TITLE: Neeser Construction, Inc./Allied Builders System,, B-285903, October 25, 2000
BNUMBER: B-285903
DATE: October 25, 2000
**********************************************************************
Neeser Construction, Inc./Allied Builders System,, B-285903, October 25,
2000
Decision
Matter of: Neeser Construction, Inc./Allied Builders System,
A Joint Venture
File: B-285903
Date: October 25, 2000
James A. Sarafin, Esq., Moran & Sarafin, for the protester.
Terry E. Thomason, Esq., Carlsmith Ball, for C.F. Jordan, an intervenor.
Maj. Deborah L. Collins, Gerald M. Lawler, Esq., and Clarence D. Long, III,
Esq., Department of the Air Force, 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
In procurement where technical merit, proposal risk, and past performance
were significantly more important than cost, agency properly selected
higher-rated, higher-priced proposal where it reasonably evaluated awardee's
proposal as significantly superior to protester's, based on numerous
weaknesses and informational inadequacies in protester's proposal.
DECISION
Neeser Construction, Inc./Allied Builders System, A Joint Venture protests
the award of a contract to C.F. Jordan under request for proposals (RFP) No.
F41689-00-R-0801, issued by the Defense Commissary Agency (DeCA) for the
design and construction of a combined commissary/exchange to be built at
Naval Station Pearl Harbor, Hawaii. [1] The protester primarily challenges
the evaluation of its proposal.
We deny the protest.
The RFP, as amended, requested proposals for the design and construction of
a new community shopping center consisting of a commissary, exchange, mall,
and food court, with all the associated site work, including utilities,
roads, walks, and landscaping. The project also includes the demolition and
removal of the existing commissary/exchange facilities and phased
construction, because the site cannot accommodate construction of the entire
shopping center at one time RFP, Amend. No. 0002, Agency Report (AR) tab 8
(hereinafter RFP), at 9; AR tab 11, Statement of Work (SOW), sect. 1.1-1.1, at
10.
The solicitation provided for award of a fixed-price contract based on a
best value evaluation using three equally weighted technical evaluation
factors--proposal risk, past performance, and technical mission
capability--which, combined, were to be significantly more important than
price. RFP sect. M-900-1.2, at 67. The solicitation listed six technical mission
capability subfactors in descending order of importance--experience and
capabilities, architectural concepts, project management, site concepts,
building systems, and equipment--under which proposals would receive a
color/adjective rating of blue/exceptional, green/acceptable,
yellow/marginal, or red/unacceptable and a proposal risk rating of either
low, moderate, or high. RFP
sect.sect. M-900-2.2.A, B, and M-900-2.3, at 67-68 and 71.
The agency received seven offers. After evaluation by the technical
evaluation team (TET), Neeser's proposal received the lowest, and C.F.
Jordan's the second highest, ratings under the technical mission capability
factor; these ratings, and the proposal risk ratings, were as follows:
SUBFACTOR NEESER NEESER JORDAN JORDAN
(Technical)
(Risk) (Technical) (Risk)
Experience/ Yellow/ Moderate Green/ Low
Capabilities Marginal Acceptable
Architectural Yellow/ High Green/ Moderate
Concepts Marginal Acceptable
Project Yellow/ High Green/ Low
Management Marginal Acceptable
Site Concepts Red/ High Green/ Low
Unacceptable Acceptable
Building Yellow/ Moderate Green/ Low
Systems
Marginal Acceptable
Equipment Yellow/ Moderate Green/ Low
Marginal Acceptable
AR tab 24, Technical Evaluation Summary (TES), Proposals Nos. 4 and 6, at
11-19; AR tab 15, Proposal Risk Assessment (PRA), at 7. Under the past
performance factor, both Neeser and C.F. Jordan were rated very
good/significant confidence. Neeser's offered price of [deleted] was low and
C.F. Jordan's price of $49,990,000 was second low. AR tab 14, Bid Abstract,
at 2.
The source selection authority (SSA) determined that award to C.F. Jordan
represented the best value to the government based on the firm's second
highest technical mission capability rating, low risk rating, very good past
performance rating, and second lowest offered price. Additionally, the SSA
considered that
C.F. Jordan's design team had successfully designed other military
commissary and exchange projects, the firm proposed an "attractive" exterior
architectural treatment that invoked Pacific architectural elements in the
design, and the firm's proposal was acceptable without discussions. While
another offeror's proposal, not at issue here, was evaluated as the best
technically, its offered price of [deleted] million was the highest offered;
the SSA determined that the proposal's technical advantages were not worth
the [deleted] million price premium over C.F. Jordan's proposal. Conversely,
the SSA determined that Neeser's price advantage over C.F. Jordan was
insufficient to offset Neeser's least favorable technical rating, which
reflected numerous evaluated inadequacies and weaknesses that would have to
be addressed and resolved before its proposal could be acceptable. Also, the
SSA determined that any proposal revisions likely would increase Neeser's
price, and delay the award. AR tab 16, SSA Decision, June 21, 2000, at 3.
Award thus was made to C.F. Jordan on June 22 without discussions (in
accordance with the notice in RFP sect. M-900-1.1,
at 67). Neeser received a debriefing on July 11, and this protest followed
on July 21.
Neeser challenges numerous aspects of the evaluation of its proposal. In
reviewing protests against an agency's evaluation of proposals, we will
examine the record to determine whether the agency's judgment was
reasonable. Symetrics Indus., Inc.,
B-274246.10, Sept. 17, 1998, 98-2 CPD para. 78 at 5. The protester must
demonstrate that the evaluation was unreasonable, a burden that is not met
by mere expressions of disagreement with that evaluation. Cubic
Applications, Inc., B-274768 et al., Jan. 2, 1997, 97-1 CPD para. 98 at 3. We
have examined the evaluation here and conclude that it was both reasonable
and consistent with the evaluation criteria. We discuss Neeser's principal
arguments below.
EVALUATOR RATINGS
Neeser argues that inconsistencies and disparities in the ratings assigned
by the individual evaluators show that the evaluation was improper. For
example, the protester contends that one evaluator changed four of his
original acceptable ratings for the firm to marginal and his remaining two
exceptional ratings to either marginal or unacceptable, as indicated by
strikeouts on the rating sheets. AR Volume (Vol.) VIc, Evaluation Rating
Sheets for Neeser, at 70-75. This argument is without merit. First, we note
that the record reveals that the same evaluator also changed some of his
original exceptional and acceptable ratings for Jordan to acceptable and
marginal, respectively. AR Vol. VIc, Evaluation Rating Sheets for Jordan, at
44-48. Moreover, our review is focused on whether the final scores assigned
accurately reflect the relative merits of the proposals; ultimately, the
individual ratings here were not significant because the evaluators assigned
consensus ratings to the proposals. Household Data Servs., B-259238.2, Apr.
26, 1995, 95-1 CPD para. 281 at 4 n.2.
Neeser further argues that the consensus ratings improperly failed to mirror
those of the individual evaluators. However, consensus ratings need not be
those initially awarded by the individual evaluators; such ratings properly
may be determined after discussions among the evaluators. It is not unusual
for individual evaluator ratings to differ significantly from one another,
or from the consensus ratings eventually assigned; the overriding concern
for our purposes is not whether the final ratings are consistent with
earlier, individual ratings but, again, whether they reasonably reflect the
relative merits of the proposals. Brisk Waterproofing Co., Inc., B-276247,
May 27, 1997, 97-1 CPD para. 195 at 2 n.1. As discussed below, we conclude that
the consensus ratings assigned to Neeser's proposal were reasonable.
BIAS
Neeser alleges agency bias against it, as evidenced by the contracting
officer's
post-award release of a copy of its proposal to the awardee. However,
government officials are presumed to act in good faith; we will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or supposition. Arctic Slope World Servs., Inc.,
B-284481, B-284481.2, Apr. 27, 2000, 2000 CPD para. 75 at 12. There is no
evidence of bias here. The agency explains that the disclosure was the
result of an oversight--when the contracting officer sent a copy of Neeser's
protest to the awardee, she mistakenly included the protester's proposal,
which was attached to the protest. Neeser marked neither the protest nor the
proposal with a legend restricting their release, and this may have
contributed to a mistaken impression by the contracting officer that the
protester was disclosing its own proposal information. Neeser has presented
no evidence refuting the agency's account of the facts, and we find no other
basis for questioning it. [2]
EXPERIENCE AND CAPABILITIES
The TET rated Allied/Neeser's proposal yellow/marginal under the experience
and capabilities subfactor (under the technical mission capability factor),
with a moderate performance risk. [3] The rating was based primarily on
Neeser's failure to establish that it or its proposed supporting local
Hawaiian design firm, [deleted] possessed the required design experience,
namely, performance on at least one prior project similar in scope and value
to the project here. TES at 11; Contracting Officer's (CO's) Statement at
60. While the TET credited Neeser with one similar construction project--a
design/build commissary/exchange/mall at Elmendorf Air Force Base (AFB) in
Alaska, completed in September 1999, for which Neeser had been the general
contractor--it found that the proposal indicated that the project actually
had been designed by an outside firm, and that there was no other indication
Neeser had the required design experience. TES at 11; CO's Statement at 10;
AR Vol. VIc, Evaluation Factors Rating Sheets for Neeser, at 19, 26, 40, 54,
70, and 77; AR
tab 3, Neeser Proposal, at 81. Additionally, the TET found that the proposal
did not clearly establish [deleted] role in the project here, or indicate
which of [deleted] personnel would be dedicated to the project, or their
design experience with similar projects. [4] TES at 11; CO's Statement at
60; Neeser Proposal at 96-97, 120, and 138-46. Related to the lack of
evaluated design experience, the TET determined that Neeser's proposed
design project manager was not a registered architect, as required by the
RFP. [5] CO's Statement at 61; Neeser Proposal at 97, 134. Finally, the TET
determined that Allied Builders System, Neeser's joint venturer contractor,
lacked construction experience on projects similar in size and scope to the
project here, as required by the RFP. TES at 11; CO's Statement at 11, 15,
and 60; Neeser Proposal at 127-32.
Neeser argues that the agency ignored information in its proposal that
demonstrated the required similar design experience for itself and
[deleted], and similar construction experience for Allied.
The evaluation in this area was reasonable. Regarding Neeser's proposed
design staff, it is not apparent from the three in-house resumes included in
its proposal that those individuals designed the Elmendorf AFB project or
any other project similar in scope and value to the project here. [6] The
resume for Neeser's proposed in-house registered project architect does not
list the project or otherwise indicate any design experience similar to the
project here. Neeser Proposal at 135. While the project is listed as
experience on the two other resumes (for the design project manager and
project captain), the resumes do not indicate that these individuals are
registered architects, and their design responsibilities on the project are
not referenced. [7] Neeser Proposal at 134, 136. In light of these
informational deficiencies, the agency reasonably declined to credit
Neeser's proposal with similar design experience based on the Elmendorf AFB
project, and also properly downgraded the proposal for not including a
registered design project manager.
It also was not apparent from Neeser's proposal that its proposed supporting
design firm, [deleted], had similar design experience. The proposal stated
only generally that "[w]e have enlisted the support of local Honolulu design
firms for the various design disciplines to support the prime designers and
the construction team on a day to day basis." Neeser Proposal at 97, 113,
and 120. The proposal did list two [deleted] staff under proposed key
technical and management personnel (the principal in charge and the
assistant project architect), but the SF 255 submitted for these individuals
is blank under the space provided for "[p]roject [a]ssignment," leaving
their roles on this project unclear. Neeser Proposal at 140, 141. [8] Even
if these individuals' roles had been clearly set forth, there is no
indication in the proposal that they had similar design experience. Although
the resume portion of the submitted SF 255 indicates that the individuals
are registered architects, there is no indication of similar design
experience for either of them. The form for the principal in charge lists
"relevant" projects, but does not include a description indicating how they
are similar in size and scope to the project here; for the assistant project
architect, no experience whatsoever is listed. Neeser Proposal at 140, 141.
The SF 255 names a third [deleted] registered architect, but this individual
is not listed as proposed for the project here and, in any event, there is
no indication that his listed projects are similar in scope and value to the
project here; while a project was deemed similar if it had a total
contracted work value of at least $15 million, none of this individual's
listed projects exceeds $4 million. [9] Neeser Proposal at 97, 120 and
143-45. The agency therefore reasonably concluded that Neeser's proposal did
not establish similar design experience for [deleted].
Finally, the proposal does not show that the joint venture partner, Allied,
has similar construction experience. Since no experience was listed for
Allied under the experience and capabilities portion of Neeser's proposal,
the agency reviewed Allied's projects that were listed in the past
performance portion of the proposal. The agency determined that none was
similar in scope and value to the project here. CO's Statement at 15; Neeser
Proposal at 496-508. According to the agency, the failure to establish
similar experience for the joint venture team member increased the
possibility of unsuccessful performance and thus increased the risk to the
government. CO's Statement at 60.
Neeser does not refute the agency's finding of a lack of similar experience
for Allied; rather, it argues that joint venture information was not
required to be provided and that, in any event, the resumes it submitted for
six Allied personnel demonstrated similar construction experience. Neeser
Proposal at 127-32. Neeser's interpretation of the RFP in this area is
erroneous. As previously discussed, the RFP required offerors to establish
that their proposed A-Es and proposed contractors had experience with
projects similar in scope and value to the project here. RFP
sect. L-912-2.3, at 44. Since Allied was proposed on the construction team, it
was incumbent upon the protester to establish that--and proper for the
agency to consider whether--the firm possessed the required construction
experience. As for the six Allied resumes, they indicate only education, job
experience, licenses, certificates and awards; none of them lists any
completed projects. Neeser Proposal at 127-32. We conclude that the agency
reasonably determined that Neeser's proposal failed to establish that Allied
had the required similar construction experience. [10]
ARCHITECTURAL CONCEPTS
Neeser challenges the evaluation of its proposal as yellow/marginal, with
high risk, under the architectural concepts subfactor.
Exterior Design Style
The RFP directed offerors to "[d]escribe how the proposed exterior design .
. . provides a Hawaiian theme." RFP sect. L-912-2.4.B, at 44. Further, the
solicitation directed that the exterior appearance of the building (1)
reflect "Pacific Architecture," defined as "a unique blend of Art Deco
style, inspired by Polynesian craft and art, with ornament reflecting the
tropical climate and forms found in the islands," and (2) "[w]here possible
the building should reflect historical aspects of Pearl Harbor." AR tab 11,
SOW sect.sect. 1.1-6.5.C.1 at 17 and 1.1-2.1.M, at 11; RFP at 10. In this regard,
the RFP advised that "'Art Deco' was the predominant style during the
build-up of Pearl Harbor Naval Base during WWII" and provided that three
"[a]ppropriate [a]rchitectural [e]xamples" were the Honolulu Immigration and
Naturalization Service Building, the Honolulu Academy of Arts Building, and
Lockwood Hall Submarine Base, Naval Station Pearl Harbor. AR tab 11, SOW
sect. 1.1-6.5.C.1.a, at 17. Addresses and photographs of these buildings were
included in the RFP. Id.; AR tab 11, SOW app. C, at 528. Finally, under
"Exterior Elevations," the RFP required that submitted drawings include as
minimal information, among other things, "[i]ndication of signage and
decorative details." RFP sect. L-912-2.10.J.2.b, at 51.
The TET found Neeser's proposed exterior architectural design to be
inadequate due to its "plain and unimaginative" nature and its failure to
incorporate a Polynesian or Hawaiian style. TES at 12; CO's Statement at 62.
In this regard, the agency maintains that the protester's proposal "does not
provide any ornamental appliqu� of Polynesian detailing." CO's Statement at
19. The TET further commented that, although the protester's "architectural
narrative states that Hawaiian styled buildings have massive hipped or
pitched roofs," TES at 12, the "rendering provided with the protester's
proposal did not indicate ‘Hawaiian style' pitched or hipped roofs as
stated in his architectural narrative." CO's Statement at 24. Instead,
according to the agency, while the "indicated ‘Hawaiian style'
pitched/hipped roof mentioned represented a two-level roof structure with a
medium slope to a low slope," the "proposal only provided one continuous
slope." Id. Additionally in this area, one of the evaluators commented that
the exterior of the protester's proposed building "looks like a building
anywhere else in the world." AR Vol. VIc, Evaluation Factors Rating Sheets,
Offeror No. 4 (Neeser), at 71. Based on this finding, the agency concluded
that the design would not fit in well with the surrounding architecture at
Pearl Harbor, CO's Statement at 19, that the protester's exterior
architectural design would require considerable revision in order to be
acceptable, and that the required changes would increase the protester's
price. Id. at 62. The TET also considered Neeser's design to be deficient
because "no exterior signage [wa]s shown on the building for the commissary
and exchange." TES at 12. According to the agency, this omission would
require some additional design work and could result in additional cost not
included in the protester's price. CO's Statement at 62.
Neeser does not rebut the agency's determination that the firm's proposal
failed to provide any ornamental appliqu� of Polynesian detailing, or lacked
exterior building signs. Further, while Neeser does assert that it provided
a Hawaiian style in the "pitched and hipped roofs" proposed at the "major
entries to the building, the exterior canopies on the north and west
elevations, and on the octagonal mall area," it does not rebut the agency's
specific determination that its proposed roofs provided one continuous slope
instead of a Hawaiian style two-level roof structure with a medium to low
slope. [11] Protest exh. 6 at 5. Moreover, we note that the emphasis in the
protester's proposal narrative is on its proposed art deco design style; in
contrast to the firm's protest assertion that its proposed canopy roofs are
Hawaiian style, its
proposal narrative specifically describes the canopy roofs as providing a
"streamlined art deco look." Neeser Proposal at 107. We conclude that there
is no basis to object to the evaluation in this area. [12]
Handicapped Accessibility
The agency evaluated Neeser's proposal as deficient for failing to address
handicapped accessibility in its architectural concepts narrative or
drawings. TES at 12; CO's Statement at 17, 23, and 61. In this regard, the
RFP provided that the agency would assess the building's functionality by
considering, among other things, the acceptability of the offeror's floor
plan arrangement in regards to accessibility considerations, and directed
offerors to provide a narrative that "[c]onsider[s] [the] flow of customer
activities" and "[d]emonstrate[s] and graphically illustrate[s] aisle and
circulation corridors and provide[s] an analysis of . . . ADA [Americans
with Disabilities Act] requirements." RFP sect.sect. M-900-2.2.C.2.b.4, at 69 and
L-912-2.4.B,
at 44. The SOW referred offerors to applicable federal statutory and
regulatory accessibility provisions, as well as the ADA Accessibility
Guidelines. SOW sect. 1.1-6.2.E.3, at 5. Further, the RFP stated that proposal
drawings should "[s]how clearly and concisely the type and extent of work to
be performed." RFP sect. L-912-2.10.A.1,
at 48.
The protester asserts that the agency should have deduced the firm's
understanding of handicapped accessibility requirements from the completed
projects listed in their experience and capabilities narrative, and in the
resumes of its individual team members, since "these facilities could not be
constructed without strict adherence to ADA requirements." Protest exh. 6 at
4. However, 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; all offerors are expected to demonstrate their capabilities and submit
required information in their proposals. McAllister & Assocs., Inc.,
B-277029.3, Feb. 18, 1998, 98-1 CPD para. 85 at 4, 6; EOD Tech., Inc., B-266026,
Dec. 18, 1995, 95-2 CPD para. 273 at 4. Our review confirms that Neeser's
proposal omitted the required information on handicapped accessibility, and
the agency was not required to assume that Neeser had the required
understanding based on prior projects, in lieu of the firm's providing this
required information. Accordingly, the evaluation in this area was
reasonable.
SITE CONCEPTS
Under the site concepts subfactor, the TET evaluated Neeser's proposal as
unacceptable/red, with a high proposal risk, based on numerous technical
deficiencies that the TET deemed significant. TES at 14-15; CO's Statement
at 59, 64-66. Evaluated deficiencies concerning site grading/accessibility,
job phasing, and landscaping are discussed below.
Site Grading/Accessibility
The evaluators determined that the protester's proposed overall 5 percent
site grade/slope from the front of the building throughout the parking lot
was unacceptable due to the difficulty presented for handicapped access; the
agency asserts that "[n]ormal civil design practice would use a grade slope
of 2 to 3 percent in a parking lot of this type." CO's Statement at 40. [13]
The agency found that this deficiency indicated a lack of understanding of
the commissary/exchange design requirements, and would require redesign that
would increase the protester's proposed price. Id. at 40, 65. The evaluators
also determined that the protester's site plan drawings failed to indicate
the location for the handicapped parking, TES
at 15, which, according to the agency, also would require redesign. CO's
Statement at 46.
The protester does not rebut the evaluated deficiency concerning the site
grading or dispute that it was material. Regarding accessibility, the
protester maintains that its failure to show handicapped parking on its site
plan was an "oversight," but contends that it nevertheless provided for it
when it stated in the narrative portion of its proposal that "[h]andicapped
parking stalls will be located near the facility entrances and shall be
installed to meet ADA requirements"; the protester adds that their "location
and grading were to be determined later during the final design phase."
Protest exh. 6 at 10, 11; Neeser Proposal at 211.
The evaluation in this area was reasonable. Regarding handicapped parking,
the RFP required offerors to "[l]ocate the . . . accessible parking spaces
as close as possible to the entry/exits of the building" and submit drawings
which "[s]how proposed . . . locations of accessible parking stalls and
accessibility access ramps." AR tab 11, SOW sect.sect. 2-1.2, at 56 and 2-1.9, at
58. Our review confirms the agency's finding that the protester's site plan
drawing, C-1, failed to indicate handicapped parking. Neeser's blanket
statement of compliance with the handicapped parking requirements was
insufficient to meet this specific requirement that the location of
accessible parking and accessibility access ramps be shown on submitted
drawings. See Trimble Navigation Ltd., B-258672, Jan. 30, 1995, 95-1 CPD para.
138 at 8. There thus is no basis to object to this aspect of the evaluation.
Site Phasing Plan
The agency evaluated the protester's proposed site phasing plan--under which
demolition of the existing furniture store and commissary would be completed
3 months before space for the new furniture store would be completed--as
noncompliant with the RFP, because the furniture store would not be
available for
that 3-month period. In this regard, the RFP provided that "[t]he operation
of the existing commissary and exchange facilities must be maintained during
the construction of the new . . . facility." AR tab 11, SOW app. L--Project
Phasing Plan,
at 1090. The agency viewed this as a significant weakness that rendered both
the phasing plan and the project schedule unacceptable. CO's Statement at
44, 65-66. According to the agency, there would be a significant risk of
increased cost to the government if the proposal were accepted, based on the
necessary increase in overall schedule time, disruption of schedule, and
possible degradation of performance. Id.
The protester acknowledges that its site phasing plan was defective, based
on its proposed demolition of the furniture store before completion of space
for the new store, but characterizes this deficiency as an "oversight," that
would "not [be] of cost or schedule consequence to correct." Protest exh. 6
at 11.
Neeser's position does not establish that the evaluation in this area was
unreasonable. Rather, it amounts to disagreement with the agency over the
significance of the deficiency. Since the protester concedes that the
phasing plan was defective, and has presented no evidence rebutting the
agency's position that it represented a material weakness--i.e., that it
would have no significant schedule or cost impact--we have no basis to
question the agency's conclusions.
Landscape Plan
Neeser's landscape plan drawing was found deficient because, among other
reasons, it did not identify the areas to be provided with an irrigation
system, and did not
indicate re-use of existing palm trees. TES at 14, 15; CO's Statement at 44,
42,
and 66. [14] Concerning the palm trees, the TES noted that the "proposal
rendering indicates palm trees, but none is shown on the landscape plan."
TES at 14.
The protester argues that its "irrigation plan shows that all landscaped
areas are irrigated," noting that its proposal "narrative clearly states
that ‘the sprinkler system will provide 100 [percent] coverage and
even distribution of water in all landscaped areas." Protest exh. 6 at 11;
Neeser Proposal at 208. As for the re-use of the existing palm trees, the
protester states only that "[r]enderings are art work, not design work."
Protest exh. 6 at 11.
The evaluation in this area was reasonable. Our review of the protester's
landscape plan, drawing No. L-1, confirms the agency's evaluation that the
drawing failed to indicate an irrigation system; the drawing indicates the
proposed trees, shrubs, and groundcovers, but shows no areas of irrigation.
The protester's blanket statements in the narrative portion of its proposal
concerning irrigation--‘100 percent coverage' and ‘even
distribution of water'--were insufficient to meet the RFP's specific
requirement that irrigated areas and type of irrigation system be shown on
the drawings. Regarding re-use of palm trees, the protester's proposal
provided conflicting information. While the rendering showed large palm
trees at the front of the building, the landscape drawing did not show any
palm trees. Neeser suggests that the rendering was not a true depiction of
what it would provide; however, the rendering was a part of the proposal and
the RFP specifically provided that landscaping was to be indicated both on
the rendering and the drawing. There thus is no basis for questioning the
evaluation in this area. [15]
EVALUATION DOCUMENTATION
Neeser argues that the evaluation was insufficiently documented, and that
the agency improperly provided post hoc justifications for the evaluation.
Specifically, the protester complains that some individual rating sheets do
not contain comments in support of the rating, and that the consensus
evaluation rating sheets are skeletal and do not provide a reasonable level
of detail. Additionally, the protester complains that the contracting
officer's statement contained post hoc justifications for the evaluation.
We review the documentation supporting a source selection decision to
determine whether the decision was adequately supported and rationally
related to the evaluation factors. J.A. Jones Management Servs., Inc.,
B-276864, July 24, 1997,
97-2 CPD para. 47 at 4. Implicit in the foregoing is that the evaluation must be
documented in sufficient detail to show that it was not arbitrary. Federal
Acquisition Regulation (FAR) sect.sect. 15.305(a), 15.308; Quality Elevator Co.,
Inc., B-276750,
July 23, 1997, 97-2 CPD para. 28 at 3. In reviewing the record, while we
generally accord greater weight to contemporaneous evidence, we consider
post-protest explanations, so long as those explanations are credible and
consistent with the contemporaneous record. Jason Assocs. Corp., B-278689 et
al., Mar. 2, 1998, 98-1 CPD para. 67 at 6-7.
Considering both the contemporaneous evaluation record and post-protest
amplifications, the agency adequately documented the record here. While the
protester is correct that some individual evaluator rating sheets do not
contain any comments and that the consensus evaluation rating sheet comments
are sparse, this alone does not render the record inadequate for us to test
the reasonableness of the agency's judgment. Most of the individual
evaluation rating sheets do contain detailed comments, and most of the
consensus evaluation rating sheets contain comments (albeit abbreviated)
which correspond to the major deficiencies identified in the contracting
officer's statement. Additionally, the contemporaneous documentation
includes the TES, referred to throughout this decision, which contains
extensive comments on the proposals' inadequacies and strengths. While, as
indicated above, the contracting officer's post-protest statement contains
further amplification of the technical evaluation summary comments, those
amplifications are consistent with, and supported in, the contemporaneous
evaluation documentation. We conclude that the information in the record
provided a sufficiently clear basis for the award decision; certainly, there
was enough
information available to understand the agency's rationale for the award
decision and to permit Neeser to determine whether it agreed with the
ratings or conclusions regarding specific evaluation areas. This aspect of
the protest therefore is without merit.
The protest is denied.
Anthony H. Gamboa
Acting General Counsel
Notes
1. DeCA was represented by the Air Force in this protest.
2. In any case, a protester must demonstrate that any bias translated into
action that unfairly affected the protester's competitive position. Arctic
Slope World Servs., Inc., supra. Since Neeser's proposal was not released
until after the proposals were received and the evaluation and source
selection were completed, the release did not affect the protester's
competitive position in this procurement.
3. In this area, the solicitation provided that an acceptable rating would
be assessed if both the "contractor" and the "A-E " had "successfully
completed" "construction" and "design," respectively, in the past 5 years
"on at least one project similar in scope and value." RFP sect. M-900,
2.2.C.1.c, at 68. A similar project was defined as one including "new
construction of a minimum 50,000 square foot full service military
commissary or commercial grocery store, 100,000 square foot full service
military exchange or commercial retail stores," that "incorporate[d] all
major construction activities/trades, built-in store equipment,
refrigeration systems, and complete interior finishes/d�cor, with a total
value of contracted work valued at $15,000,000 or more." RFP sect.
M-900-2.2.C.1.c.2, citing sect. L-912-2.3, at 44 and 68.
4. The RFP directed offerors to "[i]dentify the key technical and management
staff . . . proposed to support this project, and include a list of their
disciplines, experience, qualifications, and their respective positions with
regard to this project. (Offerors may use Standard Forms 254 and 255 to
satisfy this requirement.) As a minimum, provide the above information for
the proposed project manager, superintendent, architect, and key engineering
staff." RFP sect. L-912-2.3.C, at 44. Specifically, here, the agency determined
that the Standard Form (SF) 255, Architect-Engineer and Related Services
Questionnaire for Specific Project, submitted for [deleted] did not specify
the roles of the [deleted] staff to be used on the project and was not
signed. CO's Statement at 13; Neeser Proposal at 138-46.
5. In this regard, the RFP directed that the "[d]esign [of] the project [was
to be] under the direct supervision of registered professionals licensed to
practice their respective disciplines in any one of the states or
possessions of the United
States . . . ." AR tab 11, SOW, sect. 1.1-6.2.B, at 13.
6. A footnote in the proposal stated that the "architectural personnel that
designed the [Elmendorf project] . . . while working for [deleted] now work
[in-house] at Neeser Construction, Inc." Neeser Proposal at 81. However, it
remains that there is nothing in the three in-house resumes showing that
these individuals participated in that project as registered architects.
7. The resume for the design project manager indicates "On Task Educated,"
but lists no active architectural registration; the resume for the project
captain indicates an architecture degree, but no active architectural
registration. Neeser Proposal
at 134, 136.
8. Neeser notes that the SF 254, Architect-Engineer and Related Services
Questionnaire, included in the past performance section of the firm's
proposal for [deleted], was signed by the [deleted] individual designated as
principal in charge elsewhere in the proposal, and thus should have been
considered by the agency in assessing design experience. However, since the
[deleted] projects listed on the form are not described, their similarity in
scope to the current project could not be determined, and since none of the
listed projects was for more than $7 million, similarity in value also could
not be determined. Neeser Proposal at 97, 555-58.
9. The SF 255 includes a fourth [deleted] employee with the listed project
assignments of project manager, project architect, and CADD operator.
However, this individual is not indicated to be a registered architect and
is not otherwise referenced as proposed for the project here; as previously
discussed, the proposal indicates that Neeser personnel are proposed for the
design project manager and project architect. Neeser Proposal at 97, 120,
and 142. Therefore, the listed project assignments appear to relate to prior
projects. In any event, there is no indication that the projects listed for
this individual are similar in scope and value to the project here. Id. at
142.
10. In its comments on the agency report, the protester for the first time
argues that its yellow/marginal rating under the experience and capabilities
subfactor was inconsistent with its very good/significant confidence rating
under the past performance factor. This argument is untimely since it was
raised more than 10 days after the debriefing at which it was notified of
its ratings. See 4 C.F.R. sect. 21.2(a)(2) (2000).
11. We note that the Hawaiian style roof, as described by the agency above,
was evident in the photographs of the architectural examples included in the
RFP.
12. Neeser contends in its comments on the agency report that, to the extent
that its proposal was evaluated as deficient for insufficient narrative or
details, the RFP was ambiguous. Specifically, Neeser notes that, while the
RFP stated that proposals should be brief and concise and did not require a
final design, it nevertheless directed that certain required information be
provided; Neeser asserts that, if all the information required by the RFP
were submitted, a proposal would not be brief and concise, and therefore
would be a nonconforming offer. This argument is untimely, since it is based
on an alleged inconsistency apparent on the face of the solicitation; under
our Regulations, such arguments must be raised prior to the time set for
receipt of initial proposals. 4 C.F.R. sect. 21.2(a)(1).
13. The agency explains that the protester's design approach raised the
buildings' slab grade elevation 4 to 5 feet above the elevation recommended
by the geotechnical report contained in the RFP; this reportedly potentially
reduced the firm's cost, and affected the grade of the parking lot and
access to the building. CO's Statement
at 40, 65.
14. The RFP required that offerors' landscaping drawings show "[i]rrigated
[a]reas and type of irrigation system." RFP sect. L-912-2.10.I.2.j.1, at 50; AR
tab 11, SOW
sect. 2.02810-1.3, at 60. Regarding, the palm trees, the SOW required offerors
to "[r]e-use existing Palm trees in new landscape plan where possible." AR
tab 11, SOW
sect. 2.02900-1.11, at 115. The SOW further directed offerors "[a]t a minimum,
[to] indicate and label the proposed extent[] of landscaping on the proposal
drawings." AR tab 11, SOW sect. 2.02900-1.3, at 61. Additionally, the RFP
required a color rendering of the front building fa�ade which "indicat[ed]
landscaping." RFP
sect. L-912-2.9.A and B, at 48.
15. Neeser further complains that the agency unreasonably evaluated its
proposed use of African tulip trees as deficient, noting that the RFP's
recommended plant list included these trees. In this regard, the evaluators
commented under "subfactor characteristics" that the "African tulips . . .
shown on [Neeser's landscaping] plan . . . are a problem plant." TES at 14;
CO's Statement at 46-47. We need not consider this aspect of the evaluation
since the agency reasonably found the proposal unacceptable under the site
concepts subfactor based on the noncompliant areas discussed above. We note,
however, that while the African tulip tree was listed along with numerous
other trees in the "Base Design Guide" and the "Recommended Plant List for
Naval Activities, Oahu, Hawaii," both of which were provided in the SOW, the
tree was specifically listed as high maintenance, with "[l]arge flowers and
boat-shaped pods produc[ing] litter throughout the year." SOW app. C, at
554, 556. Contrary to the protester's argument, the fact that a tree was
listed in the base guide or on the recommended plant list for Oahu would not
preclude the agency from finding that the tree is not appropriate for some
specific areas, for example, where litter would be a concern.