TITLE:  Gulf Group, Inc., B-287697; B-287697.2, July 24, 2001
BNUMBER:  B-287697; B-287697.2
DATE:  July 24, 2001
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Gulf Group, Inc., B-287697; B-287697.2, July 24, 2001

Decision

Matter of: Gulf Group, Inc.

File: B-287697; B-287697.2

Date: July 24, 2001

Patricia A. Snyder, Esq., and Thomas E. Abernathy, Esq., Smith, Currie &
Hancock, for the protester.

Joseph A. Gonzales, Esq., and Larry Beall, Esq., U.S. Army Corps of
Engineers, and John W. Klein, Esq., and Kenneth W. Dodds, Esq., Small
Business Administration, for the agencies.

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest that agency improperly applied undisclosed evaluation factor
regarding specific experience of offerors is denied; agency properly may
consider specific experience where, as here, solicitation provides for
evaluation of experience.

2. Agency reasonably considered past performance reference in evaluating
protester's proposal, even though protester claims the reference mistakenly
rated its performance too low, where nothing on the face of the reference
rating gave agency reason to look behind it.

DECISION

Gulf Group, Inc. protests the award of a contract to ABC Landclearing &
Development/Tri-State Design and Construction, Inc. (ABC) under request for
proposals (RFP) No. DACW01-00-R-0030, issued by the U.S. Army Corps of
Engineers on a competitive section 8(a) basis for dredge material disposal
area management and levee maintenance. Gulf principally challenges the
technical evaluation.

We deny the protest.

The RFP provided for award of a contract on an indefinite-delivery,
indefinite-quantity (ID/IQ) basis for all rental equipment, operators,
supplies, materials, labor, and transportation necessary to perform
maintenance and rehabilitation of approximately 18 dredge material disposal
sites and levee maintenance along 14 miles of levee in Alabama, Georgia, and
Florida. Performance was to include disposal area work (raising dikes, new
area construction, grading material, and ditching), levee maintenance
(mowing, fertilizing, ditching, vegetation control, excavation, grading and
filling), and dredging (removing shoaled material and placement on adjacent
beach). RFP sect. 952.000-4214. The RFP contemplated the award of a fixed-price
contract for a base year, with 4 option years. Proposals were to be
evaluated on the basis of price and performance, with performance evaluated
under two equal subfactors, management capability/effectiveness and past
performance. RFP sect. 0120.6.1. Award was to be made to the offeror whose
proposal represented the best value based on a performance/price trade-off
in which the performance factor was significantly more important than price.
Id.

Seven offerors, including Gulf and ABC (the incumbent), submitted proposals.
After an initial evaluation, five offerors' proposals were included in the
competitive range, and the agency conducted discussions with these firms.
Gulf and ABC submitted discussion question responses and final proposal
revisions (FPR). The source selection evaluation board (SSEB) evaluated the
initial offers, supplemental information, and FPRs in reaching the following
final evaluation results:

 Offeror            Performance Rating     Price

 Gulf               Satisfactory           $12,124,250

 ABC                Very Good              $12,711,375

 Offeror 3          Very Good              $17,663,175

 Offeror 4          Satisfactory           $17,245,157

 Offeror 5          Very Good              $17,097,001

The contracting officer independently assessed the proposals and reviewed
the SSEB's award recommendation. He noted Gulf's lower price, but
specifically found that "ABC's past performance proposal illustrated
considerably more relevant past performance and experience as it relate[d]
to the instant contract requirements." He concluded that this made ABC's
proposal the best value, and made award to the firm. Agency Report (AR), Tab
P, at para. 11. After receiving a debriefing, Gulf filed this protest.

SPECIFIC EXPERIENCE

Gulf asserts that the evaluation is flawed because the SSEB improperly
applied an undisclosed evaluation factor. Specifically, Gulf contends that
it was improper to consider Gulf's lack of specific experience in ID/IQ task
order contracts covering disposal area maintenance. Gulf claims that, had it
known of this specific factor, it would have submitted additional examples
of its past performance in dredging and in ID/IQ contracts.

This argument is without merit. Where, as here, experience is to be
evaluated, agencies may consider an offeror's experience in the specific
area that is the subject of the procurement. See Wyle Labs., B-239671, Sept.
19, 1990, 90-2 CPD para. 231. That is what the agency did here. In any case,
Gulf should have been aware from the RFP that the agency would consider
specific experience. For purposes of evaluation under the performance
factor, the RFP requested offerors to list prior contracts demonstrating a
record of satisfactory, recent, related experience in the type of
construction described in the RFP, RFP sect. 0120.3.2, and described the work as
including dredging and maintenance of dredge material disposal areas and as
being initiated on an ID/IQ task order basis. RFP sect.sect. 952.000-4214, 00800.16.
These provisions, read together, made it clear that the agency intended to
evaluate experience based, in part, on similarity to the current
requirement; Gulf therefore was on notice of the need to identify in its
proposal any dredging and ID/IQ contracts it had performed. While the agency
considered Gulf's referenced contracts (e.g., levee and storm water control
system construction, sewer rehabilitation, and road construction and
maintenance) to be relevant, it concluded that those contracts were not as
similar to the solicited work, and thus not as relevant, as ABC's contracts,
which included the predecessor contract for this requirement. [1] In this
regard, experience as an incumbent may offer genuine benefits to an agency,
and therefore may reasonably be considered in the evaluation of proposals,
especially, as here, in distinguishing the proposal from one offering less
specifically related experience. See Dr. Carole J. Barry, B-271248, June 28,
1996, 96-1 CPD para. 292 at 3.

PERFORMANCE FACTOR

Gulf challenges the evaluation of its proposal under the performance factor
as only satisfactory. In Gulf's view, its rating under the management
capability subfactor should have been higher because its proposal initially
was evaluated by the agency as satisfactory in this area, and it revised its
proposal in response to discussions. Gulf also maintains that its rating
under the past performance subfactor should have been higher because two of
its references mistakenly rated its past performance too low.

The evaluation of technical proposals is the function of the contracting
agency; our review is limited to determining whether the evaluation was
reasonable and consistent with the RFP evaluation factors. The Arora Group,
Inc., B-270706.2, June 18, 1996, 96-1 CPD para. 280 at 3.

The evaluation in this area was reasonable. With regard to the management
capability subfactor, while Gulf did submit proposal revisions in response
to discussions, the SSEB found that Gulf's FPR did not adequately address
all the matters discussed, AR, Tab K, and that a higher rating was not
warranted. For example, while the agency asked Gulf to address its failure
to include a list of its subcontractors (AR, Tab J), its FPR did not
identify its subcontractors or explain the circumstances under which they
would be required. AR, Tab L. Gulf does not dispute the agency's finding
that its FPR did not address all of the discussed deficiencies and
weaknesses.

With regard to the past performance subfactor, the agency rated three of
Gulf's five contract references very good and two satisfactory. Because, as
discussed above, the agency did not consider the work under these contracts
to be entirely similar to the RFP work, and thus considered their relevance
to be limited, it translated these reference ratings into an overall
satisfactory rating for Gulf under the subfactor. Gulf asserts that one of
its references provided an inaccurate rating for Gulf for a particular
contract; while the reference previously had rated Gulf's performance
outstanding, the reference mistakenly provided the Corps with a rating of
only very good. The agency concedes that, "[d]uring the post-award
debriefing with Gulf, it was discovered that this questionnaire had been
erroneously prepared and that Gulf did in fact earn an ‘outstanding'
rating for [that] project." AR, Tab B, at 8. Gulf believes this error
warrants increasing its overall past performance rating. We disagree.
Notwithstanding the reference's earlier higher performance evaluation, the
form the reference submitted for this procurement indicated that Gulf's
performance was only very good. Since nothing on the face of the reference
rating reasonably would have led the agency to look behind it, the agency
could rely on the rating in evaluating Gulf's proposal. See A.G. Cullen
Constr., Inc., B-284049.2, Feb. 22, 2000, 2000 CPD para. 45 at 5. In any case,
given the limited relevance of Gulf's prior contracts, there is no reason to
believe that raising one reference rating would have affected Gulf's overall
rating. [2]

Gulf also has submitted a letter from a second reference stating that he
misunderstood the rating sheet he submitted on Gulf's behalf. Protester's
Comments, Exh. 1. The reference states that he ordinarily would "always
classify" Gulf with the "highest rating," which usually is designated as
"outstanding." The reference asserts that here, however, because he was
unfamiliar with the rating sheet's highest rating of "exceptional," he rated
Gulf's performance as only very good, the second highest rating. This
explanation is unpersuasive. Since the rating sheet clearly designated
"exceptional" as the "highest rating," the reference's explanation that he
was somehow confused into giving Gulf other than the highest rating simply
is not credible. In any case, again, since there was nothing on the face of
the reference rating suggesting that it was in error, the agency properly
relied upon it in evaluating Gulf's proposal. See A.G. Cullen Constr., Inc.,
supra.

ELIGIBILITY DETERMINATION

Gulf asserts that the Corps improperly made award to ABC, a joint venture,
prior to receiving an April 24 determination from the Small Business
Administration (SBA) that ABC was eligible for award as an 8(a) firm.
However, while the protester has submitted a news release indicating that an
"increment" was awarded to ABC prior to receipt of SBA's eligibility
determination (Protester's Comments, Exh. 3), the agency reports that, in
fact, the award was not made until April 25. AR, Tab A. In any event, since
it is undisputed that SBA has unequivocally determined that ABC is eligible
for award, Gulf was not prejudiced by any premature contract 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).

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Gulf asserts that, because the agency found that it lacked dredge
disposal area experience, Gulf should have received a neutral rating for its
past performance. This argument is without merit. Under the terms of the
RFP, a neutral rating was to be given where an offeror had "no relevant
performance history." RFP sect. 0120.3.2. Although Gulf was found to lack
experience of the specific kind discussed in the text, above, the experience
it referenced was deemed relevant. There thus was no basis for the agency to
rate its proposal as neutral under this subfactor. In any event, since the
RFP provided that a neutral rating could be considered less favorable than a
favorable performance rating, we fail to see how Gulf was prejudiced by a
satisfactory rating.

2. Moreover, even if Gulf's overall rating for this subfactor were increased
to very good, its rating under the management capability subfactor would
remain only satisfactory. Because ABC's proposal was rated very good under
both subfactors, its proposal would remain superior to Gulf's under the
performance factor.