Ltd., B-402687.6, B-402687.7, Oct. 13, 2011, 2012 CPD ¶ 3 at 7.

Key Personnel/Project Management Plan

The protester contends that the agency evaluated Affolter’s project management plan unreasonably by arbitrarily assessing a weakness for Affolter’s proposed subcontractor having “too many” current and pending projects.[13] Protest at 15-16; Protester’s Comments at 19. The protester argues that the agency’s conclusion was based on unstated evaluation criteria, and entirely speculative because Affolter’s proposed subcontractor is a large, publically traded company (with thousands of employees and over 400 large, specialized pieces of marine equipment). See Protester’s Comments at 19. In addition, Affolter points out that its proposed subcontractor has affirmatively committed to performing if Affolter is awarded the contract. Id.

The agency argues that it reasonably evaluated the protester’s project management plan on the information contained in its proposal, which did not describe the relative size and equipment owned by the proposed subcontractor. AR at 16-17; Supp. AR at 32.

The solicitation, as described above, instructed offerors to submit letters of availability for all labor, material, and equipment for all phases of work, as well as lists of current and anticipated projects (including description, location, dollar value, and performance period), for both the offeror and the subcontractor. RFP at 55. Offerors were also to provide a detailed project management plan and narrative describing how they would manage multiple concurrent construction phases and stay on schedule in the event of equipment breakdowns, unforeseen weather delays, etc. Id. The RFP stated that the agency would evaluate the clarity and strength of an offeror’s overall project management plan and organization, how well it is structured to execute the scope of work, and its completeness and accuracy. Id. at 86-87.

Although the protester disputes the extent of the agency’s evaluation of its management plan, it has not demonstrated that the evaluation was inconsistent with the RFP. The record shows that, consistent with the agency’s arguments throughout this protest, Affolter’s proposal did not include a sufficient level of detail.  As the agency points out, the protester provided no information on the organizational size and equipment owned by its proposed subcontractor. In contrast, Coastal’s commitment letters, including from its proposed subcontractors, not only identified ongoing and future projects, but also identified the type of equipment and/or the particular dredges (by vessel name) used on those projects, as well as the dredges owned by Coastal or its subcontractor that would be available to carry out this requirement. Compare AR, Tab 7, Protester’s Proposal, at 147-51 with Tab 9, Coastal’s Proposal, at 231-36.

Best Value Determination

Finally, Affolter protests USDA’s source selection decision, arguing that it was flawed because it was based on the use of the allegedly improper evaluation conclusions discussed above. Protest at 17-19. The protester contends that the agency did not adequately justify its selection of Coastal’s higher-priced proposal, but simply mechanically compared the offerors’ evaluation ratings. Protester’s Comments at 21-24.

Selection officials have considerable discretion in making price/technical tradeoff decisions. American Material Handling, Inc., B-297536, Jan. 30, 2006, 2006 CPD ¶ 28 at 4. The propriety of a cost/price-technical tradeoff decision does not turn on the difference in the technical scores or ratings per se, but on whether the selection official’s judgment concerning the significance of the difference was reasonable and adequately justified in light of the RFP’s evaluation scheme. Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD 88 at 6.

As discussed above, there is no merit to Affolter’s objections to the agency’s non-price evaluations. Thus, there is no basis to question the agency’s reliance upon those evaluation judgments in making its source selections. Moreover, contrary to the protester’s assertion, the record shows that the agency conducted a detailed cost/technical tradeoff that compared proposals’ evaluated strengths and weaknesses according to the solicitation’s relative importance of the stated evaluation factors, and reasonably determined that Coastal’s proposal represented the best value to the agency. See AR, Tab 13, SSD, at 28-31.

The protest is denied.

Susan A. Poling
General Counsel



[1] A Gantt chart is a horizontal bar chart that provides a graphical illustration of a schedule and helps plan, coordinate, and track individual tasks and subtasks within a project. See www.gantt.com.

[2] A staff gauge is a long ruler placed in a body of water that measures surface elevation. See RFP § J, attach. 2, Spec. No. 93, Identification Markers or Plaques, at 173-75.

[3] The RFP included 12 contract line items (CLINs) corresponding generally to each technical requirement/subfactor. See RFP, Schedule, at 5.

[4] Affolter does not protest the agency’s price evaluations.

[5] In its comments on the agency report, the protester also suggests--for the first time--that it was unreasonable for the agency not to conduct discussions to resolve its concerns. See Protester’s Comments at 3. However, the protester did not respond to the agency’s assertion that it was not required to conduct discussions because the RFP provided for award without discussions. See Supp. AR at 2, citing RFP at 39; Protester’s Supp. Comments at 21.

[6] Geodetic datums are determined by height differences between points in the ground, whereas tidal datums, also known as water elevations, are determined by averaging the level of water at a tide gage over time. See CO Supp. Statement at 6-7, citing www.ngs.noaa.gov/datums/vertical/.

[7] While we accord greater weight to an agency’s contemporaneous record of its procurement action than to arguments and documentation prepared in response to protest contentions, we do not limit our review to contemporaneous evidence, but consider all the information provided, including the parties’ arguments, explanations, and documentation prepared in response to protest contentions. J&J Maintenance, Inc., B-405310, Oct. 17, 2011, 2011 CPD ¶ 238 at 6 n.6.

[8] The protester suggests that such project specifications were simple and not part of the “meat” of this project (“how to dredge[,] construct dikes and fill marshes”), and points out that the RFP admonished offerors against simply rephrasing or restating requirements. Protester’s Comments at 13-15, citing RFP at 39. We disagree. In our view, the RFP’s specifications regarding management of construction activities, field offices, and staging areas are just as substantial as its earthworks specifications--see RFP § J, attach. 2, Spec. No. 8, Mobilization & Demobilization, at 147-48; Spec. No. 9, Field Office, at 185-189 (requiring field office, documented land owner agreement(s), provision and maintenance of access road, etc.).

[9] The protester abandoned its challenges of the assessed weaknesses that Affolter’s technical proposal did not provide details regarding staff gauges (subfactor no. 7), or the number of shifts or work hours to permit the agency to determine if the protester proposed sufficient crews to perform each work phase (subfactor no. 10). See AR, Tab 11, TEB Report, at 36-38; Protest at 13-14; Protester’s Comments at 17; CO Statement at 40-41. Moreover, the protester does not challenge a number of weaknesses under other subfactors, including the TEB’s assessment that Affolter did not address dewatering structures, submission of a dredge operation plan, and monitoring discharge pipes (under subfactor no. 6). AR, Tab 11, TEB Report, at 36; see generally Protester’s Comments; Protester’s Supp. Comments.

[10] Moreover, to the extent Affolter challenges the agency’s evaluation ratings and the number of strengths and weaknesses assessed, Protest at 14; see Protester’s Comments at 4 (Affolter rated unreasonably low on non-price factors), evaluation ratings, be they numerical, adjectival, or color, are only guides for intelligent decision making in the procurement process, and the essence of an agency’s evaluation is reflected in the evaluation record itself, not the adjectival ratings. See HK Consulting, Inc., B-408443, Sept. 18, 2013, 2013 CPD ¶ 224 at 3 n.4. There is no legal requirement that an agency must award the highest possible rating, or the maximum point score, under an evaluation factor simply because the proposal contains strengths and/or is not evaluated as having any weaknesses. See Applied Tech. Sys., Inc., B-404267, B 404267.2, Jan. 25, 2011, 2011 CPD ¶ 36 at 9.

[11] In its initial protest, Affolter also challenged its past performance confidence evaluation, but did not address the agency’s defense in that regard. Compare Protest at 7 with CO Statement at 33 and Protester’s Comments at 4-6.

[12] The protester also contends that the agency’s assessment of a “somewhat not relevant” rating amounts to the use of an unstated evaluation criterion because the solicitation did not provide for such a rating. Protest at 6-7. This argument lacks merit. As discussed above, the essence of an agency’s evaluation is reflected in the evaluation record itself, not adjectival ratings. See HK Consulting, Inc., supra.

[13] The TEB assessed the following weakness for the project list submitted by Affolter’s proposed subcontractor: “9 projects will be completed in 2015 and 13 projects in 2014[,] which may pose some challenges with availability of equipment and personnel. Some of these projects are in other countries.” AR, Tab 11, TEB Report, at 42.

Oct 19, 2017

Oct 18, 2017

Oct 17, 2017

Oct 13, 2017

Looking for more? Browse all our products here