BNUMBER: B-280853
DATE: November 24, 1998
TITLE: Durocher Dock & Dredge/Black & Veatch, A Joint Venture, B-
280853, November 24, 1998
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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:Durocher Dock & Dredge/Black & Veatch, A Joint Venture
File:B-280853
Date:November 24, 1998
Peter J. Ippolito, Esq., Hillyer & Irwin, for the protester.
Mark Christopher, Esq., Lis B. Young, Esq., and George N. Brezna,
Esq., Naval Facilities Engineering Command, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Allegation that agency improperly evaluated protester's proposal
is denied where the record shows that the agency evaluated the
proposal in accordance with the evaluation factors announced in the
solicitation and record reasonably supports protester's overall lower
technical rating.
2. Disparities in evaluation ratings among technical evaluators do
not establish that the evaluation process was flawed or not rationally
based in view of the potential for disparate subjective judgments of
different evaluators on the relative strengths and weaknesses of
technical proposals.
3. Allegations by protester whose phase one proposal was reasonably
ranked eighth, that agency improperly evaluated the first- and
fourth-ranked proposals is dismissed where, even if protester's
allegations were sustained, protester's proposal would not be eligible
to proceed to phase two of the procurement; protester is not an
interested party to pursue this aspect of the protest.
DECISION
Durocher Dock & Dredge/Black & Veatch, A Joint Venture protests the
rejection of its proposal under request for proposals (RFP) No.
N62467-98-R-0968, issued by the Department of the Navy to improve
Wharf D, at the Naval Station in Mayport, Florida. The protester
argues that the evaluation of its proposal was inconsistent with the
solicitation.
We deny the protest.
The Navy issued the RFP on May 20, 1998, as phase one of a two-phase
procurement under the procedures set out at Federal Acquisition
Regulation Subpart 36.3. RFP sec. 00202, amend. No. 0001, part I.1.2.
The RFP is for the design and construction of a major waterfront
improvement project at the Naval Station, Mayport, Florida. The
solicitation advised offerors that the agency would evaluate proposals
in two phases. Under phase one, at issue here, the RFP listed the
following evaluation factors in descending order of importance: past
performance, technical qualifications, management approach, and small
business subcontracting effort. Id. Based upon the results of that
evaluation, the Navy would then select a maximum of five of the "most
highly-qualified offerors" to submit phase two proposals, which are to
be evaluated based on technical considerations and price. Award is to
be made to the offeror whose proposal is deemed to represent the best
value to the government, considering price and technical factors. Id.
Twelve firms, including the protester, responded to the RFP by the
time set on June 19, for receipt of phase one proposals. A technical
evaluation board (TEB) evaluated proposals by assigning adjectival
ratings (exceptional, acceptable, marginal, or unacceptable) under
each evaluation factor, and an overall proposal rating. Based on the
overall ratings, the TEB then ranked proposals from the most
highly-rated (exceptional) to the lowest-rated (unacceptable) as
follows:
[DELETED] Exceptional
[DELETED] Exceptional
Offeror A Acceptable
[DELETED] Acceptable
Offeror B Acceptable
Offeror C Marginal
Offeror D Marginal
Durocher Dock & Dredge/Black & VeatchMarginal
Offeror E Marginal
Offeror F Marginal
Offeror G Marginal
Offeror H Unacceptable
Agency Report at 2.
Based on the results of the phase one evaluation, the TEB found that
the five highest-ranked proposals had demonstrated superior past
performance and technical qualifications over the remaining seven
firms, and recommended to the source selection board (SSB) that the
firms that submitted those proposals advance to phase two of the
procurement. The SSB accepted that recommendation and by letters
dated July 16, the agency informed all offerors whether they were
selected to proceed to phase two. Following a debriefing by the Navy
conducted on July 29, the protester filed an agency-level protest,
which the Navy denied. This protest to our Office followed.
PROTESTER'S CONTENTIONS
The protester argues that the evaluation of its proposal was flawed
and inconsistent with the RFP in several respects. For instance,
Durocher argues that the TEB deviated from the evaluation scheme
announced in the solicitation by emphasizing certain aspects of the
work described in the solicitation (primarily electrical work), but
that the Navy failed to notify offerors that this portion of the work
would be considered more important in the evaluation. The protester
also maintains that individual evaluators were not consistent in
applying the RFP's evaluation criteria. Durocher further argues that
the agency improperly evaluated the proposals submitted by two firms
selected to proceed to phase two of the procurement.
DISCUSSION
Our Office will not engage in an independent evaluation of proposals
nor make an independent determination of their relative merits.
Litton Sys., Inc., B-239123, Aug. 7, 1990, 90-2 CPD para. 114 at 9.
Rather, we review the agency's evaluation only to ensure that it was
reasonable and consistent with applicable statutes and regulations as
well as with the terms of the solicitation. Sensis Corp., B-265790.2,
Jan. 17, 1996, 96-1 CPD para. 77 at 6. A protester's mere disagreement
with the agency's conclusions does not render the evaluation
unreasonable. ESCO, Inc., B-225565, Apr. 29, 1987, 87-1 CPD para. 450 at
7. Based on our review of the record, including the TEB's narrative
in support of its evaluation, we conclude that the factor and overall
ratings assigned the protester's proposal are reasonably supported.
Below we discuss a representative sample of the TEB's findings with
respect to the protester's proposal in support of our conclusion.
Past Performance
The TEB assigned Durocher's proposal a rating under this factor of
"acceptable minus" (A-),[1] indicating the consensus of the TEB that
the proposal was acceptable, but contained some weaknesses in this
area. Under both subfactors in this area--design team and
construction team--offerors were required to submit past performance
narratives for up to three projects that demonstrated experience in
performing work similar to that described in part I.1.3 of section
00202 of the RFP, the Specialized Project Requirements.[2] Offerors
were also instructed to describe up to three partnering/teaming
arrangements with design and construction teams.
The TEB identified several strengths in the protester's proposal under
both subfactors in this area. For instance, the TEB found that all
three project narratives Durocher submitted demonstrated work relevant
to the Wharf D improvement project in that they all were major
waterfront projects, and their scope included most or all of the work
elements required to accomplish this project. The TEB identified
several weaknesses, however. For example, the TEB found that the
projects Durocher submitted for the design and construction teams did
not contain medium voltage electrical distribution work (as described
in part I.1.3 of section 00202 of the RFP). The TEB also found that
Durocher's proposed design and construction teams demonstrated no past
performance for steam systems, and had minimal experience with fueling
systems. One evaluator specifically noted that the proposed design
team's projects did not indicate any steam system design experience,
and that it was unclear from the proposal whether the designers had
performed any work related to fuel systems on any of the three
projects Durocher described in its proposal. Technical Evaluation
Worksheets. The TEB further found that none of the key personnel in
Durocher's proposed design team had worked on any of the partnering
arrangements the firm described in its proposal. In our view, the
TEB's consensus rating of A- under this factor reasonably reflected
the evaluators' concerns that Durocher's proposal had not demonstrated
experience in performing work similar to that described in the
Specialized Project Requirements section of the RFP.
Durocher argues that by downgrading its proposal for failing to show
that the projects it submitted contained medium voltage electrical
distribution work, the TEB gave this weakness greater significance
than announced in the RFP. In this connection, Durocher argues that
the TEB improperly emphasized the "voltage power distribution system"
aspect of the work over other aspects, and that the Navy failed to
inform offerors that this work element was significantly more
important than any other aspect of construction or design.
Protester's Comments, Oct. 2, 1998, at 2.
The protester's argument that the TEB emphasized one element
(electrical distribution system) over other elements of the work is
not supported by the record. As already stated, the record shows that
the TEB considered Durocher's proposal acceptable under this factor,
but came to a consensus regarding the several weaknesses noted above.
Since the TEB concluded that the projects Durocher submitted did not
involve medium voltage electrical distribution work--one of the
elements contained in part I.1.3 of section 00202 of the RFP--the TEB
reasonably downgraded Durocher's proposal slightly under this factor
to a rating of A-. The fact that the TEB found that this element was
missing did not mean that it was given more importance than others,
and based on our review of the evaluation, we have no basis to object
to the TEB's rating.
The protester points out that some individual evaluators rated
Durocher's proposal as exceptional in this area, while other
evaluators downgraded its proposal for the medium voltage power
distribution weakness. According to Durocher, this variation in
individual ratings demonstrates that the members of the TEB were not
uniform in applying the RFP's evaluation criteria.
It is not unusual, however, for individual evaluators to have
disparate judgments regarding the relative strengths and weaknesses of
a technical proposal. Syscon Servs., Inc., B-235647, Sept. 21, 1989,
89-2 CPD para. 258 at 5. Disparities in evaluator ratings do not
establish that the evaluation process was flawed or otherwise not
reasonable. U.S. Defense Sys., Inc., B-245006.2, Dec. 13, 1991, 91-2
CPD para. 541 at 4. Contrary to the protester's argument, the record
shows that only one evaluator rated Durocher's proposal exceptional
while the other evaluators rated Durocher's proposal either marginal
or acceptable in this area, and that their narrative comments merely
reflect the individual evaluators' subjective judgments regarding the
relative strengths and weaknesses of the proposal in this area. In
any case, notwithstanding the different individual ratings, the TEB
reached a consensus in this area.
Technical Qualifications
The TEB assigned Durocher's proposal a rating of marginal under this
factor. Under the two subfactors evaluated in this area--design team
and construction team--offerors were instructed to submit key
personnel staffing that demonstrated experience in the elements
included in the Specialized Project Requirements provision of the RFP.
Offerors were also required to provide qualifications and staffing
capability to support the project.
Under the design team subfactor, the TEB found that only one
individual Durocher proposed as "key personnel" had participated in
any of the projects Durocher described in its proposal (and even that
individual had participated in only one project described in the
proposal), and identified this as a weakness in the proposal. The TEB
further found that the proposed key personnel demonstrated no
waterfront electrical distribution, steam, or fuel system experience
and considered this a weakness in the proposal. Under the
construction team subfactor, the TEB found that the proposed key
personnel demonstrated no waterfront electrical distribution
experience, and that the waterfront experiences listed for key
structural personnel were minimal in scope. The protester does not
rebut any of the TEB's findings in this regard.
In its proposal, Durocher identified the firm of [DELETED] as a
mechanical team member and [DELETED] as the electrical installation
team member. The TEB noted, however, that the protester did not
include any personnel data for [DELETED], and found that the proposal
demonstrated no specific diesel fuel or steam work experience by
construction project managers, superintendents, or quality assurance
personnel.
In its comments on the agency report, Durocher argues that both firms
it identified in its proposal as (mechanical and electrical) team
members have previously worked on Navy projects, including Mayport.
According to the protester, therefore, the Navy should have been
familiar with these firms based on their performance on those
projects.
Durocher's reliance on the previous projects performed by its proposed
team members without regard to the specific information required by
the RFP is misplaced. A procuring agency's technical evaluation is
dependent upon the information furnished in the offeror's proposal.
Computerized Project Management Plus, B-247063, Apr. 28, 1992, 92-1
CPD para. 401 at 3. An agency is not required to overlook a flawed
proposal on the basis of the offeror's prior performance; on the
contrary, all offerors are expected to demonstrate their capability in
their proposals. Pedus Bldg. Servs., Inc., B-257271.3 et al., Mar. 8,
1995, 95-1 CPD para. 135 at 4. Consequently, the agency reasonably relied
on Durocher's proposal in determining the identified weaknesses in its
qualifications and staffing capability to support the project.[3]
Since Durocher has not shown that the evaluated weaknesses are
unfounded based on the information contained in its proposal, we have
no basis to object to the evaluation.[4]
Based on our review of the evaluation record, including the
protester's proposal and the TEB's individual worksheets, we think
that the agency reasonably concluded that Durocher's proposal omitted
material information regarding its past performance and failed to
demonstrate its technical qualifications as required by the RFP.[5]
Under these circumstances, we have no basis to object to the TEB's
overall rating of marginal of the protester's proposal.
The protester also argues that the agency improperly evaluated the
proposals submitted by two firms selected to proceed to phase two of
the procurement. In this regard, Durocher maintains that [DELETED]
"has been in business for only five months and has yet to successfully
complete a project." Protester's July 29, 1998 letter to the Navy at
1-2. Durocher reiterates this argument in its comments on the agency
report, maintaining that the record "reveals [DELETED] was formed in
October of 1997." Protester's Comments, Oct. 2, 1998, at 4.
In addition, Durocher asserts that [DELETED] "has lost virtually all
of its management personnel that . . . were responsible for the
construction and management of all projects listed in their
performance record." Letter from Protester to the Navy at 2 (July 29,
1998). According to Durocher, "it is obvious that a number of
[DELETED] key employees left [DELETED] and became employees of the
newly formed [DELETED] contractor corporation in 1997." Protester's
Comments, Oct. 2, 1998, at 5. The protester thus questions the higher
ratings assigned the proposals submitted by [DELETED] and [DELETED].
Under the bid protest provisions of the Competition in Contracting Act
of 1984, 31 U.S.C.A. sec. 3551-3556 (West Supp. 1998), only an
"interested party" may protest a federal procurement. That is, a
protester must be an actual or prospective offeror whose direct
economic interest would be affected by the award of a contract or the
failure to award a contract. Bid Protest Regulations, 4 C.F.R. sec.
21.0(a) (1998). Determining whether a party is interested involves
consideration of a variety of factors, including the nature of issues
raised, the benefit of relief sought by the protester, and the party's
status in relation to the procurement. Black Hills Refuse Serv.,
B-228470, Feb. 16, 1988, 88-1 CPD para. 151 at 2-3. A protester is not an
interested party where it would not be in line for contract award were
its protest to be sustained. ECS Composites, Inc., B-235849.2, Jan.
3, 1990, 90-1 CPD para. 7 at 1.
Based on their overall ratings, [DELETED] proposal (exceptional) was
ranked first, [DELETED] proposal (acceptable) was ranked fourth, while
Durocher's proposal (marginal) was ranked eighth overall. Since we
conclude that the evaluation of Durocher's proposal was reasonable,
even assuming that [DELETED] and [DELETED] proposals were downgraded
so as to be eliminated from phase one, Durocher's proposal's relative
ranking would rise only from eighth to sixth place. Since the RFP
stated that a maximum of five of the "most highly qualified offerors"
would advance to phase two, RFP sec. 00202, amendment No. 0001, part
I.1.2., Durocher would not be eligible to proceed to phase two of the
competition (instead, the higher-rated proposals submitted by offerors
C and D would now be among the most highly-rated proposals).
Where, as here, there are intervening offerors with a greater interest
in the procurement than the protester, we generally consider the
protester's interest to be too remote to qualify the protester as an
interested party. Four Seas and Seven Winds Travel, Inc., B-244916,
Nov. 15, 1991, 91-2 CPD para. 463 at 4. Since nothing in Durocher's
protest would alter the ratings of the intervening offerors (Offerors
C and D), Durocher would not be eligible to proceed to phase two of
the competition even if its protest allegations were sustained;
accordingly, Durocher is not an interested party to challenge the
evaluation of the [DELETED] and [DELETED] proposals.
The protest is denied.
Comptroller General
of the United States
1. The TEB added a plus, a minus, or no designation to the factor
ratings based on the strengths and weaknesses of each factor. To
assist in determining proposal rankings, the TEB also added a plus, a
minus, or no designation to the overall proposal ratings.
2. Part I.1.3 of section 00202 of the RFP describes the project,
including the main design and construction elements such as dredging,
structural, mechanical, electrical, and civil utilities.
3. We recognize that in some cases, where an offeror's proposal refers
to information regarding its past performance and the information is
personally known to the evaluators, that information must be
considered in the evaluation. See, e.g., International Bus. Sys.,
Inc., B-275554, March 3, 1997, 97-1 CPD para. 114 at 5 ("some information
is simply too close at hand to require offerors to shoulder the
inequities that spring from an agency's failure to obtain, and
consider, the information"). That is not the case here. On the
contrary, Durocher's proposal merely named its two proposed electrical
and mechanical team members, and generally stated that their selection
was based on their "knowledge of the Naval Station Mayport, and
experience and familiarity with government contracting." Durocher's
Proposal at 13. The proposal did not identify any Navy contracts at
the Mayport facility with which the firms were involved and did not
describe the services those firms rendered in connection with those
contracts; nor does the proposal identify the specific activity for
which the work was performed.
4. Regarding the evaluation of [DELETED] proposal, one of the firms
which was retained in the competition, Durocher argues that the TEB
improperly considered as a strength information regarding a proposed
electrical and mechanical subcontractor that was apparently not
submitted in that firm's proposal. In this regard, the TEB found as
one of nine strengths under the Past Performance factor that,
"[a]lthough not submitted, . . . [the] (elec. & mech. sub.) has
received several excellent commendations from SOUTHDIV for relevant
work." Technical Evaluation Board Report at 13. Even assuming that
the TEB should not have considered that information, given the other
strengths noted and the superior factor ratings assigned the proposal
in other areas, there is no reason to conclude that the "exceptional"
rating of [DELETED] proposal, or the overall proposal rating of
"exceptional minus," would change.
5. The TEB assigned Durocher's proposal a rating of "marginal plus"
under the third evaluation factor, management approach. Offerors were
required to submit an organizational chart for design and construction
teams demonstrating contractual arrangements and lines of authority
between key personnel. RFP, amend. No. 0001, part I.1.5, factor C.
The TEB found that while the organizational charts Durocher included
in its proposal listed all design and construction key personnel, the
charts and matrices presented were unclear. Also, the TEB concluded
that the narrative included with the charts did not demonstrate an
adequate understanding of the design-build process. Based on our
review of the charts, the accompanying explanation, and the TEB's
narrative in support of its evaluation, and since Durocher has not
rebutted any of the evaluators' findings, we think the TEB's rating in
this area is reasonable.