BNUMBER: B-278591
DATE: February 17, 1998
TITLE: Beneco Enterprises, Inc., B-278591, February 17, 1998
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Matter of:Beneco Enterprises, Inc.
File: B-278591
Date:February 17, 1998
Patrick S. Hendrickson, Esq., Kirton & McConkie, for the protester.
Marian E. Sullivan, Esq., Department of the Air Force, for the agency.
Glenn G. Wolcott, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Elimination of protester's proposal from competitive range is
unobjectionable where agency reasonably determined that the proposal
contained multiple deficiencies in three of five technical/management
evaluation factors, including the two most important factors, as a
result of which the proposal would require major revisions to meet the
solicitation's minimum requirements.
DECISION
Beneco Enterprises, Inc. protests the elimination of its proposal from
the competitive range under request for proposals (RFP) No.
FA4416-97-R-0015, issued by the Department of the Air Force as a
Simplified Acquisition of Base Engineering Requirements (SABER)
procurement for maintenance, repair, and minor construction work at
various Air Force facilities in Maryland. Beneco protests that the
agency erroneously determined that Beneco's proposal was so deficient
as not to have a reasonable chance of being selected for award.
We deny the protest.
The RFP, issued by the Air Force on July 28, 1997, contemplated award
of an indefinite delivery/indefinite quantity contract for a base
period with four 1-year option periods. The RFP provided that award
would be made to the offeror whose proposal was most advantageous to
the government, considering technical, management, and cost factors,
with technical/management factors being of primary importance.
Section M of the RFP listed the following technical/management
evaluation factors in descending order of importance: (1) project
management ability; (2) project development/planning and minimal
design; (3) subcontracting support capability; (4) experience and
past/present performance; and (5) project execution and technical
capability.[1] Each evaluation factor and subfactor was to be rated
on a color-coded scale[2] and assigned a risk rating. The RFP advised
offerors that proposals must demonstrate that the offeror has
sufficient technical expertise, experience, and resources to perform
the contract requirements, and is able to plan, organize, and use
those resources in a coordinated and timely fashion, specifically
noting that "[i]n no case shall words like 'we will comply with the
requirements of the contract' or equivalent statements be acceptable
to meet the requirements of the RFP."
Several offerors, including Beneco, submitted initial proposals by the
September 4 closing date. Upon conducting an initial review, the
agency identified numerous weaknesses and deficiencies in Beneco's
proposal. By letter telecopied to Beneco on October 13, the agency
transmitted seven deficiency reports (DRs) and two clarification
requests (CRs) related to specific portions of Beneco's proposal,
advising Beneco, "You must explain and clarify questions and
deficiencies on your proposal, in writing, via [f]acsimile not later
than 5:00 PM, 14 Oct 97."[3] Beneco telecopied its responses to the
agency at 11:16 a.m. the following day.
Thereafter, the agency reevaluated Beneco's proposal taking into
consideration Beneco's responses to the CRs and DRs, and concluded
that Beneco's proposal still contained multiple weaknesses and
deficiencies and that the proposal would require major revisions to
meet the RFP's minimum requirements. By memorandum dated October 20,
the agency advised Beneco that its proposal had been eliminated from
the competitive range. Beneco subsequently requested a debriefing,
which the agency conducted on November 6. Beneco filed this protest
on November 7.
Beneco protests that the agency erred in determining that its proposal
was so deficient as to have no reasonable chance of being selected for
award and, therefore, that the agency improperly eliminated its
proposal from the competitive range. As discussed below, the record
provides no basis to object to the agency's determination.[4]
Where a proposal is technically unacceptable as submitted and would
require major revisions to become acceptable, the agency is not
required to include the proposal in the competitive range. Laboratory
Sys. Servs., Inc., B-256323, June 10, 1994, 94-1 CPD para. 359 at 2; see
also Beneco Enters., Inc., 70 Comp. Gen. 574, 578 (1991), 91-1 CPD para.
595 at 6 (Beneco's proposal was properly eliminated from the
competitive range in another SABER procurement for failing to
demonstrate adequate understanding of solicitation requirements). The
evaluation of proposals and the determination of whether a proposal is
in the competitive range are principally matters within the
contracting agency's discretion, since agencies are responsible for
defining their needs and for deciding the best method for meeting
them. In reviewing an agency's decision to eliminate a proposal from
the competitive range, we will not evaluate the proposal anew, but
instead will simply examine the agency's evaluation to ensure that it
was reasonable and in accord with the provisions of the solicitation.
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 3-4.
A protester's mere disagreement with an agency's evaluation does not,
without more, establish that the evaluation was unreasonable. Keco
Indus., Inc., B-261159, Aug. 25, 1995, 95-2 CPD para. 85 at 4-5.
With its report responding to Beneco's protest, the agency provided
the evaluation record regarding the decision to eliminate Beneco's
proposal from the competitive range. The record shows that Beneco's
proposal received ratings of "red/ unacceptable" under three of the
five evaluation factors, including the most important factor, "project
management ability," (where Beneco's proposal was rated
"red/unacceptable" under three of the five subfactors), and the second
most important evaluation factor, "project development," (where
Beneco's proposal was rated "red/unacceptable" under both of two
subfactors). We have reviewed the record and find no basis to
question the reasonableness of the agency's evaluation of Beneco's
proposal.
For example, regarding the most important evaluation factor, "project
management ability," the RFP required that offerors include a quality
control plan which would include the "number of active projects
assigned to each quality control inspector." Beneco's proposal did
not respond to this requirement. DR No. 2, transmitted to Beneco on
October 13, stated, among other things: "Offeror fails to describe
the number of active projects that will be assigned to each Quality
Control Inspector." Beneco responded to this portion of the DR
stating:
At this point, it is impossible to predict the number of jobs
that will be assigned to each quality control staff member. The
number of jobs assigned is determined by a variety of factors,
including complexity of the job, size, and schedule.
In short, Beneco expressly declined to provide specific, material
information required by the RFP. Accordingly, there is no basis to
question the reasonableness of the agency's assessment of a
"red/unacceptable" rating for this evaluation factor.
As another example, under the second most important evaluation factor,
"project development and planning," the solicitation required that
offerors "[i]dentify a plan, contents, and time frame for updating
property records." Beneco's proposal failed to address this
requirement. Among other things, DR No. 5 advised Beneco: "Offeror
fails to identify a plan for updating property records." Beneco's
response to DR No. 5 contained no discussion of any plan to update
property records and, accordingly, Beneco's proposal was rated
"red/unacceptable" under this evaluation factor. The agency report
responding to Beneco's protest included a memorandum prepared by the
agency following Beneco's November 6 debriefing which quotes Beneco's
representative as expressly acknowledging during the debriefing that
Beneco's proposal did not respond to this solicitation requirement.
Beneco's comments on the agency report do not address this matter.
Accordingly, the record provides no basis to question the
reasonableness of the agency's evaluation with regard to this
evaluation factor.
The agency also found Beneco's proposal deficient for failure to
adequately comply with solicitation requirements that offerors:
provide plans for obtaining the services of all major engineering
disciplines; submit adequate plans for responding to emergency
warranty calls; discuss the qualifications of superintendents; submit
complete design submittal packages; submit plans for meeting normal
and quick response times for designs; and submit adequately documented
design concepts. We have reviewed the record regarding the agency's
evaluation of Beneco's proposal regarding these deficiencies and see
no basis to question the reasonableness of the agency's evaluation.
On the contrary, the record establishes that the agency reasonably
determined that Beneco's proposal would require major revisions in
order to comply with the solicitation's minimum requirements and,
therefore, reasonably eliminated Beneco's proposal from the
competitive range.
The protest is denied.
Comptroller General
of the United States
1. Each factor contained multiple subfactors.
2. Blue/exceptional; green/acceptable; yellow/marginal; and
red/unacceptable.
3. Beneco states that the agency contacted Beneco's Director of
Business Development by telephone during the morning of October 13,
advised him that the agency would be transmitting the CRs and DRs, and
asked "whether Beneco would be able to return them by tomorrow."
Beneco's representative responded, "We will do what we can."
4. Beneco also complains that the agency afforded Beneco insufficient
time to respond to the CRs and DRs; however, this portion of the
protest is not timely filed. To the extent Beneco believed that the
time period established for responding to the CRs and DRs was
inadequate, it was required to protest that matter before the time set
for receipt of the additional information. 4 C.F.R. sec. 21.2(a)(1)
(1997); Alamo Acoustical Restoration Co., B-228429, Feb. 16, 1988,
88-1 CPD para. 150 at 3. Here, when asked by the contracting officer
whether it could respond by the following day, Beneco's representative
said "We will do what we can" and, in fact, submitted responses before
noon the following day. Since Beneco opted not to protest the matter
until November 7, this allegation is untimely and not for
consideration on the merits.