TITLE:  C. Lawrence Construction Company, Inc., B-287066, March 30, 2001
BNUMBER:  B-287066
DATE:  March 30, 2001
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C. Lawrence Construction Company, Inc., B-287066, March 30, 2001

Decision

Matter of: C. Lawrence Construction Company, Inc.

File: B-287066

Date: March 30, 2001

Doug R. Lawrence for the protester.

Larry E. Beall, Esq., and Joseph A. Gonzales, Esq., Department of the Army,
for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a solicitation providing for a tradeoff of past performance and price to
determine the award, agency reasonably determined that awardee had more
relevant and favorable past performance than did the protester and that this
justified the relatively small price premium associated with accepting the
awardee's proposal.

DECISION

C. Lawrence Construction Company, Inc. protests the award of a contract to
Lord & Son Construction, Inc. under request for proposals (RFP) No.
DACA01-01-R-0003, issued by the United States Army Corps of Engineers, for
construction work. Lawrence contends that the Corps unreasonably evaluated
its past performance.

We deny the protest.

The RFP, issued October 13, 2000, contemplated the award of a fixed-price
contract to build a 24,000 square foot F-22 aircraft flight simulator and
academic training facility at Tyndall Air Force Base, Florida. The RFP
required construction of a single story steel frame building on spread
footings with a concrete masonry unit exterior, a standing-seam metal roof,
and interior rooms with limited raised flooring and computer room cooling.
The estimated value of the project was between $5 and $10 million.

The RFP provided for award considering past performance and price, which
were weighted equally. Past performance was to be evaluated as a performance
risk assessment of the offeror's "specialized experience information"
determined by considering the quality of the offeror's performance on recent
relevant projects of similar scope and magnitude to the RFP work. RFP sect.
00120 at 2.2.2.1.1. For this purpose, the RFP instructions stated:

(a) SPECIALIZED EXPERIENCE ON SIMILAR TYPE WORK: Provide a list of at least
five (5), but no more than ten (10), of the most relevant contracts
performed for Government or commercial customers within the last 3 years.
"Relevant" contracts are construction projects that are similar in scope and
magnitude ($5 -- 7 million) to this project, such as, Office/Administrative,
Instructional, and Light Commercial type facilities. . . . The Government
will evaluate the quality and extent of Offeror's experience deemed relevant
to the requirements of this Solicitation. The Government will use
information submitted by the Offeror, as well as other sources, such as
other Government agencies or commercial sources, to assess experience.

RFP sect. 00110 at 2.1.1(a). [1] Based on the agency's assessment of the quality
of each offeror's past performance on its listed projects, each proposal was
to receive an overall risk rating. The rating categories were
unsatisfactory/no confidence, marginal/little confidence, neutral/unknown
confidence, satisfactory/confidence, very good/significant confidence, and
exceptional/high confidence. RFP sect. 00120 at 2.2.2.1.4. The RFP also provided
for evaluating the fairness and reasonableness of the offerors' prices.

On November 28, the Corps received 13 proposals in response to the RFP. A
technical evaluation team (TET) eliminated the lowest-priced proposal for
failing to submit specialized experience information, but evaluated the past
performance of the next seven lowest-priced proposals, including Lawrence's,
whose proposed $5,650,889 price was now the lowest, and Lord & Son's
proposal, which offered the next lowest price of $5,852,100.

The TET assigned Lawrence's past performance a satisfactory/confidence risk
rating. The TET found Lawrence's proposal contained a "deficiency" because
it listed only three relevant projects performed by Lawrence, instead of the
requested five projects similar to scope and magnitude (that is, projects
valued between $5 and $7 million). In this regard, the TET found that of the
four projects listed by Lawrence, which ranged from $2 to $4 million in
value, two were combined to satisfy the $5 million threshold. The TET also
concluded that only one of the listed projects could be considered similar
and/or relevant to the RFP project (even though that project did not satisfy
the $5 million threshold), and that the other listed projects were not "very
relevant to the current project," but were "primarily warehouses apparently
with incidental offices." See Agency Report, Tab D, Consensus Evaluation
Sheet; Tab E, Memorandum For Record, at 2. Finally, the TET found Lawrence's
past performance surveys had ratings ranging from satisfactory to very good
with some exceptional ratings, but with some comments related to delays in
performance on the projects. Therefore, the TET found that "some doubt
exists that [Lawrence] can successfully perform the work." [2]

In contrast, the TET gave Lord & Son's past performance a very
good/significant confidence risk rating. Lord & Son listed eight projects,
two of which were at prices of $5.4 and $10 million, and three others that
the TET found were below but reasonably close to the $5 million minimum
dollar range. [3] Further, the TET found Lord & Son's projects relevant
because they involved schools, offices and a church sanctuary, and that its
past performance surveys reflected all very good and exceptional ratings.
The TET concluded, based on Lord & Son's experience, that "little doubt
[exists] that [Lord & Son] can successfully perform the work." [4]

After completing the evaluation, the Corps concluded that award could be
made on the basis of initial proposals and performed a trade-off analysis of
the proposals. Lord & Son's proposal was determined to represent the best
value. As between Lord & Son's and Lawrence's proposals, the Corps found
that Lord & Son's higher-rated proposal "represent[ed] less risk in the
successful completion of this project," and that "[a]lthough Lord's price
exceeds Lawrence's price by . . . 3.6% . . . the higher price is warranted
in order to reduce the risk of contract performance." Agency Report, Tab E,
Memorandum For Record, at 4. The Corps made award to Lord & Son on December
21. This protest followed.

Lawrence protests that the Corps's past performance evaluation was
unreasonable because it unduly focused on the dollar range of its projects
to determine relevance, instead of the similarity in size and construction
methods, and because it ignored relevant projects performed more than 3
years before. Lawrence argues that a reasonable evaluation of relevant
experience should have considered such factors as product similarity,
product complexity, contract type, contract environment, and subcontractor
interaction.

The evaluation of technical proposals, including the evaluation of past
performance, is a matter within the discretion of the contracting agency. NV
Servs., B-284119.2, Feb. 25, 2000, 2000 CPD para. 64 at 13. In reviewing a
protest against an agency's past performance evaluation, we examine the
record to determine whether the agency's judgment was reasonable and
consistent with the stated evaluation criteria and applicable statues and
regulations; the protester's mere disagreement with the agency's judgment in
its determination of the relative merit of competing proposals does not
establish that the evaluation was unreasonable. Ostrom Painting &
Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4.

Contrary to the protester's arguments, the agency did not unduly focus on
the dollar value of the projects, but reasonably rated the relative past
performance of the offerors consistent with the RFP evaluation scheme. With
regard to past performance, the RFP provided that the evaluation would
consider the quality of the offeror's experience, judged by its recency,
relevance, and similarity in scope and magnitude to the RFP project, as well
as the quality of the references received on the offeror's listed projects.
The Corps was not required to consider other factors besides project type
and cost, such as those suggested by the protester, to determine relevance,
nor could it consider Lawrence's projects performed more than 3 years ago.
In this regard, the RFP specifically states that relevant contracts would be
defined in terms of dollar amount ($5 to $7 million) and building type
(office/administrative, instructional, and light commercial) and thus it was
appropriate for the agency to consider only these factors. [5] Also, the RFP
instructions expressly stated that only projects performed in the last 3
years would be considered.

Our review of the record confirms that the Corps reasonably determined that
Lord & Son's past performance was superior to Lawrence's, so as to justify
the award on the basis of Lord & Son's slightly higher-priced proposal. As
noted, Lawrence's proposal lists as specialized experience only four
projects performed in the last 3 years and none of these meet the $5 million
threshold unless two are combined and considered a single project, which
project was considered not "very relevant" because it was for warehouse
space with incidental offices. In contrast, Lord & Son, while not listing
five projects over $5 million, listed two over that threshold and three
others greater in value than those listed by Lawrence, and all of Lord &
Son's projects were considered relevant and similar in scope and magnitude.
[6] While it is true that the agency's evaluation documentation does not
recognize that one of Lawrence's listed projects, a child development center
project, seems as relevant as the school and church projects of Lord & Son,
which were specifically found relevant by the Corps, the child development
center project had a value of $3.7 million, less than the five relevant
projects listed by Lord & Son. Moreover, the record reflects that Lord &
Son's references generally gave more favorable responses as to the quality
of Lord & Son's past performance than did Lawrence's references.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The RFP required the offeror to submit relevant projects on a form
provided with the RFP entitled "Company Specialized Experience," which
required an offeror to furnish, for example, the name of the project, the
location, the owner, the general scope of construction, the company's role,
construction cost, and extent and type of work subcontracted. Attached to
this form was a performance survey form containing various ratings from
unsatisfactory to exceptional where the reference was required to evaluate
the offeror's performance on the project. RFP sect. 00110 at 0010-5-7.

2. A satisfactory/confidence rating was assigned for past performance if
"[b]ased on the Offeror's performance record, some doubt exists that the
Offeror will successfully perform the required efforts." RFP sect. 00120 at
2.2.2.1.4.4.

3. The prices of these projects were $4.6, $4.6, and $4.7 million. Agency
Report, Tab D, Lord & Son Consensus Evaluation.

4. A very good/significant confidence rating was assigned for past
performance if "[b]ased on the Offeror's performance record, little doubt
exists that the Offeror will successfully perform the required effort." RFP
sect. 00120 at 2.2.2.1.4.5.

5. For this reason, we find no merit to Lawrence's argument that the
evaluation documents show no analysis by the agency of whether Lord & Son's
projects were similar to the solicited project because the awardee
identified its projects only by size and name. The record evidences that
Lord & Son's proposal included all the information on its projects requested
by the RFP, and while it did not furnish nearly the same level of detail
concerning its projects as did Lawrence, there was no requirement for it to
do so or for the agency to credit Lawrence's more in-depth descriptions of
its projects.

6. Lawrence correctly notes in its comments that none of the evaluated
proposals satisfied the requirement to provide five projects in the dollar
range required by the RFP, yet its proposal was the only one with a noted
deficiency for this problem. However, given Lord & Son's superiority,
whether a deficiency should have been found in Lawrence's proposal for
failing to list five projects is not relevant, since it did not affect the
award selection.