TITLE:  The Community Partnership LLC, B-286844, February 13, 2001
BNUMBER:  B-286844
DATE:  February 13, 2001
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The Community Partnership LLC, B-286844, February 13, 2001

Decision

Matter of: The Community Partnership LLC

File: B-286844

Date: February 13, 2001

Charles H. Carpenter, Esq., and Scott E. Fireison, Esq., Pepper Hamilton,
for the protester.

Robert M. Anderson, Esq., and Matthew R. Keiser, Esq., U.S. Army Corps of
Engineers, for the agency.

Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly excluded submission from the competitive
range in a procurement to select a developer to improve military housing
pursuant to the Military Housing Privatization Initiative is denied where
the record shows the evaluation was reasonable and consistent with the
evaluation factors save for two challenged weaknesses, and where any agency
error in these two areas did not prejudice the protester.

DECISION

The Community Partnership LLC (CP) protests the exclusion of its submission
from the competitive range under request for qualifications (RFQ) No.
DACA02-00-R-0002, issued by the Department of the Army, Corps of Engineers,
to select a developer to improve the military housing at Fort George G.
Meade, Maryland, pursuant to the Military Housing Privatization Initiative.
CP primarily contends that the Army improperly evaluated its submission.

We deny the protest.

BACKGROUND

The Department of Defense (DOD) owns approximately 200,000 family housing
units that require renovation or replacement. See Military Housing
Privatization Web Site,
. To improve housing
more economically and more quickly than if only the traditional military
construction approach were used, in 1996 Congress enacted legislation
authorizing a 5-year pilot program, the Military Housing Privatization
Initiative, to allow private sector financing, ownership, operation, and
maintenance of military housing. [1] National Defense Authorization Act for
Fiscal Year 1996, Pub. L. No. 104-06, sect. 2801 et seq., 110 Stat. 186 et seq.,
codified at 10 U.S.C. sect.sect. 2871-2885 (Supp. IV 1998). In 1999, Congress
expanded the definition of the types of entities eligible to participate in
this program to include state or local governments and housing authorities
of state or local governments. Pub. L. No. 106-65, sect. 2803, 113 Stat. 848
(1999).

The Army's pilot program under this initiative is the Residential
Communities Initiative. The Army has assigned the procurement responsibility
for each pilot installation, including Fort Meade, to the Corps of
Engineers. The Corps issued this RFQ in May 2000 to select a developer to
improve Fort Meade's military housing community.

Over the course of this long-term project, the developer is expected to
upgrade existing housing and build new housing; transform existing housing
areas into planned and integrated residential communities; provide ancillary
supporting facilities; maintain positive relations with surrounding
communities; and provide for the effective long-term, high-quality
management and operation of the family housing inventory and ancillary
supporting facilities. The developer will be expected to assume ownership of
Fort Meade's family housing units and will be provided a long-term interest
in the underlying land. The developer's return on the project is expected to
come from developing, operating, and managing these housing units, and its
main source of revenue will be rents paid by service members from their
housing allowances. The developer will be responsible for all costs of the
project and may be allowed to construct, maintain, and/or manage ancillary
supporting facilities with the agreement of the installation. RFQ para. 1.1.

The Fort Meade project will be organized in two phases. During Phase 1,
Project Planning, the developer will work with the Army to craft a Community
Development and Management Plan (CDMP) that sets forth the terms of the
developer's long-term relationship with the Army. The developer will be paid
a fixed fee of $350,000 at the completion of Phase I. During Phase 2,
Project Implementation, the developer will implement the CDMP. This
solicitation concerns only the Phase I procurement.

Prospective developers were required to submit a two-part statement of
qualifications. Part 1 was to contain information addressing the RFQ's
minimum experience requirements, and Part 2 was to contain information
addressing the RFQ's qualifications requirements. While the statement of
qualifications was to contain sufficient detail to permit the agency to
reach a reasoned judgment regarding the developer's minimum experience
requirements and qualifications, submissions were limited to 50
single-spaced pages. [2] RFQ para. 4.1.

An evaluation team (ET) was to evaluate the submissions in two stages.
During the first stage, all submissions were to be evaluated on the
information provided regarding the minimum experience requirements. Only
submissions that met these requirements were to be reviewed during the
second stage of the process. RFQ para. 4.4. During that second stage, the ET was
to evaluate the remaining submissions on the information provided regarding
the qualifications requirements. The ET was to consider the following
evaluation factors, listed in descending order of importance: experience;
preliminary project concept; financial capabilities; organizational
capabilities; financial return; past performance; and small business
concerns as subcontractors. Each factor contained various elements and
questions that were to be evaluated comprehensively to determine an overall
factor rating. These overall factor ratings were to be used to analyze the
developer's ability to plan and implement the project as a whole. The Army
was to select the firm whose submission was most advantageous to the
government and best demonstrated an ability to plan and implement the
project. RFQ para. 4.0.

The Army planned to make award based on initial submissions, without
providing prospective developers the opportunity to revise their
submissions. RFQ para. 4.4.1. As a result, initial submissions were to contain
all of the information developers thought the Army would need to make a
selection decision. The Army might, however, contact developers to clarify
certain aspects of their submissions or to correct clerical errors. Id. The
Army also reserved the right to decide that discussions were necessary in
order to allow the selected developers the opportunity to revise their
submissions. In that event, the Army planned to establish a competitive
range. RFQ para. 4.4.2 and app. at E-2, as amended by amendment No. 1. If the
contracting officer determined that the number of proposals that would
otherwise be in the competitive range exceeded the number at which an
efficient competition could be conducted, the contracting officer might
limit the number of proposals in the competitive range to the greatest
number that would permit an efficient competition among the most highly
rated proposals. Id.

The agency received [DELETED] submissions by the July 31 closing date. Based
upon the first stage of the evaluation, the ET concluded that [DELETED] of
the [DELETED] developers, including CP, satisfied the minimum experience
requirements. The selection official agreed with this conclusion and the ET
began the second stage of the evaluation process. [3] For each submission,
the individual evaluators assigned each factor a rating of exceptional,
acceptable, or unacceptable based upon findings of strengths and weaknesses.
The evaluators then met to establish consensus ratings and overall
adjectival and risk ratings.

[DELETED] submissions received consensus ratings of exceptional/low risk;
[DELETED] was rated acceptable/low risk; [DELETED], including the submission
from CP, were rated acceptable/medium risk; and [DELETED] were rated
acceptable/high risk. The ET advised the contracting officer that
discussions with the [DELETED] firms whose submissions were rated
exceptional/low risk should enable the Army to distinguish additional
significant strengths and weaknesses necessary to select the best-qualified
developer, and recommended that the contracting officer establish a
competitive range comprised of these three submissions. The ET recommended
that the remaining [DELETED] firms be eliminated from the competition in
order to increase efficiency pursuant to RFQ para. 4.4.2. [4]

After CP was notified of its exclusion from the competitive range, it
requested and received a debriefing. As part of its debriefing, CP was given
a list of the firm's consensus ratings and each of its assessed strengths
and weaknesses. In its protest, CP primarily contends that the Army
improperly evaluated its submission as to some of these alleged weaknesses.
CP also contends that the Army improperly failed to engage in communications
with the firm regarding its submission prior to establishing the competitive
range.

DISCUSSION

In reviewing an agency's evaluation of proposals and subsequent competitive
range determination, we will not reevaluate the proposals, but will examine
the record to determine whether the documented evaluation was fair and
reasonable and consistent with the evaluation criteria. Matrix Gen., Inc.,
B-282192, June 10, 1999, 99-1 CPD para. 108 at 3. Federal Acquisition Regulation
(FAR) sect. 15.306(c)(1) states that, "[b]ased on the ratings of each proposal
against all evaluation criteria, the contracting officer shall establish a
competitive range comprised of all of the most highly rated proposals,
unless the range is further reduced for purposes of efficiency . . . ."
Agencies are not required to retain in the competitive range a proposal that
is not among the most highly rated ones or that the agency otherwise
reasonably concludes has no realistic prospect of award. SDS Petroleum
Prods., Inc., B-280430, Sept. 1, 1998, 98-2 CPD para. 59 at 5. Here, the record
leads us to conclude that while CP provided an acceptable submission, it was
not included in the competitive range because its submission did not address
the qualifications factors as well as the [DELETED] competitive range
submissions and, as a result, was not among the most highly rated proposals.
Matrix Gen., Inc., supra.

As a preliminary matter, in response to CP's document production requests,
agency counsel advised that each individual evaluator updated his or her
individual evaluation worksheet to reflect consensus discussions and
discarded the draft or prior generation of the worksheet. CP complains that
the destruction of these interim worksheets has had a material impact on the
record.

Since a procuring agency has the responsibility to adequately document its
source selection decision in order to demonstrate that it is not arbitrary,
it is premature for an agency to destroy source selection documents prior to
the award. Mar, Inc. et al., B-278929.2 et al., Sept. 28, 1998, 98-2 CPD para.
92 at 5 n.8. We recognize, however, that evaluators' individual notes and
worksheets may or may not be necessary to determine the reasonableness of
the agency's evaluation. Southwest Marine, Inc.; American Sys. Eng'g Corp.,
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56 at 10. Our review of
the surviving record shows that it affords ample basis upon which to
determine the reasonableness of the agency's evaluation. The record contains
a set of worksheets from each evaluator showing detailed and individualized
analyses of the strengths and weaknesses of CP's submission; a detailed
presentation made by the agency's real estate and financial consultants; the
roll-up of CP's consensus strengths, weaknesses, and risks; and the ET's
recommendations to the contracting officer regarding the competitive range
determination. Moreover, during the course of the protest the agency
submitted statements from agency personnel providing additional detail
regarding the agency's contemporaneous conclusions. Such statements simply
fill in previously unrecorded details and will generally be considered in
our review of the rationality of selection decisions, so long as they are,
as here, credible and consistent with the contemporaneous record. NWT, Inc.;
PharmChem Labs., Inc., B-280988, B-280988.2, Dec. 17, 1998, 98-2 CPD para. 158
at 16.

CP is a development team comprised of three principal members: Archstone
Communities, Keating Development Company, and the Housing Commission of Anne
Arundel County (HCAAC). Archstone was to be responsible for leasing,
management, operations, and real estate development; Keating was to provide
development and construction services; and HCAAC was to provide overall
leadership and funding mechanisms. [5] In the consensus evaluation, CP's
submission was rated acceptable under each qualifications factor. CP
contends that several of the numerous weaknesses assigned to its submission
under four factors have no reasonable basis. [6] The record shows that CP is
correct as to two challenged weaknesses but that the remaining challenged
weaknesses are reasonably based.

Under the most important factor, experience, developers were required to
provide a list of major development projects they and/or their principal
members had undertaken, and to provide substantial additional detail for the
five most recent projects relevant to the Fort Meade initiative. RFQ para.
4.3.1. The ET was to evaluate the extent to which the developer had
demonstrated its experience with various aspects of the project.

CP's submission was downgraded because its experience with historic
renovation was not residential, but commercial and administrative in nature.
The RFQ specifically required the ET to evaluate the developer's experience
with historic property treatment issues. RFQ para. 4.5.1. The record shows that
the agency was concerned that the majority of CP's work with historic
properties did not relate directly to the work required at Fort Meade,
single-family detached homes. The agency found that only Keating had any
depth of experience with historic properties, and that those properties were
primarily commercially-oriented or high-rise residential properties, not
single-family detached homes or townhouses.

In its protest, CP argued that one of its projects showed Keating had
experience with historic residential units. As the agency notes, the project
was a mixed-use, high-rise historic structure that included 283 luxury
units. The Army states that it did not believe this project demonstrated
recent experience relevant to the Fort Meade project, under which the
developer was to renovate historic detached and low-rise units. CP's
comments do not specifically rebut the Army's position, which we find
reasonable. CP also argues that the Army failed to consider the historic
renovation experience of an individual whose resume was included in its
submission. As the Army explains, however, nothing in CP's submission,
including either the cited resume or the information about this individual's
firm, shows any experience with residential historic preservation. Contrary
to CP's assertion, the agency is not required to make assumptions about the
experience of a firm or an individual; it was CP's responsibility to ensure
that it demonstrated the relevant experience.

CP's submission was also downgraded because Keating's experience seemed to
be more of a commercial nature than a residential one, and its residential
experience appeared to be mid-rise to high-rise condominiums, and not the
low-rise single-family detached homes or townhouses at issue in this
project. The RFQ required the ET to evaluate the developer's experience with
large-scale residential development projects. RFQ para. 4.5.1.

In its protest, CP cites two projects as demonstrating Keating's experience
with low-rise residential units. As the Army explains, both projects
combined have only [DELETED] units; we are not persuaded they demonstrate
the required experience with "large-scale" development projects. The record
also confirms that one of the projects is not even clearly--from the small
photograph in the submission--a low-rise project. CP's comments do not rebut
the Army's contention, which we find reasonable. [7] The record shows that
CP has failed to show that any of the challenged weaknesses under the
experience factor are unreasonable, and CP did not even challenge the
agency's conclusion that it failed to demonstrate experience partnering on
long-term real estate projects, which the RFQ required. As a result, we have
no basis to question CP's acceptable rating under the experience factor.

Under the preliminary project concept statement factor, developers were
required to give the Army illustrative information about their overall
vision, strategy, and approach to improving and maintaining the state of the
military family housing community at Fort Meade. RFQ para. 4.3.2. The RFQ listed
four specific areas to be evaluated. RFQ para. 4.5.2.

CP's submission was downgraded because, while the text of its submission
indicated that the firm would make annual deposits to the [DELETED] through
the development period, the firm's financial pro-forma--a financial
statement covering expected income and expenses over the life of the
project--did not show these deposits. In its protest, CP stated that Exhibit
A of its pro-forma did show these annual contributions. The Army concedes
that this is true, but points out that Exhibit C of the pro-forma shows a
"0" on the line reserved for deposits into the [DELETED]. As a result, the
Army appears to take the position that the submission was ambiguous in this
regard. CP does not now dispute the existence of this ambiguity, and we have
no basis to conclude that the agency's evaluation was unreasonable. [8]

CP's submission also was downgraded because the agency thought the firm was
unclear in what it meant by the phrase, "front on its own ‘close.'" We
agree with CP that, in context, the agency should have been able to
ascertain what the phrase meant. In discussing the types of housing it
proposed for the project, CP's submission stated, "[DELETED]." Submission
sect. 4.3.2 at 5. Several related definitions of the word "close" could have
informed the agency's evaluation: "a narrow passage leading from a street to
a court and the houses within or to the common stairway of tenements"; "a
road closed at one end"; and "an enclosed area." Webster's Ninth New
Collegiate Dictionary (1989) at 250. In view of the ready availability of
these definitions, and in view of the context in which the phrase arises, we
think the Army unreasonably downgraded CP's submission in this regard.

CP's submission was downgraded because the Army believed it was unclear what
the $[DELETED] million of cost of issuance/reimbursement was in its
submission. In its protest, CP argued that its submission plainly indicated
that it proposed to finance the program with [DELETED] with estimated costs
of issuance, and that it included those costs in its pro-forma along with
the costs of reimbursing some predevelopment expenses. The agency explains
that its underlying concern was not the derivation of the figures, but the
benefit to the agency from these expenditures. The agency did not believe,
for example, that the immediate expenditure of funds for development
reimbursement was satisfactorily explained to show that it provided a
benefit to Fort Meade. CP's comments provide no specific response to the
Army's position, which we find reasonable.

Finally, CP's submission was downgraded because it considered some [DELETED]
to be required to assure the success of its concept. The agency thought this
might not be possible with the realities of Fort Meade tenants. The ET was
required to consider the extent to which proposed ancillary supporting
facilities were incorporated into an overall development vision that sought
to complement, and not compete with, business operations in the local
community or on-post operations such as those run by the Army and Air Force
Exchange Services (AAFES) or Defense Commissary Agency (DeCA.) RFQ para. 4.5.2.

CP argues that the Army misunderstood its submission to suggest that income
from [DELETED] were a key to the financial success of the project, when the
submission merely stated that the presence of these [DELETED] were key to
the community ambiance that CP proposed to foster. We do not read the
agency's concerns as associated with the financial success of the project.
The RFQ advised developers that ancillary supporting facilities that
competed with existing AAFES or DeCA facilities would not be allowed unless
the appropriate body approved the plans. RFQ amend. 2, question and answer
No. 30, and RFQ para. 2.1.1. Since CP stated that these [DELETED] were central
to the success of its approach, and since the ability to include them was
uncertain, we cannot conclude that the agency's concerns were unreasonable.

While CP has shown that one of the challenged weaknesses under the
preliminary project concept factor was unreasonable--that concerning the
phrase "front on its own close"--CP has not shown that any of the other
challenged weaknesses were unreasonable. Moreover, CP did not challenge the
reasonableness of the agency's conclusions regarding its failure to outline
specifically how the Army was to share in the profits from the project or
its failure to identify its approach beyond the procedural/administrative
aspects. The agency has explained that these omissions of detail weighed
heavily in evaluating this factor and CP has given us no basis to think its
submission would have been rated exceptional absent this one weakness.

Under the financial capabilities factor, developers were required to submit
audited financial statements, documentation demonstrating their capability
to obtain financing and capacity to secure payment and performance bonds for
a project of this size, and a written statement articulating the firm's
strategy for financing the project on a long-term basis. RFQ para. 4.3.3. The
RFQ listed two elements to be evaluated: whether the developer possessed the
financial capability and institutional relationships necessary to weather
temporary or near-term cash flow shortfalls, and whether the developer had a
viable strategy for financing the project on a long-term basis which was
supported by its capabilities. RFQ para. 4.5.3.

CP's proposal was downgraded because its submission provided no evidence of
out-of-pocket equity from any of the three principal members; this lack of
equity contribution by the principal members raised questions regarding the
team's intent to stay in for the long term of the project. CP's submission
proposed that the Army lease the land and transfer the housing units to it
for a 50-year period. Submission sect. 4.3.3 at 1. The Army explains that one of
the goals of this RFQ was to provide for the effective long-term management
and operation of the family housing inventory and ancillary supporting
facilities. RFQ para.para. 1.1, 4.3.3, 4.5.3. The Army states that it viewed equity
investment as an indication of the offeror's long-term commitment to the
project since, when a real property owner contributes equity to a project,
that owner is less likely to abandon the project should it become
financially unattractive.

CP contends that the Army used its failure to provide any equity in this
project as an unstated evaluation factor. We do not agree. First, the Army's
underlying concern was not equity per se but the developer's long-term
commitment to this long-term project. In addition to the RFQ's underlying
goal of obtaining effective long-term management and operation of the
housing inventory, the RFQ expressly requires the ET to evaluate whether a
prospective developer can "structure, arrange, and manage the financing
required for a large, complex, long-term development and operating project"
under this evaluation factor. RFQ para. 4.5.3. There is no question but that the
RFQ permitted the consideration of long-term commitment to the project, and
CP has given us no basis to conclude that equity contributions are an
unreasonable measure of this commitment. Moreover, even if the ET were
evaluating equity contributions per se, the RFQ defined a principal member
as "a team member with an identified ownership interest in the team's
operation and related management responsibilities," RFQ para. 4.1, and defined
ownership interest as, "[d]eveloper has contributed cash or other equity
directly to the entity that controls the project and the risk of return of
that amount contributed is directly affected by the success of the project."
RFQ app. F. In our view, the ET was permitted to consider equity
contributions in evaluating submissions.

CP does not dispute that none of its principal members proposed to
contribute any equity for this project. Instead, CP cites the benefits its
submission brings to the project as a result of partnering with HCAAC, a
local state government housing entity, and asserts that HCAAC's long-term
commitment to this project is beyond question.

The Army agrees that HCAAC might be committed to this project for the long
term, but states that neither of the other two principal members, the
"development arm" of the project, evidenced any such commitment. As the Army
explains, HCAAC only provides "one leg to the three-legged stool." The Army
states it was concerned that if the project became a financial failure, the
local government entity incentive to remain in for the long term would not
hold true for Archstone and Keating. While CP asserts that "there can be no
doubt" that there are great benefits to be had from commitment to this
project, and that there is no reasonable basis to conclude that any of the
principal members is not fully committed to the project, we cannot conclude
that the agency's concerns were unreasonable.

CP's submission was also downgraded because the agency believed its
principal members did not appear to be able to weather temporary cashflow
shortfalls. The agency also downgraded CP's submission due to concerns with
Keating's financial status, and thought it was unclear whether Keating's
parent company would assume financial responsibility in the event Keating
had cashflow shortfalls.

In its protest, CP argued that the agency had no basis to conclude that
Archstone did not have the ability to weather a temporary cashflow
shortfall. The agency responded by pointing out that the total cash on hand
of all three principal members was insufficient given the magnitude of this
project. CP has provided no specific rebuttal to the agency's position,
which we find reasonable. CP also argues that the Army ignored what it had
learned about the willingness of Keating's parent company to provide full
credit support to its subsidiary. As evidence, CP provided an e-mail from a
Keating employee to the Army which states that the parent company would
provide this support. The record confirms, however, that while CP's
submission contained financial statements from the parent company, it did
not contain any affirmative statement from the parent company indicating its
willingness to assume this support; there was no basis for the agency to
infer that willingness.

Finally, CP's submission was downgraded because the interest rate proposed
on its bonds appeared to be high given the fact that it intended to use bond
insurance. In response to CP's argument that it was merely making a
conservative projection about the bond rates for which it should not be
penalized, the agency explains that it had no way to know that this was a
conservative projection since the submission was silent on the matter. The
Army states that, in the absence of an explanation, it assumed that this was
CP's most likely scenario for the bond financing cost. CP asserts that it
did not identify this as the most likely scenario, and complains that the
agency was "significantly troubled by CP's projection of a conservative cost
of financing." Supplemental Comments at 3. The record shows, however, that
what actually troubled the agency was the fact that CP's proposed rates were
high given the fact that CP intended to use bond insurance; the parties
agree that bond insurance should lower the cost of interest. CP has provided
us no basis to question the actual basis for the agency's concern.

Our review of the record shows that CP has failed to show that any of the
challenged weaknesses under the financial capabilities factor are
unreasonable. As a result, we have no basis to question CP's acceptable
rating under this factor.

Under the financial return factor, developers were required to provide a
written statement addressing the firm's range of expected rates of return,
anticipated sources of capital, intent concerning the use of Army assets and
resources, anticipated relationships between the firm's approach to
reinvestment and its expected financial return for the project, and
anticipated relationships between the firm's expected financial return and
its approach for ensuring that service and maintenance standards are met
over the life of the project. RFQ para. 4.3.5.

CP's submission was downgraded because the agency believed its funding for
capital reserves during the construction period was extremely low. During
the course of the protest, the agency conceded that its conclusion was
incorrect and that it unreasonably assigned this weakness to CP's
submission.

However, CP's submission was also downgraded because its proposal to receive
a fee of $[DELETED] annually for 10 years made it appear as if it would be
receiving fees for providing no services, and because its submission showed
that it expected an unexplained reimbursement of $[DELETED] in
predevelopment costs. In its protest, CP argued that there was no basis to
conclude that it would receive fees for no services provided. As to the
annual fee, the agency states that it could ascertain a line item to
[DELETED] for administrative fees but expected that, if [DELETED] were
performing a management role, this fee would be included in operating
expenses and not broken out separately. The agency found no explanation of
the reason for this fee or how it would benefit family housing on Fort
Meade. As to the predevelopment fees, the agency states that it understood
the existence of the expenses but did not understand how they would benefit
the project. CP has provided us with no basis to question the agency's
judgment.

While CP has shown that one of the challenged weaknesses under the financial
returns factor was unreasonable--that concerning the capital reserves
issue--CP has not shown that any of the other challenged weaknesses were
unreasonable. CP has given us no basis to conclude that the remaining
weaknesses were so minor that its rating under this factor would have been
exceptional in the absence of this one weakness.

In conclusion, while CP has shown that two of its 37 weaknesses were
unreasonably based, it has not demonstrated a reasonable possibility that
its submission would have been rated higher absent these two weaknesses.
Submissions were to be rated exceptional overall if the developer
demonstrated, based on an assessment of significant strengths and "minimal,
if any" weaknesses across all evaluation factors, that it could exceed the
requirements of the project, Developer Selection Plan at 31, and the Army
states that CP's submission would have to have been rated exceptional for at
least three of the four most heavily weighted factors in order to be
considered for the competitive range. As a result, we conclude that CP was
not prejudiced by the agency's errors. Our Office will not sustain a protest
unless the protester demonstrates a reasonable possibility that it was
prejudiced by the agency's actions, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb.
8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d
1577, 1581 (Fed. Cir. 1996).

In its protest, CP contended that the agency improperly failed to exercise
its discretion under FAR sect. 15.306(b) to communicate with the firm regarding
its submission prior to establishment of the competitive range, citing two
weaknesses as examples. [9]

Under FAR sect. 15.306(b), an agency may communicate with offerors, after
receipt of proposals, leading to establishment of the competitive range. If
a competitive range is to be established, these communications shall be
limited to two categories of offerors: (1) those whose past performance
information is the determining factor preventing them from being placed
within the competitive range and (2) those whose exclusion from, or
inclusion in, the competitive range is uncertain. FAR sect. 15.306(b)(1). These
communications are for the purpose of addressing issues that must be
explored to determine whether a proposal should be placed in the competitive
range. FAR sect. 15.306(b)(3).

Nothing in the record shows that CP's past performance information was the
determining factor preventing its submission from being placed in the
competitive range, and nothing in the record shows that its exclusion from
the competitive range was uncertain. The RFQ specifically permitted the
agency to limit the number of submissions in the competitive range to the
greatest number that would permit an efficient competition among the most
highly rated submissions, and the agency did so, selecting only those
submissions with the highest possible overall rating of exceptional/low
risk. CP's submission was not among the most highly rated; indeed, a
[DELETED] developer whose submission was rated higher than CP's was not
included in the competitive range. [10]

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. These authorities were extended from February 2001 to December 2004 by
the National Defense Authorization Act for Fiscal Year 2001, Pub L. No.
106-398, sect. 2806.

2. In its comments, CP cites this page limitation as a basis for complaining
that its submission should not have been downgraded under various alleged
weaknesses for its failure to provide detail. Since CP was given a list of
its alleged weaknesses as part of its debriefing, its failure to raise these
allegations in its initial protest renders them untimely. Under our Bid
Protest Regulations, protests based on other than solicitation improprieties
must be filed no later than 10 days after the protester knew or should have
known their bases. 4 C.F.R. sect. 21.2(a)(2) (2000). These regulations do not
contemplate the piecemeal presentation or development of protest issues.
Global Eng'g & Constr. Joint Venture, B-275999.4, B-275999.5, Oct. 6, 1997,
97-2 CPD para. 125 at 4. To the extent that the allegations are leveled at the
page limitation itself, they would be timely only if filed prior to the time
set for receipt of initial proposals. 4 C.F.R. sect. 21.2(a)(1).

3. One firm that was initially determined to have failed to meet the minimum
experience requirements was subsequently reinstated into the competitive
range for reasons not relevant here.

4. Although a competitive range determination normally requires a
consideration of price, see Meridian Management Corp., B-285127, July 19,
2000, 2000 CPD para. 121 at 4, any developer selected here was to be paid a
fixed-fee of $350,000 at the completion of Phase I, so that price was not a
discriminator at this stage.

5. The RFQ permitted submissions by development teams provided they
committed to work with the Army as a single business entity and provided
information on the team itself as a single business entity and on the team's
principal members. RFQ para. 4.1.

6. CP's protest did not challenge the reasonableness of the weaknesses
assigned to its submission under the past performance, small business, or
organizational capabilities factors. In addition, the agency report
responded to CP's challenges to several other weaknesses and CP, in its
comments, failed to rebut the agency's responses. We deem these challenges
to have been abandoned. TMI Servs., Inc.,
B-276624.2, July 9, 1997, 97-2 CPD para. 24 at 4 n.3.

7. CP complained for the first time in its comments that the Army should not
have downgraded its submission because Keating lacked experience other team
members possessed. Since CP was on notice of its weaknesses at its
debriefing, its failure to voice this complaint in its initial protest
renders it untimely. CP's failure to fully utilize the specific information
provided in the debriefing in drafting its initial protest renders several
other later-raised allegations untimely as well. An offeror who receives
specific information in its debriefing but ignores it when drafting its
initial protest does so at its peril. Global Eng'g & Constr. Joint Venture,
supra, at 4 n.2. In any event, since Keating was proposed to provide
development and construction services for this project it was entirely
appropriate for the Army to consider whether it demonstrated relevant
experience.

8. CP does assert that the Army should have communicated with the firm to
clarify the matter prior to establishing the competitive range, as discussed
below.

9. CP's extension of this argument, in its supplemental comments, to
numerous additional weaknesses is untimely for the reasons noted above. CP
cannot rely on its citation to "examples" to circumvent our timeliness
requirements. Litton Sys., Inc., Data Sys. Div., B-262099, Oct. 11, 1995,
95-2 CPD para. 215 at 3 n.3.

10. Although the competitive range determination was based on efficiency, we
note that CP's submission could have been excluded from the competitive
range even if it had been among the most highly rated. FAR sect. 15.306(c)(2).