BNUMBER: B-272458
DATE: October 10, 1996
TITLE: Pro Construction, Inc.
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Matter of:Pro Construction, Inc.
File: B-272458
Date:October 10, 1996
Joel S. Rubinstein, Esq., and Andrew N. Cook, Esq., Bell, Boyd &
Lloyd, for the protester.
Scott R. Schoenfeld, Esq., Leonard, Hurt & Parvin, for Texas-Capital
Contractors, Inc., an intervenor.
George Brezna, Esq., Diane D. Hayden, Esq., and Billie Spencer, Esq.,
Department of the Navy, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Solicitation evaluation scheme which states that technical merit is to
be evaluated on the basis of four factors, three of equal importance
and one of lesser importance, that technical merit and cost are to be
weighed equally, and that award will not necessarily be made to
low-priced offeror cannot plausibly be construed to require that award
be made to the low-priced, technically acceptable offeror.
DECISION
Pro Construction, Inc. protests the award of a contract to
Texas-Capital Contractors, Inc. under request for proposals (RFP) No.
N62470-94-R-4701, issued by the Department of the Navy, Naval
Facilities Engineering Command for house repairs and improvements to
Capehart Housing at the Marine Corps Air Station Cherry Point, North
Carolina. Pro Construction argues that the award determination was
inconsistent with the RFP evaluation criteria.
We deny the protest.
The solicitation, issued March 6, 1996, contemplated the award of a
firm, fixed-price/indefinite quantity contract for housing repairs and
improvements. The solicitation stated that award would be made to the
responsible offeror whose offer, conforming to the solicitation, would
be the most advantageous to the government, price and other factors
specified in the solicitation considered, and that the government may
accept other than the lowest offer. Section 00160 of the RFP set
forth the evaluation scheme, specifying that price and technical
factors would be weighted equally, and that among the listed technical
factors, corporate experience, timely completion and management team
would be of equal importance, while a fourth factor would be of less
importance. Finally, the same section of the RFP provided that:
"PROPOSAL EVALUATION CRITERIA: The required proposal
submittals shall address all requirements of the RFP. Each
proposal will be reviewed and evaluated on its own merits by
qualified personnel to ensure its acceptability. The
evaluation will be based strictly on the content of the
proposal and any subsequent communications, if necessary, to
clarify the proposals. The proposals shall be determined
acceptable or not acceptable by the [c]ontracting [o]fficer
based upon evaluation of the proposals."
Six proposals were received by the April 6 closing date, including
those of Pro Construction and Texas-Capital. The technical evaluation
board reviewed the initial proposals using the following adjectival
rating scheme: (1) superior; (2) acceptable; (3) unacceptable but
susceptible to correction; and (4) unacceptable. After discussions
and the eventual submission of best and final offers (BAFO), Pro
Construction's BAFO received an overall "acceptable" rating and
Texas-Capital's BAFO received a "superior" rating. The evaluation
board determined that the proposal offered by Texas-Capital was a
better value for the government and worth the approximately $272,000
additional cost based on Texas-Capital's excellent and extensive
corporate experience and its early completion schedule. Award was
made to Texas-Capital on June 25 and this protest followed.
Pro Construction contends that the RFP evaluation scheme requires that
the award be made to the low-priced technically acceptable offeror.
Pro Construction relies on the above-quoted sentence that the
proposals shall be determined acceptable or not acceptable by the
contracting officer. The protester argues that this sentence requires
a "go/no go" technical evaluation, and that the agency improperly
evaluated the proposals on the basis of relative technical merit under
the four criteria listed above, instead of simply determining whether
the proposal was "acceptable" or "unacceptable".[1]
Evaluation and award in negotiated procurements are required to be
made in accordance with the terms of the RFP. Industrial Data Link
Corp., B-248477.2, Sept. 14, 1992, 92-2 CPD para. 176. Where a dispute
exists as to the meaning of solicitation language, we will resolve the
matter by reading the solicitation as a whole and in a manner that
gives effect to all provisions of the solicitation. See Lithos
Restoration, Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD para. 379. To be
reasonable, an interpretation must be consistent with the solicitation
when read as a whole and in a reasonable manner. Id. Applying this
standard here, we conclude that the evaluation conducted by the
Navy--which involved a relative scoring of the evaluation factors set
forth in the solicitation and the weighing of price and technical
scores--is consistent with the only reasonable reading of the RFP
evaluation scheme.
Notwithstanding the sentence relied on by the protester, which merely
calls for the contracting officer to ascertain the technical
acceptability of the proposals, by listing the evaluation factors,
assigning weights to the evaluation factors and providing that cost
and technical factors were of equal importance, the RFP evaluation
scheme clearly and explicitly provided for a comparative technical
evaluation balanced against price to determine the most advantageous
proposal. See State Technical Institute at Memphis, B-250195.2;
B-250195.3, Jan. 15, 1993, 93-1 CPD para. 47; Lithos Restoration, Ltd.,
supra. Further, contrary to Pro Construction's assertion that price
must be the determinative award consideration, the RFP specifically
stated that award would not be made on the basis of lowest price.
Accordingly, offerors reasonably should have expected their technical
proposals to be evaluated and ranked to reflect relative technical
superiority, and for award selection to be based on an appropriate
tradeoff between technical and price considerations.
The protest is denied.
Comptroller General
of the United States
1. In its initial protest submission, Pro Construction posited without
any reasoning that its proposal was technically equal or superior to
Texas-Capital's proposal. The agency provided explanation and support
for its relative technical assessment in its report. Since the
protester did not address the issue in its comments, if we assume for
the sake of argument that the issue was actually raised initially, we
consider it abandoned. GS Edwards, B-255202, Jan. 31, 1994, 94-1 CPD para.
54.