BNUMBER: B-270364; B-270364.2
DATE: March 4, 1996
TITLE: Volmar Construction, Inc.
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Matter of:Volmar Construction, Inc.
File: B-270364; B-270364.2
Date: March 4, 1996
V. James Adduci II, Esq., and Katherine S. Nucci, Esq., Adduci,
Mastriani & Schaumberg, for the protester.
J. Kevin Bridston, Esq., Holland & Hart, for MCC Construction Corp.,
an intervenor.
Nicholas P. Retson, Esq., and Michael J. O'Farrell, Jr., Esq.,
Department of the Army, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency conducted meaningful discussions where questions posed were
sufficient to direct the protester to the agency's primary areas of
concern about its proposal; all-encompassing discussions are not
required.
2. Under a solicitation in which technical factors were more
important than price, the selection of the awardee on the basis of its
overall technical superiority, notwithstanding its higher price, is
unobjectionable where the agency reasonably determined that the
awardee's higher-priced proposal, which evidenced in particular
superior relevant contract experience and past performance, was worth
the additional cost, and the cost/technical tradeoff was consistent
with the evaluation scheme.
DECISION
Volmar Construction, Inc. protests the award of a contract to MCC
Construction Corporation under request for proposals (RFP) No.
DAKF29-95-R-0001, issued by the Department of the Army for small to
medium repair and minor construction projects at Fort Dix, New Jersey
and at various other installations throughout New Jersey and New York.
The protester contends that the agency failed to conduct meaningful
discussions and that the award determination reflects an improper
cost/technical tradeoff.
The protests are denied.
The RFP contemplated the award of an indefinite delivery/indefinite
quantity job order contract (JOC) for a base year with 2 option years,
dividing the work to be completed into six geographic zones. Offerors
were requested to submit a technical proposal addressing the
technical/management evaluation areas and a pricing proposal. The RFP
advised that award would be made on the basis of the best overall
value in terms of management, technical, quality control, and price.
Technical excellence was slightly more important than price, and
consisted of a management factor, including eight subfactors; a
technical factor, including five subfactors; and, a quality control
factor, including five subfactors. Within the technical excellence
area, management was slightly more important than technical or quality
control, which were of equal importance.
Ten firms, including Volmar and MCC, submitted initial proposals by
the closing date. After the initial evaluation, the source selection
evaluation board (SSEB) concluded that all 10 firms were within the
competitive range. In its evaluation, the SSEB provided numerical
scores and corresponding adjectival ratings to express the merit of
the technical proposals, as follows:
Percentage Point Score Adjectival Rating
90 to 100 Excellent
70 to 89 Satisfactory
50 to 69 Marginal
The ratings were supported by detailed narrative technical findings by
the SSEB of the strengths and weaknesses of each offeror's proposal in
each evaluation area.
Following its initial proposal evaluation, the SSEB assigned Volmar's
technical proposal the following percentage scores under the
management factor: 93 for subcontractor coordination; 95 for general
management; 93 for purchasing system; 91 for management staff list; 91
for management plan; 30 for payroll/labor plan; 94 for response time;
and 50 for subcontracting plan. The summary narrative for this factor
listed no strengths but six weaknesses for Volmar's payroll/labor
plan. The evaluation of its subcontracting plan indicated that Volmar
was judged deficient on one factor.
Under the technical factor, the SSEB assigned Volmar's proposal a
percentage score of 93 for its ability to deal with a number of small
construction projects simultaneously; 78 for experience; 94 for
technical staff; 97 for project managers; and, 96 for its
subcontractors. No specific strengths or weaknesses were listed in
the narrative concerning Volmar's experience/past performance.
Finally, under quality control, the SSEB assigned Volmar's initial
proposal 87 percent for its inspection techniques; 87 percent for its
corrective action program; 72 percent for its customer complaint
program; 97 percent for its accident prevention program; and, 87
percent for documentation and reports. The summary narrative listed
one weakness in Volmar's inspection techniques.
Volmar's overall technical score on its initial proposal was 86
percent.
Written discussions were initiated with all offerors in the
competitive range. The agency addressed eight questions to Volmar
concerning its proposal: two questions concerning price and six
questions concerning management, including Volmar's proposed plan to
administer payroll and labor relations functions and its proposed
subcontracting plan. Specifically, as to its payroll/labor plan, the
protester was advised that its proposal (1) did not contain a plan for
compliance with equal opportunity provisions; (2) did not contain a
plan for compliance with Affirmative Action for Handicapped Workers;
(3) did not address Special Disabled and Vietnam Era Veterans
provisions; (4) did not address a Special Employee program; and (5)
did not provide procedures for reporting, investigating, and resolving
Equal Employment Opportunity complaints. As to Volmar's
subcontracting plan, the protester was informed that its plan did not
contain a policy statement or evidence of internal guidance to company
buyers recognizing commitment to specified public laws. In response,
in its best and final offer (BAFO), the protester described its plans
for each of these special employee programs and addressed the weakness
cited in its subcontracting plan.
Following receipt of BAFOs, the SSEB completed its final technical
evaluation of proposals. The SSEB rescored Volmar's payroll/labor
plan, giving Volmar's revised proposal a percentage score of 95 on
this subfactor and raising its overall technical score to 89.
Volmar's subcontractor's plan, however, was not reevaluated or
rescored and Volmar's percentage score of 50 on this subfactor was
left unchanged. The overall scores, adjectival ratings and BAFO
prices for the 5 highest-ranked proposals were as follows:
BAFO
Offeror Technical ScoreAdjectival Rating Price
MCC 93 Excellent $5,705,580
Offeror A 93 Excellent $7,912,786
Offeror B 90 Excellent $6,822,573
Offeror C 90 Excellent $6,780,000
Volmar 89 Satisfactory $5,094,710
Of these five proposals, the agency determined that MCC, with the
highest rated technical proposal (scoring in the excellent range for
all 3 technical excellence factors) and the second-lowest price
represented the best value to the government and MCC was awarded the
contract. Volmar was given a written debriefing, dated October 25,
and this protest followed.
Volmar argues that the Army failed to conduct meaningful discussions.
Specifically, Volmar contends that the Army should have raised
concerns regarding its quality control--customer complaint plan and
its quality control--inspection system. To support its position,
Volmar points to its percentage score of 72 for its customer complaint
plan and the Army's statement in its cost/technical tradeoff
determination that Volmar's low rating for its customer complaint
program was one reason for selecting MCC's higher-priced proposal for
award. As to its inspection system, Volmar argues that the weakness
cited by the agency, its failure to specify acceptable quality levels
of performance for each major element, was easily correctable and
would have undoubtedly raised its overall rating. The protester
alleges that "it is clear that the quality control plan weaknesses had
a significant adverse impact on Volmar's technical rating" and
therefore the Army was obligated to discuss these weaknesses with
Volmar. Again, Volmar points to its overall rating of 86 percent
(compared to MCC's overall rating of 94 percent on this factor) to
support its position. The protester alleges that had the Army
discussed its quality control weaknesses, its subfactor scores and its
overall rating score would have increased.
Agencies are not required to afford offerors all-encompassing
discussions. They must point out weaknesses that, unless corrected,
would prevent an offeror from having a reasonable chance for award,
Department of the Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD para.
422, and need only lead offerors generally into the areas of their
proposals that require amplification. TM Sys., Inc., B-228220, Dec.
10, 1987, 87-2 CPD para. 573. Where a proposal is considered to be
acceptable and in the competitive range, an agency is not required to
discuss every aspect of the proposal that offers a relatively less
desirable approach or more limited experience than other proposals.
Data Sys. Analysts, Inc., B-255684; B-255684.2, Mar. 22, 1994, 94-1
CPD para. 209; Caldwell Consulting Assocs., B-242767; B-242767.2, June 5,
1991, 91-1 CPD para. 530.
The record indicates that the Army had no significant concerns with
the protester's customer complaint program or its inspection system.
As noted, the primary flaws in Volmar's initial proposal related to
its payroll/labor and its subcontracting plans. Indeed, while
Volmar's proposal received a score of 30 percent for its payroll/labor
plan and a score of 50 percent for its subcontracting plan, it
received scores of 72 percent and 87 percent for the customer
complaint and inspection system, respectively. Moreover, the agency's
evaluation narrative listed no weaknesses for Volmar's customer
complaint program and one weakness for Volmar's inspection system,
which the agency found fully acceptable.
An agency is not required during discussions to discuss elements of a
proposal that are not deficient and need not conduct discussions in an
area where an offeror is acceptable in order to bring the proposal up
to the level of other proposals. See Biloxi-D'Iberville Press,
B-243975.2, Sept. 27, 1991, 91-2 CPD para. 301; Martin Advertising Agency,
Inc., B-225347, Mar. 13, 1987, 87-1 CPD para. 285. Nor is an agency
required to advise an offeror of a minor weakness that is not
considered significant, even where it subsequently becomes the
determinative factor when two closely-ranked proposals are compared.
Booz, Allen & Hamilton, Inc., B-249236.2 et al., Mar. 5, 1993, 93-1
CPD para. 209; Training and Management Resources, Inc., B-220965, Mar. 12,
1986, 86-1 CPD para. 244. Here, the Army's discussion questions, noted
above, led Volmar into the areas of its proposal that the Army
considered weak, specifically, its payroll/labor program and its
subcontracting plan. Since the protester's customer complaint plan
and its inspection system were never considered meaningful weaknesses,
the Army was not obligated to discuss them, and the Army's conduct of
discussions with Volmar was unobjectionable.
Volmar also argues that the Army did not perform a proper
cost/technical tradeoff. The protester argues that the Army relied
almost exclusively on the adjectival ratings given to the offerors and
failed to qualitatively distinguish between Volmar's and MCC's
proposals.
Source selection officials in negotiated procurements have broad
discretion in determining the manner and extent to which they will
make use of technical and cost evaluation results. Grey Advertising,
Inc., 55 Comp. Gen. 1111 (1976), 76-1 CPD para. 325; Mevatec Corp.,
B-260419, May 26, 1995, 95-2 CPD para. 33. Agencies may make
cost/technical tradeoffs in deciding between competing proposals and
the propriety of such tradeoffs turns not on the difference in
technical scores or ratings per se, but on whether the selection
official's judgment concerning the significance of that difference was
reasonable and adequately justified in light of the RFP evaluation
scheme. See Wyle Labs., Inc.; Latecoere Int'l, Inc., 69 Comp. Gen.
648 (1990), 90-2 CPD para. 107.
Contrary to the protester's allegation, the record shows that the
contracting officer reviewed the full technical evaluation record
(including the strengths, weaknesses, and concerns cited for the
proposals), as well as the resulting point scores, adjectival ratings,
and cost evaluation results. While the contracting officer's award
determination statement concluding that MCC offered the best value to
the government focuses on the adjectival ratings, the determination
provides a reasoned analysis for the selection. The determination
points out, for example, that, although the contractors were
technically capable of performing the work, MCC was the only
contractor receiving excellent ratings in every technical factor. The
award determination statement also notes Volmar's less satisfactory
subcontracting and customer complaint programs.
Because its subcontracting plan was not reevaluated or rescored after
BAFOs, as noted above, Volmar argues that the agency's reliance on its
allegedly less satisfactory subcontracting plan is improper.[1]
However, the record shows that the protester's score on its proposed
subcontracting plan was inconsequential in the overall scoring scheme
and the cost/technical tradeoff. While Volmar's overall percentage
score could have increased to as much as 90 percent had Volmar's
subcontracting plan been properly evaluated, the source selection
official, in the agency's supplemental report filed after Volmar
raised this issue, makes it clear that this differential had no impact
on her cost/technical tradeoff, stating explicitly that relevant
contract experience and past performance were the important
discriminators in comparing MCC's proposal with Volmar's lower-priced
proposal. In this regard, the record shows that MCC had completed 17
JOC contracts with past performance quality ratings from its four
references of primarily 8 to 10 on a scale of 10; Volmar had completed
only one JOC contract with a past performance quality rating from its
reference of 3 to 6 on this 10-point scale. MCC's JOC experience and
its high performance ratings from references were regarded by the
agency as determinative, since the most important subfactors under
both the management and the technical factors related to the
contractor's ability to manage and coordinate multiple projects, as
required by JOC contracts.[2] The agency indicates that the
difference in JOC experience alone would warrant award to MCC at its
slightly higher--approximately 12 percent--price.
Finally, the award determination statement specifically states that
while Volmar offered the lowest price, the cost savings were not
significant given the technical advantages of MCC's proposal. The
Army states that this is the most important contract at Fort Dix
because the base must complete various construction and renovation
jobs to meet its changed mission under the Base Realignment and
Closure Commission's 1991 recommendations and still be prepared to
meet its reserve training and special training obligations. In order
to meet these requirements with its reduced work force, the Army
cannot as carefully oversee the contracts but must rely on the quality
performances of its contractors. The Army reasonably assessed MCC's
proposal as establishing that MCC is the more proven, reliable
contractor for this critical requirement. Under these circumstances
and given that technical factors are more important than price, we
have no basis to object to the award selection.
The protests are denied.
Comptroller General
of the United States
1. Volmar first argued that the agency improperly failed to reevaluate
and rescore its subcontracting plan after submission of BAFOs in a
supplemental protest to our Office. Additionally, in this
supplemental protest, the protester also argued for the first time
that the agency improperly evaluated proposals and that the
cost/technical tradeoff was based upon a flawed technical evaluation.
Specifically, Volmar argues that the Army improperly evaluated its
subcontracting plan and customer complaint program, improperly
evaluated MCC's past performance, and was biased in favor of MCC. As
noted above, however, the protester was debriefed by letter dated
October 25. In that debriefing, the protester was advised that its
proposal was less adequate than the awardee's in terms of its
subcontracting plan and its quality control plan, which includes the
customer complaint program, and that it had less extensive experience
than the awardee. If the protester believed that it or MCC had been
improperly evaluated on these factors or on subfactors within these
factors, to be timely it was required to protest to our Office within
14 days of receipt of the debriefing letter. Bid Protest Regulations sec.
21.2(a)(2), 60 Fed. Reg. 40,737, 40,740 (Aug. 10, 1995) (to be
codified at 4 C.F.R. sec. 21.2(a)(2)) (protests not based upon alleged
improprieties in a solicitation must be filed no later than 14
calendar days after the protester knew, or should have known, of the
basis of protest, whichever is earlier). Since Volmar did not raise
these issues until December 20, its protest on these issues is
untimely.
2. Volmar argues that the agency is placing improper emphasis on JOC
experience since the RFP did not state that JOC experience was
required or would be rated more favorably than performance of other
maintenance/repair contracts. Although the RFP did not expressly
require previous JOC experience, the Army's consideration of whether
an offeror had substantially similar experience was proper. The
consideration of such relevant experience was directly encompassed by
the RFP's technical evaluation subfactors for subcontractor
coordination, the ability to manage multiple projects simultaneously,
and past performance history. These evaluation subfactors, and the
importance assigned to them by the RFP, clearly put offerors on notice
that the agency intended to consider factors--such as the degree of
relevance and similarity in the projects--that would demonstrate the
offeror's understanding of and ability to perform the current
requirement. See AWD Technologies, Inc., B-250081.2; B-250081.3, Feb.
1, 1993, 93-1 CPD para. 83.