BNUMBER:  B-277916 
DATE:  October 27, 1997
TITLE: Mechanical Contractors, S.A., B-277916, October 27, 1997
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Matter of:Mechanical Contractors, S.A.

File:     B-277916

Date:October 27, 1997

Carlton G. Opel for the protester.
Carlos A. De Obaldia, Esq., De Obaldia & Garcia de Parades, for Formal 
Management Systems, Inc., an intervenor.
Theodore G. Lucas, Esq., Panama Canal Commission, for the agency.
David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Source selection decision cannot be determined reasonable where it is 
based on a misevaluation of the proposals of the protester and 
awardee. 

DECISION

Mechanical Contractors, S.A. (MECSA) protests the award of a contract 
to a higher-priced offeror, Formal Management Systems, Inc. (FMS), 
under request for proposals (RFP) No. CC-97-33, issued by the Panama 
Canal Commission (PCC) for cleaning and painting of four miter gate 
leaves in the Panama Canal.  The RFP calls for abrasive blast cleaning 
and exterior painting above the water line using inorganic zinc primer 
and coal tar polyurethane and below the water line using hot-applied 
coal tar enamel (CTE).  The RFP also requires the performance of 
mechanical, electrical, and other necessary work.  MECSA contends that 
the proposals of both MECSA and FMS were improperly evaluated under 
the specialized experience and past performance evaluation subfactors.  
MECSA contends that the evaluation board (EB) intentionally and 
unfairly evaluated the proposals with the result that this allegedly 
competitive procurement was actually a "sole source" to FMS, which has 
been performing this work for the last 10 years.

We sustain the protest.

The RFP, issued on May 12, 1997, required an offeror to submit a 
technical proposal and a price schedule.  Technical proposals were to 
be evaluated on the basis of two equally weighted technical factors:  
technical approach and performance capability.  The technical approach 
factor listed seven specific subfactors; the performance capability 
factor listed five specific subfactors, including specialized 
experience and past performance.  These two subfactors each were 
assigned a possible 30 points, for a total of 60 points out of 100 
points that could be given under the performance capability factor.  
Under the specialized experience subfactor, offerors were to identify 
contracts performed by "prime and subcontractors" within approximately 
3 years preceding the proposal due date.  Under this subfactor, the 
RFP provided that contracts involving confined space removal/painting 
requiring forced ventilation would be relevant and "[s]pecialized 
experience in applying coal tar enamel or SSPC [Steel Structures 
Painting Council] certification at QP-2 will be favorably evaluated. . 
. ."  (Emphasis added.)  The past performance subfactor provided that 
the quality and timeliness of the offeror's past performance with 
similar projects would be considered, and offerors were asked to 
submit a list of similar projects they had performed within the past 3 
years.  An offeror's total technical evaluation score was to be 
equally weighted with the offeror's firm, fixed-price.  Under the RFP, 
award was to be made to the offeror whose proposal was most 
advantageous to the government--technical, price, and other factors 
considered.

Three proposals, including those of MECSA and FMS, were received by 
the July 3, 1997, deadline for submission.  After evaluation of the 
technical portion of each proposal by the EB, all three proposals were 
included in the competitive range.[1]  Subsequently, each offeror was 
advised of areas of its proposal which needed to be further addressed 
and each was requested to submit a best and final offer (BAFO).  The 
BAFO scores were as follows:
                                      
                Technical
                Approach        Performance
                                Capability      Total Points

MECSA           60.85 points    66.2 points     127.05 points

FMS             72.7 points       81.55 points  154.25 points
Within the performance capability factor, MECSA received 19.5 points 
out of 30 under specialized experience and 15 points out of 30 under 
past performance.  In contrast, FMS received 30 points out of 30 for 
specialized experience and 23.4 points out of 30 for past performance.

The evaluation record shows that under the specialized experience 
subfactor, the EB noted that FMS had successfully cleaned and coated 
all PCC miter gates for the last 3 years and that it had "abundant 
confined space experience."  Under the past performance subfactor, the 
EB stated that the FMS projects were either timely completed or 
completed ahead of time.  For MECSA, under the specialized experience 
subfactor, the EB noted as a weakness that MECSA had "listed very 
little CTE application experiences during the last 3 years" and under 
the past performance subfactor the EB noted that "late completion was 
detected on various projects listed.  Liquidated damages [were] cited 
on some."

While MECSA's price of $2,564,500 was lower than the FMS price of 
$2,640,000, the EB performed a price/technical tradeoff analysis.  The 
EB determined that the FMS technical evaluation score of 154.25 points 
out of 200, as compared to MECSA's score of 127.05 points, overcame 
the price differential because the FMS proposal cost $17,115.02 per 
technical point and the MECSA proposal cost $20,507.80 per point.  On 
that basis, the EB concluded that the FMS proposal was the most 
advantageous to the government.  The EB's recommendation was adopted 
by the source selection official, and award was made to FMS.  In its 
award letter, the PCC listed MECSA's lack of recent CTE application 
experience and late completion on various projects as weaknesses in 
the firm's proposal.  After its debriefing, MECSA filed this protest.  
Contract performance has been suspended pending our resolution of the 
protest.

MECSA challenges the evaluation of both its own proposal and that of 
FMS.  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 criteria.  Abt Assocs., 
Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223 at 4.  After reviewing 
all of the supporting documentation submitted by the PCC, we conclude 
that the technical evaluation in this procurement is not adequately 
supported.  We also conclude that without adequate support for the 
technical evaluation, the award determination lacked a reasonable 
basis.  See Redstone Technical Servs.; Dynamic Science, Inc., B-259222 
et al., Mar. 17, 1995, 95-1 CPD  para.  181 at 8-9. 

The only contemporaneous supporting documentation showing the reasons 
for the scoring of MECSA's proposal are the evaluation sheets and the 
summary of findings of the EB.  These documents identify only one 
weakness for MECSA under the specialized experience subfactor (little 
CTE experience over the last 3 years) and one weakness under the past 
performance subfactor (late completion on various projects).  Our 
review of the record raises concern about the reasonableness of the 
evaluation regarding both perceived weaknesses.

Regarding the lack of CTE experience over the last 3 years, MECSA 
contends that the PCC failed to evaluate proposals in accordance with 
the RFP, which, in MECSA's view, indicated that substantially equal 
importance would be given to an offeror's CTE experience "or" an 
offeror's possession of SSPC certification at QP-2.  MECSA proposed a 
subcontractor with certifications at QP-1 and QP-2 to perform the CTE 
work.  The protester states that the certification is given by the 
national council that publishes a number of standards on the cleaning 
of steel and the application of protective coatings (standards which 
are incorporated into contracts by various governmental agencies, 
including the PCC), and that the PCC's stated intent in considering 
CTE experience "or" SSPC certifications was to permit competition for 
this procurement.  MECSA contends that the EB's failure to give its 
proposed subcontractor's QP-2 certification substantial equality with 
CTE experience was unreasonable.  MECSA argues, in effect, that the 
EB's preference for CTE work over QP-2 certification in its evaluation 
of specialized experience favored FMS, the only contractor performing 
CTE work on the PCC's miter gate leaves for the past 10 years.

While the PCC states in its report to our Office that the solicitation 
"did not guarantee equal or equivalent treatment" of CTE experience 
and QP-2 certification, the PCC states that the EB did, in fact, give 
favorable consideration during the evaluation to the certification 
possessed by MECSA's subcontractor.  The PCC also states that 
favorable consideration was given to the CTE experience gained by 
MECSA during performance of a contract for the painting and cleaning 
of cylindrical valves.

Notwithstanding these post-protest statements by the PCC, there is no 
indication in the contemporaneous evaluation record that MECSA was 
given any credit for its QP-2 certification.  Instead, the record 
indicates only that, as noted above, the EB found as a weakness under 
this subfactor that MECSA's proposal listed very little CTE 
application experience.  It thus appears from the evaluation record 
that, as the protester has alleged, MECSA was downgraded for a lack of 
CTE experience with no weight given to the proposed subcontractor's 
certification.  While the RFP would certainly permit the EB to 
downgrade MECSA to some degree for its lack of CTE experience, there 
is nothing in the contemporaneous record to establish that the 
offeror's possession of the requisite certification, through its 
proposed subcontractor, was considered at all.  The failure to address 
this issue in the evaluation record was unreasonable and inconsistent 
with the RFP language that QP-2 certification would be favorably 
evaluated under the specialized experience subfactor.  

Regarding the evaluation of MECSA's proposal under the past 
performance subfactor, as noted above, offerors were to list similar 
projects for the past 3 years.  The EB reviewed 17 contracts performed 
by MECSA in the past 3 years and concluded that 3 of those contracts 
showed either late completion or liquidated damages; that conclusion 
was the basis of the EB's determining that there had been late 
completion on "various projects" and therefore awarding MECSA a score 
of only 50 percent on past performance.  Upon review of the entire 
record, including the parties' post-protest pleadings, we find that 
the reasonableness of that score is in doubt.  The PCC itself now 
concedes that the EB looked at the incorrect universe of projects, 
since most of the 17 contracts that the EB reviewed were not similar 
to the work to be performed under this procurement.  According to the 
PCC's post-protest submissions, only 5 contracts should have been 
considered similar (and within the past 3 years), of which one was 
completed late.[2]  The contracting officer now contends that the EB's 
mistaken consideration of nonsimilar contracts did not affect MECSA's 
50-percent past performance score, since the percentage of the 
contracts completed late is now slightly higher (one out of 5, or 20 
percent) than was the case under the EB's evaluation (3 out of 17, or 
18 percent).  While the percentages may not have shifted 
substantially, however, the absolute number of contracts considered 
late was actually smaller than what the EB believed during the actual 
evaluation--indeed, there was only one allegedly similar contract 
where lateness was noted, so that, with respect to similar contracts, 
the EB's finding that late completion was a concern on "various 
projects" was unsupported.

The protester also challenges the PCC's evaluation of the specialized 
experience of FMS, because the EB originally failed to consider 
certain safety violations under relevant FMS contracts.  In 
particular, the protester alleges that the PCC failed to take into 
account a serious accident, which caused a fatality and which occurred 
during the performance within the past 2 years of a similar contract 
for the PCC.  The PCC admits that the fatal accident occurred and that 
the contract was both recent and similar.  Indeed, the PCC's Safety 
Division determined that the accident was the fault of FMS (a finding 
appealed by FMS).  While recognizing the importance of safety in the 
current evaluation, the PCC states that FMS did not disclose the 
accident in its proposal and that (apparently because it was not 
mentioned in the proposal) the EB did not consider it.[3]

In response to the protest, the EB reevaluated the original scoring of 
the FMS proposal for this subfactor.  Upon reevaluation, after 
considering this accident, the FMS score for this subfactor was 
reduced from 30 points (100 percent) to 15 points (50 percent).  The 
FMS total evaluation score was reduced from 154.25 to 139.25 points.  
The PCC states that even with the lower score, the FMS evaluated price 
of $18,958.17 per point was still lower than MECSA's evaluated price 
of $20,507.80 per point, and the EB confirmed its prior determination 
that the FMS proposal was the most advantageous to the government.

MECSA also points out that on another recent relevant contract for 
cleaning and painting miter gates identified in the FMS proposal, FMS 
received an unsatisfactory performance rating in the safety area.  The 
PCC argues that, since it gave FMS a satisfactory performance rating 
for the contract, it was reasonable that this safety issue should have 
no effect on the past performance rating.  This approach appears 
inconsistent with the PCC's downgrading of MECSA for the lateness of 
its performance under another contract, where MECSA apparently 
received an overall satisfactory rating.

Our Office will not sustain a protest unless the protester 
demonstrates a reasonable possibility that it was prejudiced by the 
agency's actions, that is, unless the protester demonstrates that, but 
for the agency's actions, it would have had a substantial chance of 
receiving the award.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 
CPD  para.  54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 
1581 (Fed. Cir. 1996). 

While the PCC argues that the errors which occurred would not have 
affected its source selection, we conclude, particularly in light of 
the multiple, material errors explained above, that the protester was 
prejudiced by the agency's actions.  As a result of the PCC's 
reevaluation of the specialized experience of FMS (to take into 
account the fatal accident which occurred during performance of a 
recent, similar contract), the difference in point scores between the 
two competing proposals is quite small.  In light of its proposal's 
lower price, we think that, but for the agency's actions, MECSA would 
have had a substantial chance of receiving the award.

Regarding the PCC's reevaluation of the proposals to correct errors 
identified by the protester, while we consider the entire record, 
including statements and arguments made in response to a protest in 
determining whether a selection decision is supportable, we accord 
much greater weight to contemporaneous source selection materials than 
to judgments, such as the selection officials' reevaluation here, made 
in response to protest contentions.  Dyncorp, 71 Comp. Gen. 129, 134 
n.12 (1991), 91-2 CPD  para.  575 at 7 n.13; Southwest Marine, Inc.; 
American Sys. Eng'g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 
CPD  para.  56 at 10.  This reflects our concern that reevaluations and 
redeterminations prepared in the heat of an adversarial process may 
not represent the fair and considered judgment of the agency, which is 
a prerequisite of a rational evaluation and source selection process.  
Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 
1997, 97-2 CPD  para.  ___ at 15. 

The protest is sustained.

We recommend that both proposals be reevaluated, that the reevaluation 
be documented, and that a new selection decision be made.  If the PCC 
determines that MECSA is in line for the award, the award made to FMS 
should be terminated and award made to MECSA.  We also find that MECSA 
is entitled to the costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.8(d)(1) (1997).  MECSA should submit its certified claim for such 
costs, detailing the time expended and costs incurred, directly to the 
agency within 60 days after receipt of this decision. 4 C.F.R.  sec.  
21.8(f)(1).

Comptroller General
of the United States

1. The proposal by the third offeror is not relevant to this protest, 
and we therefore do not discuss it further.

2. The protester suggests that, among the 17 contracts that the EB 
actually reviewed, there may have been fewer than 3 which were 
actually completed late because of the possibility that the notation 
in the records regarding liquidated damages merely indicated that the 
contract included a liquidated damages provision, not that such 
damages were actually assessed.  The protester also denies the 
"similarity" of the one contract of the 5 that the PCC now contends 
were similar and recent.  Although the disputes regarding these 
matters could have been clarified during discussions, in light of our 
recommendation we need not resolve the disputes here.

3. At the debriefing, when asked if the EB was aware of, and had 
considered, the accident in the evaluation, the answer from the 
debriefing officials was "yes."  The PCC now reports that the EB had 
not, in fact, considered the accident in its evaluation.