BNUMBER:  B-280853             
DATE:  November 24, 1998
TITLE: Durocher Dock & Dredge/Black & Veatch, A Joint Venture, B-
280853, November 24, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of: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.