BNUMBER: B-279565.5
DATE: March 19, 1999
TITLE: Consolidated Engineering Services, Inc, B-279565.5, March 19,
1999
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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:Consolidated Engineering Services, Inc
File:B-279565.5
Date:March 19, 1999
Thomas J. Madden, Esq., Jerome S. Gabig, Jr., Esq., and Johana A.
Reed, Esq., Venable, Baetjer, Howard & Civiletti, for the protester.
Jacob B. Pompan, Esq., Gerald H. Werfel, Esq., and John P. Walsh,
Esq., Pompan, Murray, Ruffner & Werfel, for Halifax Technical
Services, Inc., an intervenor.
Richard A. Marchese, Esq., Department of Housing and Urban
Development, 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
1. Protest that agency failed to give evaluation credit for specific
proposed beneficial features of protester's proposal--such as
availability of off-site corporate resources and corporate buying
power--when evaluating proposals for commercial facilities management
services, is denied where agency reasonably determined that features
were unlikely to contribute significantly to satisfying agency's
stated needs.
2. Protest that discussions were not meaningful because agency failed
to point out excesses in protester's technical proposal is denied
where claimed beneficial features in fact were not excesses, but
rather (1) were considered by the agency to be desirable, (2) were
simply protester's approach to complying with the solicitation
requirements, or (3) did not render the proposal unacceptable, result
in a significant reduction in score, or result in an unreasonable,
grossly excessive price.
DECISION
Consolidated Engineering Services, Inc. (CESI) protests the Department
of Housing & Urban Development's (HUD) reevaluation of proposals
undertaken in response to our decision in Consolidated Eng'g Servs.,
Inc., B-279565.2, B-279565.3, June 26, 1998, 99-1 CPD para. ___. In that
decision, we sustained CESI's protest against the award of a contract
to Halifax Technical Services, Inc., under request for proposals (RFP)
No. DU100C000018529, for commercial facilities management services
with respect to the HUD headquarters building in Washington, D.C.
CESI argues that HUD's new determination that Halifax's proposal
offered the best value to the government was based on an unreasonable
evaluation.
We deny the protest.
The solicitation, issued on April 23, 1997, provided for award of a
contract for a base year, with four 1-year options, for custodial,
security, operation and maintenance, elevator maintenance, landscape,
mail, messenger, audio-visual, moving/receiving, parking, painting,
electrical, space alteration, and locksmith services. Award was to be
made on a best value basis, with technical factors more significant
than price. A maximum of 300 evaluation points were available under
two technical evaluation factors: (1) management and plan of
operations (140 points), which included subfactors for phase-in,
staffing, quality control, day-to-day work, materials and supplies,
training, emergency response, interface with HUD management, and
method for reporting building deficiencies and problems; and (2)
experience and qualifications (160 points), which included subfactors
for company profile, experience in performing custodial, elevator,
operations and maintenance, security, electrical, space alterations,
mail, audio visual, moving, painting, parking, landscape, locksmith
and messenger services, and key personnel. A maximum 14 extra points
were available under a small business subcontracting program
evaluation factor.
In the original evaluation, HUD's technical evaluation panel (TEP)
recommended award to Halifax on the basis that Halifax's best and
final offer (BAFO) received the highest technical score--289 points,
compared to CESI's next highest 282 points--and had the lowest
evaluated price ($44,864,494, compared to CESI's $45,410,864). Source
Selection Recommendation, Feb. 5, 1998, at 4-5.
In sustaining CESI's protest against the ensuing award to Halifax, we
concluded that the evaluation record did not establish that HUD had
properly evaluated the relative merits of CESI's and Halifax's
proposals. Specifically, neither the contemporaneous evaluation
record nor the agency's response to CESI's protest adequately
explained why the two proposals were rated similarly--with CESI
receiving the maximum 140 points available under the management and
plan of operations factor and Halifax also receiving a near perfect
rating of 139 points--despite certain of CESI's proposed features
that, on their face, appeared to be potentially beneficial to the
agency such that they reasonably could be expected to be reflected in
the evaluation results. In addition, we found that HUD unreasonably
had assigned Halifax's proposal a 3-point higher score for proposed
elevator maintenance organization, under the experience and
qualifications factor, even though both offerors proposed the
incumbent HUD elevator maintenance contractor. We recommended that
the agency reevaluate proposals consistent with our decision.
In its reevaluation of Halifax's and CESI's proposals, the TEP
determined that, although the proposals indicated that both offerors
were "very capable of performing" the contract, Halifax had a
"superior technical proposal" because of the overall strength and
experience of its subcontractors, its stronger staffing plan, and the
more complete and comprehensive information in its proposal.[1]
Source Selection Recommendation, Oct. 5, 1998, at 2-4. The TEP again
recommended award to Halifax on the basis that Halifax had submitted a
superior technical proposal--it received a technical score of 286
points, compared to CESI's 280 points--and had proposed an evaluated
cost slightly lower than CESI's. Upon learning of the source
selection official's concurrence in the recommendation, and after
receiving a copy of the recommendation and attached technical
evaluation panel report (TEPR) dated October 5, 1998 (pursuant to an
agency-level nondisclosure agreement), CESI filed this protest with
our Office.
EVALUATION OF TECHNICAL PROPOSALS
Beneficial Features
CESI argues that the reevaluation of Halifax's and CESI's proposals
again failed to reflect certain beneficial features which warranted
CESI's proposal being rated technically superior to Halifax's. In
this regard, CESI's proposal received 133 (of the 140 available)
points in the reevaluation under the management and plan of operations
factor and Halifax's received 131 points.
In reviewing protests against allegedly improper evaluations, our
Office will examine the record to determine whether the agency's
judgment was reasonable and in accord with the RFP's stated evaluation
criteria. Engineering and Computation, Inc., B-261658, Oct. 16, 1995,
95-2 CPD para. 176 at 2-3.[2] As noted in our original decision, an
agency is not required to give evaluation credit for specific features
where it reasonably determines that such features will not contribute
in a meaningful manner to better satisfying the agency's stated needs.
See Tecom, Inc., B-275518.2, May 21, 1997, 97-1 CPD para. 221 at 7 (agency
reasonably concluded that offeror not entitled to higher rating where
requirements were not exceeded in a manner that would provide
increased benefit to agency); Computer Sys. Dev. Corp., B-275356, Feb.
11, 1997, 97-1 CPD para. 91 at 7-8. Alternatively, an agency may
reasonably determine that the benefit of proposed specific features is
not worth any additional cost associated with the proposal.
Consolidated Eng'g Servs., Inc., supra, at 5.
The record here, which includes testimony taken at a hearing held by
our Office, shows that HUD reasonably evaluated the relative merits of
CESI's and Halifax's proposals. We discuss several of the key issues
below.
HUD reasonably gave evaluation credit for, and considered to be a
relative advantage, specific features of CESI's proposal which it
reasonably determined would contribute in a meaningful manner to
satisfying the agency's stated needs. For example, CESI notes that it
stated in its proposal that it proposed [DELETED]. CESI Proposal at
A-67, B-9. In addition, CESI proposed to [DELETED]. Id. at E-1, E-8
to E-9, A-4, A-80/A-81, A-81 to A-82, A-260 to A-261, B-5 to B-6, B-9
to B-10.
The record indicates that, in reevaluating the proposals, HUD gave
CESI's proposal evaluation credit for its [DELETED] and awarded CESI's
proposal all 25 available evaluation points under the quality control
subfactor (while giving Halifax only 23 points). TEPR at 8-9. HUD
also gave CESI evaluation credit for its proposed [DELETED], and
awarded CESI all 10 available evaluation points under that subfactor
(while giving Halifax only 9 points). TEPR at 20. In addition, HUD
gave CESI evaluation credit for its proposed [DELETED], and awarded
CESI all 25 available evaluation points under that subfactor (while
giving Halifax only 23 points). TEPR at 18-19; Hearing Transcript
(Tr.) at 66, 167-68. However, HUD concluded that CESI's proposal to
[DELETED], was an unnecessary step that would [DELETED]. TEPR at 11;
Tr. at 240-41. We have no basis to question this conclusion.
CESI notes that it also stated in its proposal that, as the facilities
management and maintenance subsidiary of its corporate parent, The
Charles E. Smith Companies, it would have access to significant
additional corporate resources beyond those committed on a full-time
basis to the HUD building. CESI Proposal at E-1, A-253/A-254. CESI
specifically noted in its proposal the availability of 80
radio-dispatched mobile maintenance vehicles, more than 400 skilled
building operating and crafts personnel, equipment overhaul and repair
shops, and in-house professional engineers and experts. Id. at E-1 to
E-2, A-29 to A-30, A-61 to A-62, B-5, B-11. CESI maintains that it
should have received evaluation credit reflecting access to these
resources.
HUD determined that the "available talent from surrounding contracts
was not an added value to the proposal." Source Selection
Recommendation at 4; TEPR at 5. While (as acknowledged by one
evaluator) additional CESI corporate resources could be of potential
benefit to HUD in the event of an emergency, Tr. at 276, 279-80, 288,
the agency concluded that the additional CESI corporate resources in
fact were unlikely to make a greater contribution to satisfying the
agency's stated needs than would Halifax's greater reliance on
subcontracting for any additional resources that might be required.
HUD's conclusion was reasonable. First, it is not clear from the
record that significant off-site resources are likely to be required.
The solicitation required the contractor to employ sufficient staffing
to ensure proper operation and maintenance of the HUD building and set
forth the agency's estimate of the minimum operations and maintenance
staffing in various labor categories. RFP sec. C,
Description/Specification/Work Statement, para. X.H. The specified
minimum staffing was based on HUD's experience operating the building
since it assumed the responsibility from the General Services
Administration (GSA) in 1983; in this regard, according to hearing
testimony, on-site, dedicated staffing are "able to fix probably 99.9
percent of the . . . problems that . . . come up on a day-to-day
basis." Tr. at 283; see Tr. at 290, 326-29, 332-34. In addition, the
systems in HUD's headquarters building are relatively new,
state-of-the-art systems, and are subject to a strict preventative
maintenance program, Tr. at 264-65, 271, 307; RFP sec. C,
Description/Specification/Work Statement, para. X.F.4; HUD has had few
serious emergencies since it assumed responsibility for the building,
Tr. at 182-83, 234-36; Declaration of HUD Director of the Building
Operations Division (DBOD), January 28, 1999, para. 9-22; and these
emergencies apparently were met by recalling off-duty staff dedicated
to the HUD building. Id. Indeed, the record indicates that reliance
on dedicated building staff is deemed preferable; according to the HUD
DBOD, it is "extremely important" to rely on staff dedicated to the
HUD building since, "especially in an emergency situation . . . if the
contractors brought in staff unfamiliar with the unique qualities of
the HUD building, these staff could prove to be more of a risk to
successful completion of the task than a benefit, being unfamiliar
with the particularities of the HUD building." Id., para. 13.
Further, to the extent that additional off-site resources could be
required, agency evaluators questioned whether CESI would be
significantly better able than Halifax to obtain such resources. The
record indicates that the evaluators were concerned that CESI's
general listing of the available corporate resources did not amount to
a commitment that, and a detailed description and explanation as to
how, specific skilled personnel would be diverted from their other
work to respond to HUD emergencies on a timely basis whenever
required. Tr. at 50-51, 279, 304-05, 321-23. Further, the evaluators
concluded that Halifax would be able to effectively furnish any
additional resources that might be required through subcontracting,
TEPR at 5; Tr. at 280-83, 291, 328, and we find nothing unreasonable
in this conclusion. Given that the record shows that there is a low
likelihood that nondedicated staff assistance will be required, and
that Halifax's approach appears to provide for such assistance through
subcontracting, we think HUD reasonably concluded that CESI's proposal
was not entitled to any significant evaluation advantage in this area.
CESI also challenges HUD's determination that both its and Halifax's
proposal were equal under the materials and supplies subfactor. (Both
proposals received all 10 available points.) CESI argues that HUD's
evaluation failed to take into account the assertions in its proposal
that its annual purchases of $[DELETED] million in building
maintenance parts and supplies would afford it leverage in negotiating
discounts, favorable delivery and warranty terms, as well as priority
access in an emergency or for hard-to-find parts, and that it could
draw upon its 130-building network for parts. CESI Proposal at A-234
(Chart), A-234 to A-237.
The evaluation in this area was reasonable. First, again, it appears
that the likelihood that HUD will need parts on an urgent basis is
reduced by the characteristics of the HUD building. As noted, the
systems in the building are relatively new, state-of-the-art systems,
and are subject to a strict preventative maintenance program, Tr. at
264-65, 271, 307; RFP sec. C, Description/Specification/Work Statement, para.
X.F.4; as a result, the building has a very low failure rate. Tr. at
271. Further, to the extent parts and supplies would be required, the
solicitation required the contractor to maintain on-site inventories
of both critical parts and expendable supply items. RFP sec. C,
Description/Specification/Work Statement, para. X.C.3-X.C.5. The
solicitation included an extensive list of critical parts--including
parts that are hard to obtain, have long lead times or have a history
of failure--which the contractor will be required to maintain in an
on-site inventory, and the record indicates that the agency is
continually adding to this list based on its experience with the
building. RFP sec. J, Attachment 4; Tr. at 301-03, 308-09, 317-18.
Against this backdrop, the agency found no significant difference in
the proposals. While (as acknowledged by one evaluator) CESI's
sizable corporate purchases could be of potential benefit to HUD in
obtaining favorable prices or parts in short supply, Tr. at 234,
257-59, 266, 312, the agency noted that Halifax, specifically proposed
that, upon contract award, it would identify and order long-lead-time
supplies and equipment. Halifax Proposal at 1-2; TEPR at 12; Tr. at
295-96. HUD also considered significant the fact that Halifax's
proposal indicated that the company's 30 years of activity in the
Washington, D.C. metropolitan area gave it access to hundreds of
reliable, proven local suppliers. TEPR at 12-13; Halifax Proposal at
1-94. We see nothing unreasonable in this conclusion.
Nor is there a basis for questioning HUD's determination that CESI is
not significantly more likely to obtain lower prices for necessary
materials and supplies. As an initial matter, HUD is only responsible
for the cost of materials and supplies required for a major repair
where that cost is expected to exceed $10,000; otherwise, the
contractor will bear the cost. RFP sec. C,
Description/Specification/Work Statement, para. X.F.10. According to HUD,
there were no such major repairs at the HUD building in 1998, and
there have been none to date during Halifax's performance of the
protested contract. HUD Comments, Jan. 29, 1999, at 10. Moreover, to
the extent that HUD might be called on to bear the cost of materials
and supplies required for a repair, there actually is reason to
believe that Halifax's proposed approach might result in lower costs
than CESI's. Specifically, as noted by the agency, Halifax proposed
to obtain a minimum of two competitive quotations before making
purchases of from $1,000 to $2,500, and a minimum of three competitive
quotations before making purchases of $2,500 or more. Halifax
Proposal at 1-95. Agency evaluators concluded that this competitive
procurement approach provided assurance that the agency would get the
"best," or at least a "good," price. Tr. at 227-28, 298-99. CESI's
own expert witness testified that it was important when managing
public facilities to obtain competitive bids, Tr. at 356-59; however,
CESI did not specifically offer such an approach. We conclude that
the agency reasonably found that CESI's proposal did not warrant
greater relative credit in this area.
Current Performance
CESI argues that HUD's reevaluation failed to take into account the
fact that Halifax's subcontractor for custodial services was not fully
complying with the solicitation's Nondisplacement of Qualified Workers
clause. That clause provides:
Consistent with the efficient performance of this contract, the
contractor shall, except as otherwise provided herein, in good
faith offer those employees (other than managerial and
supervisory employees) under the predecessor contract whose
employment will be terminated as a result of the award of this
contract or the expiration of the contract under which the
employees were hired, a right of first refusal to employment
under the contract in positions for which employees are
qualified.
RFP sec. I, Nondisplacement of Qualified Workers, para. (a), at I-1. In this
regard, CESI asserts that Halifax's custodial subcontractor, AAA
Painting and Janitorial Contractors, Inc., was not meeting its
obligations under the clause with respect to offering employment to
workers of the incumbent custodial contractor, Tri-Ark Industries,
when it commenced performance on August 1, 1998. HUD awarded Halifax
all 15 available points for AAA's custodial experience and
qualifications, and rated AAA's performance of the HUD contract to
have been "outstanding." TEPR at 24-25. HUD maintains that there was
no basis for it to conclude that Halifax's custodial subcontractor was
not complying with the Nondisplacement of Qualified Workers clause.
The evaluation in this area was reasonable. CESI's claim that Halifax
was violating the clause is based primarily on the minutes of a July
14 meeting between HUD, Halifax, AAA and Tri-Ark personnel concerning
compliance with the clause during the transition from Tri-Ark to AAA.
Neither these minutes, nor any other information in the record,
establishes that Halifax ultimately failed to comply with the
nondisplacement clause. Although a HUD official stated that he had
been advised by several Tri-Ark employees that AAA was requiring them
to waive their seniority, wages and vacation time, AAA's Director of
Marketing assured the government that "[t]hat requirement has been
rescinded," and a Halifax vice president stated that "[w]e will ensure
compliance with the Wage Determination." Meeting--July 14, 1998,
11:40 a.m., Notes (Meeting), at 3-4. Further, HUD officials indicated
their intention to ensure compliance, warning Halifax and AAA that the
current wage rate determination must be complied with and cautioning
that AAA would be reported to the Department of Labor (DOL) if AAA
required anyone to sign a waiver. Given Halifax's response once this
issue arose, we think the agency could reasonably conclude that it
should have no negative impact on Halifax's evaluation. Id. [3]
As noted by CESI, the minutes also state that a HUD official indicated
at the meeting that, based on information from AAA, that firm intended
to perform the work with 20 retained Tri-Ark employees and 25 AAA
employees, 10 fewer than
Tri-Ark had employed at HUD and Halifax had proposed. Meeting at 2;
Halifax Proposal, Part 1, Volume 2, Tab 3, AAA Painting and Janitorial
Contractors, Inc., at 6th unnumbered page. Although CESI appears to
believe that these numbers establish a violation of the
nondisplacement clause, that clause specifically provided that the
contractor "shall determine the number of employees necessary for
efficient performance of this contract and may elect to employ fewer
employees than the predecessor contractor employed in connection with
the performance of the work"; the contractor "is not required to offer
a right of first refusal to any employee(s) of the predecessor
contractor whom the contractor reasonably believes, based on the
particular employee's past performance, has failed to perform suitably
on the job"; and that the contractor "may employ on the contract any
employee who has worked for the contractor for at least 3 months
immediately preceding the commencement of this contract and who would
otherwise face lay-off or discharge." RFP sec. I, Nondisplacement of
Qualified Workers, para. (a), (b), at I-1. In this latter regard, we
note that a Halifax representative explained at the meeting that AAA
was attempting to avoid laying off its own employees by transferring
them to the HUD contract, and the record includes a declaration from
AAA's director of marketing explaining that AAA gave preference to its
own employees who were facing lay-off because of the loss of work on
another government contract. Meeting at 2; HUD Comments, Dec. 30,
1998, Exhibit 2, Declaration of AAA Director of Marketing, at 3-4.
Since this approach appears to be consistent with the quoted
provisions, the record does not establish any violation of the
nondisplacement clause, such that HUD was required to downgrade
Halifax's proposal on this basis.[4]
DISCUSSIONS
CESI maintains that HUD was required to advise it during discussions
that the features of its proposal which the agency considered to offer
little or no value to the government were excesses.
In negotiated procurements, contracting agencies generally must
conduct discussions with all offerors whose proposals are within the
competitive range. 41 U.S.C. sec. 253b(d)(1)(A) (1994); Federal
Acquisition Regulation (FAR) sec. 15.610(b) (June 1997). Such
discussions encompass weaknesses, deficiencies, or excesses that must
be addressed in order for the offeror to be in line for the award.
Mechanical Contractors, S.A., B-277916.2, Mar. 4, 1998, 98-1 CPD para. 68
at 4.[5]
Here, we find that the discussions were adequate. A number of the
features cited by CESI--including, for example, the proposed LAN,
Environmental Control Center, and corporate-based quality control
inspections--were considered by the agency to be desirable, and thus
were not deficiencies, weaknesses, or excesses that had to be raised
during discussions. Holmes & Narver, Inc., B-266246, Jan. 18, 1996,
96-1 CPD para. 55 at 7. Likewise, CESI's proposal to make available
corporate resources did not render the proposal unacceptable or result
in a significant reduction in CESI's score and, inasmuch as it was an
offer to make existing resources available when needed, there is no
basis for concluding that it had a significant impact on CESI's
price.[6] Other cited features--such as CESI's offer to have a
licensed/certified operating engineer at the HUD building 24 hours a
day and to perform scheduled and unscheduled maintenance and
incidental repairs 24 hours a day as well--were simply CESI's approach
to meeting the mandatory solicitation requirements and thus also were
not deficiencies, weaknesses, or excesses that needed to be raised
during discussions. RFP sec. C, Description/Specification/Work
Statement, para. X.F.1 and X.G.2.
PRICE EVALUATION
CESI argues that HUD's evaluation of Halifax's proposal prices was
inconsistent with the requirement in the solicitation that "the
proposed cost or price must be considered reasonable and must reflect
the proposed technical approach." RFP sec. M, Evaluation Factors For
Award at M-1. CESI does not question the evaluation of Halifax's
overall price ($44,864,494), which was only approximately 1.2 percent
below CESI's ($45,410,864) and only approximately 4.6 percent below
the internal government estimate ($47,007,156). Rather, CESI notes
that the solicitation required detailed prices with respect to each of
the required services except parking--which was to be
self-supporting--and generally provided that: "All prospective
offerors must have acceptable responses to all 14 services in order to
be considered for award," RFP sec. M, at 4; the protester concludes from
these requirements that the agency was to evaluate the pricing for
each of the required services. CESI alleges that Halifax's pricing
for custodial ($[DELETED]) and messenger ($[DELETED]) services was
unreasonably low, well below the independent government estimate
($9,213,661 for custodial services, and $962,676 for messenger
services), and did not reflect the statement of work requirements in
these areas.
Cost realism is not ordinarily considered in the evaluation of
proposals for the award of a fixed-price contract, because these
contracts place the risk of loss upon the contractor. However, an
agency may provide, as here, for the use of a price realism analysis
in a solicitation for the award of a fixed-price contract for the
purpose of measuring an offeror's understanding of the solicitation's
requirements or to assess the risk inherent in an offeror's proposal.
PHP Healthcare Corp., B-251933, May 13, 1993, 93-1 CPD para. 381 at 5.
The nature and extent of an agency's price realism analysis are
matters within the sound exercise of the agency's discretion.
Cardinal Scientific, Inc., B-270309, Feb. 12, 1996, 96-1 CPD para. 70 at
4.
The price evaluation was unobjectionable. The solicitation provided
for award of a fixed-price contract to a contractor that would be
responsible for furnishing all required services, and did not
specifically require a service-by-service price evaluation.[7]
Further, the record indicates that HUD evaluated Halifax's proposal as
indicating an understanding of the solicitation's requirements; HUD
specifically concluded that Halifax had submitted a comprehensive
staffing plan that included adequate staffing levels for each of the
required services and a management approach that was better organized
than CESI's; a comprehensive quality control plan; and a comprehensive
plan for the accomplishment of day-to-day work. TEPR at 4-5, 7-11.
The protest is denied.
Comptroller General
of the United States
1. Halifax proposed subcontractors to perform 13 of 14 services, while
CESI proposed subcontractors for 12 of 14 services.
2. CESI argues that the reevaluation was unreasonable because "the
merits of the proposals were never evaluated against Section M and the
requirements of the solicitation. Instead the merits were determined
by a side-by-side comparison." Protest, Oct. 26, 1998, at 29. As we
recognized in our original decision, where a best value evaluation
approach is to be employed, offerors have a reasonable basis to expect
technical proposals to be evaluated and ranked in a way that reflects
an offeror's relative technical superiority over a competitor.
National Test Pilot School, B-237503, Feb. 27, 1990, 90-1 CPD para. 238 at
3-4. Here, HUD evaluated the proposals under the stated evaluation
criteria in a manner designed to measure the relative merits of the
proposals. This approach was proper.
3. HUD was unable to resolve the matter within 30 days after it was
formally raised by the concerned labor union (by letter of September
7). At that point, on October 20, pursuant to FAR sec. 22.1206, HUD
referred the matter to DOL, 15 days after the reevaluation decision on
October 5. HUD Comments, Dec. 3, 1998, at 2-3.
4. In its December 7 comments on the November 24 agency report, and in
subsequent comments, CESI challenged numerous additional aspects of
the evaluation and conduct of the procurement. However, CESI was
furnished a copy of the source selection recommendation and evaluation
report pursuant to an agency-level nondisclosure agreement prior to
filing its protest on October 26. These documents furnished a basis
for filing this aspect of the protest. Thus, these additional
arguments, raised more than 10 days after CESI received the documents,
are untimely. 4 C.F.R. sec. 21.2(a)(2) (1998); Vinnell Corp., B-270793,
B-270793.2, Apr. 24, 1996, 96-1 CPD para. 271 at 7.
5. The rewrite of FAR Part 15 (FAC 97-02) did not apply to this
acquisition, since the solicitation was issued prior to its effective
date.
6. Similarly, CESI's proposal to install and operate as an "optional
initiative" a computerized maintenance management system (CMMS), as an
alternative to HUD"s existing internal CMMS which the solicitation
indicated offerors were to use, was not a deficiency, weakness, or
excess. CESI Proposal at A-82 to A-83. This feature, which was
evaluated as affording no additional value to HUD, did not render the
proposal unacceptable or result in a significant reduction in CESI's
score. Further, inasmuch as CESI described it as an optional
approach, the transition to which would be "at minimal if any
expense," there is no basis for concluding that it had any significant
impact on the proposal's price. Id. at A-82 to A-83; TEPR at 11.
7. It appears that CESI itself may have assumed that prices for the
services would not be independently evaluated. In this regard, CESI
has not refuted HUD's assertion that when questioned during
discussions concerning its extremely low pricing for painting
services--its BAFO price ($[DELETED]) was approximately [DELETED]
percent lower than the lowest (Halifax at $[DELETED]) of the five
other evaluated offers in this area, [DELETED] percent lower than the
next lowest ($[DELETED]), and [DELETED] percent lower than the
independent government estimate ($1,576,899)--CESI explained that "it
realized that its proposed price for painting was extremely low, but
that it would make up any lost costs in that area under one of the
other 13 areas", such as the operations and maintenance area. Agency
Report, Nov. 24, 1998, at 42; see Halse Enters., B-271757, July 22,
1996, 96-2 CPD para. 32 at 2-3 (there is no basis for sustaining protest
concerning waiver of solicitation requirement where agency treated
offerors equally).