TITLE:  John Carlo, Inc., B-289202, January 23, 2002
BNUMBER:  B-289202
DATE:  January 23, 2002
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Decision

Matter of: John Carlo, Inc.

File: B-289202

Date: January 23, 2002

Michael D. McElroy for the protester.

Col. Michael R. Neds, and Maj. Robert W. Clark, Department of the Army, for
the agency.

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protester's proposal for the rebuilding of a runway was reasonably
evaluated by the agency as unacceptable where the protester's proposed
organizational structure for accomplishing the project was unclear and where
a protester's representative conceded during the presentation/discussion
session that he had not read a critical section of the solicitation's
specifications.

2. Agency's record of the protester's presentation/discussion session, which
consists of only the evaluator's notes, is unobjectionable, where there is
no prejudicial difference regarding the protester's and agency's
descriptions of what was stated during the session.

DECISION

John Carlo, Inc. (JCI) protests the award of a contract to Dan's Excavating
Inc. (DEI) under request for proposals (RFP) No. DAHA20-01-R-0012, issued by
the Michigan Air National Guard, for the rebuilding of a runway, a new
drainage system, approach lighting and an electrical vault, for the
Selfridge Air National Guard Base, Michigan. The protester challenges the
manner in which presentations/discussions were conducted, as well as the
evaluation of its proposal and the selection of the awardee's higher-priced
proposal for award.

We deny the protest.

The RFP provided for the award of a fixed-price contract to the offeror
submitting the proposal determined to represent the best value to the
agency, considering present/past performance, technical, and price factors.
The solicitation listed subfactors, as well as the elements comprising the
subfactors, under the present/past performance and technical factors. There
were four technical subfactors: project management, progress schedule,
construction equipment and plant, and material and product compliance
schedule. The RFP informed offerors that a proposal "receiving at least one
'Unsatisfactory' [technical] sub-factor rating may receive an 'overall'
rating of 'Unsatisfactory [under the technical factor].'" [1] The
solicitation added that each offeror's proposed price would be evaluated for
reasonableness, realism and completeness, and that in arriving at its best
value determination, the proposal's rating under the present/past
performance and technical evaluation factors would be considered
"approximately equal to cost or price." RFP at 22-29; amend. No. 0001 at 3.

The agency received five proposals by the RFP's closing date. The proposals
were evaluated by a source selection evaluation board (SSEB). Three of the
proposals, including JCI's and DEI's, were included in the competitive
range. The SSEB determined that all of the proposals in the competitive
range were deficient in certain areas, but were nevertheless "[s]usceptible
to being made [a]cceptable." Agency Report (AR), Tab 18, Determination of
Competitive Range. For example, the SSEB determined that "none of the
offerors provided an adequate narrative fully discussing their approach to
the project," and that the "[o]fferors did not adequately demonstrate their
knowledge of the project that would provide the evaluators with an
acceptable level of confidence of the planned project execution." The agency
decided that the "fairest way to obtain this information was to allow each
[competitive range] offeror . . . the opportunity to discuss their approach
and execution plan for the project orally." AR, Tab 1, Contracting Officer's
Statement, at 5.

By letters dated August 17, 2001, the agency scheduled discussions with the
three competitive range offerors. The letters informed the offerors of the
specific deficiencies and weaknesses identified in their respective
proposals, and requested the submission of revised proposals. AR, Tabs
19A-C, Agency Letters to Competitive Range Offerors. For example, JCI was
informed that, among other things, its proposal failed to provide "complete
information regarding the project management team that will be utilized on
this project," and that it needed to identify its project superintendent and
its electrical subcontractor. AR, Tab 19A, Agency Letter to JCI (Aug. 17,
2001).

On August 20, the agency provided each offeror with a second letter
requesting additional information regarding their respective proposals.
These letters also confirmed that each offeror would "be attending the
presentation/discussion of the subject project," and stated that the
"meeting [would] consist of a 30[-]minute presentation of your understanding
and approach" to the work required. These letters informed each offeror that
their "presentation should include discussing your key personnel and
subcontractors who will be on site during construction, safety and quality
control methods, equipment dedicated to this project and material
suppliers." The letters added that "the approach to the project and schedule
requirements should be discussed in a manner that demonstrates the
Contractor's knowledge of the project and construction expertise that will
ensure quality workmanship and safety with a timely completion." The letters
further stated that "[k]ey members of your team," with a "maximum eight
persons[,] . . . may attend the meeting." Finally, the letters informed
offerors that a 30-minute "question/answer period" with agency personnel
would follow the presentation. AR, Tabs 21A-C, Agency Letters to Offerors
(Aug. 20, 2001).

The presentations/discussions were conducted on August 29, and revised final
proposals were requested and received by September 10. DEI's proposal was
rated as "very good" under the the present/past performance factor,
"excellent" under the technical factor, at a total price of $19,827,875.
JCI's proposal was rated as "satisfactory" under the present/past
performance factor, "unsatisfactory" under the technical factor, at a total
price of $18,107,812. Specifically, JCI's proposal was rated
"unsatisfactory" under the project management subfactor to the technical
factor, and thus, in accordance with the RFP, unsatisfactory under the
technical factor overall. AR, Tab 27, Consensus Evaluation Ratings; see RFP
at 27. The agency determined that DEI's proposal represented the best value
to the government, and the contract was subsequently awarded to that firm.

The protester argues that the agency's evaluation of its proposal was
unreasonable. The evaluation of proposals is a matter within the discretion
of the contracting agency since the agency is responsible for defining its
needs and the best method of accommodating them. In reviewing an agency's
evaluation, we will not reevaluate proposals, but instead will examine the
agency's evaluation to ensure that it was reasonable and consistent with the
solicitation's stated evaluation criteria and with applicable statutes and
regulations. An offeror's mere disagreement with the agency does not render
the evaluation unreasonable. Encorp-Samcrete Joint Venture, B-284171,
B-284171.2, Mar. 2, 2000, 2000 CPD para. 55 at 4.

JCI protests its unsatisfactory rating under the project management
subfactor. With regard to the project management subfactor, offerors were
advised that "[t]he technical proposal must include necessary information to
enable evaluators to form a concrete conclusion of the offeror's ability to
perform complete project management of required construction." RFP at 25.
One of the elements to be assessed under the project management subfactor
was whether the offeror has "experienced managers, supervisors, and
administrative support personnel with the technical and administrative
abilities needed to meet contract requirements." Id. at 26. The record
reflects that the unsatisfactory rating under the project management
subfactor was due to a number of deficiencies in JCI's proposal, as well as
JCI's responses to questions during the presentation/discussion session.

For example, the agency found that JCI's proposal was confusing as to the
offeror's organizational structure for performing the work required,
including "who the actual superintendent for this project would be," and
that the individual whom JCI appeared to propose as its project manager
lacked actual "construction field management experience." AR, Tab 28,
Summary Evaluation Report of the SSEB, at 6. In this regard, JCI's initial
proposal included an organizational chart identifying one individual as the
"project superintendent," to whom the "project management team,"
subcontractors, and operations personnel, such as the managers of the
concrete, asphalt, and earthwork divisions, would report. However, the
individual identified as the project superintendent was, on the next page of
JCI's proposal, identified as the "project manager" without any explanation.
AR, Tab 9, JCI's Proposal, vol. 3, at 9-10. Accordingly, the agency
requested that JCI "provide complete information regarding the project
management team that will be utilized on this project." AR, Tab 19, Agency
Letter to JCI (Aug. 17, 2001).

The protester responded to the agency's request by simply stating that the
individual previously identified as, alternatively, the project manager and
project superintendent, would actually serve as only the project manager,
and that another individual who had previously been identified in JCI's
proposal as its earthwork superintendent, who was to report to the earthwork
division manager (who was in turn to report to the project
manager/superintendent), would actually serve as JCI's project
superintendent. AR, Tab 23A, JCI's Revised Proposal (Aug. 27, 2001), at 3;
see AR, Tab 9, JCI's Proposal, vol. 3, at 9. JCI added here that "[t]he
Project Team organizational chart is attached," but the attached chart
continued to list the person now identified as the project manager as,
instead, the project superintendent, and the person now identified as the
project superintendent as, instead, the earthwork superintendent. AR, Tab
23A, JCI's Revised Proposal (Aug. 27, 2001), at 3, 9.

The protester's presentation/discussion session did little to alleviate the
agency's concerns and confusion regarding JCI's proposed project manager,
project superintendent, and organizational structure for this project. The
individual JCI had now identified as its project superintendent/earthwork
superintendent did not attend the presentation/discussion session, and the
individual now identified as the project superintendent/project manager did
not, in the agency's view, demonstrate an understanding of the
specifications and was found to have no previous construction field
management experience. AR, Tab 28, Summary Evaluation Report of the SSEB, at
6.

Given the agency's continuing confusion with regard to JCI's organizational
structure and the actual duties to be performed by JCI's proposed project
manager/project superintendent and project superintendent/earthwork
superintendent, the agency requested after the completion of JCI's
presentation/discussion session that this be clarified. Id. The protester
responded by stating that the individual now identified as its project
manager/project superintendent would be the agency's "administrative contact
on the project," and that the individual who continued to be identified on
JCI's organizational chart as the earthwork superintendent would "serve on
this project as [JCI's] Project Superintendent, and will be responsible for
the day-to-day field direction." AR, Tab 25A, E-mail from JCI to the Agency
(Sept. 4, 2001).

The protester asserts that the respective roles of the project
manager/project superintendent and project superintendent/earthwork
superintendent were adequately clarified by the organizational chart
submitted with its revised proposal, and its September 4, 2001 e-mail. We
disagree.

As noted, the organizational chart submitted with the protester's revised
proposal, as well as the most current organizational chart submitted by JCI,
continue to list the individual JCI now asserts will serve as its project
manager as the project superintendent, and the individual JCI asserts will
serve as the project superintendent "responsible for the day-to-day field
direction" as only the earthwork superintendent. Given the confusion created
by JCI's conflicting submissions and explanations regarding its
organizational structure for this project, and specifically which
individuals would be serving in which roles, we have no basis to object to
the agency's view that this aspect of JCI's proposal remained of
considerable concern, and find that this concern reasonably supported JCI's
proposal's unacceptable rating under the project management subfactor.

The protester asserts that the agency's conclusion that the project
manager/project superintendent lacks "previous construction field management
experience" is unfounded. In this regard, the protester points out that, as
described on the project manager/project superintendent's resume, his
experience includes serving as a "project engineer" for the Department of
Public Service, Wayne County, Michigan, where his duties included "[a]cting
as the owner's representative" for a $42 million project at the Detroit
Metropolitan Airport that involved the "construction of a 1000[-]foot
tunnel." See AR, Tab 9, JCI's Proposal, at 10.

The agency explains that JCI's project manager/project superintendent's
experience is as a contract administrator and "owner's representative," and
that there is nothing in the record to suggest that in those capacities
JCI's project manager/project superintendent had ever managed a construction
project as a contractor, as is contemplated here. See AR, Tab 28, Summary
Evaluation Report of the SSEB, at 6; Tab 31, Source Selection Decision, at
3. Although we agree that JCI's proposed project manager/project
superintendent appears to have considerable experience as a contract
administrator and owner's representative, that does not render unreasonable
the agency's concern that the individual has never managed a construction
project as a contractor representative.

The protester further argues that the agency's criticism of the project
manager/project superintendent's experience on the basis that he lacks
on-site experience is irrelevant, given that the project manager/project
superintendent's responsibilities consist of project administration and
coordination, and JCI intends to use the individual identified in its
proposal as the earthwork superintendent/project superintendent "to run the
field operations." The protester's assertions here do not render the
agency's conclusions unreasonable, given the confusion created by the
protester's proposal, as detailed above, regarding who would serve as the
project manager and who would serve as the project superintendent.

The record also evidences that the agency considered the protester's
responses in the presentation/discussion session in determining that the
firm's proposal was unacceptable under the project management subfactor
because these responses did not demonstrate that the protester had an
acceptable approach to the project that demonstrated knowledge and
understanding of the project. AR, Tab 31, Source Selection Document, at 3.
As noted, the competitive range offerors were expressly advised that purpose
of the session was for the offerors to present their understanding and
approach to the project. AR, Tab 21A, Agency Letter to JCI (Aug. 20, 2001).
Notwithstanding this advice, JCI's presentation did not, in the agency's
view, demonstrate its understanding of the project, and JCI's responses to a
number of the agency's questions did not assuage, but instead exacerbated,
the agency's concerns in this respect.

For example, JCI's proposed concrete division manager conceded during the
presentation/discussion session that he had not read a section of the RFP's
specifications relating to the workability and consistency of the concrete
to be used in paving the runway. AR, Tab 28, Summary Evaluation Report of
the SSEB, at 6; Tab 31, Source Selection Decision, at 3. The agency has
provided a detailed explanation as to the differences between the
specifications applicable to the project here, an Air Force runway, and
those applicable to commercial runway projects, and the critical role of the
RFP's specifications regarding the workability and consistency of the
concrete in ensuring that the project is successfully completed and that the
runway meets the agency's minimum needs. Agency's Supplemental Report, Tab
5, Letter from the Senior Pavement Engineer (Dec. 20, 2001).

The protester concedes that its proposed concrete division manager stated
during the presentation/discussion session that he had not read a section of
the RFP's specifications relating to the workability and consistency of the
concrete to be used in paving the runway. The protester appears to argue,
however, that it should not have been downgraded under the project
management subfactor for this because, even though the concrete division
manager had not read this section of the specifications, he nevertheless
answered a question regarding the workability and consistency of the
concrete correctly.

We agree with the agency that whether JCI's concrete division manager
correctly answered the agency's question during the presentation/discussion
session regarding the workability and consistency of the concrete to be used
in paving the runway is irrelevant to the agency's concern that the concrete
division manager had not read a critical section of the specifications for
which this individual would be responsible. That is, the fact remains that
at least through the submission of JCI's proposal, revised proposal, and the
presentation/discussion session, JCI's proposed concrete division manager
had not read a key aspect of the specifications. Thus, the agency's concerns
here that the protester may not fully appreciate or understand the project
are, in our view, reasonably based.

In sum, as illustrated by the foregoing examples, given the extent of the
deficiencies in JCI's proposal, and JCI's responses to questions at the
presentation/discussion session, the agency's evaluation of the protester's
proposal as unacceptable under the project management subfactor to the
technical factor, and thus unacceptable overall, were reasonable. [2]

The protester also argues that the agency acted improperly by allowing only
eight JCI representatives to attend the presentation/discussion session and
limiting the presentation portion of the presentation/discussion session to
30 minutes. These protest contentions are untimely raised and will not be
considered.

In procurements where proposals are requested, alleged improprieties which
do not exist in the initial solicitation, but which are subsequently
incorporated into the solicitation, must be protested not later than the
next closing time for receipt of proposals following the incorporation. 4
C.F.R. sect. 21.2(a)(1) (2001). Here, as set forth above, the agency
specifically advised offerors in the letters of August 17 and 20 that,
notwithstanding the RFP's statement that the agency intended to evaluate
proposals and award a contract without discussions with offerors, the agency
had determined that a presentation/discussion session with each offeror
would be conducted. The August 20 letter specifically advised offerors that
the presentation/discussion would "consist of a 30[-]minute presentation of
your understanding and approach" to the project, and that "[a]fter your
presentation, the members of the Source Selection Team will have a
30[-]minute question/answer period with your team." AR, Tab 21, Agency
Letters to Offerors (Aug. 20, 2001). These letters also provided that a
"maximum of eight persons" may attend the meeting on behalf of each offeror.
Id. Accordingly, JCI's post-award challenge to the agency's time and
attendance limits for the presentation/discussion session constitutes a
protest of an alleged apparent solicitation impropriety which was

required to be filed, but was not, prior to the next closing date for
receipt of revised proposals. Oregon Iron Works, Inc., B-284088.2, June 15,
2000, 2000 CPD para. 119 at 6; McDonald Welding & Machine Co., Inc.--Recon.,
B-224014.2, Sept. 5, 1986, 86-2 CPD para. 269 at 2.

The protester also complains that the presentation/discussion sessions were
not recorded. FAR sect. 15.102(e) requires that agencies maintain a record of
oral presentations. The source selection authority selects the method of
recording, and FAR sect. 15.102(e) gives the following examples: videotaping,
audio tape recording, written record, government notes, and copies of
briefing slides or presentation notes. Although the FAR does not require a
particular method of establishing a record of what was said or occurred
during oral presentations, the principle of government accountability
dictates that an agency maintain a record adequate to permit meaningful
review. Checchi and Co. Consulting, Inc., B-285777, Oct. 10, 2000, 2001 CPD
para. 132 at 6.

Here, the contemporaneous record of JCI's presentation/discussion session
consists of the handwritten notes taken by the SSEB. JCI did not provide the
agency with
any presentation materials, such as slides, during its
presentation/discussion session, and during the course of this protest has
not submitted to our Office any contemporaneous evidence of the content of
the session. Given that "government notes" are specifically mentioned in FAR
sect. 15.102(e) as a permissible method of maintaining a record of oral
presentations, and the lack of any prejudicial disagreement between the
parties as to what was said during JCI's presentation/discussion session,
the protester's complaint here provides no basis to challenge the award. [3]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The RFP stated that the following adjectival ratings would be used in the
evaluation of technical proposals: excellent, good, satisfactory,
susceptible to being made acceptable, and unsatisfactory.

2. The protester argues that the agency's evaluation of its proposal under
the remaining subfactors to the technical evaluation factor, the past
performance factor, and the price factor, and the selection of the awardee's
higher-priced proposal for award, were unreasonable. Since the agency
properly found JCI's proposal technically unacceptable, and thus ineligible
for award, we need not address these issues. Manufacturing Eng'g Sys., Inc.,
B-278074, B-278074.2, Dec. 23, 1997, 99-2 CPD para. 58 at 7.

3. JCI protests that the agency erred in not having the source selection
authority (SSA) attend the presentations/discussions. We are unaware of any
requirement that an SSA attend presentation/discussion sessions, and in any
event, as explained above, our review of the record leads us to conclude
that the agency's treatment of JCI during the presentation/discussion
session, evaluation of its proposal, and selection of the awardee's proposal
as representing the best value to the government, are unobjectionable.