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."