BNUMBER: B-276877
DATE: July 30, 1997
TITLE: Leon D. DeMatteis Construction Corporation, B-276877, July
30, 1997
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Matter of:Leon D. DeMatteis Construction Corporation
File: B-276877
Date:July 30, 1997
Joseph R. Harbeson, Esq., and Douglas A. Cooper, Esq., Cooper &
Cooper, for the protester.
Scarlett D. Grose, Esq., and Emily C. Hewitt, Esq., General Services
Administration, 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
Protest that technical qualifications criteria in solicitation for
construction of a new federal courthouse are unduly restrictive of
competition is denied where the record shows that the criteria are
reasonably related to the agency's need to ensure that the contractor
will have sufficient experience in all aspects of the type of complex
construction that will be necessary for the project; protester's
arguments focusing on the individual elements of this experience, but
ignoring the value of the totality of this experience, do not show
that the criteria are unreasonably restrictive.
DECISION
Leon D. DeMatteis Construction Corporation protests the terms of
request for proposals (RFP) No. GS-02P-97-DTC-0010(N), issued by the
General Services Administration (GSA) for construction of Phase II of
a new federal courthouse in Brooklyn, New York. DeMatteis argues that
the solicitation's technical qualifications criteria are unduly
restrictive of competition.
We deny the protest.
The new courthouse, one of the largest in the country, will consist of
an 18-story building housing the new courthouse proper as well as a
6-story structure connecting the new courthouse to the existing
courthouse on the same site. The connecting structure will contain
the main building entrance and an interior atrium, enabling the two
buildings to function as one complex.[1] The new courthouse will be
approximately 742,734 gross square feet in size and its estimated
construction cost is between $165 and $180 million.
The new courthouse will house 15 District and 10 Magistrate
courtrooms, a jury assembly area, judges' chambers, office space for
court and court-related agencies, a grille/cafe, a U.S. Court of
Appeals library, and a secure prisoner circulation/
detention system. The interiors of the courtrooms and judges'
chambers will contain extensive architectural paneling and millwork,
and the public spaces will contain a variety of finishes, including
marble wall panels, travertine tile, and terrazzo flooring.
The building's mechanical systems will include a central chilled water
refrigeration and boiler plant system containing central air handling
units for floors 4-17 and local floor air handling units for the lower
floors; a variable air volume distribution system with hot water
reheat coils; three dual-fueled boilers and three direct-fired
dual-fueled absorption chillers; a direct digital control building
automation system; cast iron plumbing; a copper domestic water system;
fuel oil and natural gas distribution systems; a fully-sprinkled fire
protection system; electric service from new utility network vaults to
four 460-volt service switch gear with ground fault protection; two
diesel-driven 1,000-kilowatt paralleled emergency generators; and
extensive conduit and electrical power to support a security system.
Work under this contract will include site work, demolition,
excavation, reinforced concrete foundations and structure, fireproof
steel frame structure, metal decking, concrete floors, a curved entry
structure clad in coated aluminum curtain wall, coated aluminum and
glass curtain wall and limestone building facade, roofing, sealant and
flashing, skylights, interior architectural woodwork and finishes,
doors, frames and hardware, stairs, interior partitions, signage and
graphics, elevators, mechanical, electrical, plumbing and fire
suppression systems. Related work will include site improvements,
landscaping, distinctive pavement, and asphalt paving for roadways.
The solicitation was issued on April 4, 1997, as step one of a
two-step procurement. Under the first step, at issue here, offerors
must submit technical proposals to be evaluated under two technical
qualifications criteria--project experience and past performance, and
qualifications of key personnel. Proposals that fail to satisfy the
minimum requirements of either criterion will be automatically
eliminated from further consideration. Proposals deemed technically
acceptable under these criteria will enter the pricing phase of the
procurement. Award will be made to the offeror submitting the
lowest-priced, technically acceptable proposal.
DeMatteis's protest focuses on the project experience and past
performance criterion, which calls for experience demonstrating a
firm's overall coordination and subcontracting responsibilities,
including schedules and budgets.[2] Specifically, the RFP requires
that the offeror demonstrate that it has successfully completed a
minimum of three projects in the role of a general or prime contractor
within the past 10 years; each project must comply with the following
subcriteria:
a. Type of Facility: Courthouse, Civic Building, Museum,
Library, Embassy, Hospital, Corporate Headquarters, or Office
Building (all complete with interiors). All projects must be
new construction. Modernization or alterations of existing
buildings are not acceptable.
Note: At least one project must have been completed on a job
site with a limited working area. The project/building
(excluding parking lots) must have occupied at least 75
percent of the total job site.
b. Gross Square Footage: Not less than 400,000 gross square
feet/each project
c. Number of Stories: Not less than 10 (above grade)/each
project
d. Construction Contract Dollar Value: Not less than
$100,000,000/each project.
On April 24, DeMatteis filed an agency-level protest in which it
argued that these criteria, except for the square footage requirement,
were unduly restrictive of competition; the firm's April 25 protest to
this Office repeated this claim. DeMatteis and several other firms
submitted technical proposals by the May 6 closing date, but the
procurement has been suspended pending resolution of this protest.
In preparing a solicitation for supplies or services, a contracting
agency must specify its needs and solicit offers in a manner designed
to obtain full and open competition and may include restrictive
provisions or conditions only to the extent that they are necessary to
satisfy the agency's needs. 41 U.S.C. sec. 253a(a) (1994). The
determination of the agency's minimum needs and the best method of
accommodating them is primarily within the agency's discretion.
Premiere Vending, 73 Comp. Gen. 201, 206, 94-1 CPD para. 380 at 7.
Agencies enjoy broad discretion in the selection of evaluation
criteria, and we will not object to the use of particular evaluation
criteria or an evaluation scheme so long as the criteria used
reasonably relate to the agency's minimum needs in choosing a
contractor that will best serve the government's interests. Id.;
Renow, Inc., B-251055, Mar. 5, 1993, 93-1 CPD para. 210 at 3.
GSA explains that the project experience and past performance
criterion is grounded in the agency's need to ensure that the general
contractor chosen will have sufficient relevant experience in all
aspects of the complex construction presented by this project. For
clarity of presentation and response by offerors, GSA divided the
areas of experience required by this project into the RFP subcriteria
set out above.
GSA first considered the specific attributes of the courthouse and
identified other types of buildings that contain similar attributes,
such as extensive coordination of trades, various centralized systems,
varying floor heights, mixed use, and a high level of finishes. Since
all of the building types listed in subcriterion (a) have these
features in common, GSA considered that experience with any of these
types would be representative of that required here. In addition,
since the task of coordinating construction increases in complexity as
the number of stories increases, GSA decided to ensure that the
contractor had experience with multi-story construction by imposing a
10-story minimum requirement, reflected in subcriterion (c). GSA also
decided to ensure that the contractor had experience in constructing
and allocating project funds for such a large project by imposing
minimum size and dollar thresholds, set out in subcriteria (b) and
(d). GSA also limited acceptable projects to those completed within
the past 10 years because building and construction methodology for
large-scale multi-story projects has changed radically in the last
decade.
Central to GSA's approach is that these subcriteria are not separate,
free-standing requirements, but rather complementary parts of a
single, unified criterion which represents all aspects of the relevant
experience necessary for this project. Since GSA will be asking the
successful contractor to call upon all of this relevant experience on
this one project, its underlying need is for a contractor who
demonstrates relevant experience in all these aspects on each project.
DeMatteis does not address this critical underlying justification for
the criterion. Instead, the protester extracts specific aspects of
the experience encompassed by these subcriteria and contends that it
has demonstrated competence in each of these aspects under an array of
projects that do not, individually, meet all of the subcriteria.
Essentially, DeMatteis argues that an offeror's management competence
demonstrated in this fashion would meet GSA's minimum needs.
GSA asserts that an evaluation on this "mix and match" basis might
demonstrate contractor experience in specific areas--such as
specialized security systems or types of mechanical systems--but would
yield little relevant information concerning a contractor's ability to
manage and coordinate the entire project. For example, the successful
construction of a 10-story building which does not meet the other
subcriteria requirements would show a contractor's knowledge of basic
multi-story construction but would not demonstrate any knowledge of
sophisticated, state-of-the-art building systems in the same building.
This project requires the contractor to perform thousands of different
tasks, all on this one project, and GSA seeks assurance that the
contractor chosen has a track record of performing these thousands of
different tasks all on one project. GSA's disagreement with DeMatteis
as to the validity of its claims of equivalent specific experience
aside, the agency's larger concern is that the sum of this experience
gained under a wide array of unrelated projects does not "add up" to
the totality of this experience gained under one project--that the
whole is, in fact, greater than the sum of its parts. While DeMatteis
rejects this underlying concern in favor of a limited focus on the
individual elements of the required experience, it has not persuaded
us that GSA's approach is unreasonably restrictive.
DeMatteis' specific challenges are unpersuasive for the same reason.
DeMatteis takes particular issue with the exclusion of residential
buildings from the "types of facility" subcriterion. For example, the
firm cites three multi-story residential buildings on which it claims
experience--for one or more of the buildings--with such things as the
coordination of numerous trades; centralized heating, ventilation, and
air conditioning systems; a standard centralized security system;
varying floor heights; and expensive finish work. Setting aside the
fact that all three of these buildings had construction costs well
below $100 million,[3] there is no evidence that any one of these
buildings has all of the specific attributes present in this project.
This merely validates GSA's statement that it did not include
residential buildings because they typically do not contain components
and complexities similar to those which will be encountered here.[4]
As for DeMatteis' insistence that it and other competent contractors
are being improperly excluded from competing here, the determinative
consideration regarding the propriety of a challenged method of
proposal evaluation is whether it reasonably relates to the
government's minimum needs and not whether or not it works to the
prejudice of one or another offeror. 120 Church St. Assocs.,
B-232139, Nov. 21, 1988, 88-2 CPD para. 496 at 5. Accordingly, given our
conclusion that the experience criterion at issue here is reasonably
related to GSA's minimum needs, the fact that DeMatteis or other
contractors cannot meet the criterion does not demonstrate that it is
improper.
The protest is denied.
Comptroller General
of the United States
1. The new courthouse will be built on the site presently occupied by
the existing courthouse and a federal office building. Under Phase I
of the project, being performed under a separate contract, the federal
office building and a structure connecting that building to the
existing courthouse will be largely demolished. The existing
courthouse will remain in continuous operation throughout both phases
of the project.
2. Since the protester's objections to the second criterion derive
from its objections to the first, we need not address them separately.
3. While DeMatteis argues that the $100 million figure is arbitrary,
we have no basis to conclude that GSA's desire to ensure that the
contractor chosen is capable of allocating funds for such a large
project is unreasonable, especially considering that the $100 million
threshold is well below the estimated construction costs here.
4. DeMatteis does not dispute GSA's reasons for including the
multi-story requirement or the 10-year limitation, but argues that its
recent, similar experience in other types of buildings is sufficient.
For the reasons stated above, we find this argument to be without
merit. DeMatteis raises no specific challenge to the minimum square
footage subcriterion.