BNUMBER: B-278260.2
DATE: February 25, 1998
TITLE: Davies Rail and Mechanical Works, Inc., B-278260.2, February
25, 1998
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Matter of:Davies Rail and Mechanical Works, Inc.
File: B-278260.2
Date:February 25, 1998
Sam Zalman Gdanski, Esq., and Jeffrey Gdanski, Esq., for the
protester.
George N. Brezna, Esq., Lis B. Young, Esq., and Kenneth M. Homick,
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
Protest that agency improperly evaluated technical proposals is denied
where the record shows that the evaluation was reasonable and
consistent with the stated evaluation factors; protester's mere
disagreement with the agency's conclusion does not render the
evaluation unreasonable.
DECISION
Davies Rail and Mechanical Works, Inc. protests the award of a
contract to Ederer, Inc. under request for proposals (RFP) No.
N62472-97-R-1641, issued by the Department of the Navy, Navy Crane
Center (NCC) for certain overhead electric traveling (OET) cranes.
Davies contends that the proposals were not evaluated properly and
that in making its best value determination, the agency failed to take
into account all of the appropriate considerations.
We deny the protest.
The solicitation, issued May 22, 1997, contemplated the award of a
fixed-price contract to design, fabricate, assemble, test, deliver,
and install one 100-ton main hoist with a 50-ton auxiliary hoist OET
crane, with an option for a 50-ton main hoist with a 10-ton auxiliary
hoist OET crane. Both cranes are to be installed at Norfolk Naval
Shipyard, Norfolk, Virginia.
Section M-1 of the RFP provided for award to the offeror whose
proposal was determined to represent the best value to the government,
price and other factors considered. Section M-4 identified technical
evaluation factors and subfactors as follows:
1. TECHNICAL APPROACH composed of the following five elements:
a.Describe your technical approach for meeting the required
maximum wheel loads and minimum wheel spacings set
forth in the specification.
b.Describe the general procedures your company uses in
designing cranes. Provide the names and experience resumes
of the structural, mechanical and electrical engineers, who
will be involved in the design of these cranes. . . . How
does
your company ensure that your designs are fully coordinated
among the disciplines. Provide the name, registration and
background experience for each professional engineer
responsible
for the design of the cranes called for by the solicitation.
c.Provide a description of your plant (capacity, location,
etc.) and
the special facilities (paint facilities, calibration
equipment,
cutting tables, cranes, etc.) available.
d.Describe how the crane will be erected/installed.
e.Describe your quality assurance system.
2. MANAGEMENT PLAN composed of the following elements:
a.Describe your proposed schedule and milestones for
completing
this work within the timeframes set forth in this
solicitation.
Include in your description the scheduling method you plan
to
use to manage this project and a sample of a schedule used
on a project of similar magnitude and complexity completed
within the last three (3) years.
b.Provide resumes for the Project Manager, Lead Design
Engineer,
Quality Control Manager, Plant Superintendent and Field
Superintendent, who will be assigned to this project.
3. CORPORATE EXPERIENCE
List at least five (5) previous projects that were worked on
within the past five (5) years that demonstrate your ability
to design, manufacture, install and test cranes of a similar
capacity and complexity as this project. Provide phone
numbers
and points of contact for each project. If subcontractors
will be
used, provide similar past experience data for the
subcontractor.
In addition, describe the projects on which you have worked
together in the past.
Section M-4 advised that technical factors and price would be weighted
equally and that the three technical factors and the subfactors of
each factor would also be weighted equally with respect to each other.
For award purposes, section M-1 provided that price would be evaluated
by adding the total price for the option to the total price for the
base requirement, but that evaluation of the option would not obligate
the government to exercise the option.
Eight proposals, including those of Davies and Ederer, were received
by the June 24 closing date. The proposals were evaluated by a
source selection board (SSB), comprised of a technical evaluation
board (TEB), which reviewed the technical proposals, and a price
evaluation board, which evaluated the price information. The
technical ratings for the proposals at issue were as follows:
Technical Approach Management Plan Corporate Experience
Davies Acceptable Acceptable Acceptable
Ederer Outstanding Acceptable Acceptable
Both the Davies and Ederer proposals were rated "acceptable" overall,
with the Ederer proposal ranked "first" because of its "outstanding"
rating under technical approach. Specifically, the TEB noted that
Ederer had provided extensive information beyond what the solicitation
required explaining how it proposed to meet the wheel load
specifications for both cranes. Also, the TEB noted that Ederer's
in-house design staff was well qualified, Ederer had sufficient plant
capacity to perform all of the work in-house, it had provided detailed
information on crane erection/installation procedures, and its quality
assurance plan met the requirements of the solicitation.
The TEB indicated that Davies's proposal provided sufficient
information concerning how it proposed to meet the crane wheel loads
and the offeror's in-house design staff and its proposed
subcontractors were qualified. The TEB noted that Davies did not have
the plant capacity to manufacture either crane in-house and it
proposed to subcontract the majority of the work. While the TEB
concluded that the multiple subcontracting proposed by Davies was a
concern and presented a risk because the number of subcontractors
would increase the amount of coordination required and increase the
difficulty of resolving any post-acceptance problems, Davies's
proposal was evaluated as technically acceptable.
Based on the technical and price evaluations, three proposals,
including those of Davies and Ederer, were determined to be in the
competitive range. Written discussions, focused on price concerns,
were conducted with these three offerors. No technical questions
were raised in discussions because the proposals were evaluated as
fully acceptable and the proposed approaches of the offerors showed
that they understood the difficulties in meeting the specifications
and had provided alternatives to overcome the anticipated design
problems. In addition, exact weights could not be resolved until
after the awardee submitted a crane design to the agency for approval.
Best and final offers (BAFO) were requested and received from Davies
and Ederer on September 15.[1] Both offerors reduced their prices in
their BAFOs and the technical evaluations remained unchanged.[2]
The SSB recommended that award be made to Ederer because both
proposals were evaluated as technically acceptable and Ederer offered
the lower price.[3] The source selection authority agreed with the
recommendation and award for the 100-tone crane was made to Ederer on
September 23 in the amount of $1,759,794.[4] Upon learning of the
award, Davies filed an agency-level protest. Davies received a
debriefing from the NCC on October 2 and filed this protest with our
Office the following day.
Davies first challenges the agency's technical evaluation of both
proposals, alleging, among other things, that Ederer's proposed
100-ton crane does not conform to the RFP requirements concerning
wheel loads and that the NCC improperly applied an unstated evaluation
criterion in its evaluation of the protester's proposal.
The evaluation of technical proposals is a matter within the
contracting agency's discretion since the agency is responsible for
defining its needs and the best method of accommodating them. Loral
Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD para. 241 at 5. In reviewing
an agency's technical evaluation, we will not reevaluate the proposal,
but will examine the record of the evaluation to ensure that it was
reasonable and in accordance with stated evaluation criteria, and not
in violation of procurement laws and regulations. Id. The protester
bears the burden of proving that an evaluation is unreasonable; mere
disagreement with the agency does not render the evaluation
unreasonable. Ogden Support Servs., Inc., B-270354.2, Oct. 29, 1996,
97-1 CPD para. 135 at 3. Here, as discussed below, the record provides no
basis to call into question the propriety of the agency's evaluation.
WHEEL LOADS
The RFP required each offeror to describe its technical approach to
meeting the maximum permitted wheel load and minimum wheel spacing
specified in the solicitation.[5] In response to a question
concerning required wheel loads, the NCC, in amendment No. 0001,
stated that it wanted "a general idea" of how each offeror intended to
meet the allowable wheel load and spacing requirements. The agency
explains that it knew that the wheel load requirement would be
difficult to meet for the crane as specified, and it believed that if
the calculated wheel loads submitted in the proposals were too high,
there were different approaches that could be taken to reduce the
wheel loads. It was for this reason that amendment No. 0001 specified
that the agency sought only a "general idea" of how an offeror
intended to meet the wheel load requirement, which would enable the
agency to determine if the offeror understood the wheel load problems
and could adapt its design to meet the requirements.
Ederer provided initial calculations in its proposal which show a
wheel load of [DELETED] pounds, versus the 78,350 pound permitted
maximum. Ederer indicated that it could not state at the time it
prepared its proposal that it had a solution for the 100/50-ton crane
wheel loading requirement, but Ederer listed a number of possible
solutions to meet the required wheel load, including [DELETED], and
stated that "if [NCC] work[s] with us, we can find a solution." As
noted above, the agency evaluated Ederer's proposed approach as
clearly indicating an understanding of the problem and, based on the
response, including the calculations Ederer submitted, as going beyond
what was required by the RFP.
Davies argues that Ederer's proposal does not conform to the
solicitation wheel load requirement. The protester contends that the
RFP clearly states the wheel load requirement and does not, as the
agency contends, "merely [require] the offeror to state his
understanding of wheel loads, and possible solutions to the problems."
The protester argues that the agency's request for a "general idea"
simply means that, while offerors need not provide in their proposals
the exact calculations of how the proposal would meet the maximum
wheel loads, offerors were still required to show compliance with the
maximum loads. Because Ederer's proposal did not state that it would
conform to the solicitation, the protester argues that Ederer's
proposal should have been found technically unacceptable.
A solicitation must be read as a whole and in a reasonable manner,
giving effect to all its provisions. Kerry Lindahl, B-276057, May 7,
1997, 97-1 CPD para. 165 at 6. Here, the RFP specified a wheel load but
required only a description of the offeror's approach for meeting that
requirement, and amendment No. 0001 clarified that all that was
required was a "general idea" of what the offeror would do to meet the
specified wheel load. The overall effect of these provisions is that
an offeror was only required to explain its approach to meeting the
specified wheel load in the form of a general, preliminary plan, which
would be adjusted as necessary once a crane design was finalized.
Davies's position that Ederer's proposal cannot be accepted because it
fails to evidence precise satisfaction of a solicitation requirement
reflects an unreasonably narrow reading of the RFP specifications. In
this regard, while Ederer's proposal recognizes that its proposed
design does not conform, as permitted by the solicitation, Ederer
explains how it plans to adjust its design to meet the specific
requirement.
As NCC points out in its report, wheel load cannot be calculated until
the final weight of the crane is known. The weight will not be known
until a design is submitted by the contractor and approved by the
agency. In this regard, the solicitation stated that the crane design
would be submitted for government review and that the offeror's
personnel would meet with government engineers to resolve any
noncompliance with the crane specifications. It is essentially for
this reason that the agency did not believe that it would be
productive to conduct discussions with any offeror regarding precisely
how it would satisfy the wheel load requirement. That is, once the
agency was satisfied that the offeror's approach showed sufficient
understanding of what was required to achieve the wheel load
requirement, no useful purpose would be served in discussing details
until after the agency review session was conducted with the awardee.
In sum, the agency reasonably evaluated Ederer's proposal as
technically acceptable with respect to the proposed approach to
meeting the specified wheel load.
Moreover, while Davies asserts that its proposal demonstrated
compliance with the wheel load specifications, in fact, there are
inconsistencies in Davies's proposal and it provides no basis to
conclude that Davies was offering a compliant design. At section
1.A.1 of its proposal, Davies makes the blanket statement that the
maximum wheel load of its 100-ton crane will be 78,350 pounds.
However, Davies does not provide wheel load calculations to verify
compliance; instead, the proposal at section 1.A.1 states that the
"maximum allowed wheel load is approached if the trolley dead load is
65,000 lbs. And the bridge dead load is 130,000 lbs. Our preliminary
estimate dead loads are very close to these upper bound dead loads."
Additionally, at section 1.B of its proposal, Davies included a
document titled "Travel Drive Analysis" in a plastic pocket envelope
with scaled drawings of its proposed crane, which included weights for
the trolley dead load and the bridge dead load. While the agency
states that it used the information provided by Davies at section
1.A.1 in evaluating the proposals,[6] in response to the protest, the
agency used the weights provided in the Travel Drive Analysis document
to calculate the protester's proposed wheel loads. Based on the
weights provided in the Travel Drive Analysis document, the
protester's proposed wheel loads were also higher than the maximum
permitted 78,350 pounds. The agency asserts that the weights given in
the Travel Drive Analysis document provide an appropriate basis to
calculate the wheel loads because that document was packaged with
Davies's preliminary drawing for the 100-ton crane and the two
appeared to go "hand in hand."
Our Office conducted a telephonic hearing at which witnesses for the
protester and the agency testified concerning the agency's evaluation
of proposals with respect to the wheel load requirement. The
protester conceded during the hearing that it could not tell whether
the Travel Drive Analysis document was, in fact, included with its
proposal. The protester argues that even if the document was included
in the proposal, the agency should have known from its "7-26-1996"
date that the document and the figures on it were related to a
previous solicitation and not relevant here. Additionally, the
protester argues that the Travel Drive Analysis document is
incomplete, containing only inputs and that the agency should have
recognized that the document was incomplete and did not provide a
basis for calculating the proposed wheel load.
We disagree that the date notation alone establishes that the Travel
Drive Analysis document was not related to this proposal, especially
where, as here, the agency reports that the document was contained in
the plastic pocket with Davies's scaled drawing of its proposed
100-ton crane. As to the protester's suggestion that the agency
should have recognized that the document was incomplete and discussed
this with the protester, as noted above, the agency used the document
to calculate wheel loads based on the figures in this document only
after the protest was filed. During evaluation, the proposal was
considered acceptable on the basis that the approach proposed was
compliant. Thus, there was no reason to seek clarification in this
regard during discussions.
Where a proposal contains conflicting provisions which call that offer
of compliance into question, the offer is ambiguous. TRS Research,
B-274845, Jan. 7, 1997, 97-1 CPD para. 6 at 3. Here, the protester
submitted two possible sets of proposed figures. One set, provided at
section 1.A.1 of the protester's proposal apparently meets the
requirement. The second set of figures does not meet the wheel load
requirement. Thus, Davies's proposal did not provide the exact
equipment weights and calculations to demonstrate compliance. Because
the agency was seeking only a satisfactory approach to achieving the
specified wheel loads, rather than a fully compliant design, it
reasonably evaluated both proposals as satisfactory with respect to
the load requirement, consistent with the amended RFP. Davies could
not have been prejudiced by this approach because, under its
interpretation of the RFP requirements, neither proposal could have
been evaluated as technically acceptable.
Davies makes numerous other allegations of unreasonable assessments of
specific aspects of Ederer's proposal, including, for example, that
the agency unreasonably evaluated Ederer's proposal as to design
procedures, plant description, crane installation, subcontractors, and
personnel. The protester also alleges that the award to Ederer does
not represent the best value to the government. While we will not
discuss all of Davies's allegations, we have reviewed them all and, as
illustrated by the following examples, we find that the record
supports the agency's technical evaluation of the proposals and its
award determination.
As quoted above, the RFP evaluation criteria call for offerors to
describe their general design procedures, their plant, how the crane
will be erected/installed, and their subcontractors and personnel.
Both Davies and Ederer received generally acceptable ratings on these
factors, with the TEB noting that each proposal met the requirements
for each subfactor. Davies argues that Ederer's proposal was too
highly rated on each of these subfactors. For example, Davies argues
that it provided more specific design procedures than Ederer and,
therefore, the two proposals should not have received identical
ratings.
The record shows that Ederer provided a 13-step description of its
work flow and organization, which specified, among other things,
specification review, preliminary and final design, establishment of a
job/project schedule, identification/assignment of personnel,
manufacturing, inspection, testing, and installation. Davies provided
a two-page description of its procedures and a design process flow
chart, including such topics as gathering information, analysis,
preliminary design, test preliminary design, and detail design
(manufacturability, availability, materials/components and
reliability). The agency acknowledges that Davies's procedures may be
more detailed, but points out that the RFP sought only a description
of general procedures. Thus, the agency argues, and we agree, that
Ederer provided a suitable response, with sufficient information for
the agency to find the proposal acceptable. Davies's disagreement
with this evaluation does not make it unreasonable.
Similarly, Davies argues that Ederer's description of its plant was
insufficient. The record shows that Ederer, while providing little
general information about its plant, did indicate its production and
plant capabilities by listing previous work. For example, Ederer
indicated that it had produced cranes up to [DELETED]-ton capacity, a
[DELETED]-foot span and a [DELETED]-foot lift. Based on this
information, the agency reasonably concluded that Ederer's plant was
acceptable.
As to crane erection/installation, Davies contends that Ederer's plan
for the 100-ton crane is not feasible because it proposes to use two
[DELETED] cranes to lift girders and other equipment and parts.
Davies believes these cranes are too big for the available space. In
this regard, the agency notes that, while the floor plan may appear
too congested for cranes of this size, any erection problems are
typically resolved during pre-installation meetings when the
contractor can arrange to temporarily relocate interfering equipment.
In any event, Davies also proposed to use two large cranes ([DELETED])
for crane installation. While the protester offers a different
approach and maintains that Ederer's cranes are too large, the
protester's judgment regarding the feasibility of Ederer's
installation plans does not establish that the agency's assessment was
unreasonable.
Davies also alleges that, while Ederer provided resumes for its
personnel, it did not identify which employees would serve as project
manager, lead design engineer, quality control manager, plant
superintendent, and field superintendent, as required by the RFP. In
fact, the RFP did not require letters of commitment or any other fixed
designations for these positions. Rather, the evaluation language in
question calls for the offeror to provide resumes for qualified
individuals for these positions. Ederer provided nine resumes,
indicating that all but one of its employees had 28 or more years
experience. The resumes also identified Ederer's project manager,
structural engineer, mechanical engineers, electrical engineers,
quality assurance manager, and plant superintendent. The awardee did
not specifically identify its field superintendent or its lead
engineer. However, NCC did not regard this as a problem because the
resumes submitted indicated that several of Ederer's [DELETED]
engineers qualified as lead engineer and that the program manager was
also qualified to perform the duties of field superintendent. Because
the resumes establish that Ederer has sufficiently qualified
individuals for these positions on its staff, the agency reasonably
concluded that the required positions were covered. We see nothing
improper with this evaluation.
Davies complains that Ederer failed to identify and provide past
experience data for any subcontractors that it planned to use. Ederer
plans to use two subcontractors, [DELETED]. Although Ederer did not
identify these subcontractors or provide past experience data, its
proposal was rated acceptable in this regard. The agency explains
that it did not believe that these subcontractors had to be addressed
in the proposal because they are not involved in the major work
required under the contract. Specifically, transportation and
erection were of significantly less concern to the agency than design
and fabrication. Further, the agency had specific knowledge that
Ederer had successfully delivered cranes in the past, indicating to
the agency that the awardee knew how to transport and erect them.
Ederer had also submitted a detailed installation plan with its
proposal. In sum, the agency reasonably concluded that Ederer had
adequately demonstrated its subcontractor capability, notwithstanding
that Ederer did not list its shipping and installation subcontractors.
UNSTATED EVALUATION CRITERION
Davies also argues that the solicitation did not limit the
subcontracting permitted under the contract and that the NCC
improperly evaluated Davies's proposal for any risk that could be
associated with subcontracting. The protester argues that risk
assessment is an unstated evaluation criterion, and that the agency
should have raised this concern in discussions.
First, we note that, even when risk is not specifically listed in the
solicitation as an evaluation criterion, an agency is not precluded
from considering any proposal risk arising from an offeror's approach
or demonstrated lack of understanding that is intrinsic to the stated
evaluation factors. Ogden Support Servs., Inc., supra, at 7. Here,
the NCC reasonably concluded that Davies's use of subcontractors to
perform the majority of the work required under the RFP represented an
approach which, because of the fragmentation of services, presented
greater risk for the agency. In any event, Davies's acceptable rating
under this factor did not have any effect on the award determination.
That is, while Ederer's proposal received an outstanding assessment
under this criterion, versus Davies's acceptable rating, the ratings
for both proposals were otherwise equal and the two proposals were
rated equally overall. Even if Davies's proposal had earned an
outstanding rating on technical approach, the proposal would have
remained technically equal but higher priced than the awardee's, and
Ederer's proposal would remain the best value. Accordingly, Davies
was not prejudiced by any possible shortcomings in this regard, and
this objection provides no basis to sustain Davies's protest. Lithos
Restoration, Ltd., 71 Comp. Gen. 367, 371 (1992), 92-1 CPD para. 379 at
5-6.
BEST VALUE DETERMINATION
Finally, Davies argues that the award to Ederer at Ederer's total
price of $3,110,624, does not represent the best value to the
government. Specifically, the protester offered an alternate offer
with a discounted price of $3,000,192 for the award of both cranes
simultaneously, and it offered an extended 18-month warranty on
structural and mechanical components.[7] Davies argues that the
extended warranty has value to the government which was not taken into
account in the best value determination.
The RFP did not provide for offers based on the simultaneous award of
the base and the option requirements. Rather, the RFP stated that
both base and option prices would be evaluated but that the evaluation
of option prices would not obligate the government to exercise the
option. The agency is required to make award based solely on the
factors included in the solicitation. Department of State--Recon.,
B-243974.4, May 18, 1992, 92-1 CPD para. 447 at 5. Moreover, in addition
to the fact that not all offerors were given the same opportunity to
propose on this basis, at the time of award the agency did not have
funds to make an award for the option. Accordingly, there was no
basis to consider this purported discount. Similarly, Davies's
extended warranty was not considered because it was not an evaluation
factor and its consideration was not permitted for other offerors.
Thus, contrary to Davies's assertion, its price was not lower than the
awardee's price, and it was not denied evaluation credit for features
for which it should have received credit. Because the proposals were
reasonably evaluated as technically equal and Ederer proposed a lower
price than the protester, there is no basis to question the award
determination.
The protest is denied.
Comptroller General
of the United States
1. The other firm included in the competitive range withdrew its offer
during discussions.
2. Davies also submitted an alternate proposal which offered a
3.6-percent price discount if the NCC awarded the base requirement and
the option at the same time. Because NCC did not have sufficient
funds at the time of contract award to award both the base and the
option and because Ederer had not been given an opportunity to provide
an offer based on the simultaneous award of both the base and option,
the agency did not consider Davies's alternate offer.
3. Ederer's total price for the base and option requirements was
$3,110,624 ($1,759,794 for the base requirement and $1,350,830 for the
option). Davies's BAFO contained a total price entry of $3,112,232,
which is the price NCC used in its evaluation. In fact, Davies's base
price is $1,713,215 and its option price is $1,437,240 thus its actual
total price is $3,150,455.
4. The option for the 50-ton crane was not included in the initial
award because the agency needed approximately $250,000 in additional
funds, and NCC had been advised on September 18 that it could lose
over $1 million that had been set aside for the 50-ton crane.
Additional funding subsequently became available, whereupon NCC
awarded the option to Ederer.
5."Wheel load" is the overall weight that the crane applies on the
crane rail system in the building through the bridge wheels. Several
variables, such as crane weight and lifted load weight, may be
combined and modified to determine the wheel load of a crane. The
maximum wheel load permitted in the solicitation is 78,350 pounds.
6. The Navy did not perform any precise wheel load calculations in
evaluating the proposals.
7. The RFP required a 12-month warranty.