TITLE:  Menendez-Donnell & Associates, B-286599, January 16, 2001
BNUMBER:  B-286599
DATE:  January 16, 2001
**********************************************************************
Menendez-Donnell & Associates, B-286599, January 16, 2001

Decision

Matter of: Menendez-Donnell & Associates

File: B-286599

Date: January 16, 2001

Carlos R. Menendez for the protester.

James L. Ferracci, Esq., General Services Administration, for the agency.

Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably found protester's proposal technically unacceptable under
experience and past performance evaluation criterion, where record shows
that protester failed to submit required detailed information showing that
its proposed key subcontractors had previously performed contracts similar
to the solicited effort; offerors have an affirmative duty to prepare an
adequately written proposal.

DECISION

Menendez-Donnell & Associates (MDA) protests the rejection of its proposal
under request for proposals (RFP) No. GS-07P-00-HHD-0081, issued by the
General Services Administration (GSA) for heavy road construction and paving
services in the state of New Mexico. MDA asserts that the agency
misevaluated its proposal and improperly found its proposal to be
technically unacceptable.

We deny the protest.

The RFP, a small business set-aside, called for technical and price
proposals to perform heavy road construction and paving throughout the state
of New Mexico for a base period of 5 years, with two additional 5-year
option periods. The agency contemplated awarding one or more
indefinite-delivery/indefinite-quantity contracts on a best-value basis,
with technical considerations deemed significantly more important than
price. Proposals were to be evaluated on the basis of two technical
considerations--experience and past performance of the prime contractor and
key subcontractors on similar projects (the more important factor), and
qualifications and past experience of key personnel.

Regarding the experience and past performance of the prime and
subcontractors criterion, offerors were advised that a key subcontractor was
one that would contribute 20 percent or more to project completion. In order
to demonstrate experience and past performance, offerors were required to
provide information on three prior similar contracts for the prime and each
key subcontractor. Similarly, under the qualifications and past experience
of key personnel criterion, offerors were required to provide information on
three similar projects for each key employee to show that they were
qualified to perform the requirement. The agency reserved the right to
evaluate proposals and make award on the basis of initial offers, without
conducting discussions.

The agency received numerous proposals, including the protester's. After
evaluating the proposals, the agency decided to proceed with award on the
basis of initial offers, without discussions. Three contracts were awarded
to firms whose proposals were technically acceptable with competitive
pricing. The agency concluded that MDA's proposal was technically
unacceptable because of a lack of information relating to the experience and
past performance of either MDA or its proposed subcontractors, and because
MDA's proposed key personnel lacked relevant experience in road
construction. See Consensus Evaluation Worksheet for MDA. In this regard,
the record shows that MDA submitted information on three prior contracts it
had performed, which the agency determined were not similar to the solicited
requirement (the contracts were for construction management and inspection
services and quality control services, as opposed to the actual performance
of heavy road construction). Id.; MDA Proposal at Tab 2. As for its key
subcontractors, MDA submitted no information whatsoever relating to their
prior contracts. See Consensus Evaluation Worksheet for MDA. Finally, the
agency determined that MDA's proposed key personnel, for the most part, did
not have experience in performing the type of heavy road construction
contemplated by the RFP. See MDA Proposal at Tab 2.

MDA asserts that it was improper for the agency to reject its proposal as
unacceptable without first seeking to clarify its experience and past
performance information, either by soliciting additional information from
it, or by consulting the agency's own records which, the protester
maintains, contain information relating to its prior contracts. In this
regard, MDA notes that the Commerce Business Daily announcement for this
requirement stated that the agency was not limited to reviewing only
information presented in the proposal relating to prior contracts. MDA
further asserts that, even without such additional information, it was
improper for the agency to rate its proposal unacceptable; it maintains that
the agency was required to assign a neutral rating in the absence of past
performance information. Finally, MDA contends that the agency improperly
failed to consider its price before declining to make award to the firm. [1]

The evaluation of technical proposals is a matter primarily within the
discretion of the contracting agency; in reviewing challenges to an agency's
evaluation, our Office does not reevaluate technical proposals but, instead,
considers whether the evaluation was reasonable and consistent with the
solicitation's evaluation criteria. Dual, Inc., B-279295, June 1, 1998, 98-1
CPD para. 146 at 3. Since an agency's evaluation is dependent upon the
information furnished in a proposal, it is the offeror's burden to submit an
adequately written proposal for the agency to evaluate, especially where, as
here, the offeror is specifically on notice that the agency intends to make
award based on initial proposals without discussions. Id. at 5. An agency
reasonably may reject a proposal for informational deficiencies that prevent
the agency from fully evaluating the proposal. Phantom Prods., Inc.,
B-283882, Dec. 30, 1999, 2000 CPD para. 7 at 4.

We note initially that, since the record confirms that the prior contracts
MDA listed to establish its past performance were not similar to the current
requirement, MDA Proposal, Tab 2, at 1-3, the agency reasonably determined
that MDA's prior contracts did not provide a basis for assessing the firm's
past performance. However, it appears this aspect of MDA's past performance
warranted a neutral, rather than an unacceptable, rating; under FAR sect.
15.305(a)(2)(iv), where an offeror does not have a record of relevant past
performance, the offeror may not be evaluated either favorably or
unfavorably. On the other hand, even if this is the case, and even if we
also agreed with MDA that the agency should have clarified its experience or
obtained additional information from its own records, as discussed below,
GSA reasonably rated the proposal unacceptable based on MDA's failure to
establish adequate experience and past performance for its subcontractors
and key employees.

MDA's proposal generally refers to contracts which appear to be relevant and
which were performed by MDA with its proposed subcontractors. However,
detailed information necessary to assess the nature and relevance of those
contracts was not included in the proposal. For example, with respect to the
two primary asphalt subcontractors MDA proposed to use (one for work in the
northern and one for work in the southern part of the state), the proposal
states that MDA has ongoing projects with each contractor which are similar
to the solicited requirement. MDA Proposal at Tab 3. However, the proposal
omitted detailed information--such as, for example, the contract number, a
contact point, and a description of the project--despite the express RFP
requirement that such information be provided. RFP, Standard Form 1442, at
4.

The protester states in its comments on the agency report that it did not
provide information relating to the prior contracts of its proposed
subcontractors because it did not want to make irrevocable commitments to
any of its subcontractors in advance (planning instead to obtain proposed
pricing from an appropriate subcontractor at the time when actual
requirements were presented in the form of delivery orders), and
consequently did not want to rely on their past experience in its proposal.
This purported approach is nowhere described in MDA's proposal and, in fact,
is inconsistent with the explicit terms of the proposal, which affirmatively
states that MDA will subcontract with one of its identified subcontractors
based on the geographic location of the work. MDA Proposal at Tab 3. We
conclude that the agency reasonably found that MDA's proposal failed to
provide the information required by the RFP to enable it to evaluate MDA's
key subcontractors.

To the extent MDA contends that GSA was required to assign a neutral rating
to its proposal based on the absence of information relating to its key
subcontractors, we disagree. Although FAR sect.15.305(a)(2)(iv) requires an
agency to assign a neutral rating where past performance information is not
"available," here, the protester's proposal represented that its proposed
subcontractors are engaged in projects that would illustrate their
performance capability. The information thus was available, but MDA chose
not to present the information in its proposal, in direct contravention of
the terms of the RFP. In our view, an offeror cannot simply choose to
withhold past performance information--and thereby obtain a neutral
rating--where the solicitation expressly requires that the information be
furnished, and where the information is readily available to the offeror.

In any case, notwithstanding the evaluation under the experience and past
performance factor, as noted, the agency also rated MDA's proposal
unacceptable based on its determination that MDA's proposed key personnel
lacked experience on projects similar to the solicited effort. MDA does not
dispute the agency's conclusion, and we find nothing in the record that
calls the evaluation in this regard into question.

Finally, MDA's assertion that the agency improperly failed to consider its
price in connection with the award decisions is without merit. Because MDA's
proposal was properly found technically unacceptable, and a technically
unacceptable offer

cannot properly form the basis for award, the agency was not required to
further consider price or the other terms of the offer. Plasma-Therm, Inc.,
B-280664.2, Dec. 28, 1998, 98-2 CPD para. 160 at 3.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. MDA asserts in the alternative that GSA should have referred its
technical unacceptability to the Small Business Administration (SBA) for
review under that agency's certificate of competency program, citing Federal
Acquisition Regulation (FAR) sect. 15.101-2(b)(1). However, the reasons the
agency found MDA's proposal unacceptable concerned only MDA's failure to
submit information establishing its and its subcontractors' experience and
past performance, and did not constitute a finding that MDA is not a
responsible prospective contractor.