BNUMBER:  B-279492.2 
DATE:  June 26, 1998
TITLE: Black & Veatch Special Projects Corp., B-279492.2, June 26,
1998
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Matter of:Black & Veatch Special Projects Corp.

File:     B-279492.2

Date:June 26, 1998

James A. Pemberton, Esq., and Paul E. McNulty, Esq., King & King, for 
the protester.
Robert L. Magrini, Esq., Hayes & Magrini, for McMaster Construction 
Co., an intervenor.
James E. Whitman, Esq., and John W. Sturges, Esq., Department of the 
Army, for the agency.
Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that agency misled offeror during evaluations and 
improperly downgraded offeror's proposal for submitting "exceptions 
and clarifications" with its best and final offer is untimely where 
the offeror learned of its grounds of protest at debriefing conducted 
more than 10 days before the protester first raised these issues at 
the General Accounting Office. 

2.  Protest that agency failed to provide offeror with an opportunity 
to rebut negative past performance information is denied where offeror 
was not prejudiced as indicated by apparent accuracy of information 
obtained from knowledgeable individual and limited impact of past 
performance on evaluation score and award determination.
 
DECISION

Black & Veatch Special Projects Corp. (B&V) protests the award of a 
contract to McMaster Construction Co. under request for proposals 
(RFP) No. DACA56-97-R-0042, issued by the U.S. Army Corps of Engineers 
for design and construction of a building at Tinker Air Force Base, 
Oklahoma.  B&V argues that the evaluation and award determination were 
flawed.

We deny the protest.

The RFP sought a single contractor or team of contractors to both 
design and construct (design/build) a B2 ADAL Software Maintenance 
Facility.  In addition to a price proposal, offerors were required to 
submit a management/technical proposal detailing the proposed 
approach, personnel, team organization and responsibilities, and 
subcontractors; the offeror's experience and past performance; and 
management control systems, implementation, and past success.  
Offerors also were required to submit a partial design at a level of 
completeness indicated in RFP drawings.  The RFP advised that 
"[m]odifications shall be limited to design criteria which is 
nonmandatory as set forth in [the RFP]" and that "the existing design 
is considered acceptable for consideration."  

The RFP provided for evaluation of the proposals under the following 
criteria, listed in descending order of importance:  
management/technical (85 points), partial design (15 points), and 
price (not scored).  Offerors were advised that the total price was 
estimated to be $8.67 million and that proposals exceeding that level 
could be rejected.  The RFP contemplated award of a fixed-price 
contract with a performance award fee.  Award was to be made to the 
offeror whose proposal provided the best combination of management and 
technical capability, design features, and price reasonableness with 
the agency explicitly reserving the right to select other than the 
lowest-priced proposal.  

Five offerors, including B&V and McMaster, submitted proposals by the 
November 4, 1997 closing date for receipt of proposals.  The agency 
performed an initial evaluation and determined to include all the 
proposals in the competitive range.  In this initial evaluation, 
McMaster's proposal received a score of 78 points and B&V's proposal a 
score of 75 points.  The agency amended the RFP (No. 0004) in part to 
respond to questions raised by the offerors.  It then sent discussion 
questions to all offerors and responded to clarification requests 
including 45 such requests raised by B&V in its initial proposal.  The 
discussion questions also reminded the offerors of the estimated cost 
ceiling and requested suggestions of how specifically identified 
high-cost areas of the proposals could be reduced.  Both B&V and 
McMaster submitted revised proposals in December.  

Based on its evaluation of the revisions, the agency raised McMaster's 
proposal score to 80 points and B&V's to 76 points.  The evaluators 
remained concerned that the proposed costs exceeded the government's 
estimate and conducted additional discussions with the offerors.  The 
agency then issued an amendment (No. 0005) to respond to questions by 
the offerors and invited additional proposal revisions.  With its 
January 23 and 29 submissions, B&V submitted 15 "exceptions and 
clarifications," most of which previously had been raised in B&V's 
initial proposal.  The agency advised B&V that two of its assumptions 
were correct and that the remaining items were "acceptable provided 
they meet the requirements of the RFP."  The letter also provided an 
example of one such item and advised that if the agency "determined 
that an item does not satisfy the requirements of the RFP," B&V would 
have to meet the requirement at no additional cost to the government.  
In a separate letter, the agency invited B&V to submit a best and 
final offer (BAFO).

With its BAFO, B&V again raised the 15 "exceptions and clarifications" 
it included in its January submissions, plus one additional 
assumption.  When the evaluators reviewed B&V's BAFO, they lowered 
B&V's proposal score to 70 points.  Due to the "continuous 
clarifications and variations submitted [by B&V the] board members 
were concerned that the offeror did not fully understand the 
requirements of the RFP."  Final Evaluation Summary Ratings, 12 Feb. 
1998, at 2.  McMaster's proposal score was increased to 82 points. 

In making the award determination, the contracting officer considered 
that all proposals exceeded the government's revised estimate of $9.5 
million.  B&V proposed to perform the base requirement for $10,894,897 
and McMaster proposed to perform for $11,548,058.  Another offeror's 
proposal was scored the highest of all (84 points), but its proposed 
cost was approximately $200,000 higher than McMaster's.  In addition, 
this offeror was currently working on three other large projects of 
similar type and had had difficulty managing its resources.  The 
contracting officer recognized the cost savings presented by B&V's 
lower proposed cost, but considered that B&V had the lowest management 
technical score, and that its continuous exceptions indicated its 
difficulty in understanding the RFP requirements.  In view of 
McMaster's close to high score (82 points), lower cost, and the 
highest-scored offeror's potential problems with handling this 
contract, the contracting officer determined to award the contract to 
McMaster.  After receiving notice of the award and a debriefing, B&V 
filed this protest challenging the award determination.

In its protest, B&V argued that it should have received the award 
because of its lower price and superior technical ability.[1]  B&V 
also alleges that, during the competition, it complained to a 
contracting official that McMaster had attempted to obtain B&V design 
information from an unnamed B&V electrical subcontractor.  At the same 
time, B&V also alleged that an unnamed mechanical subcontractor had 
accepted copies of B&V's design information without revealing a 
pre-existing agreement with McMaster.  In a cover letter to one of its 
proposal revisions, B&V, without identifying who its competition was, 
advised the agency that "[t]hey [its competition] have been trying to 
get our subcontractors to give them copies of our technical 
documents."  Since the agency did not investigate this matter and 
eliminate McMaster from the competition, B&V argues that the agency 
failed to determine McMaster's integrity as part of its responsibility 
determination under Federal Acquisition Regulation (FAR)  sec.  9-103.  In 
the absence of evidence of bad faith on the part of procurement 
officials, or that definitive responsibility criteria  have not been 
met, our Office does not review an agency's affirmative determination 
of responsibility.  Bid Protest Regulations, 4 C.F.R.  sec.  21.5(c) 
(1998); King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD  para.  177 at 
2.  Where, as here, there is no such showing, we have no basis to 
review this protest allegation.[2]

In its comments on the agency report, B&V for the first time 
challenged the agency's decision to downgrade B&V's proposal for 
submitting exception and clarification matters.  In B&V's view, these 
matters were in the nature of "explanations and clarifications, like 
notes on a drawing."  B&V also contends that the agency misled it by 
advising the protester that these matters were "acceptable" and by 
requesting a BAFO.  In support of this argument, B&V contends that the 
record does not contain any references to agency concerns in either of 
the first two evaluations.  These issues are untimely.

While B&V purports to have learned of these issues after review of the 
agency's evaluations, in fact, during B&V's debriefing on March 27, 
1998, it was placed on notice of the agency's downgrading of B&V's 
proposal because of agency concerns with B&V's exceptions and 
clarifications.  According to the debriefing minutes, and undisputed 
by B&V, there was a "discussion about the 'exceptions' that [B&V] took 
to the advertisement."  The contracting officer "emphasized very 
strongly that B&V took liberties with the exceptions they proposed 
which were different than those that were printed in the [RFP]."  
While the project called for "an extensive amount of design . . . B&V 
took exception and narrowed the design or restricted it.  Thus, they 
received less credit for their submittal."  B&V did not raise this 
issue in its initial protest and did not protest this matter until it 
submitted its comments.  

To be timely, a protest filed after a protester receives a statutory 
debriefing must be filed within 10 calendar days of the debriefing.  4 
C.F.R.  sec.  21.2(a)(2).  Where, as here, a protester initially files a 
timely protest, and later supplements it with new and independent 
grounds of protest, the later raised allegations must independently 
satisfy the timeliness requirements.  G.H. Harlow Co., Inc.--Recon., 
B-245050.2, B-245051.4, Apr. 10, 1992, 92-1 CPD  para.  357 at 3.  Here, B&V 
was apprised of the basis for these grounds of protest at its 
debriefing on March 27.  Since its comments on the agency report in 
which it first raised this issue were not submitted to our Office 
until May 4, its protest on these grounds is untimely.[3]

B&V also contends that the agency's past performance evaluation was 
flawed.  It is not the function of our Office to evaluate proposals de 
novo.  Rather, we will examine an agency's evaluation only to ensure 
that it was reasonable and consistent with the stated evaluation 
criteria and applicable statutes and regulations, since determining 
the relative merit of competing proposals is primarily a matter within 
the contracting agency's discretion.  Advanced Tech. and Research 
Corp., B-257451.2, Dec. 9, 1994, 94-2 CPD  para.  230 at 3.  The protester's 
mere disagreement with the agency's judgment does not establish that 
an evaluation was unreasonable.  Medland Controls, Inc., B-255204, 
B-255204.3, Feb. 17, 1994, 94-1 CPD  para.  260 at 3.  From our review of 
the record, the agency's past performance evaluation was reasonable.

The RFP advised offerors to submit information to demonstrate the 
experience of the team proposed to complete the facility using a 
design/build process.  This information was to include a list of 
relevant design/build projects, current or completed within the past 5 
years, and a list of relevant completed projects in which the 
contractor had worked with other members of its team.  The past 
performance evaluation subfactor was worth 35 points and included five 
subcriteria:  documented experience (12 points), resource commitment 
(9 points), references (8 points), financial capacity (4 points), and 
management commitment (2 points).  

B&V challenges only the agency's handling of the "references" aspect 
of the past performance evaluation.  Although B&V submitted 15 
projects and identified contact references for each one, the agency 
investigated only two of the projects and did not speak with the named 
references on either project.  Consequently, B&V maintains that its 
proposal received a lower score than if the agency had contacted  all 
named references and investigated more than 2 of its 15 projects.[4]  

The agency explains that all offerors were treated the same way:  the 
evaluators contacted a single reference for each offeror/team 
member.[5]  Thus, the evaluators questioned one project reference for 
McMaster and one reference for each of its two team members.  Since 
B&V was not proposing as a team, the agency intended to investigate 
the single most relevant project.  In choosing that project, the 
evaluators considered the nature of B&V's submitted projects:  eight 
"design/build" projects and seven "design" projects.  Of the eight 
"design/build" projects, the evaluators noted that four involved 
design and construction "management services," that two included 
physical construction (one of which was an expansion of B&V's own 
facility), and that there were only two federal "design/build" 
projects, both at Kirtland Air Force Base, New Mexico.  In addition, 
the evaluators noted that B&V's proposed construction manager had been 
the construction manager on one of the Kirtland projects.  The 
evaluators concluded that the Kirtland projects were significant and 
thus chose them for further investigation.  Since the Kirtland 
contracts were Corps of Engineer projects, the agency contacted the 
Corps project engineer.  While he was not the reference contact point 
identified by B&V, the record shows that he had specific knowledge of 
both projects and could provide a realistic perspective from the 
Corps's point of view.  We find nothing objectionable in any of these 
aspects of the agency's reference evaluation choices.  

The comments of the Corps project engineer were generally unfavorable.  
For example, he reported that, while the work was timely performed, 
B&V had not lived up to a promise to finish early.  He found that the 
work was not well planned and had a considerable impact on the 
occupants, and that B&V's expertise had been "overstated."  There was 
difficulty in negotiating changes and most of the work had been 
subcontracted.  He also noted that B&V's field representative was not 
in control of the project and all negotiating had to be done with a 
higher authority at B&V.  As an additional matter, he observed that 
B&V had very little experience with federal design/build projects. 

B&V terms these comments as "unsubstantiated and subjective criticism" 
that was not representative of its numerous references.  
Notwithstanding B&V's view, the comments appear accurate and relevant.  
For example, as evidenced by B&V's own proposal, only 2 of its 15 
references were federal design/build contracts thus, substantiating 
B&V's lack of federal design/build experience.  Also, while B&V 
discounts the relevance of its unmet promise to finish early, we 
believe that such an unfulfilled commitment was reasonably considered 
relevant to the past performance inquiry. 

We also do not think the agency was required to conduct further 
investigation to independently establish the validity of the reports 
from the reference it contacted regarding the two B&V projects.  Where 
offerors are required to list prior experience and the offerors are 
aware that the source of this experience may be contacted, the 
contracting agency may contact these sources and consider their 
replies without further investigation into the accuracy of the 
information.  See SDA Inc., B-256075, B-256206, May 2, 1994, 94-2 CPD  para.  
71 at 7 n.9.  With regard to the agency's decision not to contact 
those named in B&V's proposal, we note that B&V's proposal does not 
indicate the position held by the contacts it listed or the basis of 
their knowledge of the projects.  Under the circumstances, the agency 
chose a reasonable alternative in the person of the project engineer 
for the contracts at issue.  As the government's project engineer, he 
could be expected to have complete, relevant information on B&V's past 
performance.

As for the agency's decision not to contact a reference for all 15 of 
B&V's projects, the RFP did not require the agency to do so, and there 
is no legal requirement that all references listed in a proposal be 
checked.  IGIT, Inc., B-275299.2, June 23, 1997, 97-2 CPD  para.  7 at 6; 
SDA Inc., supra, at 7 n.8.  The agency's choice of references also was 
reasonable.  The two projects chosen were the only two federal 
design/build projects submitted by B&V and given the past experience 
of the proposed construction manager on one of the projects, these 
were highly relevant to the evaluation for award of the instant 
contract.  Of the other six identified "design/build" projects, four 
did not include physical construction of the facility, only 
construction management services, and one was for work on a B&V 
building.

B&V also observes that it had no opportunity to rebut these negative 
comments furnished by the Kirtland project engineer.  Under Federal 
Acquisition Regulation (FAR)  sec.  15.610(c)(6) (June 1997), competitive 
range offerors shall be provided "an opportunity to discuss past 
performance information obtained from references on which the offeror 
had not had a previous opportunity to comment."  Since nothing in the 
record indicates that the agency addressed B&V's past performance 
during discussions, the agency does not appear to have satisfied its 
obligation under this FAR provision. 

However, 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 
(Fed.  Cir. 1996).  Based on our review of the record, we conclude 
that the protester would not have had a reasonable possibility of 
receiving the award but for the agency's failure to discuss its 
references.

As we noted above, the information supplied by the Kirtland reference 
appears accurate, making any rebuttal of little, if any, value.  In 
this regard, despite B&V's disagreement with the accuracy of the 
comments and its stated desire to rebut them, it has submitted no 
rebuttal or contradictory evidence to our Office, which suggests that 
it is unlikely that B&V would have provided the agency with a 
persuasive rebuttal had the opportunity been provided during 
discussions.  Further, this aspect of the evaluation had a limited 
impact on the evaluation as a whole and on the award determination.  
The references subcriterion represented only 8 of 35 points under the 
past performance evaluation factor.  Had B&V received a perfect score 
for this subfactor, its proposal score would have increased by only 6 
points, making its overall score 76 points, still significantly below 
McMaster's final score of 82.  See Continental Serv. Co., B-271754, 
B-271754.2, July 30, 1996, 96-2 CPD  para.  65 at 5-6.  More importantly, 
the record makes clear that the contracting officer's decision not to 
award to B&V did not result from B&V's inferior past performance 
score.  While the contracting officer recognized B&V's design and 
construction capabilities and its lower-priced proposal, he did not 
select it for award because of B&V's "continuous 
exceptions/clarifications submitted with [its] proposal, indicating 
[its] difficulty in understanding the RFP requirements."  Price 
Negotiation Memorandum at 4.  McMaster received the award because of 
its superior technical/management proposal, including its construction 
experience and proposed schedule control.  In sum, this record 
provides no basis to question the award determination.  

The protest is denied.

Comptroller General
of the United States 

1. B&V has raised a number of arguments in support of its protest and 
the agency has responded to each one.  We have reviewed them all and 
find that none has merit.  (For example, since the record establishes 
that B&V's proposal received the lowest technical score and the RFP 
specifically provided for selection of other than the lowest-priced 
offer, B&V's bare allegation that it should have been considered in 
line for award based on its low price provides no basis to sustain its 
protest.) This decision will address only the more substantial issues.  

2. We note that at the time of its complaint, B&V did not identify the 
subcontractors by name or trade and did not identify the name of the 
competitor to whom design information may have been disclosed.  Apart 
from identifying McMaster and the subcontractors' trades, B&V has 
provided no further information to our Office.  Without sufficient 
information, the agency was not required to launch an "integrity" 
investigation.  Accordingly, the contracting official to whom B&V 
complained explained to B&V that the agency had no control over 
subcontractors and dropped the matter.  In this regard, McMaster 
denies obtaining or attempting to obtain B&V's design data from anyone 
and avers that its mechanical and electrical subcontractors did not 
use B&V design information in preparing their bids.  Under these 
circumstances, there is no basis for finding the agency's actions 
unreasonable.

3. In any event, B&V's arguments are without merit.  With regard to 
the argument that B&V was "misled," while the agency requested a BAFO 
and advised B&V that its exceptions and clarifications were 
"acceptable," the agency clearly qualified that statement by adding 
that they were acceptable "provided they meet the requirements of the 
RFP."  The notice included an example of one such matter and 
specifically advised that B&V would be responsible for providing any 
RFP-required items at no additional cost to the government.  This was 
sufficient to meet the agency's obligation to provide meaningful 
discussions.  SeaSpace Corp., B-252476.2, June 14, 1993, 93-1 CPD  para.  
462 at 15.  The reason that the evaluators' concerns about B&V's 
exceptions do not appear in the first two evaluations is because both 
were completed before B&V submitted the matters for which its proposal 
was downgraded.

With regard to B&V's protest of the evaluation, based on our review of 
the record, the agency reasonably downgraded B&V's proposal for 
continuing to raise its "exceptions and clarifications."  See 
Information Sys. & Networks Corp., B-237687, Feb. 22, 1990, 90-1 CPD  para.  
203 at 3.  This procurement is for both the design and construction of 
a building, and the RFP included a basic design and identified the 
user's requirements.  While the RFP invited offerors to submit 
clarifications, it also warned offerors that "[e]xtensive 
qualifications, exclusions and exceptions in the form of 
clarifications" could be grounds for considering the proposal 
"non-responsive."  Here, after submitting and receiving answers to 
some 45 clarifications, B&V supplemented them with 15 "exceptions and 
clarifications" most of which had been referenced in the initial group 
of 45.  After being advised that two of these assumptions were 
correct, and warned that the others were acceptable only if they met 
the requirements, in its BAFO, B&V submitted the same list of 15, plus 
a 16th.  While B&V now denominates these as simply "explanations," it 
was the protester who called them "exceptions," a more apt 
description.  For example, while the amended RFP called for the use of 
five chillers, B&V proposed to use only three.  After the agency 
advised B&V that this was acceptable, if it met requirements, and 
warned that B&V would be responsible for meeting the requirements at 
no extra cost, B&V again proposed three units in its BAFO.  B&V's 
continued identification of this and other matters was reasonably 
viewed by the evaluators as evidence of a lack of understanding of the 
agency's requirements. 

4. In a related argument, B&V alleges that McMaster should have 
received a lower past performance score because it allegedly is behind 
schedule on a design/build contract and that the agency failed to take 
this delinquency into account.  The agency explains that the contract 
in question is not a design/build and that, while McMaster was behind 
schedule, it had taken action to reduce the delay to less than 30 
days.  Furthermore, it appeared that McMaster's corrective action 
could result in completion of the project on time.  In view of the 
agency's awareness of the scheduling problem and McMaster's 
satisfactory steps to correct it, there is no basis to conclude that 
the agency failed to take it into account in its past performance 
evaluation. 

5. While the evaluators only contacted a single "reference" for each 
offeror/team member, the record indicates that the remaining projects 
listed by each offeror were considered in evaluating each offeror's 
past performance under the other subcriteria, which accounted for 27 
of the 35 potential points under the past performance subfactor.