TITLE: Garco Construction, Inc.; Triton Marine Constructon Corporation, B-282231; B-282231.2, June 15, 1999
BNUMBER: B-282231; B-282231.2
DATE: June 15, 1999
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Garco Construction, Inc.; Triton Marine Constructon Corporation, B-282231;
B-282231.2, June 15, 1999
Matter of: Garco Construction, Inc.; Triton Marine Constructon Corporation
File: B-282231; B-282231.2
Date: June 15, 1999
Thomas D. Cochran, Esq., Witherspoon, Kelley, Davenport & Toole, for Garco
Construction, Inc., and John P. Ahlers, Esq., Barokas, Martin, Ahlers &
Tomlinson for Triton Marine Construction Corporation, the protesters.
Kevin C. Brennan, Esq., and Carol L. O'Riordan, Esq., O'Riordan &
Associates, for Nova Group, Inc., an intervenor.
Ronald S. Marsh, Esq., U.S. Army Corps of Engineers, for the agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging evaluation of relevant experience at less than excellent
rating is denied where for such rating solicitation required successfully
completed construction and start-up of two similar pressurized aircraft
hydrant fueling systems and protester's subcontractor had completed
construction and start-up of only one such system; agency reasonably did not
credit second similar fueling system where protester's subcontractor only
finished construction begun by another firm.
DECISION
Garco Construction, Inc. and Triton Marine Construction Corporation protest
the award of a contract to Nova Group, Inc. under request for proposals
(RFP) No. DACA67-99-R-0015, issued by the U.S. Army Corps of Engineers,
Seattle District, for construction of a pressurized hydrant fuel system for
C-17 aircraft at McChord Air Force Base, Washington.
We deny the protests.
The RFP, as amended, provided for the award of a fixed-price contract on the
basis of the best value to the government. It provided for the evaluation of
proposals under the following technical evaluation factors (with possible
points out of a total of 3,400): (1) relevant experience (1,000 points), (2)
qualifications (1,000 points), (3) past performance (1,000) points, and (4)
extent of small, small disadvantaged,
and women-owned small business participation (400 points). RFP amend. 0004,
sect. 2.1, at 00100-INTRO-1. The solicitation contained detailed descriptions of
the experience, qualifications and past performance necessary to achieve the
rating levels of excellent, very good, and acceptable. Price was not scored,
but was to be of equal importance to the technical factors.
The Corps received eight proposals in response to the RFP. After evaluating
initial proposals, the agency held written discussions with offerors in the
competitive range, including the protesters and the awardee, after which it
requested and evaluated final proposal revisions. In making its best value
determination, the agency considered the final consensus technical scores,
proposed prices, percentage difference between the proposed prices and
government estimate (GE) ($13,808,480), and cost per quality point (proposed
price divided by technical score), as follows:
Offeror Final Score Final Proposed Final % Diff Cost Per Quality
Price GE Point
Nova 3,400 $13,677,000 +0.95% $4,022.65
Triton 2,900 $12,498,450 -9.48% $4,309.81
Garco 2,900 $13,597,474 -1.5% $4,688.78
Offeror 2,500 $14,883,433 +7.8% $5,953.37
X
Source Selection Memorandum (SSM) at 4, 10.
Based on the determination that Nova's higher-scored, higher-priced proposal
provided the best value to the government, the Corps made award to Nova on
February 26, 1999. Garco's and Triton's protests followed.
EXPERIENCE
Triton asserts that the Corps improperly downgraded the firm's proposal
under the relevant experience criterion, with a rating of 750 points instead
of the full 1,000 available points, by failing to credit the firm with a
completed similar project. Triton's Protest at 3-4. According to the
protester, its proposed mechanical subcontractor successfully completed two
similar fuel systems at Altus and Tinker Air Force Bases (AFB) and performed
significant modifications on a third similar project. Triton concludes that
its subcontractor surpassed the RFP requirement for a rating of good/750
points ("successfully completed construction and start-up of 1 military or
civilian pressurized aircraft fueling system . . . and in addition, provided
significant construction modifications to existing aircraft fueling
systems"), and instead was entitled to a rating of excellent/1,000 points
("successfully completed construction and start-up of 2 military or civilian
Type III pressurized aircraft hydrant fueling systems . . . .") RFP amend.
0004, sect. 4.3.1, at 00100-INTRO-2. According to Triton, based on a corrected
technical evaluation in this area, its low cost offer would present the best
value to the government.
Triton's position is without merit. The Corps found that Triton's offer
indicated that its subcontractor completed construction and start-up of only
one similar project, the Altus AFB project. The Corps explains that Triton
was not credited for the project at Tinker AFB because Triton did not start
the project--it finished a project begun by another firm. SSM at 5; Agency
Report at 24. Specifically, the agency explains that, while Triton's
proposal indicated that its subcontractor made the final installation of
pumps and modified piping in the pump house; performed the flushing,
cleaning, and testing of the entire system; and performed the start-up and
performance testing of the Tinker AFB fueling system, there was no
indication that the subcontractor successfully completed construction of a
minimum of six hydrant control pits, the main pump house, and two storage
tanks on the Tinker project, as specifically required by the RFP for an
excellent rating. RFP amend. 0004, sect. 4.3.1, at 00100-INTRO-2.
Triton does not rebut the Corps's finding that its subcontractor had not
completed construction of the entire Tinker AFB project. Instead, the
protester argues that it should not be penalized on the basis of comments
raised in the agency's narrative report that the firm "offered no relevant
experience of its own" and it had not "worked together as a team" with its
proposed subcontractor. Agency Report at 16; Triton's Comments at 3.
However, while the agency's report does includes these comments, it is clear
from the record that Triton's proposal was not entitled to an excellent
rating since its proposed subcontractor's relevant experience did not meet
the RFP requirement for an excellent rating. The evaluation in this area
therefore was unobjectionable. [1]
ABANDONED ISSUES
Garco alleges that its proposal, which received 2,900 out of 3,400 possible
technical points, was downgraded improperly, despite its outstanding
performance review on a similar construction project. Garco further asserts
that the agency's best value determination improperly was unduly weighted to
favor the offeror receiving the maximum technical points, which amounted to
application of an unannounced evaluation criterion. Garco's Protest at 2. In
its report, the agency addressed these issues, stating that (1) although
Garco received 1000 points for past performance, it did not receive the
maximum available relevant experience and qualification points because its
proposal failed to list sufficient relevant experience and qualifications,
and (2) there was no evidence in the record of any impropriety in the factor
weightings on the best value determination. Agency Report at 20. In its
comments on the agency report, Garco failed to rebut the agency's response
in these areas. Consequently, we deem these issues to be abandoned by Garco
and will not consider them. Litton Sys., Inc., Data Sys. Div., B-262099,
Oct. 11, 1995, 95-2 CPD para. 215 at 3 n.2.
SUPPLEMENTAL PROTESTS
In their comments on the agency report, Garco and Triton raise additional
arguments (and state that they amend and supplement, respectively, their
protests). Garco's Comments at 7-10; Triton Comments at 4-13. Both
protesters argue that the agency improperly used an unannounced
cost-per-quality-point analysis in its best value determination.
Additionally, Triton argues that the agency improperly evaluated the firm's
past performance, failed to appropriately consider its low price in the best
value determination, improperly compared the firm's offered price to the
government estimate in the best value determination, and failed to document
its selection of a higher-priced, higher-rated offeror with a specific
determination that the technical superiority of the higher-priced offer was
worth the additional cost. All of these objections by Garco and Triton are
untimely.
Our Bid Protest Regulations require that protests based on other than
alleged solicitation improprieties be filed within 10 calendar days after
the basis of protest is known or should have been known. 4 C.F. R. sect.
21.2(a)(2). When a protester supplements a timely protest with new and
independent allegations, the later raised
issues must independently satisfy our timeliness requirements. QualMed,
Inc.,
B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 12-13. Garco and Triton were
provided with the SSM dated February 25, 1999--which both protesters
acknowledge formed the basis of their additional arguments--no later than
March 30 (which was 10 days prior to the agency's April 9 filing of its
report). [2] Consequently, Garco's and Triton's supplemental arguments
raised, respectively, 16 and 20 days later, on April 15 and 19, are untimely
and will not be considered. Garco's Comments, supra; Triton's Comments,
supra. We note that the fact that the SSM was part of an early document
release (i.e., furnished to the protesters prior to the filing of the agency
report) did
not suspend application of our timeliness rules. Protests based on the early
release documents must be filed within 10 days after their receipt.
Consolidated Eng'g Servs., Inc., B-279565, Mar. 19, 1999, 99-1 CPD para. ___ at
9 n.4. [3]
Finally, Triton requests that we reconsider our denial of its supplemental
document request for the bidding history on the Corps's Seattle District
construction solicitations for the past 24 months, showing comparisons
between the low prices offered and the government estimates. Triton contends
that the requested information is relevant to its allegation that the agency
improperly compared the firm's offered price to the government estimate in
the best value determination. As discussed above, Triton's protest
questioning the use of the government estimate in the price evaluation
and/or best value determination is untimely and will not be considered. It
thus remains our view that the requested documents are not relevant to the
outcome of the protest.
The protests are denied.
Comptroller General
of the United States
Notes
1. Triton also argues, Triton's Protest at 4, without any further
elaboration, that the agency overrated Nova's past performance. Such a
general allegation of an improper evaluation, without an explanation of how
the evaluation was flawed, fails to satisfy the requirement that a protester
provide a detailed statement of legal and factual grounds. 4 C.F.R.
sect.sect. 21.1(f), 21.5(f) (1999). Therefore, the allegation is insufficient to
support a bid protest and we have no basis to consider it. Global Eng'g &
Constr. Joint Venture, B-275999.3, Feb. 19, 1997, 97-1 CPD para. 77 at 4.
2. Triton states that it received the SSM on March 30. Garco does not
specify when it received the SSM; however, the agency states that it
confirmed receipt of the early release documents, which included the SSM,
with Garco on March 26, which Garco does not dispute.
3. Triton contends that its supplemental protest arguments merely expand
upon its original protest, and therefore are timely. See Dual, Inc.,
B-279295, June 1, 1998, 98-1 CPD para. 146 at 6-7. We disagree. We think it is
clear that Triton's later-raised arguments--on the evaluation of the firm's
past performance; the evaluation of price, including the use of a
cost-per-quality point analysis, in the best value determination; and the
documentation of the best value determination--provide no support for and
are distinct from its original protest basis that its proposal was
improperly downgraded under the relevant experience criterion, and that the
best value determination thereby was invalidated.