ACC Construction-McKnight Joint Venture, LLC

B-411073: Apr 30, 2015

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ACC Construction-McKnight Joint Venture, LLC (ACC), of Augusta, Georgia, protests the award of a contract to Walsh Group Ventures, of Chicago, Illinois, by the Department of the Army, Corps of Engineers, under request for proposals (RFP) No. W912QR-14-R-0022 for construction of a high school at Fort Campbell, Kentucky. ACC alleges the agency's evaluation of its proposal was unreasonable.

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: ACC Construction-McKnight Joint Venture, LLC

File: B-411073

Date: April 30, 2015

Karl Dix, Jr., Esq., Smith, Currie & Hancock LLP, for the protester.
Joseph J. Dyer, Esq., Bennett D. Greenberg, Esq., and Rhett E. Petcher, Esq., Seyfarth Shaw LLP, for Walsh Group Ventures, the intervenor.
Travis D. Van Ort, Esq., Department of the Army, for the agency.
Matthew T. Crosby, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest alleging agency unreasonably evaluated protester’s construction schedule is denied where record reflects protester’s schedule lacked adequate detail and evaluation was otherwise reasonable and consistent with terms of solicitation.

DECISION

ACC Construction-McKnight Joint Venture, LLC (ACC), of Augusta, Georgia, protests the award of a contract to Walsh Group Ventures, of Chicago, Illinois, by the Department of the Army, Corps of Engineers, under request for proposals (RFP) No. W912QR-14-R-0022 for construction of a high school at Fort Campbell, Kentucky. ACC alleges the agency’s evaluation of its proposal was unreasonable.

We deny the protest.

BACKGROUND

The solicitation, issued on June 20, 2014, contemplated the award of a fixed-price contract for the construction of a high school at Fort Campbell, Kentucky. RFP at 1, 4.[1] The solicitation provided that award would be made on a best-value tradeoff basis considering the following factors, listed in descending order of importance: past performance; management; small business participation plan; and price. RFP at 5-6. The management factor included two subfactors: management plan and schedule. Id. at 6.

Under the management factor and subfactors, proposals were to be assigned adjectival ratings of outstanding, good, acceptable, marginal, or unacceptable. RFP at 7, 10. As relevant here, the unacceptable rating was defined as: “Proposal does not meet requirements and contains one or more deficiencies and is unawardable.” Id. at 7. A deficiency was defined as a “material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level.” Id.

Under the schedule subfactor, the solicitation instructed offerors to provide a schedule showing how the work would be performed. RFP at 10. The schedule was to show, among other things, “the construction phases for [the] storm water box culvert installation and stabilization.” Id. at 11. The solicitation stated the schedule would be evaluated “to assess the strength of [the offeror’s] understanding of events associated with the construction process and completion requirements.” Id.

In addition, the solicitation included numerous drawings. Several drawings depicted a storm drain system the contractor was to construct by connecting the aforementioned new storm water box culvert to part of an existing storm drain system. See Contracting Officer’s Statement ¶¶ 9.f-9.h. As relevant here, two drawings provided a “Site Demolition Plan” and included the following note:

The existing 78” and 36” [storm drain] pipes are to remain operational until the new box culvert is installed. After the box culvert is installed and connected to the existing 78” and 36” pipes the contractor shall concrete slurry fill and abandon in place the specified portion [of the existing drainage system].

AR, Tab 5, Drwg. CD101, Site Demolition Plan, at 1; AR, Tab 6, Drwg. CD102, Site Demolition Plan, at 1. Consistent with this note, other drawings included notes stating: “Contractor to Remove Portion of Existing Pipe after New Box Culvert Installation” and “Existing Pipe to Be Removed after New Box Culvert Installation.” AR, Tab 34, Drwgs. CD505 and CD506, Grading and Drainage Details, at 1-2.

The agency received four proposals in response to the solicitation. Contracting Officer’s Statement ¶ 13. A source selection evaluation board (SSEB) evaluated the proposals. Id. The SSEB assigned strengths, weaknesses, and deficiencies to the proposals, as well as ratings under each of the factors and subfactors. The factor-level ratings for ACC’s and Walsh’s proposal, together with their total evaluated prices, are shown in the table below.

 

ACC

Walsh


Past Performance

Satisfactory Confidence

Satisfactory Confidence

Management

Unacceptable

Outstanding

Small Business Participation Plan


Acceptable


Good

Total Evaluated Price

$51,705,102.90

$51,959,542.00


Protest, attach. 5, Notice of Award (Nov. 10, 2014), at 1. In addition to the factor-level ratings shown above, ACC’s proposal was assigned ratings of marginal under the management plan subfactor and unacceptable under the schedule subfactor. Id. at 1-2.

After reviewing the SSEB’s evaluation, the source selection authority selected Walsh for award. Contracting Officer’s Statement ¶ 13. Following a debriefing, ACC provided the agency a copy of a bid protest ACC intended to file with the United States Court of Federal Claims. Id. ¶ 16. After reviewing the bid protest, the agency decided to take corrective action by reevaluating ACC’s proposal under the management factor. Id. ¶ 17.

After the SSEB reconvened and reevaluated ACC’s proposal under the management factor, the SSEB changed some of the strengths, weaknesses, and deficiencies initially assigned to the proposal. Compare Protest, attach. 5, Notice of Award (Nov. 10, 2014), at 1-2 with Protest, attach. 8, Notice of Award (Jan. 13, 2015), at 1-4. However, the ratings assigned under the management plan and schedule subfactors remained marginal and unacceptable, respectively, and the overall rating assigned to ACC’s proposal under the management factor remained unacceptable. Protest, attach. 8, Notice of Award (Jan. 13, 2015), at 1-2.

The unacceptable rating was based on the following evaluated deficiency assigned under the schedule subfactor:

[Solicitation] drawings demonstrate that the demolition of the existing storm drain is only to take place after the installation of the new storm drain box culvert. The offeror’s schedule includes activities for the storm water box culvert installation and stabilization; however, the offeror’s schedule shows the demolition of the existing storm drain occurring before the installation of the new storm drain. This is a deficiency because the offeror’s schedule does not comply with the requirements of the RFP.

AR, Tab 36, SSEB Summary Evaluation Rep. Add., at 3.[2]

After completing the reevaluation, the agency determined the selection of Walsh for award would stand. See Protest, attach. 8, Notice of Award (Jan. 13, 2015), at 1. Following a debriefing, ACC filed this protest with our Office.

DISCUSSION

ACC challenges the deficiency assigned to its proposal under the schedule subfactor. As stated above, the agency assigned the deficiency on the basis that ACC’s schedule showed demolition of the existing storm drain occurring before installation of the new storm drain, which was inconsistent with the solicitation’s requirement that the existing storm drain remain operational until after installation of the new storm water box culvert.

As relevant to ACC’s claim, ACC’s schedule showed more than 1000 “activities,” each with a specific start and finish date. AR, Tab 39, ACC Proposal, at 42‑67. Only three of the activities referenced storm drain work. In terms of chronology, the first storm drain-related activity was “Demo Storm Drain,” with start and finish dates of November 21 and December 12, 2014. Id. at 43. This activity was listed under the heading “West Parking Lot.” Id. The second storm drain-related activity was “Install Subdrainage,” with start and finish dates of February 9 and February 23, 2015. Id. This activity was listed under the heading “Stadium.” Id. The final storm drain-related activity was “Install Storm Drain,” with start and finish dates of February 24 and March 9, 2015. Id. This activity was listed under the heading “Site.” Id. Other than the activity titles and dates given above, ACC’s proposal provided no further detail or information regarding storm drain-related work.

Returning to ACC’s claim, ACC argues the deficiency was unreasonable because the agency failed to read the “Demo Storm Drain” activity to include installation of a new storm drain. Protest at 13-14 n.2. In this regard, ACC argues “since the only item for storm drainage identified for West Parking Lot was ‘DEMO STORM DRAIN’, that activity clearly included the installation of the storm drain in that area as well as the demolition work” and “[a] reasonable reading of that activity is that it was for demolition work and storm drainage work.” Id.

The contracting officer responds that the SSEB reasonably read the “Demo Storm Drain” activity to include only demolition because the “Demo Storm Drain” activity did not reference installation work and because ACC’s schedule included a separate activity titled “Install Storm Drain.” Contracting Officer’s Statement ¶¶ 24‑25. The contracting officer further responds that the SSEB reasonably interpreted the “Install Storm Drain” activity to include installation of the new storm water box culvert because the solicitation drawings alternatively referred to the storm water box culvert as a “storm drain” and because ACC’s schedule did not otherwise reference the storm water box culvert, as required by the solicitation.[3] Id. ¶ 25. Finally, the contracting officer responds that because the sequence in ACC’s schedule was inconsistent with the solicitation requirement that the existing storm drain pipes remain operational until after installation of the new storm water box culvert, the SSEB assigned the deficiency. Id. ¶ 27.

It is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information that clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. Mike Kesler Enters., B‑401633, Oct. 23, 2009, 2009 CPD ¶ 205 at 2-3. An offeror runs the risk that a procuring agency will evaluate its proposal unfavorably where it fails to do so. Int’l Med. Corps, B-403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 7.

We find the agency’s evaluation here to be reasonable. ACC’s allegation amounts to a claim that the agency should have inferred the “Demo Storm Drain” activity also included installation of the new storm water box culvert. As discussed above, however, neither the “Demo Storm Drain” activity, nor any other part of ACC’s proposal indicated the “Demo Storm Drain” activity included installation of the new storm water box culvert. Further, ACC’s schedule included a separate activity titled “Install Storm Drain,” which was to occur months after the “Demo Storm Drain” activity. On this record, we view as reasonable the SSEB’s finding that ACC’s schedule did not meet the solicitation’s requirement that the storm drain pipes remain operational until after installation of the storm water box culvert.

In its comments on the agency report, ACC argues for the first time that the agency should have interpreted the “Demo Storm Drain” activity to pertain to different storm drain piping than the piping that was to remain operational until after installation of the storm water box culvert. Comments at 1-2, 6-9. In connection with this argument, ACC points to a note on a solicitation drawing that references removal of a separate storm drain. Id. at 1-2, 8 (referencing AR, Tab 5, Drwg. CD101, Site Demolition Plan, at 1 n.100). ACC also points out the “Demo Storm Drain” activity in its schedule was listed under the heading “West Parking Lot.” Id. at 6. Because the storm drain pipes that were to remain operational until after installation of the storm water box culvert were located beyond the West Parking Lot, ACC argues, the agency should have known the “Demo Storm Drain” activity did not refer to those pipes but to the second storm drain referenced in the note. Comments at 6-9. ACC also recants its prior argument that the “Demo Storm Drain” activity implicitly included installation of the storm water box culvert and argues instead that the “Install Storm Drain” activity implicitly included both installation of the storm water box culvert and the later concrete slurry filling of the existing pipes. See id. at 8, 10.

Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, protests generally must be filed no later than 10 calendar days after the protester knew, or should have known, the basis of its protest, whichever is earlier. 4 C.F.R. § 21.2(a)(2) (2014). Moreover, where a protester initially files a timely protest, and later supplements it with independent grounds of protest, the later-raised allegations must independently satisfy the timeliness requirements, since our Regulations do not contemplate the unwarranted piecemeal presentation or development of protest issues. Int’l Code Council, B‑409146, Jan. 8, 2014, 2014 CPD ¶ 26 at 3 n.3.

Here, ACC’s argument that the agency should have interpreted the “Demo Storm Drain” activity to pertain to storm drain piping other than the piping that was to remain operational until after installation of the storm water box culvert is based on information ACC knew at the time it filed its initial protest. Specifically, at that time, ACC had its proposal, the solicitation drawings, and the agency’s evaluation summary. See Protest, attach. 8, Notice of Award (Jan. 13, 2015), at 3-4. ACC, however, did not raise this argument in its initial protest, and the argument therefore is untimely.

In any event, ACC’s argument provides no basis to sustain the protest. First, nothing in ACC’s schedule or proposal shows the “Demo Storm Drain” activity to refer to one storm drain versus the other--there is simply no detail or information regarding what storm drain is being addressed under this activity. Second, with regard to ACC’s argument that the evaluation was unreasonable because the “Demo Storm Drain” activity appeared under the heading “West Parking Lot,” the record shows the storm drain that triggered the deficiency was closer to the West Parking Lot than the storm drain ACC claims the agency ignored. See AR, Tab 15, Drwg. CG101, Grading and Drainage Plan, at 1; see also Agency Supp. Brief on West Parking Lot, at 2-3. Thus, faced with deciding which storm drain the “Demo Storm Drain” activity referenced, the agency chose the closer--and, thus, more logical--storm drain.

In sum, while ACC has provided explanations of how its schedule conveyed the existing storm drain would remain operational until after installation of the storm water box culvert, the record reflects the schedule and proposal ACC submitted to the agency lacked any detail supporting these explanations. Further, what detail ACC’s schedule did provide reasonably was interpreted by the agency to show ACC proposed a construction sequence that was inconsistent with the solicitation. This ground of protest is denied.

In addition to challenging the deficiency assigned to its proposal under the schedule subfactor, ACC challenges other adverse evaluation findings by the SSEB. Protest at 1, 12-15. As stated above, the solicitation provided that a proposal with one or more deficiencies would be rated unacceptable, rendering it “unawardable.” RFP at 7. Because we conclude, for the reasons discussed above, the agency’s assessment of a deficiency to ACC’s proposal under the schedule subfactor was reasonable (thus rendering the proposal not subject to award), and because the agency received at least one other proposal that was evaluated as acceptable or better, ACC is not an interested party to raise these challenges. See Tetra Tech Tesoro, Inc., B-403797, Dec. 14, 2010, 2011 CPD ¶ 7 at 6.

ACC also alleges the agency conducted the reevaluation of its proposal in bad faith by evaluating the proposal under “stricter scrutiny” to identify “any weaknesses or disqualifying deficiencies.”[4] Protest at 1, 12-15. In its comments on the agency report, ACC withdrew the claim of bad faith, but reiterated it is “still concerned” about the reevaluation. Comments at 11. To the extent there is any question on the issue, we see no evidence of bad faith by the agency here.

As a general matter, government officials are presumed to act in good faith, and a protester’s contention that procurement officials were motivated by bias or bad faith must be supported by clear and convincing evidence. Career Innovations, B‑404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-9. Here, the solicitation required offerors to submit a schedule showing the storm water box culvert installation. RFP at 11. The solicitation also established that existing storm water pipes must remain operational until after installation of the storm water box culvert. See AR, Tab 5, Drwg. CD101, Site Demolition Plan, at 1; AR, Tab 6, Drwg. CD102, Site Demolition Plan, at 1. Finally, the solicitation advised that the agency would evaluate offerors’ schedules to “assess the strength of understanding of events associated with the construction process and completion requirements.” RFP at 11. Hence, the solicitation conveyed that the agency would evaluate offerors’ proposals for precisely the type of deficiency assigned to ACC’s proposal. Under these circumstances, we see no basis to conclude the agency’s reevaluation of ACC’s proposal--and the deficiency assigned to the proposal as part of the reevaluation--reflects bad faith.

The protest is denied.

Susan A. Poling
General Counsel



[1] Citations herein refer to pages of the .pdf documents in the agency report (AR).

[2] Also as part of the reevaluation, the SSEB eliminated a separate deficiency that had been assigned to ACC’s proposal under the schedule subfactor in the initial evaluation. See Protest, attach. 5, Notice of Award (Nov. 10, 2014), at 2.

[3] As stated above, the solicitation required offerors’ schedules to show “construction phases for [the] storm water box culvert installation and stabilization.” RFP at 11.

[4] ACC repeatedly refers to this as “flyspecking.”

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