BNUMBER: B-270505.2; B-270505.3
DATE: September 12, 1996
TITLE: Brown & Root, Inc. and Perini Corp., a joint venture
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Brown & Root, Inc. and Perini Corp., a joint venture
File: B-270505.2; B-270505.3
Date:September 12, 1996
Rand L. Allen, Esq., Paul F. Khoury, Esq., Christopher R. Yukins,
Esq., and Phillip H. Harrington, Esq., Wiley, Rein & Fielding, for the
protester.
Kathleen C. Little, Esq., David R. Johnson, Esq., Robert J. Rothwell,
Esq., McDermott, Will & Emery, for H.B. Zachry Company, The Parsons
Corporation, and Sundt Corp., a joint venture, the intervenor.
Dennis J. Gallagher, Esq., Department of State, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where agency brought principal concerns about the protester's
proposal to the attention of the protester and since various other
weaknesses, both individually and in toto, did not prevent the
protester from having a reasonable chance for award, the agency's
failure to point out those other weaknesses did not deprive the
protester of meaningful discussions; agency was not required to hold
discussions regarding every weakness identified in the protester's
proposal.
2. Where a solicitation lists evaluation factors and subfactors in
descending order of importance, each factor listed and each subfactor
within each factor is of decreasing weight; such an evaluation scheme
does not indicate that the subfactors of lower-weighted factors are
necessarily of less individual weight than subfactors of
higher-weighted factors.
3. Agency scoring and weighting method used to evaluate and rank
offers was consistent with the evaluation scheme stated in the
solicitation and did not produce an irrational award selection result.
4. Protester was not prejudiced by the agency's alleged waiver of a
requirement that potential offerors have certain security clearances
by an established date where the record does not evidence that had the
protester been aware of the allegedly relaxed requirement, it would
have submitted a different proposal that would have had a reasonable
possibility of award.
DECISION
Brown & Root, Inc. and Perini Corporation, a joint venture, protest
the award of a contract to H.B. Zachry Company, The Parsons
Corporation, and Sundt Corp., a joint venture (ZPS), under request for
proposals (RFP) No. MEBCO-95-R-0300, issued by the Department of State
to construct secure chancery facilities for the United States Embassy
in Moscow, Russia. Brown/Perini argues that the agency failed to
conduct meaningful discussions, did not follow the evaluation criteria
set forth in the solicitation in evaluating proposals and selecting
ZPS' higher-priced proposal, and waived the requirement that all joint
venture partners possess a top secret facility clearance by a certain
date.
We deny the protest.
Construction began on a new embassy compound in Moscow in 1979. The
compound encompasses eight buildings on a 10-acre site. Construction
has been completed on seven of the buildings, and these buildings are
currently occupied. The subject of this procurement, the New Office
Building (NOB), is partially complete and, as presently constructed,
is eight stories tall with a penthouse. Construction of the NOB was
halted in 1985 when it was discovered that clandestine listening
devices had been installed in the NOB's framework. Under the
circumstances, the agency determined that security for the design and
reconstruction of the NOB is critical.[1]
The work required under the RFP includes the completion of
design/construction documentation for the NOB; the complete demolition
of a nearby building and demolition of the NOB from the eighth floor
to the sixth floor; the construction of a steel frame structure on top
of the NOB's sixth floor slab through a tenth floor and penthouse; the
completion of the NOB below the sixth floor; and the revision and
upgrading of the building core to include, among other things, new
heating, ventilation and air conditioning (HVAC), plumbing, and
electrical systems. The contractor is required to provide, among
other things, the necessary labor, housing, shipping, equipment,
consultant services, materials for the design and construction of
structures and landscaping, for a complete and fully operational
embassy facility.
Because of the overall security concerns and the agency's
determination that "[t]ime is of the essence to reduce the risk of
security compromise," the agency issued and approved a justification
for other than full and open competition for this procurement. The
justification provided that in order "to maximize the base of
competition while minimizing the exposure of national secrets," the
procurement would be conducted by synopsizing the requirement in the
Commerce Business Daily (CBD), issuing a request for information (RFI)
to those respondents that met certain security requirements, and
selecting for receipt of the RFP only those three potential offerors
which, based upon their responses to the RFI, were determined by the
agency to be best qualified.
The project was announced in the CBD on May 17, 1995. The
announcement contained a general description of the work contemplated
and noted that the estimated value of the contract to be awarded
exceeded $150 million and that the award of a firm, fixed-price
contract was planned. This CBD announcement also informed potential
offerors that in order to be eligible to receive the RFI, they were
required to have "SECRET facility and personnel clearances and SECRET
safeguarding capability." The CBD notice added that in order to
"participate in the acquisition procedure" and receive the RFP,
potential offerors were to have "TOP SECRET facility and personnel
clearances together with SECRET safeguarding capability" by July 31.
Potential offerors were also informed by this notice that the agency
would sponsor potential offerors for top secret facility clearances
only if they had at least secret clearances. On May 31, a second CBD
announcement was published, which extended from July 31 to October 30
the date by which the top secret security clearances that were
required for an offeror to "participate in the acquisition" and
receive the RFP were to be effective.
Nine potential offerors responded to the CBD announcements and were
determined to meet the established pre-qualification eligibility
requirements. The RFI was issued to each of these potential offerors,
and six of the potential offerors responded by the August 18 RFI due
date. The responses, which in accordance with the RFI addressed only
the technical aspects of the project and did not include any price
information, were reviewed by the Pre-Selection Board (PSB). The PSB
determined three of the respondents to be best qualified and
recommended that they be issued the RFP. In so doing, the PSB noted
that two of the joint venture respondents, including ZPS, had amended
their joint venture agreements since submitting their RFI responses.
Specifically, ZPS had deleted Sundt as a joint venture partner, and
designated that firm as a consultant because it was not going to
obtain the requisite security clearances by October 30, and another
joint venture offeror had amended its agreement to delete one of the
joint venturers from the joint venture and place it in a subcontractor
status. The PSB determined that the amendments by ZPS and the other
joint venture offeror to their respective joint venture agreements had
no impact on the selection of these joint ventures as best qualified
to perform the project, and recommended that Zachry/Parsons,
Brown/Perini, and the other joint venture receive the RFP.
The RFP was issued to each of these joint venture offerors on November
1. The RFP stated that the procurement process would proceed in two
phases, with the first phase consisting of the offerors' submission of
their specific plans, without any pricing information, as to how each
would "achieve the requirements of the contract and the resources and
experience that [they would] commit to the project if awarded the
contract." The RFP informed offerors that during the second phase
they were to submit both a lump-sum price and a price breakout and any
refinements necessary to the plans and resources proposed during the
first phase.
The RFP provided for the award of a firm, fixed-price, award fee
contract and informed the offerors that award would be made to the
responsible offeror whose offer represented the best value to the
government, price and other factors considered. The RFP provided that
price would be weighted as one third and the technical evaluation as
two thirds in determining which offer represented the best value to
the government, and set forth a formula implementing this
price/technical ratio to be used to determine the relative standing of
the offers, as well as sample calculations based upon hypothetical
technical scores (on a 1,000-point scale) and hypothetical prices.
The RFP cautioned that although an offeror may achieve the highest
technical/price score under the formula, an award to the offeror
submitting the highest-priced offer would only be made if the
technical attributes of the offer were considered to justify the
additional cost.
The RFP, as amended, stated the following technical "evaluation
factors and subfactors . . . in descending order of importance":
1. Management Plan
a. Organization and Staffing Plans
b. Concept of Operations
c. Personnel Management Plan
d. Subcontract Plan
2. Construction Plan
a. Construction Contractor Quality Control Plan
b. Network Analysis System Plan
c. Special Approaches/Techniques
d. Safety and Accident Prevention Plan
3. Security Plan
a. Security Contractor Quality Plan
b. Cleared American Guard Program
c. Transit Security Plan
d. Industrial Security and Special Access Program Plan
e. Physical Security Plan
4. Logistics Plan
a. Availability of Materials and Equipment
b. Construction Camp Plan
c. Operation of the Moscow Embassy Buildings Control Office
(MEBCO) Secure Warehouse in Moscow
5. Impact Minimization Plan
The RFP provided detailed instructions for the preparation of the
offerors' proposals and requested, among other things, that offerors
organize the technical volumes of their proposals to respond to the
evaluation factors and subfactors.
With regard to the actual scoring of proposals under the stated
technical factors and subfactors, the source selection plan, which was
not disclosed to offerors, provided a grading form for use in
evaluating proposals that set forth the following point scoring system
and the corresponding adjectival ratings: 9 to 10 points for an
"excellent" response; 7 to 9 points for a "very good" response; 4 to 7
points for a "good" response; 2 to 4 points for a "fair" response; and
0 to 2 points for a "poor" response.
The agency received first phase proposals from Brown/Perini, ZPS, and
the third offeror by the closing date of January 19, 1996. A proposal
was submitted by ZPS, rather than Zachry/Parsons, because Sundt had
received the requisite security clearances on November 21, and the
agency, upon Zachry/Parsons' request, agreed to the submission of an
offer from ZPS.
After the first phase responses were evaluated by a source evaluation
board (SEB), discussions were held in which various proposal
weaknesses and clarifications were brought to the offerors' attention.
Second phase responses were then received and evaluated. Additional
written discussion questions were issued to each of the three offerors
and the responses thereto received and considered. Brown/Perini's
proposal was rated at 636.5 out of 1,000 technical points at a price
of $134,628,482, ZPS' proposal was rated at 762.5 points at a price of
$144,505,938, and the third offeror's proposal was rated at 678.5
points at a price of $169,499,973. The agency calculated
Brown/Perini's proposal's overall score using the formula set forth in
the RFP, which, as explained above, considers the proposal's technical
score and price, as 889.8 points, ZPS' as 977.2 points, and the third
offeror's as 858 points.
The agency then compared the offerors' proposals and determined that
although ZPS' proposal was 7.4 percent higher in price than
Brown/Perini's, its technical score was 16.5 percent higher, with its
technical proposal being rated higher than Brown/Perini's under 14 of
the 17 evaluation factors/subfactors, and equal to Brown/Perini's
under another evaluation factor/subfactor. The agency concluded that
because, among other things, "ZPS' proposal [was] the most thorough
and comprehensive of its competitors with plans that are the most
completely developed with the best attention to detail . . . [and] are
in the highest state of readiness," ZPS' proposal represented the best
overall value to the government. ZPS was awarded the contract on May
2, and after requesting and receiving a debriefing, Brown/Perini filed
these protests.
Brown/Perini first protests that the agency failed to conduct
meaningful discussions with it. Brown/Perini, listing each of the
weaknesses in its proposal as identified by the agency during the
debriefing and virtually every weakness identified by the SEB in its
memorandum to the Source Selection Officer (SSO), argues that the
agency acted improperly in not advising it of each of these perceived
weaknesses during discussions. Brown/Perini contends that if the
agency had pointed out during discussions each of the weaknesses
identified by the agency, it "could have revised its proposal or
otherwise taken steps to rectify the weaknesses."
Federal Acquisition Regulation (FAR) sec. 15.610(c)(2) (FAC 90-31)
requires that a contracting agency "[a]dvise the offeror of
deficiencies in its proposal so that the offeror is given an
opportunity to satisfy the [g]overnment's requirements"; we review the
adequacy of agency discussions to ensure that agencies 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. An agency is not required
to afford offerors all-encompassing discussions, however, nor is it
required to discuss every aspect of an offeror's proposal that
receives less than the maximum score. DAE Corp., B-259866;
B-259866.2; May 8, 1995, 95-2 CPD para. 12. Neither is an agency required
to advise an offeror of a minor weakness that is not considered
significant, even where the weakness subsequently becomes a
determinative factor between two closely ranked proposals. Volmar
Constr. Inc., B-270364; B-270364.2, Mar. 4, 1996, 96-1 CPD para. 139;
Booz, Allen & Hamilton, B-249236.4; B-249236.5, Mar. 5, 1993, 93-1 CPD para.
209. Contracting agencies have wide discretion in determining the
nature and scope of discussions, and their discretion will not be
questioned unless it is clearly shown to be without a rational basis.
Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD para. 63.
The record shows that the agency conducted two rounds of written
discussions with Brown/Perini, wherein the protester was apprised of
the principal areas of concern regarding its proposal, e.g., the
protester's incomplete industrial security plan and its proposed guard
service subcontractor. A variety of relative weaknesses that caused
Brown/Perini's proposal to be rated less than perfect were not pointed
out to the protester, e.g., concerns about the lines of command in the
protester's proposed organization, just as such relative weaknesses
were not pointed out to ZPS; in this regard, both these firms'
proposals were rated at least "good" for all subfactors. The
existence of these weaknesses did not keep Brown/Perini from having a
reasonable chance for award; Brown/Perini was very much in the
competition, and ultimately was not selected for award simply as a
result of a cost/technical tradeoff made by the selection official.
Accordingly, since the principal concerns about its proposal were
brought to the protester's attention and since the various other
concerns, both individually and in toto, did not prevent the protester
from having a reasonable chance for award, the agency's failure to
point out those other concerns did not deprive the protester of
meaningful discussions.
The protester further contends that the agency did not conduct equal
discussions, pointing out that during discussions the agency
"suggested to ZPS that ZPS should move its security functions
in-house," although "there was no suggestion that ZPS' original plan
to subcontract its security functions might render the plan
unacceptable."
ZPS stated in its first phase proposal that it intended to "assign all
security planning, management, and operational responsibilities . . .
to its security subcontractor, [DELETED]." Although four of the five
members of the SEB did not, in their narratives, consider this aspect
of ZPS' proposal to be a significant weakness, the SEB assigned ZPS'
proposal a rating of only 4 out of 10 points under the applicable
evaluation subfactor. This rating was the lowest received by either
ZPS or Brown/Perini under any of the evaluation factors/subfactors.
Further, one member of the SEB found ZPS' proposed subcontracting of
the management of the security program to constitute "a major flaw to
the point of being a deficiency." The SEB noted in its report to the
SSO that there was a "minority of one" which considered ZPS' proposed
subcontracting of the security program to be a major flaw, and set
forth that member's reasoning. The SSO subsequently approved "[t]he
minority report . . . to the effect that ZPS' plan to subcontract the
security management function is considered to be a weakness and ZPS
should be afforded the opportunity to revise its plan." Accordingly,
during discussions the agency requested that ZPS, among other things,
"clarify how [it would] achieve project objectives with a
subcontractor responsible for security management."
We do not view this as an indication of unequal discussions. The SEB
(as evidenced by its scoring of this aspect of ZPS' proposal as only a
four) and the SSO perceived ZPS' initial proposal to subcontract the
management of the security function to be a significant weakness;
therefore, this was an appropriate matter to point out to ZPS. We
think the agency's approach to discussions was evenhanded, as
indicated by the fact that Brown/Perini was apprised during
discussions of an analogous weakness in it proposal, the
incompleteness of its industrial security plan, which had been
initially scored at 4.5. Thus, while an agency may not conduct
prejudicially unequal discussions, SeaSpace, B-241564, Feb. 15, 1991,
91-1 CPD para. 179, the record simply provides no support for the
protester's factual assertion that unequal discussions occurred here.
Brown/Perini next protests that the scoring and weighting method used
by the agency in its evaluation of technical proposals was
inconsistent with the RFP's stated evaluation and award criteria.
Specifically, Brown/Perini argues that in addition to the weights
descending from evaluation factor to evaluation factor, as well as
descending from subfactor to subfactor within each evaluation factor,
the weights had to descend subfactor to subfactor throughout each of
the 16 subfactors, in order to be consistent with the RFP's statement
that "the evaluation factors and subfactors . . . [are] listed in
descending order of importance." For example, Brown/Perini notes that
the 10-point weighting of the Organization and Staffing Plan
evaluation subfactor--the first-listed subfactor under the
first-listed Management Plan evaluation factor (weighted at 35
points)--as well as the lesser weightings of the lower-listed
subfactors of this primary factor, were all less than the 11-point
weighting assigned the Construction Contractor Quality Control
evaluation subfactor--which was the first-listed subfactor under the
second-listed Construction Plan evaluation factor (weighted at 25
points). According to the protester, this was improper because all of
the subfactors of the primary technical evaluation factor should be
weighted greater than the Contractor Quality Control subfactor to be
consistent with the evaluation scheme designated in the RFP.
To be reasonable, an interpretation of solicitation language must be
consistent with the solicitation when read as a whole and in a manner
that gives effect to all of its provisions. Stabro Labs. Inc.,
B-256921, Aug. 8, 1994, 94-2 CPD para. 66. The protester's interpretation
of the RFP is unreasonable because it renders meaningless the RFP's
listing of the evaluation factors. That is, under the protester's
interpretation of the RFP, the agency would have had to list only the
16 evaluation subfactors and inform offerors that the subfactors were
listed in descending order of importance. In order to give meaning to
the RFP's listing of evaluation factors as well as evaluation
subfactors, the RFP can only reasonably be read as providing that the
evaluation factors are listed in descending order of importance, and
that each of the subfactors within the evaluation factors is listed in
descending order of importance. Accordingly, the weights accorded to
the evaluation subfactors and factors are not, as argued by the
protester, inconsistent with the terms of the RFP.
Brown/Perini also argues that the scoring and weighting method used by
the agency in its evaluation of offers, considered in conjunction with
the mathematical formula used in the ranking of offers, "grossly
exaggerated the importance of individual technical problems--and their
dollar worth to relative price--far beyond the 2 to 1 ratio required
by the [s]olicitation." Specifically, the protester argues that
because proposals could receive a raw score of 4 to 7 points under
each evaluation subfactor where they met the minimum requirements of
the RFP, and up to 10 points if they were considered outstanding, the
scoring system was "tilted . . . toward technically excessive
proposals." With regard to the mathematical formula set forth in the
RFP and the weighting system used by the agency, the protester points
out that, for example, a 1-point loss in the raw score assigned to its
proposal under the most significant evaluation subfactor (Organization
and Staffing Plans) of the most significant evaluation factor
(Management Plan) equated to an overall loss of 10 points because of
the weighting of 10 assigned to this subfactor. The protester then
calculates, using the mathematical formula set forth in the
solicitation to determine a total overall score for each offeror's
proposal considering both technical merit and price, that in order to
offset the initial raw score loss of 1 point, it would have had to
drop its price by $3 million. The protester concludes that such a
system is unreasonable and inconsistent with the RFP.[2]
We have long recognized that contracting agencies have broad latitude
in determining the particular method of proposal evaluation to be
utilized. Francis & Jackson, Assocs., 57 Comp. Gen. 244 (1978), 78-1
CPD para. 79; Augmentation, Inc., B-186614, Sept. 10, 1976, 76-2 CPD para.
235. The only requirements are that the method provide a rational
basis for source selection and be consistent with the evaluation
criteria set forth in the solicitation. See Grey Advertising, Inc.,
55 Comp. Gen 1111 (1976), 76-1 CPD para. 325; Tracor Jitco, Inc., 54 Comp.
Gen. 896 (1975), 75-1 CPD 253, and 55 Comp. Gen. 499 (1975), 75-2 CPD para.
344.
We find the scoring and weighting system as well as the RFP formula
used by the agency in its evaluation of proposals and ranking of
offers for award reasonable and consistent with the terms of the RFP.
As indicated previously, the scoring system provided for the
evaluation of proposals under each of the evaluation subfactors on a 0
to 10-point scale with the scoring being directly related to the
agency's determination of technical merit. The raw scores were then
converted to weighted scores by application of multipliers--ranging
from 11 to 2--reflecting the relative weight accorded to the
particular subfactor. Such a system is clearly consistent with the
RFP's admonishment that the agency is "more concerned with obtaining
superior management, technical excellence and high quality resources
than with making an award at the lowest price," its statement that
technical merit would be considered twice as important as price, and
the listing of evaluation factors and subfactors in descending order
of importance, and we fail to see how it produces an irrational result
in the circumstances here. Indeed, in this case, the agency did not
simply rely upon the results of the RFP formula in making the award
selection, but documented the reasons why ZPS' proposal was
technically superior (e.g., its higher ratings in 14 of the 17
technical factors/subfactors) and warranted the price premium.
Brown/Perini finally asserts that the agency improperly waived for ZPS
the requirement set forth in the CBD notices and RFI that offerors
possess a top secret facility clearance by October 30.
As explained previously, ZPS found that only Zachry and Parsons, and
not Sundt, would possess the requisite top secret facility clearance
by October 30. It became apparent with regard to Sundt, which
possessed a secret facility clearance, that even though the agency had
requested that the Defense Industrial Security Clearance Office
(DISCO) process a top secret facility clearance for ZPS by letter
dated June 29, the upgrade of Sundt's clearance to top secret would
not be completed by October 30.[3] Because of this, ZPS deleted Sundt
from the joint venture and designated Sundt as a consultant. Sundt
received its top secret facility clearance on November 21, and after
receiving notification that Sundt had obtained the requisite
clearance, the agency permitted Zachry/Parsons to modify its joint
venture agreement to add Sundt prior to the date for submission of
first phase proposals under the RFP.
The agency states that, in its view, "[i]ts decision to permit the
Sundt Corp. to rejoin the Zachry/Parsons joint venture was consistent
with both the letter and the intent of the requirements stated in the
[CBD]." The agency explains that the requirement for offerors to
obtain a top secret facility clearance by October 30 was established
solely to ensure that there would be no delay in the issuance of the
RFP and subsequent award of the contract, and that once it determined
that permitting Sundt to rejoin the Zachry/Parsons joint venture would
not delay the procurement in any way, it was proper to allow this
action. The agency argues that, in any event, the protester was not
prejudiced by this action.
We need not decide the propriety of the agency's decision to let Sundt
rejoin the Zachry/Parsons joint venture because we find, from this
record, that there was no reasonable possibility that the protester
was prejudiced by the agency's allegedly improper action. In this
regard, competitive prejudice is an essential element of every viable
protest, and we will not sustain a protest where the record does not
establish prejudice. Lithos Restoration, Ltd., 71 Comp. Gen. 367
(1992), 92-1 CPD para. 379.
The protester's argument that it was prejudiced by the alleged waiver
of the October 30 deadline for ZPS primarily focuses on what, in the
protester's view, were the competitive advantages ZPS gained from
being able to add Sundt as a joint venturer. However, in cases such
as this, where the protester argues that an agency waived a certain
requirement, prejudice does not mean that, had the agency failed to
waive the requirement, the awardee would have been unsuccessful.
Compare Corporate Jets, Inc., B-246876.2, May 26, 1992, 92-1 CPD para. 471
(agency's waiver for the awardee of a personnel experience requirement
set forth in an RFP was not prejudicial where there is no reasonable
possibility that had the protester been aware of the relaxed
requirement it would have been in line for award) with Global Assocs.,
Ltd., B-271693; B-271693.2, Aug. 2, 1996, 96-2 CPD para. 100 (agency's
conduct of post-BAFO discussions with only the awardee to allow the
awardee to revise its unacceptable proposal to make it compliant with
a mandatory FAR clause was prejudicial because the agency could have
either rejected the awardee's proposal or allowed the protester the
same opportunity to revise its proposal). Rather, the pertinent
question in such cases as this is whether the protester would have
submitted a different offer that would have had a reasonable
possibility of being selected for award had it known that the
requirement would be waived. SCI Sys.--Recon., B-258786.2, July 17,
1995, 95-2 CPD para. 35; RGI, Inc., B-243387.2; B-243387.3, Dec. 23, 1991,
91-2 CPD para. 572.
Brown/Perini also generally argues that had it been aware that the
security requirements might be relaxed, it might have added other
firms to its joint venture that may have made its proposal more
desirable to the agency. However, as pointed out by the agency, the
only firm identified by the protester in support of its argument,
[DELETED], had no security clearance at all (as opposed to Sundt,
which possessed a secret clearance), and because of this, could not
have received the RFI (receipt of which required a secret clearance).
Further, based upon the agency's experience with DISCO, [DELETED],
because it lacked even a secret clearance at the outset of the
procurement process, would not have been able to obtain a top secret
clearance prior to the submission of first phase offers as did Sundt.
As such, we fail to see how [DELETED] could have been added to the
Brown/Perini joint venture in a manner that, as the protester
contends, would have made its proposal more desirable, since it
appears from the record that the addition of that firm to the joint
venture would have rendered the joint venture ineligible for receipt
of the RFI, and, based upon the timetable set forth by the agency, the
RFP. In sum, we are not persuaded by Brown/Perini's arguments that
had it been aware that the agency would relax the requirement it would
have submitted a different proposal that would have had a reasonable
possibility of award, and thus find that Brown/Perini was not
prejudiced by the agency's actions.
The protest is denied.[4]
Comptroller General
of the United States
1. Sections of certain documents relevant to this protest are
classified at varying levels. Although the relevant portions of these
documents were reviewed during our consideration of this protest, the
classified sections of these materials are not described or referred
to in any way in this decision.
2. Although the protester's calculations are not repeated here, they
appear correct, and neither the agency nor the intervenor has argued
otherwise.
3. DISCO is responsible for administering the Department of Defense's
National Industrial Security Program.
4. Brown/Perini has made a number of other related contentions during
the course of this protest having to do with the agency's conduct of
the procurement and selection of ZPS for award. Although these
contentions may not be specifically addressed in this decision, each
was carefully considered by our Office and found either to be
insignificant in view of our other findings, or invalid based upon the
record as a whole.