BNUMBER: B-271759; B-271759.2
DATE: July 23, 1996
TITLE: Christie Constructors, Inc.
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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:Christie Constructors, Inc.
File: B-271759; B-271759.2
Date:July 23, 1996
Hiram S. Dillin, Esq., and David J. Bader, Esq., Dillin & Bader, Inc.,
for the protester.
Justin P. Patterson, Esq., and James L. Weiner, Esq., Department of
the Interior, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. In reviewing an agency's evaluation, the General Accounting Office
will not reevaluate proposals but instead will examine the agency's
evaluation to ensure that it was reasonable and consistent with the
stated evaluation criteria. An offeror is responsible for providing a
full discussion of its technical approach and methodology within the
four corners of the proposal.
2. Protests based upon alleged solicitation improprieties which are
apparent prior to the time set for receipt of initial proposals must
be filed prior to the initial closing. Protesters do not have the
option of simply making unilateral assumptions regarding the meaning
of conflicting or patently ambiguous provisions in a solicitation and
then expect relief when the agency does not act in the manner the
protester assumed.
3. In the absence of a timely objection to the solicitation's award
methodology, award may be made consistent with the agency's reasonable
interpretation of the request for proposal award provisions.
DECISION
Christie Constructors, Inc. protests the exclusion of its proposal
from the competitive range and the award of a contract to Dillingham
Construction N.A., Inc. under request for proposals (RFP) No.
1425-6-SP-20-03730, issued by the U.S. Bureau of Reclamation,
Sacramento, California for the installation of a new spillway gate and
repair of seven other gates at Folsom Dam, California. The agency
excluded Christie's proposal because it did not contain sufficient
technical information to substantiate Christie's ability to accomplish
the RFP requirements.
We deny the protest.
This contract was the last of four contracts awarded by the agency on
an emergency basis following the failure of spillway gate No. 3 in
July 1995, a failure that resulted in the uncontrolled release of
water into the American River which endangered downstream
communities.[1] Accordingly, because gate failures could occur in the
absence of additional repairs under reasonably foreseeable storm
conditions, the agency executed a Justification for Other than Full
and Open Competition (J&A), pursuant to Federal Acquisition Regulation
(FAR) sec. 6.302-2, and solicited offers only from eight pre-selected
construction firms, including the protester and Dillingham.[2]
The RFP, issued March 12, 1996, required the submission of initial
proposals by April 9; as stated above, because of the urgent nature of
the work, the agency contemplated making an immediate award after
receipt of initial proposals. In fact, the RFP itself stated that
"[i]t is anticipated that the Notice to Proceed for [the work] will be
issued on April 15, 1996."[3] The RFP contemplated a fixed-price
contract and stated that award would be made to either "the lowest
price 'acceptable' offer[or] or [to an] acceptable offer[or], the
price or cost of which is not the lowest, but which is sufficiently
more advantageous than the lowest price [offeror] so as to justify the
payment of higher price or cost."[4] The RFP, among other things,
required that technical proposals address: (1) safety provisions for
workers; (2) list of major equipment and key support equipment to be
used; (3) procedures to maintain access to the seven existing gates
through completion of each phase of construction; (4) procedures to
install the new gate, including, as a minimum, a brief discussion of
the sequence of frame construction; (5) containment of hazardous
materials; (6) procedures for rotating the "trunnion pins"; (7)
procedures for maintaining the required openings of Folsom Dam Road;
(8) a preliminary bar chart showing the construction sequencing,
durations, including start and finish dates, for 25 schedule items
listed in the RFP; and (8) personnel resumes. Section M of the RFP
also advised offerors as follows:
"Notice is given of the possibility that an award may be made
after receipt of initial proposals without further discussions or
negotiations. It is therefore emphasized THAT ALL PROPOSALS
SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS THAT
THE OFFEROR CAN SUBMIT TO THE GOVERNMENT." (Emphasis in
original.)[5]
Five proposals were received by the initial closing date of April 9;
the proposals were expeditiously evaluated by the agency by April 10
with the following results:
Offeror Price Technical Rating
Christie $ 5,599,400 Unacceptable[6]
Dillingham $ 6,055,000 Acceptable
Offeror A $ 7,411,200 Acceptable
Offeror B $ 8,621,000 Unacceptable
Offeror C $10,453,300 Capable of being made
Acceptable
The agency states that it intended to award the contract on April 10,
but it could not secure the necessary funding until April 11. The
agency excluded the two unacceptable proposals from the competitive
range (as well as the proposal of the highest priced offeror) and
awarded the contract to Dillingham on April 12. This protest
followed. The agency then made a determination to continue
performance of the contract notwithstanding the protest.
Evaluating the merits of competing proposals is a matter within the
discretion of the contracting agency since the agency is responsible
for defining its needs and the best method of accommodating them.
Simms Indus., Inc., B-252827.2, Oct. 4, 1993, 93-2 CPD para. 206. In
reviewing an agency's evaluation, we will not reevaluate proposals but
instead will examine the agency's evaluation to ensure that it was
reasonable and consistent with the stated evaluation criteria. Id.
Generally, an agency may reject a proposal for "informational"
deficiencies that are so material that major revisions and additions
would be required to make the proposal acceptable. Source AV, Inc.,
B-234521, June 20, 1989, 89-1 CPD para. 578. Further, an offeror is
responsible for providing a full discussion of its technical approach
and methodology within the four corners of the proposal. See Wyle
Labs., Inc., B-260815.2, Sept. 11, 1995, 95-2 CPD para. 187.
The protester argues that its proposal was acceptable or at least
capable of being made acceptable and presents in its protest extensive
narrative explanations concerning the meaning of several critical
sketches that it submitted in its proposal without any narrative
explanation. Christie contends generally that its sketches or
diagrams were adequate to "clearly [inform] a competent [technical]
reviewer the outline it intended to use."
We give the following example. The RFP required each offeror to
outline the procedure to be used for installation of the new gate,
including, as a minimum, a brief discussion of the sequence of frame
construction, method for assuring stability of the gate as it is being
placed into and assembled in the bay, access of the skin to the gate
prior to and during welding, quality control measures to assure proper
alignments during construction of the gate and trunnion placement.
The agency technical evaluators found that Christie did not submit a
narrative discussion for the installation sequence of the new gate but
simply provided four sketches which lacked information and detail to
be able to evaluate the firm's capabilities or concepts for gate
installation.
Christie responds that its sketches along with "drawings incorporated
by reference" in these sketches were sufficient for evaluating the
sequence of frame construction, the method of assuring stability of
the gate, access of the skin during welding, and quality control
measures to assure proper alignments during construction of the gate
trunnion placement. However, we simply note that Christie's
explanation in its protest submissions of its construction sequence
begins with page 1 of its proposal, then turns to one of the sketches,
then skips to a separate vertical bar chart, then refers to a drawing
incorporated by reference in the previous sketch, then explains two
otherwise unexplained notes in that drawing, and contains other
additional and extensive narrative sequential explanations of other
sketches and other drawings incorporated by reference into these
drawings. Nowhere do these narrative explanations appear in
Christie's proposal.
We need not decide here whether Christie's proposal was unacceptable
on its face; the record, including the protester's own extensive
technical explanation of its sketches and drawings in its protest
submissions, convincingly shows that the agency reasonably concluded
that Christie's initial proposal, lacking any technical narrative
explanation of critical construction items, could not be accepted
without discussions. The only issue remaining is the authority of the
agency to award on the basis of initial proposals.
The protester argues that the agency was required to conduct
discussions with the firm because the RFP contained the clause (FAR sec.
52.215-16) stating the agency's intent to delay awarding any contract
until after discussions.
As stated above, Section M of the RFP clearly stated that the agency
reserved the right to make award based on initial proposals without
discussions. At the same time, Section L incorporated the standard
clause requiring discussions with offerors. We think an offeror
reasonably should have realized prior to the date set for receipt of
initial proposals that the RFP contained two provisions which directly
contradicted each other since this conflict was apparent on the face
of the solicitation. In such situations, protesters do not have the
option of simply making unilateral assumptions regarding the meaning
of conflicting or patently ambiguous provisions in a solicitation and
then expect relief when the agency does not act in the manner the
protester assumed; rather, the patent impropriety in this solicitation
had to be challenged prior to the closing. Bid Protest Regulations,
4 C.F.R. sec. 21.2(a)(1) (1996); See Inland Marine Indus., Inc.,
B-249914; B-249918, Dec. 24, 1992, 92-2 CPD para. 442.
Given the lack of a timely objection to the award methodology relied
upon by the agency in making the award, we conclude that this award
was consistent with the RFP as reasonably interpreted by the agency
(that is, that the boldfaced provisions of Section M controlled).
The protest is denied.
Comptroller General
of the United States
1. The first contract was for the installation of several stoplogs to
block the flow of water. The second contract was for the removal of
the damaged gate. The third contract was to reinforce and perform
other repairs to the remaining seven gates.
2. The J&A was formally executed after the RFP was issued. The
protester does not dispute that the required work was critical to
avoid life threatening flooding downstream should another failure
occur in the dam prior to the final repairs. The J&A itself stated
that "[b]ecause of the urgency associated with this work, it is
anticipated a contract will be awarded within 2-3 days after proposals
are received."
3. Further, the RFP required the offerors to base their proposals on
performance beginning April 15 in order to meet 5 different
construction milestones with specific dates as contained in the
proposed contract.
4. Under the RFP's evaluation scheme, all offerors would be rated as
being "acceptable," "capable of being made acceptable," or
"unacceptable." The RFP also specifically stated that "[t]echnical
proposals that would require extensive changes and/or revisions in
order to be determined 'acceptable' will be determined
'unacceptable.'"
5. The protester notes and the agency concedes that Section L of the
RFP incorporated by reference FAR sec. 52.215-16, Contract Award, which
provides in paragraph (c) that the government "intends to evaluate
proposals and award a contract after conducting written or oral
discussions with [competitive range offerors]." We discuss these
conflicting provisions of the RFP below.
6. Briefly, the agency's evaluators found that in several major
technical areas Christie
presented only unexplained
"sketches" to present its
technical approach without
any narrative support. In
short, the agency found that
Christie's proposal "was
poorly presented, contained
illegible portions, and
lacked a narrative
discussion of most of the
items to be addressed. This
made portions of the
proposal impossible to
understand, or subject to
interpretation."