B-209687, MAR 16, 1983

B-209687: Mar 16, 1983

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DIGEST: EVALUATION OF COMPETITORS FOR ARCHITECT-ENGINEER (A-E) SERVICES CONTRACT IS NOT ARBITRARY EVEN THOUGH SELECTION BOARD DID NOT HAVE BEFORE IT THE MOST CURRENT INFORMATION CONCERNING PRIOR A-E AWARDS. ALTHOUGH PRIOR A-E CONTRACTS ARE TO BE CONSIDERED IN ORDER TO EFFECT EQUITABLE DISTRIBUTION OF A-E CONTRACTS. THIS IS ONLY ONE OF SEVERAL EVALUATION FACTORS TO BE WEIGHED IN SELECTING A-E CONTRACTOR. PROTESTER HAS NOT SHOWN THAT - CONSIDERING ALL EVALUATION FACTORS - SELECTION WAS UNREASONABLE. DHILLON CONTENDS THAT THE NAVY'S EVALUATION OF OFFERORS WAS NOT IN ACCORD WITH THE STATED EVALUATION CRITERIA NOR WITH PERTINENT PROVISIONS OF THE DEFENSE ACQUISITION REGULATION (DAR) (1976 ED.).

B-209687, MAR 16, 1983

DIGEST: EVALUATION OF COMPETITORS FOR ARCHITECT-ENGINEER (A-E) SERVICES CONTRACT IS NOT ARBITRARY EVEN THOUGH SELECTION BOARD DID NOT HAVE BEFORE IT THE MOST CURRENT INFORMATION CONCERNING PRIOR A-E AWARDS. ALTHOUGH PRIOR A-E CONTRACTS ARE TO BE CONSIDERED IN ORDER TO EFFECT EQUITABLE DISTRIBUTION OF A-E CONTRACTS, THIS IS ONLY ONE OF SEVERAL EVALUATION FACTORS TO BE WEIGHED IN SELECTING A-E CONTRACTOR. PROTESTER HAS NOT SHOWN THAT - CONSIDERING ALL EVALUATION FACTORS - SELECTION WAS UNREASONABLE.

DHILLON ENGINEERS, INC.:

DHILLON ENGINEERS, INC. (DHILLON), PROTESTS AWARD OF CONTRACT NO. N62474- 82-C-0457 TO THE FIRM OF VALENTINE, FISHER AND TOMLINSON (VALENTINE) BY THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, DEPARTMENT OF THE NAVY (NAVY). THE CONTRACT REQUIRES VALENTINE TO PERFORM ARCHITECT- ENGINEER (A-E) SERVICES RELATED TO UPGRADING THE ELECTRICAL DISTRIBUTION SYSTEM AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON. DHILLON CONTENDS THAT THE NAVY'S EVALUATION OF OFFERORS WAS NOT IN ACCORD WITH THE STATED EVALUATION CRITERIA NOR WITH PERTINENT PROVISIONS OF THE DEFENSE ACQUISITION REGULATION (DAR) (1976 ED.).

WE DENY THE PROTEST.

THE BROOKS ACT, 40 U.S.C. SEC. 541, ET SEQ. (1976), STATES THE FEDERAL GOVERNMENT'S POLICY IN THE PROCUREMENT OF A-E SERVICES. WHILE THE BROOKS ACT IS NOT APPLICABLE PER SE TO THE MILITARY DEPARTMENTS COVERED UNDER THE ARMED SERVICES PROCUREMENT ACT OF 1947 (10 U.S.C. SEC. 2301, ET SEQ. (1976)), THE BROOKS ACT SELECTION PROCEDURES HAVE BEEN ADOPTED IN SUBSTANCE BY THE DEPARTMENT OF DEFENSE IN DAR SEC. 18 401, ET SEQ. (DEFENSE ACQUISITION CIRCULAR NO. 76-31, OCTOBER 30, 1981). ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS - RECONSIDERATION, B-199458.2, AUGUST 13, 1982, 82-2 CPD 128. GENERALLY, THE SELECTION PROCEDURES PRESCRIBED REQUIRE A CONTRACTING AGENCY TO PUBLICLY ANNOUNCE REQUIREMENTS FOR A-E SERVICES. THE CONTRACTING AGENCY THEN EVALUATES A E STATEMENTS OF QUALIFICATIONS AND PERFORMANCE DATA ALREADY ON FILE AND STATEMENTS SUBMITTED BY OTHER FIRMS IN RESPONSE TO THE PUBLIC ANNOUNCEMENT. THEREAFTER, 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. BASED ON ESTABLISHED AND PUBLISHED CRITERIA, WHICH ARE NOT TO RELATE EITHER DIRECTLY OR INDIRECTLY TO THE FEES TO BE PAID THE FIRM, THE CONTRACTING AGENCY THEN RANKS IN ORDER OF PREFERENCE NO LESS THAN THREE FIRMS DEEMED MOST HIGHLY QUALIFIED. NEGOTIATIONS ARE HELD WITH THE A-E FIRM RANKED FIRST. ONLY IF THE AGENCY IS UNABLE TO AGREE WITH THE FIRM AS TO A FAIR AND REASONABLE PRICE ARE NEGOTIATIONS TERMINATED AND THE SECOND RANKED FIRM INVITED TO SUBMIT ITS PROPOSED FEE.

THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, ANNOUNCED ITS INTENTION TO CONTRACT FOR THESE A-E SERVICES IN THE COMMERCE BUSINESS DAILY AND INVITED INTERESTED FIRMS TO SUBMIT STANDARD FORMS 254 AND 255 OUTLINING THEIR QUALIFICATIONS FOR THE PROJECT. THE ANNOUNCEMENT DESCRIBED THE PROJECT AND, WITH REGARD TO QUALIFICATIONS AND EVALUATION OF POTENTIAL CONTRACTORS, STATED:

"*** A-E SELECTION CRITERIA WILL INCLUDE: (1) RECENT SPECIALIZED EXPERIENCE OF THE FIRM IN THE DESIGN OF HIGH VOLTAGE INDUSTRIAL POWER DISTRIBUTION, UNDERGROUND DISTRIBUTION SYSTEMS AND METAL CALD SWITCHGEAR: (2) PROFESSIONAL QUALIFICATIONS OF THE STAFF TO BE ASSIGNED TO THIS PROJECT: (3) VOLUME OF WORK PREVIOUSLY AWARDED BY THE DEPARTMENT OF DEFENSE TO THE FIRM, WITH THE OBJECT OF EFFECTING EQUITABLE DISTRIBUTION OF CONTRACTS AMONG QUALIFIED ARCHITECT-ENGINEER FIRMS INCLUDING MINORITY-OWNED FIRMS AND FIRMS THAT HAVE NOT HAD PRIOR DEPARTMENT OF DEFENSE CONTRACTS: (4) LOCATION OF THE FIRM IN THE GENERAL GEOGRAPHICAL AREAS OF THE PROJECT: (5) PAST EXPERIENCE, IF ANY, OF THE FIRM WITH RESPECT TO PERFORMANCE ON DEPARTMENT OF DEFENSE CONTRACTS: (6) COST CONTROL EFFECTIVENESS. ***"

VALENTINE WAS SELECTED AS THE RESULT OF EVALUATIONS BY A "PRE SELECTION BOARD" AND A "SELECTION BOARD." DHILLON ARGUES THAT THE SELECTION BOARD FAILED TO CONSIDER THE VOLUME OF WORK PREVIOUSLY AWARDED TO VALENTINE BY THE DEPARTMENT OF DEFENSE IN CONTRAVENTION OF THE THIRD CRITERION LISTED IN THE COMMERCE BUSINESS DAILY AND DAR SEC. 18-402.1(V) (1976 ED.), WHICH ALSO STATES THE DEPARTMENT OF DEFENSE POLICY OF EFFECTING EQUITABLE DISTRIBUTION OF A-E CONTRACTS. THE NAVY INITIALLY REPORTED TO OUR OFFICE THAT, AS OF THE TIME OF SELECTION, NEITHER DHILLON NOR VALENTINE HAD RECEIVED ANY CONTRACT AWARDS FROM THE DEPARTMENT OF DEFENSE IN CALENDAR OR FISCAL YEARS 1981 AND 1982. HOWEVER, UNDER THE FREEDOM OF INFORMATION ACT (5 U.S.C. SEC. 552 (1976)), DHILLON OBTAINED FROM THE NAVY A LIST OF EIGHT CONTRACTS AWARDED OR TO BE AWARDED TO VALENTINE BY THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, FROM 1975 THROUGH NOVEMBER 1982. DHILLON CITES THESE AWARDS AS EVIDENCE THAT THE SELECTION BOARD DID NOT CONSIDER PREVIOUS AWARDS TO VALENTINE.

THE NAVY POINTS OUT THAT THREE OF THE CONTRACTS WHICH WERE LISTED IN THE MATERIAL RELEASED UNDER THE FREEDOM OF INFORMATION ACT WERE AWARDED TO VALENTINE SEVERAL YEARS BEFORE THE SELECTION BOARD MADE ITS RECOMMENDATION IN THE PRESENT PROCUREMENT AND WERE NOT CONSIDERED SINCE, PURSUANT TO THE PROCURING AGENCY'S POLICY, THE SELECTION BOARD WAS TO CONSIDER ONLY CONTRACTS AWARDED DURING 1981 AND 1982. THE NAVY ALSO ARGUES THAT TWO OTHER CONTRACTS ARE "OPEN END" A-E CONTRACTS WHICH DO NOT GET LISTED IN THE COMPUTER REPORTING SYSTEM USED TO DETERMINE PREVIOUS A-E AWARDS UNTIL A "CALL UPON THE CONTRACT" IS MADE; SINCE NO CALL (WORK ORDER) WAS ISSUED UNDER EITHER CONTRACT, THEY WERE NOT LISTED OR CONSIDERED BY THE SELECTION BOARD. FINALLY, THE NAVY ARGUES THAT THE COMPUTER LIST OF DEPARTMENT OF DEFENSE A-E CONTRACTS AWARDED IS ONLY ISSUED FOUR TIMES A YEAR. ACCORDING TO THE NAVY, THERE IS A TIME LAG OF BETWEEN 8 TO 10 WEEKS BETWEEN THE END OF REPORTING PERIODS (DECEMBER, MARCH, JUNE, AND OCTOBER) AND RECEIPT OF THE LIST BY ACTIVITIES USING THE LIST, AND THE NAVY STATES THAT TWO AWARDS MADE TO VALENTINE IN EARLY 1982 BEFORE THE SELECTION BOARD EVALUATION COULD NOT HAVE BEEN DISCOVERED SINCE THE BOARD ONLY HAD THE LIST FOR THE QUARTERLY PERIOD ENDING DECEMBER 31, 1981. ONE OTHER 1982 CONTRACT WAS AWARDED TO VALENTINE AFTER THE SELECTION WAS MADE.

BASED ON THE ABOVE ANALYSIS, THE NAVY CONCLUDES THAT THE CRITERION OF DAR SEC. 18-402.1(V) WAS FOLLOWED WITHIN THE CONFINES OF THE REPORTING SYSTEM." THAT REGULATION PROVIDES:

"*** THE SELECTION OF ARCHITECT-ENGINEER FIRMS *** SHALL *** BE BASED UPON *** PROFESSIONAL QUALIFICATIONS *** SUBJECT TO ***:

"(V)VOLUME OF WORK PREVIOUSLY AWARDED TO THE FIRM BY THE DEPARTMENT OF DEFENSE, WITH THE OBJECT OF EFFECTING AN EQUITABLE DISTRIBUTION OF *** CONTRACTS AMONG QUALIFIED ARCHITECT-ENGINEER FIRMS ***."

OUR REVIEW OF THE AGENCY SELECTION OF AN A-E CONTRACTOR IS LIMITED TO EXAMINING WHETHER THAT SELECTION IS REASONABLE. WE WILL QUESTION THE AGENCY'S JUDGMENT ONLY IF IT IS SHOWN TO BE ARBITRARY. LEYENDECKER & CAVAZOS, B-194762, SEPTEMBER 24, 1979, 79-2 CPD 217. IN THIS REGARD, IT MUST BE REMEMBERED THAT THE PROTESTER BEARS THE BURDEN OF AFFIRMATIVELY PROVING ITS CASE. ACMAT CORPORATION, B-197589, MARCH 18, 1981, 81-1 CPD 206.

WE ARE UNABLE TO CONCLUDE THAT THE NAVY'S SELECTION OF VALENTINE WAS ARBITRARY OR UNREASONABLE OR UNRELATED TO THE PUBLISHED EVALUATION CRITERIA. BOTH THE PRE-SELECTION BOARD AND THE SELECTION BOARD USED THE DEPARTMENT OF DEFENSE'S CONSOLIDATED COMPUTER LIST OF A-E AWARDS TO EVALUATE POTENTIAL CONTRACTORS AND TO APPLY THE POLICY OF EQUITABLE DISTRIBUTION OF A-E CONTRACTS. WE FIND NOTHING IMPROPER ABOUT USING THE LIST TO EFFECT THIS POLICY.

HOWEVER, WE HAVE SOME PROBLEMS WITH THE WAY THE LIST WAS USED. THE NAVY CONTENDS THAT PUBLICATION OF THE LISTS HAVE A TIME LAG OF 8 TO 10 WEEKS AFTER THE END OF A REPORTING PERIOD AND, THEREFORE, THE SELECTION BOARD DID NOT HAVE THE MOST RECENT A-E AWARDS BEFORE IT. HOWEVER, THE MATERIAL THE NAVY RELEASED TO DHILLON UNDER THE FREEDOM OF INFORMATION ACT SHOWED, AS NOTED ABOVE, THAT THE NAVY ITSELF HAD AWARDED TWO CONTRACTS TO VALENTINE SHORTLY BEFORE THE EVALUATION PROCESS FOR THE PRESENT AWARD BEGAN. THESE TWO AWARDS WERE MADE ON JANUARY 20 (AMOUNT OF CONTRACT WAS $47,397) AND APRIL 28 (AMOUNT OF CONTRACT WAS $67,082). SINCE, ACCORDING TO THE NAVY, THERE WAS ONLY AN 8- TO-WEEK LAG, THE JANUARY AWARD SHOULD HAVE BEEN AVAILABLE TO THE SELECTION BOARD ON THE CONSOLIDATED LIST PUBLISHED IN MARCH, BECAUSE THE SELECTION BOARD DID NOT CONVENE UNTIL JULY 13. WHILE WE RECOGNIZE THAT THE PRE-SELECTION BOARD MET ON MAY 5 AND MAY NOT HAVE HAD THE MARCH CONSOLIDATED LIST, IN OUR OPINION, THE SELECTION BOARD SHOULD HAVE UPDATED THE EVALUATION INFORMATION USED BY THE PRE- SELECTION BOARD BY INCORPORATING DATA AVAILABLE ON THE MARCH CONSOLIDATED A-E CONTRACT LIST. ACCORDINGLY, WE ARE, BY LETTER OF TODAY, NOTIFYING THE SECRETARY OF THE NAVY OF OUR OPINION THAT AN ATTEMPT SHOULD BE MADE TO UPDATE INFORMATION CONCERNING PRIOR A-E CONTRACT AWARDS BETWEEN THE PRE SELECTION BOARD'S EVALUATION AND THE SELECTION BOARD'S FINAL RECOMMENDATION.

IN SPITE OF THE ABOVE SHORTCOMING, WE ARE NOT CONVINCED THAT THE AWARD TO VALENTINE WAS IMPROPER. EVEN THOUGH WE BELIEVE THAT THE SELECTION BOARD SHOULD HAVE USED MORE CURRENT INFORMATION (NAMELY, THE QUARTERLY REPORT ENDING MARCH 31, 1982) THAN THE PRE-SELECTION BOARD, WE ARE NOT PERSUADED THAT THE RESULTS WOULD HAVE BEEN ANY DIFFERENT. ONLY THE JANUARY 20 CONTRACT (WORTH $47,397) WOULD HAVE BEEN CONSIDERED SINCE A CONTRACT AWARDED ON FEBRUARY 5 HAD HAD NO "CALLS" PLACED UNDER IT. FURTHERMORE, THE PUBLISHED CRITERIA AND SECTION 18-402.1(V) OF THE DAR, SUPRA, STATE THAT PREVIOUS CONTRACTS SHOULD BE CONSIDERED, BUT DO NOT PROVIDE FOR EXCLUDING ANY OFFEROR JUST BECAUSE IT HAD DONE A-E WORK FOR THE NAVY OR OTHER DEFENSE AGENCIES PREVIOUSLY. THEREFORE, WE CANNOT FIND THAT THE NAVY'S AWARD TO VALENTINE VIOLATED THE STATED POLICY OF EQUITABLE DISTRIBUTION OF A-E CONTRACTS AMONG CONTRACTORS. SEE R. CHRISTOPHER GOODWIN & ASSOCIATES AND GEOSCIENCE INC., B-206520, NOVEMBER 5, 1982, 82-2 CPD 410.

THE RECORD SHOWS THAT VALENTINE WAS RATED FIRST PRIMARILY BECAUSE OF ITS EXTENSIVE EXPERIENCE IN HIGH VOLTAGE SYSTEMS/UNDERGROUND DISTRIBUTION. THIS EXPERIENCE WAS DIRECTLY RELEVANT TO THE FIRST EVALUATION CRITERION - RECENT SPECIALIZED EXPERIENCE IN DESIGN OF HIGH VOLTAGE INDUSTRIAL POWER DISTRIBUTION AND UNDERGROUND DISTRIBUTION SYSTEMS. THE SELECTION BOARD WAS SATISFIED WITH THE ASSEMBLED VALENTINE STAFF, INCLUDING THE ENGINEER FOR CONTROLS AND COMPUTER CONTROLS; THIS WAS RELEVANT TO THE SECOND CRITERION - PROFESSIONAL QUALIFICATIONS OF THE STAFF. THE SELECTION BOARD ALSO REVIEWED INFORMATION CONCERNING VALENTINE'S PAST PERFORMANCE ON DEPARTMENT OF DEFENSE CONTRACTS (CRITERION NO. 5) AND WAS SATISFIED. EVEN THOUGH DHILLON CHARGES THAT IT WAS CONSIDERED "EQUALLY WELL QUALIFIED" AND SHOULD HAVE BEEN SELECTED BECAUSE OF VALENTINE'S PREVIOUS AWARDS, WE CANNOT FIND THAT THE NAVY'S SELECTION WAS ARBITRARY OR UNREASONABLE OR THAT IT VIOLATED THE STATED CRITERIA SINCE THE ABOVE-ENUMERATED CRITERIA WERE CONSIDERED BY THE NAVY AND COULD HAVE OUTWEIGHTED ANY NEGATIVE EFFECTS OF UPDATED INFORMATION CONCERNING THE JANUARY A-E AWARD TO VALENTINE HAD IT BEEN BROUGHT TO THE SELECTION BOARD'S ATTENTION. MOREOVER, THE RECORD DOES NOT SHOW THAT THE SELECTION BOARD RELIED SOLELY ON VALENTINE'S DEMONSTRATED EXPERIENCE UNDER A PRIOR CONTRACT FOR THE "STUDY/DESIGN" EFFORT LEADING TO THIS CONTRACT. IN ANY EVENT, WE SEE NOTHING IMPROPER ABOUT CONSIDERING THIS PRIOR CONTRACT SINCE THE PRIOR CONTRACT WAS NOT THE RESULT OF ANY UNFAIR ACT OF THE GOVERNMENT.

IN VIEW OF THE BURDEN OF PROOF THAT A PROTESTER MUST CARRY, DHILLON HAS PROVIDED NO BASIS TO INVALIDATE THE AWARD TO VALENTINE. SEE R. CHRISTOPHER GOODWIN & ASSOCIATES AND GEOSCIENCE INC., SUPRA.

THE PROTEST IS DENIED.