TITLE:  J.A. Jones/Bell, A Joint Venture, B-286458; B-286458.2, December 27, 2000
BNUMBER:  B-286458; B-286458.2
DATE:  December 27, 2000
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J.A. Jones/Bell, A Joint Venture, B-286458; B-286458.2, December 27, 2000

Decision

Matter of: J.A. Jones/Bell, A Joint Venture

File: B-286458; B-286458.2

Date: December 27, 2000

Joel S. Rubinstein, Esq., and Andrew N. Cook, Esq., Bell, Boyd & Lloyd, for
the protester.

William W. Goodrich, Jr., Esq., Matthew S. Perlman, Esq., and David A.
Vogel, Esq., Arent Fox Kintner Plotkin & Kahn, for Clark/Guilford, A Joint
Venture, the intervenor.

Jerry A. Walz, Esq., and Fred Kopatich, Esq., Department of Commerce, for
the agency.

Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest alleging that discussions were not meaningful in two areas is
denied where the record shows that in one area, the agency clearly
communicated its concerns regarding the protester's proposed approach, and
in the other area, which was not raised during discussions, the protester
has offered no evidence of how it might have responded to improve its
proposal, and thus, has not shown that it was prejudiced by agency's
decision not to raise the matter during discussions.

2. Protester's challenge to the evaluation of its proposal is denied where
the record shows that the evaluation was reasonable and consistent with the
stated evaluation criteria.

DECISION

J.A. Jones/Bell, A Joint Venture, protests the award of a contract to
Clark/Guilford, A Joint Venture, by the Department of Commerce pursuant to
request for proposals (RFP) No. 52SBNBOC1045, issued for the construction of
the Advanced Measurement Laboratory at the Commerce Department's National
Institute of Standards and Technology campus in Gaithersburg, Maryland.
Jones/Bell argues that the agency failed to hold meaningful discussions
regarding weaknesses in its proposal, and improperly evaluated the proposal.

We deny the protest.

BACKGROUND

The National Institute of Standards and Technology develops measurement
methods, standards and testing procedures that provide the underpinning to
several critical technologies, including semiconductor electronics,
manufacturing engineering, development of advanced materials, biotechnology,
and information technology. To perform this work, the Institute has
developed plans for the Advanced Measurement Laboratory, which, when
completed, will consist of five building wings that combine features of
close temperature control, vibration isolation, air cleanliness, and power
quality into one of the most technologically-advanced laboratory buildings
in the world. Agency Report at 2.

After a 1996 attempt to build this laboratory was abandoned for lack of
funds, the current RFP was issued on May 19, 2000. The RFP anticipated award
of a fixed-price contract "to the offeror whose proposal offers the best
value to the Government from a technical and price standpoint." RFP sect. M.4.
To determine which proposal presents the best value, the RFP identified
three technical evaluation factors, and advised that the three factors
combined would be approximately equal to price. The three evaluation factors
were (1) past performance and experience, (2) management of the project, and
(3) small business subcontracting plan. Of these, the RFP advised that the
first two evaluation factors would be the most important, and that the past
performance factor was slightly more important than the project management
factor.

In addition, the RFP provided detailed evaluation subfactors and elements.
Under the past performance and experience factor, the RFP identified the
following two subfactors of approximately equal value: (1) previous clients'
assessment of the offeror's and major subcontractors' performance; and
(2) experience constructing projects of comparable size, technical nature,
and complexity. Under the project management factor, the RFP identified
three subfactors: (1) the offeror's proposed methodology; (2) key personnel;
and (3) project schedule. The first of these subfactors, methodology, was
equal to the value of the second two, while the second two were equal in
value to each other. Under the management factor's methodology subfactor,
there were four separately-scored, equally-weighted elements: (1) quality
assurance plan; (2) building commissioning plan; (3) change order management
plan; and (4) safety plan. Under the management factor's second subfactor,
key personnel, there were six separately identified key personnel positions;
however, these positions were not separately scored.

By the July 19 due date for submission of proposals, the agency received two
initial proposals--one from Jones/Bell, one from Clark/Gilford. After an
initial evaluation and review of prices, both proposals were included in the
competitive range for award, and the agency provided both offerors written
clarification questions. After receipt of responses to these questions, the
agency also held face-to-face discussions with each offeror. During these
discussions, the agency advised both offerors that their prices exceeded the
agency's estimates for its new laboratory, and issued an amendment providing
for deductive options (which is not at issue in this protest). At the
conclusion of discussions, the agency received final revised technical
proposals on September 14, final price proposals on September 19, and final
subcontracting plan revisions on September 20.

After reevaluating both proposals using a 1,000-point scale, the
Clark/Gilford proposal had an overall score of 754 and a price of $173.5
million, compared to Jones/Bell's score of 696 and price of $177.9 million.
A summary of these scores by evaluation factor and subfactor is set forth
below:

 EVALUATION FACTOR                            MAX.     JONES/        CLARK/
                                              POINT                  GILFORD
                                              VALUE    BELL SCORE    SCORE

 PAST PERFORMANCE AND EXPERIENCE

 - - Previous Clients' Assessment of          225      173           178
 Offeror's

 and Primary Subcontractors' Performance

 - - Experience Constructing Projects of      225      153           182

 Comparable Size, Technical Nature and

 Complexity

 MANAGEMENT OF THE PROJECT

 - - Offerors Proposed Methodology

 1. Quality Assurance Plan                    50       38            41

 2. Building Commissioning Plan               50       38            37

 3. Change Order Management Plan              50       34            34

 4. Safety Plan                               50       40            41

 - - Key Personnel                            100      62            72

 - - Project Schedule                         100      60            76

 SMALL BUSINESS SUB. PROGRAM                  150      98            93

 TOTAL POINT SCORE                            1,000    696           754

 TOTAL PRICE                                           $177.9        $173.5
                                                       million       million

Agency Report, Tabs 34-35.

After reviewing these evaluation results, the agency concluded that the
proposal submitted by Clark/Gilford was both higher-rated and lower-priced
than the proposal submitted by Jones/Bell, and award was made to
Clark/Gilford on September 27. This protest followed.

DISCUSSION

Jones/Bell argues that, in several evaluation areas, the agency failed to
hold meaningful discussions and/or improperly evaluated its proposal. The
decision below addresses Jones/Bell's contentions in three of those areas:
project schedule, prior experience, and key personnel. [1]

The protester's contention that discussions were not meaningful applies to
the areas of project schedule and prior experience. In the area of project
schedule, the agency raised the issue during discussions, but Jones/Bell
complains that the discussions were not adequate to provide notice of the
problem; in the area of prior experience, the agency did not raise the issue
at all.

The Federal Acquisition Regulation (FAR) requires that contracting officers
discuss with each offeror being considered for award "significant
weaknesses, deficiencies, and other aspects of its proposal . . . that
could, in the opinion of the contracting officer, be altered or explained to
enhance materially the proposal's potential for award." FAR sect. 15.306(d)(3).
The statutory and regulatory requirement for discussions with all
competitive range offerors (41 U.S.C. sect. 253b(d)(1)(A) (1994); FAR sect.
15.306(d)(1)) means that such discussions must be meaningful, equitable, and
not misleading. While the discussions should be as specific as practical
considerations will permit, the agency is not required to "spoon-feed" an
offeror as to each and every item that could be revised so as to improve its
proposal, however. Du & Assocs., Inc., B-280283.3, Dec. 22, 1998, 98-2 CPD para.
156 at 7-8.

With respect to the area of project scheduling, the protester explains that
it used a module approach to scheduling, and that--even though the agency
asked questions about its approach--the agency did not "criticize" the
approach. Protester's Comments at 3. Presumably, in Jones/Bell's view, by
not criticizing its approach the agency did not provide the company with
sufficient notice of its concerns, and thus failed to hold meaningful
discussions. We disagree.

Under this solicitation, offerors were required to submit a project schedule
detailing when major activities would be completed. The proposed schedule
was evaluated as a separate subfactor under the project management
evaluation factor, and was worth 100 points. Upon reviewing Jones/Bell's
schedule, the evaluators concluded it was overly cumbersome and complex, and
did not demonstrate a clear understanding of the project. In addition, the
evaluators noted that Jones/Bell's references also expressed concerns about
its performance in this area. See Source Evaluation Board, Final Report,
Sept. 22, 2000. As a result, the evaluators awarded Jones/Bell's proposal
only 60 of the 100 available points under this subfactor.

With its letter advising Jones/Bell that its proposal would be included in
the competitive range, the agency appended three pages of
clarification/discussion questions. Agency Letter to Jones/Bell, Aug. 3,
2000. Under the heading "project schedule," the letter stated:

You used modules/letters to further breakdown the building subprojects. Do
you plan to use the module concept during construction? Please clarify your
reasoning for this approach.

Id., attach. at 2. During face-to-face negotiations, the agency revisited
its concern. Specifically, the discussion minutes of August 16 show that
(among other questions on this subject) Jones/Bell was asked "to provide
further clarification of the ‘module' concept in their proposal
revision." Agency Report, Tab 20, at 3.

In our view, the initial exchange quoted above, buttressed by the subsequent
exchange on August 16, should have been sufficient to communicate a concern
about the proposed approach, and to communicate that the agency was not yet
convinced that the proposed approach to project scheduling was ideal. While
the protester correctly notes that this exchange stops short of expressly
criticizing this portion of the proposal, we cannot agree that these
questions were legally insufficient to provide notice to Jones/Bell about
this weakness in its proposal. The exchange led the protester directly to
the precise area of agency concern and reasonably communicated that the
approach had not yet passed muster with the evaluators. Since agencies are
not required to spoonfeed offerors during discussions, Du & Assocs., Inc.,
supra, we deny Jones/Bell's contention that discussions in this area were
inadequate.

In its second challenge to the adequacy of discussions, involving the area
of experience, Jones/Bell complains that the agency failed to advise it that
the evaluators concluded that it lacked experience building laboratories
requiring a high degree of temperature control, vibration isolation,
cleanliness, and power quality. Jones/Bell argues that its proposal
contained information about several projects that should have addressed
these concerns, and claims that if the agency had raised these issues during
discussions it could have alleviated any concerns.

In response, the agency answered that it did not have "concerns" about
Jones/Bell's experience building complex laboratories, but countered that
the protester's experience was limited to laboratories considerably
smaller--i.e., less than $50 million--than the approximate $170 million size
of this project. Agency Report, Nov. 16, 2000, at 17-18. In the agency's
view, it was not required to discuss this matter with Jones/Bell because it
considered the experience acceptable, it understood the protester's
submissions regarding its experience, and it could not see how discussions
on this subject could improve the company's experience.

The record shows that under the evaluation scheme here, an offeror's
experience was considered under the second subfactor within the past
performance and experience evaluation factor. This subfactor, entitled
"experience constructing projects of comparable size, technical nature and
complexity," was worth 225 points. The evaluators awarded the Jones/Bell
proposal 153 points after concluding that the joint venture's experience was
acceptable, but that it lacked experience with projects that were similar in
both size and complexity. Put simply, the evaluators concluded that
Jones/Bell's large projects (over $100 million) were not complex, and its
complex projects were not large. See Source Evaluation Board, Final Report,
Sept. 22, 2000.

In our view, even if we agree that the agency should have raised this matter
during discussions, there is no evidence in this record to support a
conclusion that the protester was prejudiced by the agency's failure to do
so. The protester's initial filing on this issue identified four projects
that it argues should have been sufficient to establish its experience with
similarly complex work. Supplemental Protest, Oct. 25, 2000, at 2. In
response, the agency acknowledged that the protester had experience building
complex projects, but stated that none of the complex projects exceeded $50
million, and thus, were not of the magnitude of the $170 million laboratory
project here. Agency Report, Nov. 16, 2000, at 16-17. In reply to the
report--and to the accompanying evaluation materials which were provided to
counsel for the protester under the coverage of a protective order issued by
our Office--Jones/Bell offered no information or argument to counter the
agency's evaluation conclusions, other than to reiterate the fact that it
lost a significant number of points in this area. Nor did the protester
explain what other information it would have provided, if asked, that might
have changed the agency's assessment of its experience. Comments at 1-2.
Given this record, we cannot conclude that the protester was prejudiced by
the agency's decision not to discuss the assessed weakness in this area. See
Microeconomic Applications, Inc., B-258633.2, Feb. 14, 1995, 95-1 CPD para. 82
at 10-11.

Finally, Jones/Bell argues that its proposal was improperly evaluated under
the key personnel subfactor, where it received 62 of 100 possible points. As
above, the protester complains that its project manager was wrongly
downgraded for not having experience with large, complex projects. [2]

Our standard in reviewing a protester's challenge to an evaluation is to
examine the record to determine whether the agency's judgments were
reasonable and consistent with stated evaluation criteria and applicable
statutes and regulations. ESCO, Inc., B-225565, Apr. 29, 1987, 87-1 CPD para.
450 at 7. Here, we find no basis for concluding that the agency unreasonably
evaluated Jones/Bell's proposal under the key personnel subfactor.

As an initial matter, our review of the record shows that any problem with
Jones/Bell's proposed project manager was only one of several contributing
reasons for its rating under this subfactor, and that the protester has
offered no argument regarding the other negative conclusions in this area.
With respect to the proposed project manager, however, the agency concedes
that he has experience with large projects (over $100 million), but
concludes that those projects, such as major airports, did not involve the
complexity of the state-of-the-art laboratory here. In our view, there was
nothing unreasonable about this assessment, and the protester has offered
our Office no basis for any conclusion to the contrary, other than its
disagreement. See Comments at 4. In addition, the evaluators noted that they
were concerned that some of the proposed key personnel were committed to
other major federal projects, while some appeared to possess only average
(or below-average) qualifications for the positions for which they were
proposed. Also, the agency explains that it raised these issues during
discussions, and ended the negotiations with less confidence in the proposed
project team, not more. Under these circumstances, we have no basis to
conclude that Jones/Bell's score of 62 of 100 available points under the key
personnel subfactor was unreasonable.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Since, as discussed below, we deny the protester's challenges in these
three areas, we need not address its challenges in the four remaining areas.
In these four areas--related to each of the four elements under the
methodology subfactor within the project management factor (see table
above)--even if Jones/Bell received every available point under all four
elements, it would remain the lower-rated, higher-priced proposal. Thus, in
these four areas Jones/Bell cannot make the requisite showing of prejudice
required in this forum, see McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1
CPD para. 54 at 3, and we need not consider these issues further.

2. For the record, Jones/Bell also complains that the agency changed its
position about the company's proposed project manager since the debriefing,
when the protester says it was advised only that its project manager lacked
experience with large, complex projects, whereas in the agency report, the
basis was changed to a lack of experience on large, complex, and
technologically-challenging projects. In our view, there is no basis for
distinguishing between the terms "complex," and
"technologically-challenging" as they are used in this record. The
protester's focus on minor word changes between the debriefing and the
written agency report does not provide a basis for overturning the agency's
judgment about the qualifications of the project manager.