TITLE:  Goode Construction, Inc., B-288655; B-288655.2; B-288655.3, October 19, 2001
BNUMBER:  B-288655; B-288655.2; B-288655.3
DATE:  October 19, 2001
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Decision

Matter of: Goode Construction, Inc.

File: B-288655; B-288655.2; B-288655.3

Date: October 19, 2001

Robert E. Korroch, Esq., Williams Mullen Clark & Dobbins, for the protester.

Keith A. Moore-Erikson, Esq., United States Coast Guard, for the agency.

Mary G. Curcio, 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 converted technical evaluation process
into responsibility determination is denied where record shows that award
was based on a comparative evaluation of the relevant past performance of
awardee and protester.

2. Protest that agency improperly failed to adjust protester's proposal
evaluation score upward following discussions is denied where record shows
that protester did not adequately respond to agency's request for additional
information during discussions, and that increased score therefore was not
warranted.

DECISION

Goode Construction, Inc. protests the award of a contract to Wren,
Incorporated, under request for proposals (RFP) No. DTCG47-01-R-3EFK15,
issued by the United States Coast Guard for replacement of the central steam
plant with natural gas facilities at the Coast Guard Training Center in Cape
May, New Jersey. Goode complains that the Coast Guard rejected the firm, a
small business, as nonresponsible, and improperly failed to refer that
determination to the Small Business Administration (SBA). Goode also
challenges the past performance evaluation.

We deny the protest.

The RFP, issued as a HUB-Zone set-aside, required the successful contractor
to decentralize the steam plant. The work involves 24 buildings and will
take place while training for new recruits and operations at the center are
ongoing. Contracting Officer's Statement (COS) at 1. The solicitation
provided for a "best value" evaluation based on past performance and price,
which were weighted equally. With respect to past performance, the
solicitation advised offerors to include information on relevant contracts
performed within the past 3 years, and listed the following critical
performance elements as those which the agency would evaluate:

Projects that required management of construction at multiple sites with
controlled phasing and multiple disciplines.

Projects that required coordination of construction to accommodate continued
operations by occupants.

Projects that involved building hot water heating systems, in particular,
conversion from steam to hot water.

Projects that involved installation of gas-fired galley and laundry
equipment.

RFP sect. M.4.

Goode, a small business and HUB-Zone contractor, submitted its proposal with
a large business teaming partner, M&W Construction Corp. Wren, also a small
business and HUB-Zone contractor, submitted its proposal pursuant to a
mentor-protï¿½gï¿½ agreement with a large business, CBC Enterprises, Inc. The
Source Evaluation Board (SEB) evaluated Goode's and Wren's past performance,
and concluded that neither contractor had performed many contracts similar
to the current solicitation. Consequently, the SEB decided to review and
rely on the past performance of CBC and M&W. COS at 4; Source Evaluation
Board Report (SEBR) at 4. The SEB found that CBC had an extensive past
performance record on each of the critical performance elements, and had
performed many projects that combined two or more of the critical elements.
SEBR at 10; COS at 4. In addition, the references contacted for CBC rated
the firm's performance satisfactory to above average. Id. [1] In contrast,
the SEB found that M&W had only marginally relevant past performance for the
first two critical elements, a moderately relevant reference for the third,
and no references for the fourth. SEBR at 9-10; COS at 4. In addition, the
SEB received a negative reference for one of the projects M&W submitted to
demonstrate past performance under the first two elements. SEBR at 9-10; COS
at 4.

The agency held discussions with both offerors and requested their final
proposal revisions (FPR). The SEB evaluated the FPRs, but did not change the
past performance ratings. SEBR at 9; COS at 5. With respect to price, Goode
offered to

perform for [DELETED] and Wren for [DELETED]. SEBR at 9, 8. The SEB
determined that Wren's proposal offered the best value to the government,
and thus made award to that firm.

RESPONSIBILITY

Goode asserts that, because the Coast Guard inquired into Goode's capacity
and experience, it essentially converted the technical evaluation into a
responsibility determination, and therefore actually rejected Goode as a
nonresponsible contractor. Goode protests that, because it is a small
business, the agency could not do this without referring the
nonresponsibility determination to SBA. See Federal Acquisition Regulation
(FAR) sect. 19.602-1(a).

This argument is without merit. As the protester concedes, a procuring
agency properly may use traditional responsibility factors as technical
evaluation factors in a negotiated procurement, where the agency is to
perform a comparative evaluation of those factors. Docusort, Inc., B-254852,
Jan. 25, 1994, 94-1 CPD para. 38 at 6. The RFP here reflected such a
determination on the Coast Guard's part, expressly establishing past
performance as an evaluation factor, and the record shows that, in
evaluating the offers and making the award decision, the agency relied on
the past performance information provided by the offerors. In this regard,
the SEB supported its evaluation conclusions as follows:

Successful and timely completion of this heating system conversion project
is imperative if critical recruit training functions at the Coast Guard
Training Center are to be maintained. One of the Contractors demonstrated
past performance in managing similar construction work while keeping their
customers in operation. The same Contractor has extensive past performance
in coordinating and completing similar construction work on schedule. The
same Contractor has successfully completed projects of this type that
included critical time constraints. This is a time-critical and highly
visible project and the risk of failure to select a firm with little or no
experience poses a great risk. The board has determined that the price
difference of 7 % outweighs the risk of failure.

SEBR at 1. This statement demonstrates that Wren was selected for award
based on its mentor's superior past performance record, and not because
Goode was considered nonresponsible.

PAST PERFORMANCE EVALUATION

Goode complains that the agency improperly failed to upgrade its past
performance rating based on its responses to discussion questions. In this
regard, Goode states that the agency requested more evidence that it had
performed jobs involving multiple units, and that Goode responded by
referencing the Westbury project in Portsmouth Virginia; the conversion of
12 buildings from barracks to office space at Camp Pendelton; and the
renovation of multiple residential units in Norfolk and Richmond. Goode
believes this additional information warranted increasing its rating.

The evaluation in this area was reasonable. The agency reports, and Goode
does not dispute, that it asked Goode during discussions to address a
negative reference which reported that M&W had not managed its
subcontractors and had experienced difficulty in managing a multi-site
project. SEBR at 10. Rather than respond to these criticisms, Goode simply
stated that the project had been completed on time. COS at 5. Further, Goode
had already presented the Camp Pendelton and Portsmouth projects in its
initial proposal. Thus, citing these projects again in response to the
agency's request for additional evidence of past performance of multiple
unit projects did not provide the requested additional evidence. Since the
protester's response did not address the concerns specifically identified by
the agency, there was no basis for the agency to change Goode's evaluation.

OTHER ISSUES

In Goode's September 20 comments in response to the agency report, Goode
raises a number of additional arguments. Under our Bid Protest Regulations,
to be timely, a protest that does not allege a solicitation impropriety must
be filed within 10 calendar days after the protester knows or should know
the basis for protest. 4 C.F.R. sect. 21.2(a)(2) (2001). All of these additional
bases of protest were evident from evaluation documents Goode received from
the agency on August 31. Since Goode did not raise these arguments by
September 10--that is, 10 calendar days later--they are untimely and will
not be considered. Goode also asserts in a September 26 supplemental protest
that the Coast Guard improperly failed to provide Goode with preaward notice
that an award had been made. However, Goode received notice of the award on
August 16; thus, this argument, too, is untimely because it was not raised
within 10 calendar days after Goode learned the basis of protest.

Goode also initially raised several other arguments--for example, it argued
that the agency did not properly evaluate Wren's past performance. The Coast
Guard explained in its agency report why it believed these arguments were
without merit, and Goode did not substantively respond to the agency's
position in its comments on the report. Under these circumstances, we
consider the issues abandoned. See Madison Servs., Inc., B-278962, Apr. 17,
1998, 98-1 CPD para. 113 at 4 n.1.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. CBC had received two interim ratings of [DELETED], but these later were
upgraded to [DELETED].