TITLE:  C. Lawrence Construction Company, Inc., B-289341, January 8, 2002
BNUMBER:  B-289341
DATE:  January 8, 2002
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Decision

Matter of: C. Lawrence Construction Company, Inc.

File: B-289341

Date: January 8, 2002

Doug R. Lawrence for the protester.

Larry E. Beall, Esq., and Joseph A. Gonzales, Esq., 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 solicitation's past performance evaluation criteria are
unnecessarily restrictive is denied where the record shows that the
provisions are reasonably related to the agency's minimum needs.

DECISION

C. Lawrence Construction Company, Inc. protests the terms of request for
proposals (RFP) No. DACA01-02-R-0007, issued by the Army Corps of Engineers,
Mobile District, for the construction of an F-22 squadron maintenance hangar
at Tyndall Air Force Base, Florida. The protester contends that the
solicitation's past performance evaluation criteria are unnecessarily
restrictive.

We deny the protest.

The successful offeror will be awarded a fixed-price contract to construct a
55,000 square-foot maintenance hangar with an attached squadron operations
center and maintenance unit. The facility will be constructed of a
pre-engineered steel frame with standing seam metal roof, fabric hangar
doors, a combination metal panel and architectural concrete masonry unit
exterior. The contractor is also required to demolish a concrete aircraft
ramp and perform general paving and grading and other general site
utilities. The estimated cost of the project is between $5 and $10 million.
RFP sect. 952.000-4214.

The agency will conduct a competitive "best value" source selection in which
competing offerors' past and present performance history will be evaluated
on a basis equal to price or other considerations. RFP sect. 00110. In the past
performance information volume of its proposal, [1] each offeror is required
to

[p]rovide 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 5 years. 'Relevant' contracts are construction projects that
are similar in scope and magnitude to this project, including but not
limited to, aircraft hangars and/or light industrial type facilities which
may include pre-engineered metal building frame, paving and utility work;
and within the range of $5,000,000 to $10,000,000.

RFP sect. 00110 para. 2.1.1(a).

For each listed contract, offerors must furnish information such as the name
and owner of the project, its general scope, the firm's role and work on the
project, the extent and type of work subcontracted, and the construction
cost, as well as a performance survey form completed by the project owner.
RFP sect. 00110 para.para. 2.1.1(a), (b). Offerors can also provide any information for
any other project that demonstrates customer satisfaction with overall job
performance and quality of completed contracts of similar scope and
magnitude. RFP sect. 00110 para. 2.1.1(b).

The RFP states that a technical evaluation team (TET) will evaluate past
performance information on the lowest-priced offerors and perform a
performance risk assessment. The TET will use each offeror's past
performance information to evaluate the quality of its performance on
recent, relevant projects of similar scope and magnitude to make an overall
assessment of its ability to perform the work required by the solicitation.
RFP sect. 00120 para. 2.2.2.1. Pricing information will be provided to the TET after
the conclusion of its evaluation, and the TET will recommend award to the
offeror whose proposal is fair and reasonable and most advantageous to the
government considering past performance and price.

C. Lawrence Construction contends that the solicitation's past performance
evaluation criteria are unnecessarily restrictive in two respects. The
protester first objects that the requirement to provide a list of at least
five contracts within the range of $5 to $10 million is unnecessarily
restrictive because it will "automatically exclude small, emerging
businesses from being awarded the contract." Protest at 1. The protester
next objects to the solicitation's provision regarding evaluation of past
performance on the ground that, in its experience, the agency's past
performance evaluations focus primarily on the name of the project and do
not consider any other factors. Protest at 2.

The Competition in Contracting Act generally requires that solicitations
permit full and open competition and contain restrictive provisions or
conditions only to the extent necessary to satisfy the agency's needs. 10
U.S.C. sect. 2305(a)(1) (1994). The determination of the agency's minimum needs
and the best method of accommodating them is primarily within the agency's
discretion. Leon D. Matteis Constr. Corp., B-276877, July 30, 1997, 97-2 CPD
para. 36 at 3. Agencies enjoy broad discretion in the selection of evaluation
criteria, and we will not object to the use of particular evaluation
criteria so long as the criteria used reasonably relate to the agency's
minimum needs in choosing a contractor that will best serve the government's
interests. Id. at 4. Where a protester alleges that a solicitation provision
is unduly restrictive, we will review the record to determine whether the
provision is reasonably related to the agency's minimum needs. See Systems
Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3.

C. Lawrence Construction contends that the "real effect" of the requirement
to submit a list of at least five projects valued at between $5 and $10
million is to "automatically exclude small, emerging businesses from being
awarded the contract" because such firms will not be able to list this many
relevant projects in the required dollar range. Protest at 1. The protester
asserts that offerors should be permitted to submit a list of up to five
relevant projects instead of a minimum of five.

The Army explains that this requirement was designed to provide a fair basis
upon which to assess an offeror's overall ability to successfully perform
this contract. The Army states that it must consider the general trends in a
contractor's performance when conducting a past performance evaluation,
Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(i), and asserts that one
project does not reflect a trend. As the Army explains, in order to assess
the general trend of a contractor's performance, it must be able to consider
sustained, continuous performance on a number of projects. The Army believes
that five or more projects provides an adequate number of projects to make
this assessment, or a better "comfort zone" in which it can determine a
contractor's overall performance and performance trends. Affidavit of Agency
Technical Adviser, para. 6. Moreover, the dollar range for the required projects
is the same as the estimated cost of the required work. Although it is
possible for a firm to perform a project of similar construction type at a
lower dollar amount, the protester has given us no basis to conclude that
the Army's desire to ensure that the contractor chosen is capable of
allocating funds for a project this size is unreasonable, especially
considering that the Army states that the estimated cost of the project is
closer to the higher end of the stated dollar range. See Leon D. Matteis
Constr. Co., supra, at 5 n.3. It would be illogical and unreasonable to
prohibit an agency from paying attention to the size of past contracts in
its past performance evaluation. See J.A. Jones Grupo de Servicios, S.A.,
B-283234, Oct. 25, 1999,

99-2 CPD para. 80 at 7.

The protester does not specifically rebut the agency's rationale for this
requirement. Instead, the protester's objection to the requirement is
grounded in its view that it and other small emerging businesses will be
improperly excluded from competing because they do not have experience with
five projects in the stated dollar range. However, the fact that a
particular prospective offeror is unable to compete under a solicitation
that reflects the agency's needs does not establish that the solicitation is
unduly restrictive. Micromass, Inc., B-278869, Mar. 24, 1998, 98-1 CPD para. 93
at 4.

C. Lawrence Construction next objects to the solicitation provision
regarding evaluation of offerors' prior relevant contracts on the ground
that, in its experience, the agency's past performance evaluations focus
primarily on the name of the project and do not consider such factors as the
similarity of the projects' construction methods and complexity, the
contract types and environments, and subcontractor efforts. Protest at 2.

The solicitation's definition of relevant contracts is quite broad. Again,
relevant contracts are "construction projects that are similar in scope and
magnitude to this project, including but not limited to, aircraft hangars
and/or light industrial type facilities which may include pre-engineered
metal building frame, paving and utility work" and are within the range of
$5 to $10 million. RFP sect. 00110 para. 2.1.1(a) (emphasis added). Offerors are
also required to submit information regarding the scope of each contract,
the firm's role and work on each contract, and the extent and type of work
subcontracted on each contract. Hence, an offeror is free to provide a
wealth of information about any contracts within the dollar range that it
believes are similar in scope and magnitude to this project, including the
information referenced by the protester, and the agency's responsibility is
to consider such information in assessing performance risk in a manner that
is reasonable and consistent with the solicitation's terms. See C. Lawrence
Constr. Co., Inc., B-287066, Mar. 30, 2001, 2001 CPD para. 70 at 4. The
protester asserts that the agency's past performance evaluations in prior
procurements improperly have focused on the name of the project to the
exclusion of other factors, suggesting that in this procurement the agency
similarly will ignore pertinent information in its evaluation of offerors'
past performance. However, each procurement stands on its own and protests
that merely anticipate improper agency action, such as this one, are
speculative and premature. See Saturn Indus.-Recon., B-261954.4, July 19,
1996, 96-2 CPD para. 25 at 5.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Offerors were to submit a proposal in two volumes, one containing past
performance information and the other containing such information as
representations and certifications, bonds, and pricing schedules.