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.