BNUMBER: B-281222
DATE: January 12, 1999
TITLE: WRS Infrastructure & Environment, Inc., B-281222, January 12,
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:WRS Infrastructure & Environment, Inc.
File: B-281222
Date:January 12, 1999
Donald J. Kinlin, Esq., and Scott K. McPeek, Esq., Thompson Hine &
Flory, for the protester.
Richard B. Oliver, Esq., McKenna & Cuneo, for Environmental Chemical
Corporation, and Michael Donnelly, Esq., for Montgomery Watson
Americas, Inc., the intervenors.
Gregory H. Petkoff, Esq., and Capt. Douglas M. Whitehead, Department
of the Air Force, for the agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that an awardee was given undue evaluation credit for
proposing a solution to a sample task order because it allegedly
copied the solution provided by its proposed subcontractor (which was
also a successful competitor) is denied where the record does not
support the protester's speculation that the solution was merely
copied.
DECISION
WRS Infrastructure & Environment, Inc. (WRS) protests the award of a
contract to Environmental Chemical Corporation (ECC) under request for
proposals (RFP)
No. F42650-98-R-0003, issued by the Department of the Air Force for
construction and operation and maintenance (O&M) services for
remediation, restoration, clean-up and long-term monitoring of
environmental actions at Hill Air Force Base and surrounding Air Force
property in Utah. WRS alleges that ECC received undue evaluation
credit for its mission capability on the basis that its response to a
sample task was allegedly copied from that of another
offeror--Montgomery Watson Americas, Inc. (MW).
We deny the protest.
BACKGROUND
The RFP, issued on March 16, 1998, solicited offers for up to four
indefinite-delivery/indefinite-quantity contracts against which task
orders would be issued. The base period for performance was 3 years
with two 1-year options. The RFP provided that:
The Government may award one contract to an 8(a) firm and one to
a small business firm if the government determines, from the
proposals, there are offerors in these categories technically
capable of satisfying the requirement. The remaining two
contracts will be awarded to technically qualified firms,
regardless of size, using full and open competition.
RFP sec. M 3.0B.
Section M of the RFP provided that awards would be made on a best
value basis considering four evaluation factors: mission capability,
performance confidence, proposal risk, and cost/price. Mission
capability and performance confidence were considered to be of equal
importance and more important than the remaining factors. Proposal
risk was less important than the first two factors and more important
than cost/price. Mission capability and proposal risk had identical
subfactors, listed in descending order of importance: (1) Design
concept and construction work plan to the sample task order[1]; (2)
O&M plan to the sample task order; (3) Personnel plan; and (4) Breadth
of experience. RFP sec. M 4.0-4.2.
Twelve offers were received by the proposal submission date. The RFP
in section L-1 at 1 incorporated a clause providing that awards could
be made on the basis of initial proposals and, in fact, no discussions
were held. In his selection decision, the source selection authority
(SSA) noted that ECC, a firm specializing in construction, and MW, an
architectural/engineering (A&E) firm, submitted virtually identical
proposals and that each was listed as the primary subcontractor in the
other's proposal. Source Selection Decision (SSD), Sept. 10, 1998, at
1. He further found that "their solution" to the sample task order
exceeded the agency's requirements and noted that ECC had submitted
the third lowest evaluated price while MW's price was sixth lowest.
Id. As for the protester, the SSA noted the following: "[WRS] was
competitive and its design met all requirements. However, its
approach did not provide any added benefit to the Air Force and its
price was the ninth lowest." Id. at 2.
Awards were made to MW, ECC, and two other firms on September 11.
Following an October 1 debriefing, WRS filed this protest on October
5.
PROTEST AND ANALYSIS
In its initial protest, WRS alleged that: (1) MW and ECC engaged in
prohibited multiple bidding which prejudiced the government and other
offerors; (2) the awards to reciprocal teaming partners MW and ECC
would subvert competition for task orders; (3) the awards will tend to
increase the scope and maximum value of the contracts; and (4) MW's
potential conflicts of interest as a former A&E contractor at Hill Air
Force Base will further complicate competition for task orders and
cause the agency to incur additional expenses in tracking and
preventing such conflicts. The agency report addressed each of these
allegations in detail and WRS, after reviewing the report and the
accompanying exhibits provided to its counsel under a protective order
issued by this Office, reformulated its position as follows:
Based on the facts in the record, including the Agency Report
submitted in response to this protest, the issue in this protest
can now be
stated as follows:
Did the Government evaluate proposals fairly and in accordance
with the Solicitation factors when it gave [ECC] the same "Green"
rating for Mission Capability as it gave to [MW], where ECC
merely
copied [MW's] solution to the Sample Task Order upon which
the Green rating was based?
The answer must be an emphatic 'no' . . . .
WRS's Comments, Nov. 18, 1998, at 1.
More particularly, WRS has now recast its argument to make the
assertion that, with respect to two of the most important evaluation
factors, mission capability and performance risk, ECC received undue
evaluation credit for the first two subfactors under each
factor--i.e., those involving the design and construction solutions to
the sample task order and those involving the O&M solution to the
sample task order. Moreover, WRS submits that had ECC been properly
rated, the protester would have necessarily been in line for award.
In reviewing protests against the propriety of an agency evaluation of
proposals, it is not the function of our Office to independently
evaluate proposals and we will, therefore, not disturb the agency's
conclusion unless it is shown to be unreasonable. The record must
establish that the evaluation is unreasonable and the mere fact that a
protester disagrees with the agency does not render the evaluation
unreasonable. American Educ. Complex Sys., B-228584, Jan. 13, 1988,
88-1 CPD para. 30 at 2. Moreover, our Office will not sustain a protest
that is based on speculation. Id.
WRS's repeated contention that ECC merely copied MW's solution to the
sample task order is founded in speculation that is not supported by
the record. Noting that the solutions submitted by the two offerors
are virtually identical, which is confirmed by our reading of the
proposals, WRS essentially bases its entire argument on the following
statement made by the evaluators when rating ECC's proposal:
"Proposal [under subfactor 1] was a sloppy cut and paste of the [MW]
proposal (e.g. Table 2, Figure 2, grammatical errors, etc.). Reflects
poorly on offeror's internal QC program." Technical Team Review of
Proposals, July 29, 1998, at 14. From this, WRS concludes that ECC
copied the sample task order portion of MW's proposal.
In our view this statement does not, as the protester insists,
establish that the agency believed that ECC had no role in the
preparation of the task order solution, or that this was objectively
true. On the contrary, the statement reflects what the evaluators
termed a "minor weakness" in ECC's presentation. Id. In his source
selection decision, the SSA essentially recognized that the two
offerors collaborated in developing the solution when he concluded
that: "[t]heir [ECC's and MW's] solution to the sample problem
exceeded performance requirements . . . ." SSD, supra, at 1.
Moreover, in a sworn statement, ECC's project manager stated that at
least five members of his firm collaborated with MW on the sample task
solution by helping to evaluate four possible design concept
alternatives, including the preparation of technical drawings and
plans, contacting specialty contractors and preparing cost estimates.
He further states that ECC and MW discussed the alternatives and
jointly developed a design approach. Once the approach was
determined, he states that ECC personnel drafted portions of the
response including the construction plan, the soil handling plan and
the excavation and soil handling QC and safety sections. ECC's
Comments, Dec. 3, 1998, Attachment at para. 2. In its final comments, MW
confirms the collaborative effort in preparing a joint solution as
"the work of experts from both companies with skills relevant to the
solution." MW's Comments, Dec. 10, 1998, at 2.
WRS also notes that ECC relied in its proposal on the extensive
experience of MW with contracts at Hill Air Force Base and argues
that, since ECC had no such experience of its own, it impermissibly
piggy-backed on its proposed subcontractor's experience to demonstrate
mission capability it otherwise did not have. The RFP did not require
Hill-specific experience and did not prohibit subcontracting.
Accordingly, there is no basis to object to the evaluator's decision
to consider MW's experience in rating ECC. Further, a review of ECC's
proposal indicates that it listed a number of large remediation
contracts where it performed as the prime contractor at other base
locations. To the extent that WRS suggests that MW's Hill-specific
experience provided ECC with an unfair advantage because it gave ECC
credit for developing a response to a Hill-specific sample task order
problem when ECC had no such experience, the Air Force responds and
the record supports that the sample task order problem was not
specific to Hill Air Force Base.
In sum, the record provides no basis to question the agency's
conclusion that ECC deserved to be rated the same as MW with respect
to the sample task order solution, notwithstanding WRS's speculation
that ECC's proposal was merely a copy of MW's, and the agency's
evaluation of ECC's proposal is unobjectionable.
The protest is denied.
Comptroller General
of the United States
1. The sample task order was a hypothetical environmental remediation
problem that offerors were required to address.