Hi-Way Paving, Inc.

Decision

Matter of: Hi-Way Paving, Inc.

File: B-410662

Date: January 21, 2015

DIGEST

1. Protest challenging the agency’s evaluation of the protester’s proposal under the safety factor is denied where the agency’s evaluation was reasonable and consistent with the terms of the solicitation.

2. Protest arguing disparate treatment in the evaluation of the protester’s and awardee’s proposals is denied where, despite inconsistencies in the evaluation record, there is no possibility of prejudice to the protester.

3. Protest challenging the agency’s best-value tradeoff analysis is denied where the agency reasonably found that the awardee’s proposal strengths were worth a price premium.

Hi-Way Paving, Inc., of Hilliard, Ohio, protests the award of a contract to Archer Western, LLC, under request for proposals (RFP) No. N69450-14-R-1261, issued by the Department of the Navy, Naval Facilities Engineering Command Southeast, for repairs and improvements at Naval Air Station Jacksonville, Florida.

We deny the protest.[1]

BACKGROUND

The RFP was issued in March 2014 and sought proposals for a fixed-price contract for airfield renovation and lighting repairs at Naval Air Station Jacksonville. The RFP advised offerors that award would be made on a best-value basis, considering price and five non-price factors: (1) experience, (2) technical solution, (3) safety, (4) small business utilization, and (5) past performance. RFP amend. 0006 at 7. The RFP provided that the first four non-price evaluation factors were of equal importance, and were, when combined, equal in importance to the past performance factor. Id. at 8. For purposes of award, the non-price evaluation factors were “approximately equal” in importance to price. Id.

The Navy received proposals from three offerors, including Archer and Hi-Way. Agency Report (AR), Tab 5, Business Clearance Memorandum.

The final technical evaluation ratings and prices for Hi-Way and Archer, who were ranked first and second in the selection decision, respectively, were as follows:[2]

	ARCHER	HI-WAY
Overall Rating	Outstanding	Good
Experience	Outstanding	Good
Technical Solution	Outstanding	Acceptable
Safety	Outstanding	Acceptable
Small Business Utilization	Acceptable	Outstanding
Past Performance	Substantial Confidence	Satisfactory Confidence
Price	$51,900,000	$49,850,000

AR, Tab 5, Business Clearance Memorandum, at 7.

The Navy found that Archer’s technically superior proposal justified payment of a 4 percent price premium over Hi-Way’s lower price, and made award to Archer on September 23. AR, Tab 5a, Source Selection Decision, at 1; Contracting Officer’s (CO’s) Statement at 21. On October 9, the agency provided Hi-Way with a telephonic debriefing. Contracting Officer’s (CO’s) Statement at 21. This protest followed.

DISCUSSION

Hi-Way challenges the Navy’s evaluation of its proposal under the safety factor, regarding its performance record. Hi-Way also challenges the adjectival ratings assigned to both it and the Archer under all of the non-price evaluation factors, alleging that there was an insufficient basis to rate Archer higher for any evaluation factor.[3] Although we find some concerns with agency’s assignment of adjectival ratings, we conclude that none of these errors provides a basis to sustain the protest.

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD ¶ 90 at 7, 13. In reviewing a protest against an agency’s evaluation of proposals, our Office will not reevaluate proposals but instead will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. See Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD ¶ 169 at 3. Similarly, our Office will examine an agency’s evaluation of an offeror’s past performance only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations since determining the relative merit or relative relevance of an offeror’s past performance is primarily a matter within the agency’s discretion. Swift & Staley, Inc., B-408792, Dec. 6, 2013, 2013 CPD ¶ 284 at 6; LOGMET LLC, B-407061, Oct. 17, 2012, 2012 CPD ¶ 307 at 6. A protester’s disagreement with the agency’s judgment does not establish that an evaluation was improper. AT&T Corp., B-299542.3, B-299542.4, Nov. 16, 2007, 2008 CPD ¶ 65 at 19.

DART Rate Evaluation

Hi-Way contests the Navy’s assessment of a risk for its proposal under the safety factor, based on the agency’s determination that the protester’s days away, restricted, and transfer (DART) rates[4] increased the “risk of unsuccessful contract performance.” AR, Tab 5d, Technical Evaluation, at 16. The protester argues that “[t]he agency erred in identifying Hi-Way Paving, Inc.’s 2013 DART rate in Factor 3 as a ‘weakness’ where there is no officially published industry information related to the 2013 DART ratings.” Protest at 2. Specifically, Hi-Way argues that a company’s DART rate is meaningless unless placed in the context of a published industry average. Id. We find that this interpretation is not reasonable and is not supported by the terms of the solicitation.

The RFP required offerors to submit their DART rates for the years 2011, 2012 and 2013. Offerors were specifically instructed that “[a]ny extenuating circumstances that affected the [Occupational Safety and Health Administration (OSHA)] DART Rate data and upward or downward trends should be addressed as part of this element” and that “[l]ower OSHA DART Rates will be given greater weight in the evaluation.” RFP amend. 0006 at 11.

The solicitation also informed offerors that the agency would evaluate their DART rates for the three years identified, “taking into account any upward or downward trends and extenuating circumstances that impact the rates.” Id. at 12. The agency’s source selection plan provided that an offeror’s technical rating would reflect “the degree to which the proposed approach meets or does not meet the minimum performance or capability requirements through an assessment of the strengths, weaknesses, significant weaknesses, deficiencies and risks.” AR, Tab 19, Source Selection Plan, at 21. The source selection plan applied the following adjectival ratings to describe offerors’ experience modification rate (EMR) and DART rates:

Risk	DART rate
Very Low Risk	Less than 1.0
Low Risk	From 1.0 to 1.99
Moderate Risk	From 2.0 to 2.99
High Risk	From 3.0 to 4.0
Extremely High Risk	Greater than 4.0

Id. at 23. Hi-Way reported its DART rates, which were assigned the corresponding ratings:

	2011	2012	2013
DART Risk Level	Very Low Risk	Moderate Risk	High Risk

AR, Tab 5d, Technical Evaluation, at 16.

In its final proposal, Hi-Way explained “that while the DART rating for 2013 is slightly higher than previous years, the total lost time for Hi-Way’s employees in 2013” was related to a few incidents that “were extremely minor in nature . . . and were not ‘near misses’ . . . .” AR, Tab 6, Hi-Way’s Revised Proposal, replacement page, Tab 3, NP-21. The technical evaluation team, acknowledging the nature of the incidents, assessed a weakness under the safety factor on the basis that Hi-Way’s DART rates were increasing, but rated the proposal acceptable for this subfactor after considering Hi-Way’s safety initiatives. AR, Tab 5d, Technical Evaluation, at 16.

The Source Selection Evaluation Board noted that Hi-Way “provided EMR rates in the Moderate Risk category and upward trending DART rates resulting in High Risk DART in the most recent year, 2013.” AR, Tab 5b, Source Selection Evaluation Board (SSEB) Report, at 10. The Source Selection Evaluation Board concurred with the technical evaluation team’s award of an acceptable rating to Hi-Way for the safety factor, “despite a 2013 DART rate in the High Risk category,” finding that the “majority of rates [including the EMR rates] were in the moderate risk category.” AR, Tab 5b, SSEB Report, at 14.

We find that the Navy’s moderate risk assessment for Hi-Way’s proposal under the safety factor was consistent with the solicitation and the agency’s evaluation criteria. We also find that the adjectival rating of acceptable was consistent with the agency’s definition for that rating, which provided that “[s]trengths and weaknesses are offsetting or will have little or no impact on contract performance” and the “[r]isk of unsuccessful performance is no worse than moderate.” AR, Tab 19, Source Selection Plan, at 22. On this record, we find that the agency’s evaluation was reasonable, and deny this protest ground.

Disparate Treatment in Evaluations of Hi-Way and Archer

Hi-Way argues that the Navy’s evaluation treated the protester and awardee unequally because, the protester contends, the agency should not have rated Archer as higher than the protester under any of the evaluation factors. We find no merit to this argument.

In conducting its evaluation, the agency assigned adjectival ratings to the experience, technical solution, and safety factors, of which the following are relevant here:

Outstanding (O) – Proposal meets requirements and indicates an exceptional approach and understanding of the requirements. Strengths far outweigh any weaknesses. Risk of unsuccessful performance is very low.

Good (G) – Proposal meets requirements and indicates a thorough approach and understanding of the requirements. Proposal contains strengths which outweigh any weaknesses. Risk of unsuccessful performance is low.

Acceptable (A) – Proposal meets requirements and indicates an adequate approach and understanding of the requirements. Strengths and weaknesses are offsetting or will have little or no impact on contract performance. Risk of unsuccessful performance is no worse than moderate.

AR, Tab 5b, Source Selection Evaluation Board Report (SSEB Report), at 5. The Source Selection Plan defined a weakness as a “flaw in the proposal that increases the risk of unsuccessful contract performance.” AR, Tab 19, Source Selection Plan, at 22.

Factor 1, Experience

Hi-Way contests its acceptable rating for the experience factor, versus Archer’s outstanding rating, on the basis that Hi-Way submitted the minimum number of relevant contracts and Archer should not have received a higher rating for submitting more than the minimum. Protester’s Supp. Comments (Dec. 1, 2014) at 3.

The RFP asked offerors to submit a minimum of two and a maximum of five relevant projects and provided that “[t]he basis of evaluation will include the Offeror’s demonstrated experience and depth of experience in performing relevant construction projects . . . .” RFP amend. 0006 at 10. Here, Hi-Way submitted two projects, and Archer, four. AR, Tab 16, Hi-Way’s Proposal, NP-24-25; Tab 17, Archer’s Proposal, at 25-40. We find that Hi-Way’s argument that submission of the minimum of two satisfactory relevant projects merited the same evaluation rating as a submission of a greater number of projects is an unreasonable interpretation of the solicitation. The solicitation did not prohibit the agency from awarding a higher rating based on greater evidence of successful performance. Rather, the RFP advised that the agency would evaluate “the Offeror’s demonstrated experience and depth of experience in performing relevant construction projects,” and that “[t]he assessment of the Offeror’s relevant experience will be used as a means of evaluating the capability of the Offeror to successfully meet the requirements of the RFP.” RFP amend. 0006 at 10. On this record, we find that the agency reasonably assigned Archer a higher rating for the experience factor, as Archer’s proposal included more evidence of experience. See IPlus, Inc.; Shumaker Trucking & Excavating Contractors, Inc., supra.

Factor 2, Technical Solution

Hi-Way challenges its acceptable rating for the technical solution factor, where it received “one strength, no weakness, no significant weaknesses and no deficiencies,” which the agency determined posed “a low risk of unsuccessful performance.” Protester’s Comments (Nov. 4, 2014) at 2; AR, Tab 5d, Technical Evaluation, at 13. Hi-Way also challenges what it contends was the agency’s failure to credit it for early completion of runway lighting (which the Navy determined provided no benefit), and to recognize the lower risk in its substantially shorter daily schedule (as compared to Archer’s comparatively longer proposed workdays). Protest at 3; Protester’s Supp. Comments (Dec. 1, 2014) at 3, 4.

The RFP provided that a technical approach that included one or more of the below may be evaluated more favorably:

Reduced construction duration for phase 2b

Reduced construction duration for phase 2a

Reduced regular work day schedule to 16 hrs/day

RFP amend. 0006 at 11.

Hi-Way proposed a schedule that completes all work in construction phase 2a, plus lighting (which is not part of phase 2a), by the due date; Archer, in contrast, proposed early completion of phase 2a. AR, Tab 16, Hi-Way’s Proposal, NP-13; Tab 11, Archer’s Revised Proposal, at 18-19. Archer received a strength for early completion of phase 2a while Hi-Way did not. AR, Tab 5d, Technical Evaluation, at 5, 13. Hi-Way argues that it should have received a strength for early completion of the lighting. Protester’s Supp. Comments (Dec. 1, 2014) at 4.

We have no grounds to disagree with the agency’s evaluation. Archer proposed early completion for a factor that was disclosed in the RFP, while Hi-Way did not propose early completion for either phase 2a or 2b. The agency states that it did not need the lighting by September 15, and further, the RFP only recognizes a benefit from early of specific tasks, not early completion of other tasks. AR, Tab 5d, Technical Evaluation, at 14. On these grounds, we find that the agency’s award of a strength to Archer for early completion, and no strength to Hi-Way, was reasonable.

Next, Hi-Way argues that the agency treated the offerors unequally with regard to the length of their proposed work days. Archer proposed a shortened workday, and Hi-Way proposed a substantially shortened work day. AR, Tab 17, Archer’s Proposal, at 14; Tab 10, Hi-Way’s Revised Proposal, at NP-8. The RFP stated that the agency could evaluate a strength for proposals that reduced the work day from the maximum of 24 hours per day to 16 hours per day. RFP amend. 0006 at 11. However, the RFP did not specify that offerors would receive strengths for any work day reduction beyond 16 hours. Id. Hi-Way and Archer each received a strength for their proposed reductions in working hours per day, but, in accordance with the solicitation, Hi-Way did not receive a higher rating for its greater reduction, as compared to Archer. On this record, we find no basis to disagree with the agency’s finding of similar strengths for Hi-Way and Archer for proposing 16-or-fewer-hour days.

Finally, the protester challenges the adjectival rating of its proposal as acceptable for the technical solution factor, for which it received no weakness and one strength, because it received the same adjectival rating for the safety factor, where it had a weakness and no strengths. For the technical solution factor, the technical evaluation team found that Hi-Way’s proposal had “one strength, no weaknesses . . . [and] a low risk of unsuccessful performance,” and rated it acceptable. AR, Tab 5d, Technical Evaluation, at 13. According to the criteria used by the agency, a good rating corresponds to a proposal where “strengths . . . outweigh any weaknesses [and r]isk of unsuccessful performance is low.” AR, Tab 19, Source Selection Plan, at 21. In contrast, the evaluation criteria provide that an acceptable rating is appropriate where “[s]trengths and weaknesses are offsetting or will have little or no impact on contract performance [and r]isk of unsuccessful performance is no worse than moderate.” Id. at 22.

We agree with Hi-Way that the adjectival rating assigned to its proposal for this does not align with the agency’s descriptive evaluation of the proposal. Specifically, the agency’s determination for the protester’s proposal that the “low risk of unsuccessful performance” appears to correspond to an adjectival rating of good, rather than acceptable, as the agency defined those. AR, Tab 5d, Technical Evaluation, at 13; Tab 5b, SSEB Report, at 5. However, we do not think that the agency’s error in applying its adjectival rating prejudiced Hi-Way. AR, Tab 5d, Technical Evaluation, at 14.

As our Office has held, adjectival ratings serve as guides in the decision-making process, but are not a substitute for the agency’s comprehensive evaluation of proposals. See Paragon Sys., Inc.; SecTek, Inc., B-409066.2, B-409066.3, June 4, 2014, 2014 CPD ¶ 169 at 5. Here, despite the fact that the agency’s narrative description corresponds to a higher adjectival rating, we find no prejudice to the protester. In this regard, our Office will not sustain a protest absent a showing of competitive prejudice, i.e., where the protester demonstrates that, but for the agency’s actions, it would have a substantial chance of receiving award. Fintrac, Inc., B-311462.2, B-311462.3, Oct. 14, 2008, 2008 CPD ¶ 191 at 11.

As discussed above, while Hi-Way proposed shorter work days, Archer did the same. In addition, the agency found that Archer proposed other early construction milestones, and that its proposal provided reduced performance risk. AR, Tab 5d, Technical Evaluation, at 5. Based on this record, we find that the agency had a sufficient basis to conclude that Archer’s proposal was superior to Hi-Way’s for this factor. Therefore, we find no prejudice to the protester with regard to what appears to be an erroneous assignment of the adjectival rating.

Factor 4, Small Business Utilization

The Source Selection Plan provided that offerors would receive adjectival ratings corresponding to the strength of their proposals. The following definitions are relevant here:

Rating	Description
Acceptable	Proposal meets requirements and indicates an adequate approach and understanding of the requirements. Proposal has no strengths or deficiencies.
Marginal	Proposal does not clearly meet requirements and has not demonstrated an adequate approach and understanding of the requirements.

AR, Tab 19, at 23. For the small business utilization factor, the Navy found that Hi-Way’s proposal met the Navy’s targets, while Archer’s did not, but that Archer’s plan was “achievable and demonstrated an institutionalized program” to attempt to use small business subcontractors. Id.

The RFP, which contains “minimum NAVFAC Small Business Subcontracting Targets,” stated that a proposal that did not clearly meet small business subcontracting requirements was nonetheless eligible for award. RFP amend 0006 at 14; Agency’s Response to GAO’s Questions (Dec. 10, 2014) at 4. Although the record shows that Archer appears to have failed to propose to meet the small business targets, the technical evaluation team assigned Archer an acceptable rating for the small business utilization factor, determining that Archer had partially mitigated this failure by a plan to reach out to small businesses. AR, Tab 5d, Technical Evaluation, at 8. We therefore conclude that although the awardee may not have met the requirements for the acceptable rating, had it received the next lower rating of marginal, it would have remained eligible for award and a lower adjectival rating would not have affected the award decision, given the awardee’s significant advantage under the other evaluation factors.

Past Performance

Hi-Way alleges that the Navy should have assigned its past performance a rating of substantial confidence, rather than satisfactory confidence, based on the criteria for those ratings. Protest at 5. The protester also argues that the awardee’s performance record did not merit the highest rating “substantial confidence.” Id.

The source selection plan provided that offerors’ past performance evaluations would be evaluated based on two metrics: project relevance and project performance. AR, Tab 19, Source Selection Plan, at 24. The basis for evaluation was the degree to which those evaluations and other information “reflect[ed] a trend of satisfactory performance.” RFP amend. 0006 at 15. As relevant here, the SSEB assigned adjectival ratings for substantial and satisfactory confidence based on the following criteria:

Rating	Description
Substantial Confidence	Based on the offeror’s recent/relevant performance record, the Government has a high expectation that the offeror will successfully perform the required effort.
Satisfactory Confidence	Based on the offeror’s recent/relevant performance record, the Government has a reasonable expectation that the offeror will successfully perform the required effort.

AR, Tab 19, Source Selection Plan, at 24.

The past performance factor stated that offerors would be evaluated based on performance evaluations for the projects submitted for the experience factor, which allowed submissions of “a minimum of (2) two and a maximum of (5) five construction projects . . . .” RFP amend. 0006 at 9.

Hi-Way submitted two relevant contract references and received ratings of very good on each for the past performance evaluation. Hi-Way received a strength for each of these ratings, as well as a strength for project awards and letters of recommendation. AR, Tab 5d, Technical Evaluation, at 18. Hi-Way had no weaknesses, significant weakness or deficiencies. Id. Hi-Way received an overall rating of satisfactory confidence. AR, Tab 5b, SSEB Report, at 14. Archer received ratings of very good on all four projects, with early completion on two of the four projects, and received six strengths for this factor. AR, Tab 5d, Technical Evaluation, at 9. The Navy awarded Archer a substantial confidence rating. AR, Tab 5b, SSEB Report, at 8.

Hi-Way notes that the RFP required only two relevant contracts for the experience factor, and stated that the same references would be reviewed for the past performance evaluation. RFP amend. 0006 at 9. The protester contends that the past performance evaluation factor did not specifically state that that an offeror with more past performance references could receive higher ratings for that factor. Protester’s Comments (Nov. 4, 2014) at 3. As with the protester’s arguments concerning the experience factor, we find that the protester’s interpretation of this evaluation is not reasonable. The solicitation stated that offerors could identify between two and five past performance references, and that the agency would evaluate the quality of those references to assess an overall trend of satisfactory performance. RFP amend. 0006 at 14-15. Similarly, we find no support in the solicitation for the protester’s argument that the absence of negative information concerning Hi-Way’s performance required the agency to assign a rating of substantial confidence.

Overall, while both Archer and Hi-Way provided evidence of successful past performance, the agency reasonably found that Archer provided more references, which, under the terms of the solicitation, merited a higher rating. On this record, we find no basis to sustain this protest ground.

Best Value Tradeoff Decision

Hi-Way argues that the Navy unreasonably selected Archer’s proposal for award because the agency could not have found that the awardee’s higher-rated proposal was worth the price premium. Specifically, the protester contends that, because the solicitation will require the successful awardee to construct the project to the government’s specifications, there is no basis to conclude that an individual offeror’s approach could have provided a meaningful benefit to the government. In effect, Hi-Way asks us to conclude that the agency cannot perform a best-value tradeoff with the stated evaluation factors in the solicitation. We disagree.

Although the protester correctly notes that the RFP provided offerors with the project’s design, the solicitation clearly stated that award would be made on a best-value basis. See RFP amend. 0006 at 7. Moreover, the RFP advised that the Navy would evaluate offerors based on their proposed approach to execution of the design and performance of the contract, including the offerors’ experience on projects of a similar nature and size, proposed scheduling, safety history and strategy, small business utilization, and past performance record. See id. at 8-15. On this record, we conclude that the solicitation provided the agency a basis to distinguish between offerors’ proposals, as well as make a tradeoff between the price and non-price factors.

With regard to the tradeoff itself, the protester contends that errors in the underlying evaluation rendered the agency’s award to Archer unreasonable. Although we conclude that there were some errors in the underlying evaluation, we nonetheless conclude that the protester was not prejudiced by such errors.

In a best-value procurement, it is the function of the selection official to perform a price/technical tradeoff, that is, to determine whether one proposal’s technical superiority (however represented) is worth the higher price, and the extent to which one is sacrificed for the other is governed only by the test of rationality and consistency with the stated evaluation criteria. Savvee Consulting, Inc., B‑408416.3, Mar. 5, 2014, 2014 CPD ¶ 92 at 7; The MIL Corp., B-297508, B‑297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 13. A protester’s mere disagreement with the agency’s judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. VT Griffin Servs., Inc., B‑299869.2, Nov. 10, 2008, 2008 CPD ¶ 219 at 4.

As discussed above, we find that the record supports the agency’s finding that the awardee’s proposal was superior to the protester’s for the experience, technical solution, safety and past performance factors. Although the record shows that the agency may have improperly assigned Hi-Way’s proposal a rating of acceptable, rather than good, for the technical solution subfactor, a higher rating for Hi-Way does not affect the underlying technical advantages cited by the agency in favor of award to Archer. Similarly, while the agency may have assigned Archer’s proposal a rating for small business utilization that was higher than the record supported, a lower rating would not have rendered Archer’s proposal unacceptable.

In sum, despite any potential errors in adjectival ratings, we conclude that the Navy reasonably found that Archer’s technical proposal was superior to Hi-Way’s. The RFP provided that the experience, technical solution, safety, and small business utilization factors were equally important, and, when combined were equal in importance to past performance, and that all non-price factors combined were approximately equal to price. RFP amend. 0006 at 8. The record here shows that, regardless of the adjectival ratings assigned, the agency reasonably found that Archer’s technical proposal was superior to Hi-Way’s for all factors other than small business utilization.

The awardee’s proposed price was 4 percent higher than the protester’s. In this instance, the agency found that the benefits it perceived in the awardee’s proposal justified this increase in the cost of the contract. We conclude that, under the terms of the RFP, the Navy’s tradeoff decision was a matter within the agency’s discretion. We therefore find no basis to find that the award to Archer was unreasonable.

The protest is denied.

Susan A. Poling
General Counsel