BNUMBER:  B-276247 
DATE:  May 27, 1997
TITLE: Brisk Waterproofing Company, Inc., B-276247, May 27, 1997
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Matter of:Brisk Waterproofing Company, Inc.

File:     B-276247

Date:May 27, 1997

Amy Freeman, Esq., Buel White, Esq., and Brian A. Mizoguchi, Esq., 
Verner, Liipfert, Bernhard, McPherson & Hand, for the protester.
Stephen T. Orsino, Esq., Christopher M. Bellomy, Esq., and George N. 
Brezna, Esq., Department of the Navy, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that contracting agency improperly evaluated proposals is 
denied where the record shows that the evaluation was reasonable and 
consistent with all of the evaluation factors and subfactors.

2.  Protest that contracting agency improperly utilized an unstated 
factor as a best value determinant is denied where the alleged 
unstated factor was simply an additional consideration to a rationale 
which, by itself, fully supported the source selection authority's 
determination that the higher-priced, higher technically rated 
proposal represented the best value to the government.

DECISION

Brisk Waterproofing Company, Inc. protests the award of a contract to 
Waters Craftsmen, Inc. under request for proposals (RFP) No. 
N62477-95-R-0027, issued by the Department of the Navy for the 
historic preservation and restoration of the U.S. Naval Academy Chapel 
in Annapolis, Maryland.  Brisk argues that the Navy's evaluation of 
proposals and source selection decision were improper.

We deny the protest.

The successful offeror would be awarded a fixed-price contract to 
perform exterior masonry and dome/roof repairs at the Chapel, with 
options to perform site repairs and door and window repairs.  Award 
would be made, without discussions, to the offeror whose proposal was 
deemed the best value to the government, considering 
technical/management factors and price.  Technical/management factors 
were more important than price.

The RFP listed three equally important technical/management factors:  
specialized construction experience, project management, and past 
performance.  The project management factor consisted of three 
subfactors:  staffing, work plan, and subcontracting plan.  Past 
performance findings would be used to validate proposals against 
established evaluation criteria and to assign an overall risk to the 
government for successful performance.    

The Navy received four proposals by the November 13, 1996 closing 
date.  After the individual members of the technical evaluation panel 
(TEP) conducted an independent review of each proposal, the panel met 
as a team to develop a consensus evaluation.[1]  The proposals were 
adjectivally rated under each factor and subfactor as exceptional, 
acceptable, marginal, or unacceptable.  The final evaluation results 
were as follows:

                           Waters           Brisk

Technical/Management     Acceptable       Marginal

Specialized Construction ExperienceAcceptableAcceptable

Project Management       Acceptable     Unacceptable

  1.  Staffing           Acceptable     Unacceptable

  2.  Work Plan          Exceptional    Unacceptable

  3.  Subcontracting PlanAcceptable       Marginal

Past Performance/Risk  Outstanding/LowOutstanding/High

Price                    $2,535,230      $2,344,600
The TEP determined that Waters's proposal, the only one rated 
acceptable, was reasonably priced and represented the best value to 
the government.[2]  The contracting officer, serving as the source 
selection authority (SSA), concurred with the TEP's determination.  
Her source selection decision discussed in substantial detail the 
favorable qualities of Waters's proposal, as well as various 
shortcomings in Brisk's proposal.  She concluded that while Waters's 
proposal was rated acceptable overall, its "outstanding, exceptionally 
qualified team members truly demonstrated the added value" of its 
proposal which was substantiated by the firm's outstanding past 
performance and associated low risk.  The SSA's conclusion was 
followed by her statement that Waters's status as the stained glass 
contractor at the Chapel further substantiated the best value 
determination since the government would only have to deal with one 
contractor at that facility.  After award was made to Waters, Brisk 
received a debriefing and filed this protest.

Brisk's protest challenges the Navy's evaluation of proposals in 
numerous areas.  Brisk also alleges that the Navy improperly utilized 
Waters's status as the stained glass window contractor for the Chapel 
as an unstated best value determinant.  

In reviewing protests against allegedly improper evaluations, it is 
not our role to reevaluate proposals.  Rather, our Office examines the 
record to determine whether the agency's judgment was reasonable and 
in accord with the RFP's stated evaluation factors.  ESCO, Inc., 66 
Comp. Gen. 404, 410 (1987), 87-1 CPD  para.  450 at 7.  A protester's mere 
disagreement with the agency's conclusions does not render the 
evaluation unreasonable.  Id.  Further, source selection officials in 
negotiated procurements have broad discretion in determining the 
manner and extent to which they will make use of the technical and 
price results subject only to the tests of rationality and consistency 
with the RFP's evaluation factors.  Grey Advertising, Inc., 55 Comp. 
Gen. 1111, 1120-1121 (1976), 76-1 CPD  para.  325 at 12. 

The specialized construction experience factor required offerors to 
have experience with a minimum of three historic preservation and/or 
renovation projects, and to complete a form for each project chosen to 
present its experience best illustrating its suitability for the 
Chapel project.    

Waters's proposal was rated acceptable.  The TEP noted that although 
most of the firm's experience was on projects of a smaller value and 
spread over several phases, Waters demonstrated experience in all 
aspects of work under the solicitation.  The TEP noted in particular 
that the firm's experience with the restoration of the Cadet Chapel at 
the U.S. Military Academy at West Point demonstrated experience on 
sensitive projects with historical significance.  

Brisk argues that the Navy improperly failed to downgrade Waters's 
proposal for its lack of experience with a project of the size and 
scope of the Chapel project.  Brisk asserts that the value of this 
project--$2.5 million over approximately 1 year--far exceeds the value 
of the largest project previously performed by Waters during a similar 
time frame.  As noted above, however, the TEP was clearly aware of 
this fact but considered that Waters's breadth and type of experience, 
undisputed by Brisk, was sufficient to garner its proposal an 
acceptable rating; Brisk's disagreement with this conclusion does not 
render the evaluation unreasonable.  Esco., Inc., supra.  Brisk's 
assertion that its proposal should have been rated higher given its 
experience with large projects, ipso facto, ignores the TEP's 
rationale for the firm's acceptable rating.  While Brisk's projects 
individually contained most of the significant aspects involved in the 
Chapel project, no single project matched its requirements in terms of 
the total scope and dollar value, and most were smaller-scaled 
projects containing either one or two of the elements of this 
solicitation.  Brisk has given us no basis to believe that there is 
any substantive distinction between the two proposals so as to render 
the Navy's evaluation unreasonable.[3]  

The first project management subfactor, staffing, consisted of two 
sub-subfactors, organizational structure and project staff resumes.  
As to the former,[4] the RFP required offerors to provide a chart that 
clearly delineates contractor/subcontractor relationships and lines of 
authority, showing names, titles, firm names, and organizational 
relationships, and identifying whether each person is located on-site 
or in the home office and whether each person is full- or part-time.  
Brisk's proposal was rated unacceptable because it did not provide 
this organizational chart and because the TEP could not determine the 
roles and lines of responsibilities of the proposed personnel, which 
would be on-site or off-site, and how much time each would be 
committing to the project. 

Brisk objects that it was not required to submit this chart because it 
did not propose to subcontract for the critical work.  However, the 
Navy points out, and Brisk concedes, that the firm did propose to 
subcontract out some of the work; as a result, the chart was a 
required element.  Brisk alternatively argues that its proposal 
elsewhere contained the information sought by the evaluators.  Our 
review of the proposal shows no such thing.  While there is some 
minimal information concerning the roles and lines of responsibilities 
for the proposed key personnel, the proposal does not spell out 
whether each of these employees will be on- or off-site, or how much 
time each will commit to the project.  As a result, we have no basis 
to question the Navy's evaluation.

The second project management subfactor, work plan, also consisted of 
two sub-subfactors, a narrative work plan and a construction path 
method (CPM) chart.  As to the former, offerors were to provide a 
three-page maximum narrative description of how they planned to 
control all phases of work, identifying critical activities, 
techniques to minimize schedule and other problems, and any other 
innovative methods.  Brisk's proposal was rated unacceptable because 
the TEP believed Brisk's work plan was general and failed to provide 
specific techniques or innovative methods as to how the firm intended 
to address such critical activities as maintaining public access and 
building egress, weather protection, or phasing.

In its protest, Brisk argued that its proposal's work plan and CPM 
chart demonstrated its ability to properly manage the project, 
including the areas of concern to the TEP.  However, our review of the 
firm's work plan shows that its references to all of the areas of 
concern are either vague or nonexistent, leaving us no basis to 
question the agency's judgment.[5]

In its comments, Brisk argues, for the first time, that the Navy 
improperly allowed Waters to exceed the three-page limit for the 
narrative work plan by favorably evaluating not only Waters's 
narrative work plan, but an additional three pages of staging charts 
and text.  The Navy asks that we dismiss this argument as untimely 
since Brisk received the agency report on this protest on March 14, 
1997, and filed its comments on March 25--11 days later.  While Brisk 
received permission to file its comments later than the 10 calendar 
days required by our Bid Protest Regulations, 4 C.F.R.  sec.  21.3(i) 
(1997), the granting of such an extension does not waive the 
timeliness requirements for filing bid protests.  Cygnus Corp., 
B-275181, Jan. 29, 1997, 97-1 CPD  para.  63 at 4 n.2.

The timeliness of specific bases of protest raised after the filing of 
a timely initial protest depends upon the relationship the 
later-raised bases bear to the initial protest.  See Kappa Sys., Inc., 
56 Comp. Gen. 675, 681-684 (1977), 77-1 CPD  para.  412 at 9-12.  Where the 
later-raised bases present new and independent grounds of protest, 
they must independently satisfy our timeliness requirements.  Ralph G. 
Moore & Assocs.--Recon., B-270686.3, June 5, 1996, 96-1 CPD  para.  268 at 
2-3; GE Gov't Servs., B-235101, Aug. 11, 1989, 89-2 CPD  para.  128 at 4.  
Where the later-raised contentions merely provide additional support 
for an earlier, timely raised objection, we consider these additional 
arguments.  Prospect Assocs., Inc., B-260696, July 7, 1995, 95-2 CPD  para.  
53 at 10-11.

While Brisk's protest generally alleged that the Navy's evaluation of 
proposals was erroneous as established by Brisk's superior project 
management, the fact that an initial protest includes a general 
allegation of impropriety provides no support for the timeliness of 
more specific allegations.  GE Gov't Servs., supra.  Brisk's specific 
statement was that the Navy advised the firm during the debriefing 
that its low proposal ratings were attributable, in part, to the 
Navy's inability to ascertain certain details in Brisk's work plan.  
Brisk asserted that its proposal, "including its work plan (which was 
limited by the RFP to 3 pages)" contained the detail of concern to the 
TEP.  

This specific argument merely takes issue with the Navy's view 
concerning the contents of Brisk's work plan.  In contrast, the 
specific allegation first raised in Brisk's comments was that Waters 
supplied the detail lauded by the Navy, in part, because it was 
allowed to submit additional pages.  Despite the initial protest's 
reference to the page limitation, it does not suggest that Brisk 
believed the page limitation precluded it from supplying the detail 
sought by the Navy.  As a result, this later-raised allegation is 
completely independent of the initial protest basis and is, as a 
result, untimely.[6]   Id.  

In any event, even if we found that Brisk's allegation had merit, the 
firm has suffered no prejudice by any impropriety on the agency's 
part.  Waters's proposal was rated exceptional under the work plan 
subfactor, with acceptable ratings under the other two project 
management subfactors.  Its exceptional rating was due only in part to 
the additional information it submitted, and Brisk has given us no 
reason to believe that Waters's proposal would have been rated less 
than acceptable under the subfactor or factor itself absent this 
additional information.  Brisk's proposal, on the other hand, was 
rated unacceptable under the work plan subfactor, with unacceptable 
and marginal ratings under the other two project management 
subfactors, respectively.  Brisk makes no proffer as to the additional 
information it would have provided had it been given the opportunity 
to do so; in fact, the record shows that it chose to provide only a 
two-page work plan instead of the three pages allowed.  Under the 
circumstances, we do not believe Brisk would have had a substantial 
chance of receiving the award but for the agency's protected actions, 
and thus it suffered no prejudice.  McDonald-Bradley, B-270126, Feb. 
8, 1996, 96-1 CPD  para.  54 at 3; see Statistica, Inc. v. Christopher, No. 
96-1148, slip op.    (Fed. Cir. Dec. 19, 1996).

Brisk's high risk rating was based upon its proposal's lack of 
specific information as to its organizational structure, experience of 
key personnel, and work plan.  Brisk argues that the Navy improperly 
considered matters other than past performance in assessing it a high 
risk rating.  While the solicitation included as part of the 
evaluation the consideration of risk based upon an offeror's past 
performance, and did not otherwise enumerate risk as an evaluation 
factor, the agency was not thereby precluded from also considering any 
risk arising from the offeror's approach or demonstrated lack of 
understanding.  Consideration of the risk involved with respect to an 
offeror's proposal and approach is inherent in the evaluation of 
technical proposals.  Communications Int'l Inc., B-246076, Feb. 18, 
1992, 92-1 CPD  para.  194 at 6.

Finally, Brisk contends that the Navy's source selection decision 
improperly considered Waters's status as the stained glass window 
contractor for the Chapel--a factor not enumerated in the 
solicitation--as a best value determinant.  As noted above, the SSA's 
source selection decision enumerated the advantages found in Waters's 
proposal, as well as the shortcomings found in Brisk's proposal, and 
concluded that no offers aside from Waters's represented any value to 
the government.  It was only after making this statement that the SSA 
noted that Waters's status as the stained glass contractor "further 
substantiated" the best value decision.  Thus, we need not decide 
whether consideration of this factor was improper because the record 
shows that it was not a basis of the source selection decision, but a 
mere "substantiation" of the SSA's best value determination.  Wilcox 
Elec., Inc., B-270097, Jan. 11, 1996, 96-1 CPD  para.  82 at 6-7.     

The protest is denied.

Comptroller General
of the United States

1. Brisk asserts that the TEP's consensus ratings improperly failed to 
mirror those of the individual evaluators.  However, agency evaluators 
may discuss their individual evaluations with each other in order to 
reach valid consensus ratings since such discussions generally operate 
to correct mistakes or misperceptions that may have occurred in the 
initial evaluation.  See The Cadmus Group, Inc., B-241372.3, Sept. 25, 
1991, 91-2 CPD  para.  271 at 7-8.  Consensus ratings need not be those 
initially awarded by the individual evaluators; such ratings may 
properly be determined after discussions among the evaluators.  The 
overriding concern in these matters is whether the final ratings 
assigned accurately reflect the relative merits of the proposals.  See 
Household Data Servs., Inc., B-259238.2, Apr. 26, 1995, 95-1 CPD  para.  281 
at 4 n.2.

2. The third proposal was rated marginal, at the highest price 
received, and the fourth proposal was rated unacceptable.

3. Brisk's pleadings contain a number of scattered arguments amounting 
to an allegation that Waters's proposal should have been downgraded 
because it does not employ sufficient personnel to be able to 
"self-perform" this project properly.  However, neither this 
evaluation factor nor any other evaluation factor provides for such a 
consideration.  Brisk also contends that Waters's proposal 
misrepresented the full-time availability of its president for this 
project because he will also be managing the stained glass contract.  
We see no misrepresentation here.  Proposals under this solicitation 
were submitted several months before the stained glass contract was 
awarded.  Since a vendor has no assurance that it will be awarded 
every contract for which it submits a proposal, the fact that a vendor 
offers the same individual for more than one on-going procurement does 
not mean that the proposed individual is being offered without any 
expectation of this availability.  Biospherics, Inc., B-253891.2 et 
al., Nov. 24, 1993, 93-2 CPD  para.  333 at 4-5.   

4. As discussed further below, Brisk's allegations with respect to the 
project staff resumes sub-subfactor are untimely.

5. This same type of general approach to writing the proposal resulted 
in Brisk's marginal rating under the third project management 
subfactor, subcontracting plan.  The protester's challenge to this 
rating is essentially a hollow disagreement with the agency's view and 
does not make it unreasonable.

6. We reach the same conclusion as to Brisk's later-raised allegations 
that the Navy unreasonably evaluated Waters's narrative work plan and 
both offerors' project staff resumes.  The only tie between the 
initial protest and these allegations is a generalized assertion of 
impropriety which does not support the timeliness of the later-raised 
allegations.  Id.