BNUMBER: B-279715
DATE: July 16, 1998
TITLE: McHargue Construction Company, B-279715, July 16, 1998
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Matter of:McHargue Construction Company
File:B-279715
Date:July 16, 1998
Mike McHargue for the protester.
Sharon J. Chen, Esq., and Robert W. Schlattman, Esq., General Services
Administration, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where solicitation called for multiple awards on the basis of greatest
value, with technical quality more important than price, the agency's
decision to award contracts to six higher technically rated,
lower-priced offerors than the protester is unobjectionable since the
record shows that the evaluation was conducted in accordance with the
evaluation factors set forth in the solicitation and the record
supports the evaluators' conclusions.
DECISION
McHargue Construction Company protests the failure of the General
Services Administration to make an award to it under request for
proposals (RFP) No. GS-04P-97-EWD-0056, for general repairs and
alterations to government-owned and government-leased space in various
buildings within the states of North Carolina, South Carolina, and
Tennessee.
We deny the protest.
The RFP, as amended, provided for award of multiple fixed-price,
indefinite-delivery, indefinite-quantity (ID/IQ) contracts for a
1-year base period with four 1-year option periods. RFP, amend. No.
02; Vol. 1 sec. 300 at 1-2, para. 1.1-1.2, 1.4, 1.5. The solicitation
contemplates that GSA will issue task orders under each ID/IQ contract
to obtain all labor, materials, supervision, tools, and equipment
necessary for the construction and repair projects. The RFP also
stated the competition procedure for placement of individual task
orders among the firms that receive contract awards. RFP, Vol. I sec.
300 at 10-11, para. 7. The solicitation, which was not set aside for
small business concerns, permitted offerors to submit proposals for
all or for specific geographic areas within a particular state.[1]
The RFP stated that the agency could award up to five ID/IQ contracts
for each geographic area listed in the RFP. RFP, amend. No. 02.
Offerors were advised that the RFP reflected the agency's minimum
requirements and were invited to increase the quantity and quality of
services to be provided in their proposals. RFP, amend. No. 02, Vol.
II, Evaluation and Award, para. 1. The maximum value for each ID/IQ
contract is $10 million. RFP, Vol. 1 sec. 300 at 2, para. 1.7.
The RFP stated a greatest value evaluation scheme, with technical
quality deemed more important than price. RFP, Vol. I sec. 300 at 6, para.
4.1. Proposals would be evaluated on the basis of the following
technical evaluation factors, with their relative weights to be scored
on a 1,000-point scale:[2] (a) experience and past performance--500
points; (b) qualifications of key personnel--250 points; and (c)
management and technical approach--250 points. The RFP provided
detailed instructions for the preparation of proposals and requested
that offerors organize their technical proposals to respond to the
evaluation factors and provide separate technical and price proposals.
RFP, Vol. I sec. 300 at 7-9, para. 5.2.
Under experience and past performance, offerors were required to
identify at least two similar projects valued at least $200,000
each.[3] As to the qualifications of key personnel, the RFP required
resumes for each key individual including a description of the duties
and responsibilities performed by these individuals on their last
three similar projects. As part of their management and technical
approach proposal, offerors were required to describe their approach
to accomplishing the demonstration project included in the RFP. RFP,
amend. No. 03 at 3. This demonstration project was representative of
the general requirements for work to be ordered under the ID/IQ
contracts and offerors were to address and provide examples of their
ability to perform work of the size and type involved; their ability
to effectively coordinate the work of multiple trades; and their
ability to handle multiple projects, priority work, and demanding
customers. RFP, amend. No. 02, Vol. III, Demonstration Project.
With respect to price, the RFP instructed offerors that they were to
prepare their price proposals by submitting pricing for normal and
expedited completion of the demonstration project,[4] including
detailed price break-out by major technical specification categories.
RFP, Vol. I sec. 300 at 9, para. 5.2(d). Price proposals would be evaluated
based on the realism and reasonableness of the proposed price for the
demonstration project, considering both the offeror's approach and
understanding of the project. RFP, Vol. 1 sec. 300 at 7, para. 4.1(b).
Several proposals were received by the October 17, 1997 extended
closing date, including McHargue's.[5] After the proposals had been
scored by individual technical evaluation panel (TEP) members, the TEP
developed a consensus score for each proposal. Twelve offers were
rated as technically acceptable, including McHargue's, and these 12
proposals were included in the initial competitive range. Technical
Evaluation Report. The agency subsequently conducted oral discussions
with the competitive range offerors during which the agency identified
weaknesses in each offeror's proposal, linking these weaknesses to
specific RFP requirements. In this regard, the agency contacted
McHargue by telephone on January 26, 1998, and identified areas in its
proposal that required additional information and/or clarification.
The agency requested that the protester provide the experience,
qualifications and education of its key personnel (other than its
estimator); clearly define its management and technical approach to
performing the demonstration project; and reevaluate its pricing for
the HVAC (heating, ventilation and air conditioning) system and other
elements which seemed to be too high. McHargue and the other
competitive range offerors were asked to submit revised proposals by
February 4 at 3 p.m.
The agency evaluated the revised proposals received and conducted an
analysis of the price proposals; GSA states that it did not receive a
revised proposal from the protester. The final weighted technical
scores and evaluated prices (for the three geographic areas at issue
in this protest) were as follows:
Offeror Technical Score (max. 1,000 points)Price For
Normal CompletionPrice For Expedited
Completion
R.D. Vaughn 875 $303,163.00 $322,063.00
J.W. Poole 875 $359,396.00 $442,181.00
Prime Builders 850 $323,777.00 $364,190.00
Witherington Constr.825 $297,890.00 $496,574.00
D.C. Neal 800 $422,500.00 $480,000.00
Brooks Lumber 725 $444,891.00 $464,891.00
McHargue 625 $453,154.04 $503,675.00
Offeror A 600 $372,038.00 $438,221.00
Offeror B 550 $517,383.14 $632,759.51
The contracting officer, who served as the source selection official
(SSO) reviewed the technical and price evaluation reports and
considered six higher-rated technical proposals superior to the
protester's. Based on the technical quality of these six proposals,
the SSO selected Vaughn, Poole, Prime Builders, Witherington, Neal,
and Brooks for award.[6] Price Negotiation Memorandum. After
receiving notice of the awards and a debriefing on March 31, McHargue
filed this protest.
McHargue, a small business concern, objects to the agency's evaluation
of its proposal under each evaluation factor as well as the agency's
decision not to select its proposal for award.[7]
In reviewing protests against allegedly improper evaluations and
source selection decisions, our Office will examine the record to
determine whether the agency's judgment was reasonable and in accord
with the stated evaluation factors. Brisk Waterproofing Co., Inc.,
B-276247, May 27, 1997, 97-1 CPD para. 195 at 3. Based on our review of
the record, we conclude that GSA's evaluation and selection decision
were reasonable. We discuss some key areas of the evaluation below.
The experience and past performance factor was worth 50 percent of the
evaluation points. Of particular concern to the agency was McHargue's
experience with projects of the scope, magnitude, and difficulty of
the instant RFP. In this regard, the amended RFP provided, in
pertinent part, as follows: "The projects listed should include at
least two (2) projects whose dollar amounts are [at least $200,000.00]
and should include at least one project for both design and
construction services." RFP, amend. No. 03 at 3; Vol. I sec. 300 at 8, para.
5.2(c)1. McHargue's proposal included information pertaining to 12
past and current contracts. Of these, it identified two current
contracts with GSA: for partition and miscellaneous repairs in the
Raleigh area, valued at approximately $315,000; and for exterior
cleaning and caulking of the federal courthouse in Winston-Salem,
valued at approximately $230,000. For the exterior cleaning and
caulking contract, the protester identified itself as a subcontractor
to Sigma Construction. The average value of the other contracts
identified in McHargue's proposal was less than $50,000.
The evaluators considered the partition and miscellaneous repairs
project as the only contract that met the dollar requirement for
similar projects, and noted that the other projects listed in the
protester's proposal were not of the scope, magnitude, and difficulty
of the instant procurement. The evaluators noted that the other
projects listed were smaller and less complex, that the protester
received good references on all its projects, and concluded that the
protester was better suited to handling smaller projects. Based on
these considerations, the evaluators assigned McHargue's proposal 300
out of 500 available weighted points for this factor.
McHargue maintains that it was improper for GSA to discount its
exterior cleaning and caulking contract on the basis that McHargue is
not the prime contractor. We find nothing unreasonable in the
agency's factoring of this consideration into the evaluation. The
roles of a company as a subcontractor on a project working under a
prime contractor, as opposed to serving as the prime contractor, are
different, and we think the agency could reasonably decide that the
listed subcontract did not meet the RFP requirement for similar
projects of the requisite size, scope and difficulty in assigning the
experience evaluation points, since this solicitation called for the
firm to act as a prime contractor. Further, the remaining projects
listed were less complex projects of low dollar value compared to the
contracts to be awarded under this solicitation. We think the record
reasonably supports the agency's determination that the past and
current projects identified in McHargue's proposal did not demonstrate
the firm's experience as a prime contractor on larger, complex
projects of the type contemplated by this RFP. In these
circumstances, we think the scoring under this factor was not
objectionable.
Next, McHargue maintains that the agency misapplied the qualifications
of key personnel in evaluating its proposal. According to the
protester, the agency improperly downgraded its proposal for not
submitting resumes for the key individuals identified in its proposal,
when, in fact, "amendment number 03 to this solicitation deleted this
requirement." Protester's Comments at 3. This allegation is without
merit.
Under the proposal submission requirement in Volume 1 of the RFP for
the qualifications of key personnel factor, offerors were to identify
all individuals and principals proposed to perform all phases of the
projects and, among other things, "[a] resume must be submitted for
each." The RFP advised that each resume should "include a description
of duties and responsibilities performed by the key individuals and
principals on their last three similar projects." RFP, Vol. I sec. 300
at 9, para. 5.2(c)(3). Amendment No. 03 did not change nor modify this
requirement. (As relevant here, amendment No. 03 merely deleted the
two subfactors--project manager and on-site superintendent--under the
qualifications of key personnel technical factor in Volume II of the
RFP. RFP, amend. No. 03 at 3 (revisions to Vol. II, para. 4). Our review
of McHargue's proposal indicates that the firm did not include resumes
for any key personnel and that the information provided in the firm's
proposal simply named four individuals and stated that each had passed
a "full FBI background check," but did not describe the experience or
qualifications of the personnel at all. The technical evaluation of
a proposal is based on information submitted in it and an offeror runs
the risk of having its proposal rejected or downgraded if the proposal
submitted is inadequately written. See Research Analysis and
Maintenance, Inc., B-242836.4, Oct. 29, 1991, 91-2 CPD para. 387 at 5. We
see no basis to object to the evaluators' downgrading of McHargue's
proposal in this area (which was assigned 125 out of a possible 250
points).
McHargue also contends that the agency improperly evaluated its
proposed pricing for the HVAC portion of the demonstration project on
the basis that the firm was "the only offeror that truly understood
the HVAC portion of the demonstration project as it was described in
their specifications." Protester's Comments at 4. While McHargue
generally disagrees with the agency's conclusion that its pricing for
HVAC and other elements seemed too high, it has not specifically
refuted those conclusions. In particular, the protester has not
refuted the agency's overall concern--communicated to the protester
during discussions--that its HVAC pricing was based on an assumption
concerning the chiller and air handler which was inconsistent with the
requirements of the demonstration project.[8]
Since McHargue has provided nothing to establish that the evaluators'
conclusion concerning its pricing was unreasonable or objectionable
and the record shows that McHargue's price for the demonstration
project was the second highest of all 12 offers and higher than any of
the awardees' prices, we have no basis to question the agency's
evaluation and ranking of McHargue's price proposal. The protester's
mere disagreement with the agency does not in itself render the
evaluation unreasonable. See Microeconomic Applications, Inc.,
B-258633.2, Feb. 14, 1995, 95-1 CPD para. 82 at 5. Thus, the record
reasonably supports the agency's determination that McHargue's overall
price was higher than any of the awardees' total price.
In sum, the record shows that McHargue's proposal was properly
downgraded under each evaluation factor, and the evaluators reasonably
concluded that there were no competitive strengths in McHargue's
proposal that outweighed those in the proposals of the six higher
technically rated proposals that were ultimately selected for
award.[9]
McHargue nonetheless argues that it should have received a contract
since the RFP contemplated multiple awards, the firm is a small
business, and its proposal was acceptable. There is no right to a
government contract, Jack Faucett Assocs., B-277555, Sept. 12, 1997,
97-2 CPD para. 71 at 3, although firms do have the right to have their
bids or offers considered fairly. Krygoski Constr., Co., B-213035.2,
May 15, 1984, 84-1 CPD para. 523 at 6. The agency awarded five contracts
for each of the seven geographic areas consistent with the amended
RFP. In order for McHargue to have received an award, it would have
had to displace one of the higher-rated, lower-priced firms. As
discussed above, McHargue was rated technically inferior and offered
higher prices compared to the proposals of the six firms, all
self-certified small businesses, that were awarded contracts. Under
these circumstances, the agency's decision not to award McHargue a
contract was reasonable.
Accordingly, the protest is denied.
Comptroller General
of the United States
1. The geographic areas are: Asheville, NC; Raleigh, NC;
Winston-Salem and Greensboro, NC; Charleston, SC; Columbia, SC;
Greenville/Spartanburg, SC; and Knoxville/Chattanooga, TN.
2. Each evaluation factor was to be rated using an adjectival and
numerical scoring scheme which was not disclosed in the RFP.
3. Similar projects were defined as projects of the scope, magnitude,
and difficulty contemplated by the instant RFP. RFP, Vol. I sec. 300 at
7-8, para. 5.2(c)1.
4. Normal project completion was defined as work performed within
approximately 90 days; expedited completion anticipates that the work
will be completed in 30 days. RFP, amend. No. 02, Vol. III,
Demonstration Project--Assumptions at 6.
5. McHargue submitted a proposal for three geographic areas in North
Carolina: Winston-Salem/Greensboro, Raleigh, and Asheville.
6. In each area, award was made to five firms; most of the firms
received award in more than one area. All of the six awardees were
self-certified small businesses.
7. The protester submitted numerous arguments in support of these and
other protest grounds. This decision will discuss only the more
significant arguments. We have reviewed the entire record and
considered all of the protester's arguments; those arguments not
specifically addressed in the decision are also denied.
8. While McHargue argues that the HVAC requirements in the
demonstration project were flawed, such an argument, to be timely, was
required to be raised by the date and time set for receipt of
proposals. 4 C.F.R. sec. 21.2(a)(1) (1998).
9. The protester asserts that the agency lost or improperly failed to
evaluate additional information which GSA allegedly received on
February 3. McHargue has provided our Office with the United States
Postal Service Express Mail receipt as evidence of delivery of a
package to GSA on that date. In response, GSA states that it did not
receive this package from McHargue and argues that even if it had
received this additional information, the firm would still not be in
line for award because the awardees' proposals were technically
superior to the protester's, particularly in the area of experience in
projects of similar size, magnitude and difficulty as the instant
solicitation. As shown above, the record shows that McHargue's
proposal was higher priced and technically lower scored by at least
100 points compared to the awardees'. Further, the record supports
the agency's position that McHargue did not address the deficiencies
in its proposal which the agency identified in discussions. Our
review of McHargue's correspondence to the agency shows that McHargue
never provided resumes nor described the qualifications and education
of all key personnel, did not respond to the request to clearly define
the technical approach to be used and, as the agency points out, the
protester did not, and apparently could not provide any additional
relevant experience which would have justified a higher score. Thus,
the record shows that McHargue's submission, even if it was not
properly considered, did not rectify the deficiencies in its initial
proposal that resulted in its low technical scoring.