TITLE:  East Bay Elevator Company, Inc., B-286315.3, August 30, 2001
BNUMBER:  B-286315.3
DATE:  August 30, 2001
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East Bay Elevator Company, Inc., B-286315.3, August 30, 2001

Decision

Matter of: East Bay Elevator Company, Inc.

File: B-286315.3

Date: August 30, 2001

Laurence Schor, Esq., Susan L. Schor, Esq., and Jeremiah S. Regan, Esq.,
McManus, Schor, Asmar & Darden, for the protester.

Thomas Y. Hawkins, Esq., General Services Administration, for the agency.

Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably assessed proposal favorably under solicitation
evaluation criterion calling for specialized experience with a particular
control system where the proposal listed corporate experience with the same
or similar equipment and proposed to employ the predecessor contractor's
on-site service mechanic whose experience at the building for which services
were being procured explicitly encompassed the specialized experience in
question.

2. Agency decision not to conduct discussions as part of a reevaluation
performed as corrective action is unobjectionable where the underlying
solicitation provided for award without discussions.

DECISION

East Bay Elevator Company, Inc. protests the award of a contract to Star
Elevator, Inc. under request for proposals (RFP) No. GS-09-00-KSC-0086, a
total small business set-aside issued by the General Services Administration
(GSA) for elevator maintenance services at the Phillip Burton Federal
Building/United States Courthouse in San Francisco, California. East Bay
contends that the agency misapplied the solicitation evaluation criteria in
its evaluation of the proposals, and improperly failed to conduct
discussions.

We deny the protest.

The contract was initially awarded to Star on September 8, 2000, on the
basis that its proposal was the low priced and highest rated technically
acceptable proposal; after receiving a debriefing, East Bay filed a protest
with our Office objecting to the award determination. Before responding with
an agency report, GSA determined that there was a potential evaluation
problem arising from the absence of technical proposal evaluation standards
in the source selection plan (SSP) used by the evaluators. Agency Corrective
Action Letter, October 18, 2000, at 1; Agency Cost Entitlement Report, May
30, 2001, at 2. As a result, the agency undertook corrective action in the
form of reevaluating the extant proposals under a revised SSP. During the
reevaluation period, GSA permitted Star to continue to perform the contract
because the agency concluded that this was necessary in order to ensure the
safety of tenants and building visitors. On May 11, 2001, based on the
reevaluation, GSA's contracting officer determined that award to Star was
appropriate. After receiving notification of this determination and a
debriefing, East Bay filed this protest with our Office.

The RFP evaluation clause called for a "best value" award based on price and
the technical factors of experience and past performance, which were stated
to be equal in weight and, when combined, of greater weight than price. RFP
at 40. Under the experience criterion, the RFP stated that "[o]fferors which
do not, as a minimum, demonstrate experience performing recurring operations
and maintenance services of facilities comparable in size and complexity to
the Federal Building . . . within the past five years (with at least five
years of performance completed), will be determined to have an
unsatisfactory level of experience, and will be excluded from further
consideration." Id. This criterion further provided that "[t]he experience
of subcontractors . . . will be considered commensurate with the scope of
that entity's responsibilities in fulfilling contract requirements," and
that "[s]pecialized experience with escalator[s] by Peelle, Haughton
Elevator, Millar CVT micropro[cessor] controls (CVT/NET and CVT-AI) for low
and high rise is required." Id. With respect to discussions, the RFP
included Federal Acquisition Regulation sect. 52.212-2-1(g), stating that the
government intends to evaluate offers and award a contract without
discussions with offerors. RFP at 38. Under the evaluation clause, the RFP
also contained a note stating:

After receipt of the offers, the Government will initially perform a price
analysis and rank proposals by price. The Government will then begin
evaluation of Experience and Past Performance, beginning with the lowest
priced offeror. If an offeror possesses sufficiently higher ratings for
Experience and Past Performance, and has offered a low fair and reasonable
price, the Government may elect to refrain from evaluating other offers,
which have significantly higher pricing. Although it could be found that
those other offerors possess higher Experience and Past Performance ratings,
the Government may

determine without further evaluation that their higher priced proposals do
not justify the additional expenditure. The Government may then make award
without discussions.

RFP at 40.

Three proposals were received. East Bay proposed a total price of
$2,423,681.40, which was approximately 14 percent higher than Star's price
of $2,124,903. Star's technical proposal was highest rated with a total
score of 6.5 (out of a possible 10), and East Bay's was second with a score
of 4.2. The third proposal was determined to be technically unacceptable for
failure to meet minimum RFP requirements. Agency Report, Tab 8; Source
Selection Evaluation Panel Report, Aug. 29, 2000, at 1-3. The contracting
officer determined to award to Star, without conducting discussions, based
on her determination that of the two technically acceptable proposals,
Star's offered the lower evaluated price and the higher technical rating.
Agency Report, Tab 9, Evaluation of Proposals and Source Selection
Determination, Sept. 8, 2000, at 1-2. In the subsequent corrective action
taken in response to East Bay's protest, the agency reevaluated the
proposals under a revised SSP (using different technical evaluators), again
without conducting any discussions. The contracting officer's rationale was
that discussions were inappropriate because East Bay's price had been
revealed, and the reevaluation was narrowly focused on the application of
objective experience criteria to the existing proposals. Agency Report,
Contracting Officer's Statement, July 5, 2001, at 2.

In its proposal, Star had listed experience maintaining elevators which had
CVT controls at a Herbst-owned building on Van Ness Avenue. Agency Report,
Tab 6, Star Proposal, Herbst Foundation Job Reference, at 1. Star's proposal
also listed experience with several Kimpton Hotels and the agency
reevaluation panel noted that the elevator/escalator systems at these hotels
include Millar CVT microprocessor controls. Agency Report, Tab 19, Revised
Evaluation and Source Selection Determination Memorandum, May 11, 2001, at
4. In addition, Star listed as its proposed on-site mechanic a named
individual ("FD"), who was currently employed by Millar as the on-site
mechanic at the Burton facility, and has 5 years of experience servicing
Millar CVT microprocessor controls.

To demonstrate its experience, East Bay had similarly listed FD as its
proposed service mechanic, indicating that it had spoken to this individual
during a building walkthrough, and noting that the individual (whose last
name East Bay did not include in its proposal) had "expressed his
willingness to continue working for the follow-up contractor," and that
"East Bay Elevator intends to offer this position again to [FD] if East Bay
Elevator Company is awarded this contract." Agency Report, Tab 5, East Bay
Proposal, Key Personnel Resume, at 1. In evaluating both proposals, the
agency noted that FD possessed the requisite experience, but since there was
no guarantee that FD would accept the employment offer, chose to "give
greater weight in evaluating the experience of the firm providing the
proposal." Agency Report, Tab 19, supra, at 2-3. The reevaluation panel
concluded that East Bay's proposal did not list projects which satisfied the
experience requirement, and that Star's proposal did so, having listed "work
at two (2) or more facilities of comparable size and complexity to the
Federal Building at 450 Golden Gate Avenue, S.F., CA within the past five
years (with at least five years of performance completed) with specialized
experience with . . . Millar CVT microprocessor controls (CVT/NET and
CVT-AI)." Id. at 3, 5.

As a result of the reevaluation, East Bay's proposal received a
substantially lower technical score than Star's, and the evaluators
determined that the proposal failed to satisfy the RFP's experience
requirement, which the SSP now indicated called for having 5 completed years
of experience on at least one building of similar size and complexity as the
Federal Building. Agency Report, Tab 18, Revised SSP, at 4. In particular,
Star's proposal received a technical score of 7, consisting of 4 out of a
possible 5 points under experience and 3 out of a possible 5 points under
past performance. Because East Bay's proposal did not list experience that
was either comparable or comprised at least 5 years of completed
performance, the proposal received a technical score of 1.5 under
experience. Since East Bay's proposal did not meet the requirement for
similar experience, the proposal was not given any numerical score under
past performance. Agency Report, Tab 19, supra, at 3-5. In view of the fact
that East Bay's proposal was evaluated as technically unacceptable for
failure to satisfy the 5 year experience requirement, and Star's proposal
was evaluated as technically acceptable, with a higher technical score, at a
lower price, the contracting officer determined that Star warranted award as
the only offeror whose proposal met the solicitation's minimum requirements,
and also as the low priced, high technically scored offeror. Id. at 1.

East Bay argues that Star's proposal was misevaluated as having satisfied
the solicitation provision calling for Millar CVT experience, and should
have been rejected for failure to satisfy this requirement. Our Office will
review an agency's evaluation of proposals to assume that it is fair,
reasonable, and consistent with the evaluation criteria stated in the
solicitation and with applicable statutes and regulations. J.A. Jones
Management Servs., Inc., B-284909.5, Oct. 2, 2000, 2001 CPD para. 64 at 4. Here,
we see no basis to question the agency's evaluation.

East Bay's argument is premised on its assumption that the solicitation
evaluation provision concerning Millar CVT experience establishes a
requirement, which must be specifically satisfied in order for a proposal to
be evaluated as technically acceptable. This misconstrues the effect of the
provision, which does not set forth any specific and objective standard,
qualitative or quantitative, which the RFP states must be satisfied as a
precondition to receiving award. See AT&T Corp., B-260447.4, Mar. 4, 1996,
96-1 CPD para. 200 at 5. The provision at issue simply calls for an unspecified
type of experience with a particular system without requiring any particular
duration of experience, licensing, or level of expertise. Under these
circumstances, the agency had a reasonable basis to evaluate Star's proposal
favorably in this regard in light of either Star's experience servicing a
building which its proposal stated contained elevators with CVT controls, or
the agency evaluator's knowledge that other buildings listed in Star's
proposal for experience contained Millar CVT controls, or based on Star's
proposed employment as its site mechanic of a named individual who
concededly has experience servicing Millar CVT systems. [1]

East Bay objects that the two proposals were treated differently because GSA
accepted Star's representation regarding Millar CVT experience, but
downgraded East Bay's proposal for relying on FD's experience. Protest at 4.
East Bay's argument is that GSA waived the CVT requirement for Star but
treated East Bay unequally by downgrading FD's experience. Id. As evidenced
above, this is factually incorrect. Star's proposal separately evidenced CVT
experience under the projects which Star listed to demonstrate the requisite
experience. The agency treated FD's experience as secondary with respect to
both proposals because his employment was not guaranteed, and his experience
was not considered sufficient by itself to satisfy the mandatory RFP
requirement for 5 years of completed corporate experience in maintaining a
comparable facility. Accordingly, GSA's evaluation of both proposals in this
regard is unobjectionable.

East Bay also objects to GSA's determination that its proposal did not
satisfy the requirement for 5 years of similar completed performance,
without which the RFP stated that a proposal was unacceptable. East Bay
believes that it satisfied the requirement based on its proposal to employ
FD, who allegedly possessed such experience. Protest at 5. While an agency
properly may consider the experience of supervisory personnel in evaluating
the experience of a new business, The Project Management Group, Inc.,
B-284555, Apr. 14, 2000, 2000 CPD para. 66 at 4, there is no legal requirement
that an agency attribute employee experience to the contractor as an entity.
Hard Bodies, Inc., B-279543, June 23, 1998, 98-1 CPD para. 172 at 4. Here, while
FD's experience as a site mechanic could reasonably be viewed as relevant
for evaluating experience repairing Millar CVT controls, his position was
not supervisory, and the agency had reasonable concerns about the certainty
of his employment with either offeror. Unlike Star's proposal, East Bay's
proposal did not otherwise establish that the firm or a proposed
subcontractor had the requisite 5 years of similar experience. In these
circumstances, we find reasonable the agency's determination that East Bay's
proposed offer of employment to FD was not, by itself, sufficient to satisfy
the RFP requirement for 5 years of completed similar corporate experience.

East Bay's other objection to its evaluation arises from its contention that
the agency failed to conduct meaningful discussions. East Bay contends that
had it been afforded discussions, it would have shown that Millar, whom it
states that it planned to use as a subcontractor, satisfied certain of the
solicitation experience requirements by virtue of experience possessed by a
predecessor company. [2] Protester's Comments at 3. There is generally no
obligation that an agency conduct discussions where, as here, a solicitation
specifically instructs offerors of the agency's intent to award on the basis
of initial proposals. Techseco, Inc., B-284949, June 19, 2000, 2000 CPD para.
105 at 4. The contracting officer has broad discretion in deciding whether
to hold discussions, which our Office will review only to ensure that it was
reasonably based on the particular circumstances of the procurement. McShade
Enters., B-278851, Mar. 23, 1998, 98-1 CPD para. 90 at 4.

East Bay argues that the notice of intent to award without discussions was
limited by the above-quoted evaluation note to mean that discussions could
be dispensed with only where one offeror has sufficiently higher experience
and past performance ratings, has offered a low and reasonable price, and
other offerors have significantly higher price and, as a result, GSA elects
to refrain from evaluating other offers. Protest at 7. GSA points out that
the note was meant to set forth circumstances that would justify award
without conducting past performance reviews for all offerors. Agency Report
at 10. The language does not limit the agency's right to make award without
discussions; it simply describes a particular instance in which the
government might make award without discussions. The protester's
interpretation represents a strained reading of the language which would
substantially conflict with the prior notice of intent to award without
discussions. In our view, the fact that the note indicates as its last line
that in a designated instance the agency could award without discussions
does not limit the reservation of the agency's right to do so in other
circumstances as well. Here, given the notice of intent to award without
discussions, since GSA intended to conduct a limited reevaluation, and was

concerned that Star's price had been disclosed, East Bay has not provided
any valid basis to question GSA's decision not to conduct discussions. [3]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. East Bay disputes whether any of the buildings listed in Star's proposal
actually contain the Millar CVT equipment. This allegation is based on
declarations from a Millar employee which claim that only Millar and one
other firm (not Star) have any experience servicing Millar CVT systems in
the Bay Area, and that the specific referenced Millar CVT systems are not
found in any of the buildings listed in Star's proposal. Since East Bay
states in its protest that it planned to use Millar as its subcontractor on
this contract, these statements are clearly self-serving, and of
questionable probative value. In any event, we see no reason for the agency
to have doubted the accuracy of Star's proposal in this regard, particularly
in light of the firm's CVT experience available through FD.

2. In this regard, we note that East Bay's proposal makes no mention of
Millar as a proposed subcontractor; indeed, the only reference in the
proposal to Millar is in FD's resume where, under the column calling for the
name of FD's immediate supervisor, East Bay entered "[u]nknown, [Millar] is
a competitor of East Bay Elevator Company." Agency Report, Tab 5, supra, at
1.

3. The protester has also raised a number of collateral issues including an
assertion that the reevaluation constituted a prohibited sole source
procurement and that, under the circumstances, the procurement was
improperly set aside for exclusive small business participation. These
issues are without merit and will not be considered. They are based
primarily on an erroneous assumption that the reevaluation somehow
constituted a new procurement, and on the proposition that the proposals
were misevaluated which, as discussed above, we have concluded was not the
case.