BNUMBER: B-278876.2
DATE: May 4, 1998
TITLE: NAHB Research Center, Inc., B-278876.2, May 4, 1998
**********************************************************************
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:NAHB Research Center, Inc.
File:B-278876.2
Date:May 4, 1998
Thomas L. Howard, Esq., Baker, Donelson, Bearman & Caldwell, for the
protester.
Charlene Barton for Ernst & Young, an intervenor.
William T. K. Dolan, Esq., General Services Administration, for the
agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest is denied where protester does not demonstrate that agency's
evaluation of experience/performance was unreasonable so as to result
in competitive prejudice to the protester.
DECISION
NAHB Research Center, Inc. protests the General Services
Administration's (GSA) award of contracts to Hawkins, Delafield and
Wood (HDW), Ernst & Young (EY), Deloitte & Touche (DT), Price
Waterhouse (PW), KPMG Peat Warwick, and Arthur Anderson (AA), under
request for proposals (RFP) No. GS11P97MMD970011, for professional
consulting services. NAHB challenges GSA's evaluation of experience
and past performance.
We deny the protest.
The solicitation contemplated award of multiple
indefinite-delivery/indefinite- quantity contracts for a 1-year base
period, with 4 option years, for the professional services of project
managers, budget analysts, financial analysts, architect/planners,
market analysts, management consultants, and attorneys in support of
the Department of Defense's housing privatization program. Awards
were to be made to the responsible offerors whose conforming offers
were most advantageous to the government, with price significantly
less important than technical considerations. The solicitation listed
the following four technical factors: (1) experience and past
performance on similar projects, which was equal in importance to the
remaining factors combined; and (2) key and operating personnel and
(3) capabilities of the offeror, which were nearly equal in weight and
were each of greater importance than (4) management plan.
GSA received timely proposals from 16 offerors and selected 6 for
award. The evaluation of the proposals submitted by the awardees and
NAHB was as follows:
TECHNICAL
(experience + personnel + capabilities + management) =
overall technical PRICE
EY (1.85 + .86 + .65 + .16) = 3.52 $9.679 million
AA (1.43 + .85 + .62 + .16) = 3.06 $6.703 million
PW (1.55 + .78 + .59 + .12) = 3.05 $11.098 million
KPMG (1.38 + .83 + .64 + .17) = 3.02 $3.943 million
HDW (1.90 + .66 + .34 + .11) = 3.01 $10.677 million
DT (1.47 + .76 + .56 + .14) = 2.93 $7.072 million
NAHB (1.37 + .61 + .48 + .12) = 2.58 $6.146 million
The RFP provided that the evaluation of experience and past
performance "will be based on the extent, depth and quality of recent
experience in performing the same or similar work," with "[p]articular
emphasis [to] be placed on the degree to which the offeror's
management can demonstrate a relationship between their past
performance experience and the requirements of the proposed contract."
Section M.3(a). The RFP required that "[t]he offeror . . . submit
seven (7) references for projects performed by the offeror within the
last five (5) years that are most similar to the requirements of this
contract. The government will randomly select five (5) of these
references for evaluation." Section L.13c(1)(B). The solicitation
required the offerors to "ensure that each reference shall be willing
to complete . . . a questionnaire" asking for "ratings of the
Offeror's timeliness of performance, cost control, quality of the
product, business relationships, design excellence, and
qualification/continuity of personnel." Section M.3(a). NAHB and
each of the awardees furnished the required seven references.
However, while all of NAHB's references responded by furnishing a
completed questionnaire, only some of the awardees' references
responded; six references responded for one awardee (AA) (but only two
of the responses were timely and were evaluated), five for another
(KPMG), and only two (EY) or three (DT, HDW[1] and PW) for the
remaining awardees. GSA evaluated experience/past performance based
on the responses received, up to a maximum of five responses for any
offeror.
NAHB maintains that the evaluation of experience/performance was
inconsistent with the evaluation approach set forth in the
solicitation, which provided that the experience/past performance
evaluation would be based on five references. NAHB asserts that
evaluating the awardees based on fewer than five references worked to
its competitive disadvantage. In this regard, NAHB notes that two of
its favorable references were not selected when the agency chose five
of the seven references at random; some of its references were scored
low because the experience described in the response was not relevant
to the RFP; and those references whose scores had been reduced for a
lack of relevance were averaged with its high scores on the very
relevant projects that were selected at random. NAHB contends that
its proposal would have been selected for award had its
experience/performance been evaluated only on the basis of the two or
three that were most relevant.
In reviewing an agency's evaluation of proposals and source selection
decision, our review is confined to a determination of whether the
agency acted reasonably and in a way consistent with the stated
evaluation factors. Main Bldg. Maintenance, Inc., B-260945.4, Sept.
29, 1995, 95-2 CPD para. 214 at 4. Further, we 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-270126.2, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v.
Christopher, 102 F. 3d 1577, 1581 (Fed. Cir. 1996).
The agency apparently did not contemplate the possibility that fewer
than seven references would submit completed questionnaires for an
offeror--precluding the random selection of five questionnaires for
use in the evaluation--and this scenario therefore was not expressly
addressed in the RFP. However, even if the manner in which the agency
proceeded when this eventuality arose--i.e., evaluating each offeror
based on the responses actually received--were deemed a change in the
evaluation approach, it did not result in competitive prejudice to
NAHB because there is no indication that knowledge of the approach
would have led NAHB to alter its proposal to its competitive
advantage. In this regard, it is important to recognize that the
agency's actions in no way relaxed the manner in which the awardees
were required to respond to the RFP--all offerors still were required
to submit seven references--and did not eliminate the randomness
inherent in the experience/past performance factor by allowing the
awardees discretion over which references were included in the
evaluation (the awardees did not select which reference questionnaires
would be used but, rather, were evaluated based on whatever
questionnaires happened to be submitted). Thus, even under the
agency's arguably altered evaluation approach, NAHB still would have
been required to furnish seven references, and still would not have
been permitted to select the questionnaires to be evaluated.[2] We
conclude that the manner in which the agency conducted this aspect of
the evaluation does not provide a basis for sustaining the protest.
NAHB objects to GSA's evaluation of the responses from some references
for the awardees on the basis that the references were for firms that
were "a member of the offeror's proposed team" and not for the offeror
itself. Comments of February 25, 1998 at 2. NAHB specifically notes
that three of KPMG's references--representing three of the five
references whose responses were evaluated--were for contracts
performed by the architectural firm or law firm that was part of its
proposed team, while four of PW's references--representing one of the
three references whose responses were evaluated--were for contracts
performed by the architectural, law, real estate/financial or
engineering/construction firms that were part of its proposed team.
As we noted in ST Aerospace Engines Pte. Ltd., B-275725, Mar. 19,
1997, 97-1 CPD para. 161 at 3, in determining whether one company's
performance should be attributed to another, an agency must consider
the nature and extent of the relationship between the two
companies--in particular, whether the work force, management,
facilities, or other resources of one may affect contract performance
by the other. In this regard, while it would be inappropriate to
consider a company's performance record where that record does not
bear on the likelihood of successful performance by the offeror, it
would be appropriate to consider a company's performance record where
it will be involved in the contract effort or where it shares
management with the offeror. Id. at 3-5; Fluor Daniel, Inc.,
B-262051, B-262051.2, Nov. 21, 1995, 95-2 CPD para. 241; Macon Apparel
Corp., B-253008, Aug. 11, 1993, 93-2 CPD para. 93. Here, the solicitation
requested a wide range of services, including those of program
managers, financial analysts, architect/planners, market analysts,
management consultants, and attorneys. The references challenged by
NAHB were for members of KPMG's and PW's teams which were to
contribute personnel and expertise in those areas towards performing
any tasks which the agency might assign under the contemplated
contract. Since the team members will be involved in the likely
contract effort, we conclude that the agency could reasonably
determine that the records of the team members would bear on the
likelihood of successful performance by the offeror such that it would
be reasonable to consider them in the evaluation.
NAHB also objects to GSA's evaluation of the response that the agency
received from the Texas Department of Housing and Community Affairs,
one of HDW's references, on the basis that the response was in the
form of a brief letter that furnished little of the specific
information requested in the agency's questionnaire and for that
reason did not provide a basis for the generally favorable scoring
given the response--3.5, 3.5, and 3.9 of 4 possible points--by the
evaluators. In addition, NAHB questions the fact that in scoring
responses on the questionnaires, one of the three evaluators divided
the total point score (obtained by assigning each answer a score of 1
to 4) by the total number of questions in a section of the
questionnaire even when references did not answer one or more
questions because they were not applicable to the contract in
question.
These arguments do not furnish a basis for sustaining NAHB's protest.
Eliminating the Texas reference would improve HDW's overall average
score because, however favorable the scoring of that response, the
responses from HDW's remaining two responding references were scored
more favorably. Further, although we agree with the protester that
the inclusion of "not applicable" answers in the scoring of one
evaluator was unreasonable, since it effectively penalized an offeror
for lack of experience in a particular area in violation of the
requirement that firms lacking relevant past performance history shall
receive a neutral evaluation for past performance, Federal Acquisition
Regulation sec. 15.608(a)(2)(iii) (June 1997); see C.W. Over and Sons,
Inc., B-274365, Dec. 6, 1996, 96-2 CPD para. 223 at 6-7; Excalibur Sys.,
Inc., B-272017, July 12, 1996, 96-2 CPD para. 13 at 3-4, we note that not
only the protester, but also four of the awardees--KPMG, AA, PW, and
HDW--likewise were adversely affected in this manner. When the
response of HDW's Texas reference is eliminated from the evaluation,
and the one evaluator's "not applicable" answers are corrected, NAHB's
ranking does not change significantly and NAHB does not move into line
for award.
The protest is denied.
Comptroller General
of the United States
1. As noted by the protester, and discussed below, one of HDW's
references evaluated HDW's performance in a letter rather than by
completing a questionnaire.
2. There is no basis in the record for concluding that the awardees,
in selecting the references to be furnished, failed to comply with the
requirement in section M.3(a) of the solicitation that offerors
"ensure that each reference shall be willing to complete . . . a
questionnaire" with respect to the offeror's performance. Return of
the questionnaires was in the control of the references, not the
offerors, and even the agency itself, despite contacting both the
offerors and their references, was unsuccessful in obtaining responses
from all of the references that had not returned a questionnaire.
Contracting Officer's Statement of February 13, 1998 at 2.