TITLE:  Global Engineering & Construction, LLC, B-290288.3; B-290288.4, April 3, 2003
BNUMBER:  B-290288.3; B-290288.4
DATE:  April 3, 2003
**********************************************************************
Global Engineering & Construction, LLC, B-290288.3; B-290288.4, April 3, 2003

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Global Engineering & Construction, LLC
    
File:            B-290288.3; B-290288.4
    
Date:              April 3, 2003
    
Donald E. Barnhill, Esq., Barnhill & Associates, for the protester.
Robert J. Symon, Esq., Douglas L. Patin, Esq., and Christyne K. Brennan,
Esq., Spriggs & Hollingsworth, for John J. Kirlin, Inc., an intervenor.
Larry E. Beall, Esq., U.S. Army Corps of Engineers, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency*s determination that awardee*s higher-priced,
higher-rated proposal represented the best value to the government is
denied where the solicitation established price as significantly less
important than the technical and management factors in the evaluation of
proposals for award, and the record shows that the agency reasonably
concluded that the awardee*s technical superiority outweighed the
protester*s lower price.
DECISION
    
Global Engineering & Construction, LLC protests the award of a contract to
John J. Kirlin, Inc. under request for proposals (RFP) No.
DACA01-02-R-0003, issued by the U.S. Army Corps of Engineers for
renovation, repair, and minor construction services for Army medical and
support facilities. Global contends that the agency*s award to Kirlin
based on the awardee*s higher-rated, higher-priced proposal was
unreasonable. Global challenges the agency*s evaluation of the proposals,
alleges that discussions were unequal and not meaningful, and contends
that the agency unreasonably determined that Kirlin*s proposal presented
the best value to the agency.
    

   We deny the protest.
    
The RFP, issued on October 26, 2001, sought proposals for the award of a
fixed-price, indefinite-delivery/indefinite-quantity contract for a base
year and 4 option years.[2]  Offerors were advised to submit proposals
detailing their intent, capabilities, facilities, and experience.  RFP at
L-12.  Each offeror was to submit a technical proposal including:  a
demonstration of the offeror*s experience performing similar work during
the last 5 years; a list of subcontractors used and a percentage of the
work to be subcontracted; a demonstration of the offeror*s capability,
discussing the offeror*s ability to self-perform the portion of work not
subcontracted; a showing of relevant past performance; and a detailed
discussion of the firm*s proposed technical approach, including a
demonstration of the offeror*s understanding of the required work
processes.  Additionally, each proposal was to describe the firm*s
proposed safe environment, quality control, and rapid response to task
orders, including proposed timing for site survey reports and work plans
for the three levels of effort anticipated under the contract--small
projects (estimated at $500,000 or less), medium projects (estimated at
$500,000 to $3 million), and large projects (estimated at $3 million or
more).  Id. at L-14, 15.
    
The offeror*s management proposal was to include information about the
firm*s corporate experience; subcontractor experience was to be considered
if written subcontractor commitment was provided in the proposal. 
Information as to personnel qualifications, proposal preparation plan
(including the management of proposal preparation to respond rapidly to
task orders), cost control, and past performance on utilization of small
business concerns also was to be provided.  Price proposals were to
provide support for intended labor rates, subcontractor intent and
handling fee, financial statements, and information about the offeror*s
current work commitments.  Subcontracting plans were also required.  Id.
at 15-17.
    
The RFP provided for the agency*s use of technical/management evaluation,
price analysis, and cost/technical tradeoff analysis to determine the most
advantageous offer, and award was to be made to the offeror that submitted
the proposal found to offer the best value to the government.  The RFP*s
technical factors included the following:  experience, capability, past
performance, and technical approach.  The management factor*s subfactors
included:  corporate experience, personnel qualifications, proposal
preparation plan, cost control, and past performance on utilization of
small business concerns.  The technical and management factors were to be
significantly more important than price in the evaluation for award, and
offerors were advised that award could be made to other than the
lowest-priced offeror.  Price was not to be rated; rather, prices were to
be reviewed for reasonableness, realism, and completeness through line
item review of prices and price analysis; the RFP also provided that an
offeror*s technical approach was to be considered as a basis of cost in
the evaluation of its price proposal.  The RFP provided that as the
differences in ratings and relative advantages or disadvantages among the
proposals became less distinct, differences in prices would become more
important in making the best value determination for award; conversely, as
the differences in technical merit became more meaningful, the differences
in prices were to become less important to the source selection decision. 
Id. at S:S: M.3 and M.7.
    
The three proposals received by the scheduled closing time were included
in the competitive range for discussions.  Kirlin*s higher-priced revised
proposal was rated technically superior to Global*s revised proposal. [3] 
The third offeror*s revised proposal offered the highest price and was
rated lowest technically.  The agency*s price analysis, which compared
each proposal*s line item prices to those of the other offerors and
government estimates, noted instances where proposed line item prices
appeared noticeably higher or lower than the government estimates.  For
example, the evaluation of Kirlin*s price proposal noted many more
*higher* markings than were noted for the protester*s prices [deleted],
yet Kirlin*s proposal also had more *low* line item price notations than
Global*s did.  Overall, the proposals* item pricing was considered
acceptable, complete, and realistic.
    
The agency then confirmed the price reasonableness of each proposal
through a comparative exercise in which each offeror*s prices were
considered relative to three sample projects, each project approximating
one of the three levels of effort (ranging from small to large projects)
contemplated under the RFP.  The exercise was based on randomly selected
task orders recently issued by the agency for work determined to be
typical of that to be ordered under the current contract.[4]  The agency*s
price evaluation determined that Kirlin*s and Global*s offered prices were
reasonable, with only a [deleted] percent price difference between
Kirlin*s higher-priced and Global*s lower-priced proposals.[5]
    
Global*s initial technical proposal was rated higher than Kirlin*s;
however, after discussions and the submission of proposal revisions,
Kirlin*s proposal was rated substantially higher than Global*s
proposal.[6]  While Global and Kirlin received mostly *good* ratings,
Global*s proposal received lower ratings (*satisfactory*) under the
technical approach and proposal preparation plan subfactors.  These lower
ratings were based on the agency*s concerns that the otherwise acceptable
presentations in these proposal areas lacked sufficient support for
Global*s claims of rapid responses to agency requirements under the
contract.
    
Under the experience and past performance subfactors, Global, a new
business entity, was given full credit for its two principals* experience;
largely because of the individuals* experience gained at other firms, the
firm*s proposal received the highest possible adjectival ratings under
these subfactors, as well as the corporate experience and personnel
qualifications subfactors.  A performance risk was noted, however, since,
as a new entity, the firm had little documented experience of its own
self-performance of substantially similar overall requirements. 
[deleted].  Further, although acceptable, Global*s [deleted] workforce,
and its proposed reliance on the use of union workers on an as-needed
basis, were also noted as related concerns about the firm*s ability to
self-perform at a consistently high level of quality.  In addition,
although the Global proposal had generally claimed that Global was a new
organization and that it should not be considered responsible for the
[deleted].  Lastly, some concern arose as to Global*s failure to propose
any [deleted] to its rates over the course of the 5-year contract.  The
firm*s failure to provide for [deleted], without sufficient explantion of
such a proposed approach, raised concern about the firm*s ability to hire
and retain quality personnel.
    
The source selection authority (SSA) reviewed the evaluators* reports and
documented his concerns about the noted weaknesses and related performance
risks associated with the Global proposal.  The SSA concluded that Global
failed to persuasively demonstrate its ability to self-perform the effort
without risk to the consistent quality of performance.  In this regard,
the SSA noted that the proposed use of untested workers, and the temporary
nature of an *as-needed* union workforce, where workers may lack company
loyalty and proven past performance of similar projects, may jeopardize
the quality of performance.  The SSA also noted that, if Global were to
subcontract some of the work, some concern as to performance risk also
exists, since despite having the opportunity to improve its proposal after
discussions, the firm did not adequately explain its actions to rectify
[deleted].  The SSA, who also noted concern about the firm*s failure to
demonstrate a stronger rapid response to agency needs for surveys, work
plans, and the monitoring of proposal preparation efforts, further noted
that Global did not persuasively defend its failure to provide [deleted]
over the 5-year contract, which, the SSA reasoned, might have an adverse
effect on the retention of skilled personnel.
    
Conversely, the SSA noted a list of technical strengths associated with
the Kirlin proposal, such as:  Kirlin*s strong experience in its proposed
method of performance, involving the coordination and capability of its
proven high quality subcontractors; the firm*s strong overall past
performance history; its minimal performance risk; its minimal adverse
impact on customer relations; its strong technical approach with favorable
demonstrated response times; its strong proposal preparation plan; and its
[deleted].  The SSA then considered the [deleted] percent price difference
between the Global and Kirlin proposals.  Global*s lower price was noted
to be related, in part, to factors of concern raised by the evaluators,
such as the failure to provide for [deleted], which were included in the
Kirlin proposal and the government estimates.  The SSA subsequently
concluded that the additional cost associated with the Kirlin proposal was
minimal and that the technical superiority of the Kirlin proposal
outweighed Global*s lower price.  Following the agency*s determination
that Kirlin*s proposal offered the best value to the agency, an award was
made to the firm.  Global filed this protest after receiving a debriefing.
    
Global generally protests the technical evaluation of its proposal,
contending, for instance, that the evaluators failed to credit the firm
with the experience of its principals; [deleted]; unreasonably found
performance risk in its proposal to self-perform with union hires on an
as-needed basis; and improperly concluded that the firm*s proposal failed
to demonstrate [deleted].
    
Where an evaluation is challenged, our Office will not reevaluate
proposals but instead will examine the record to determine whether the
agency*s judgment was reasonable and consistent with the stated evaluation
criteria and applicable procurement statutes and regulations.  Rome
Research Corp., B-291162, Nov. 20, 2002, 2002 CPD P: 209 at 4.  The fact
that the protester disagrees with the agency and generally believes its
proposal should have been rated higher than it was does not render the
evaluation unreasonable.  Id.  We have reviewed all of Global*s challenges
and find each to be without merit.  Global has not provided, nor does our
review of the record reveal, support for its disagreement with the
agency*s evaluation.
    
As discussed above, the evaluation record does not support Global*s
contention that the evaluators failed to credit the firm with the
experience of its key personnel/principals.  On the contrary, our review
of the record shows that the evaluators credited the firm with the
experience of the individuals--the protester*s proposal, in fact, received
the highest possible rating under all experience/past performance
subfactors on the basis of these individuals* experience.
    
We also have no basis to question the agency*s perception of some
performance risk in the Global proposal due to the fact that the majority
of experience credited to the firm*s proposal related to work performed by
other businesses, including [deleted].  The RFP emphasized the importance
of experience and qualifications of the offeror, while providing that the
experience of personnel and subcontractors could be considered, and
provided separate evaluation criteria for the review of personnel
qualifications, experience, and corporate experience.  Accordingly, it was
reasonable and consistent with the RFP for the agency to consider Global*s
own limited corporate experience as a new entity as a valid point of
concern.
    
As to the protester*s disagreement with the perceived performance risk
associated with the use of union trade workers when needed, the record
provides no reason to question the agency*s findings.  Global proposed
only minimal staffing in terms of available Global personnel.  The firm
instead relied on the substantial use of teams of trade workers of
unproven experience for the performance of the critical medical facility
work required here.  Global*s response to the agency*s concern*namely,
that the use of these types of union hires is typical in the construction
industry*does not render unreasonable the agency*s judgment that, although
Global submitted an acceptable proposal in this area, it did not
persuasively demonstrate its capability to perform these critical services
without some performance risk.[7]
    
Global*s protest of the reasonableness and sufficiency of the SSA*s
cost/technical tradeoff analysis and source selection also provides no
basis to question the award to Kirlin.  Where a solicitation provides for
a best value procurement and, as here, emphasizes the significantly
greater importance of technical factors over price, an agency has
considerable discretion to award to an offeror with a higher technical
rating and higher price.  WPI, B‑288998.4, B-288998.5, Mar. 22,
2002, 2002 CPD P: 70 at 10.  Source selection officials, who are not bound
by the recommendations or methodologies of evaluators, have discretion,
subject to the tests of rationality and consistency with the established
evaluation factors, to make cost/technical tradeoffs in deciding between
competing proposals.  We will review the reasonableness of the SSA*s
judgment concerning the significance of the proposal differences and
whether the selection is justified in light of the RFP evaluation scheme. 
See Digital Sys. Group, Inc., B-286931, B-286931.2, Mar. 7, 2001, 2001 CPD
P: 50 at 11-12; Environmental Chem. Corp., B-275819, Apr. 1, 1997, 97-1
CPD P: 154 at 5.
    
Our review confirms the reasonableness of the SSA*s tradeoff
determination.  As stated above, technical/management factors were
significantly more important than price under the RFP, and as technical
differences became more distinct, price was to become less of a
consideration.  The SSA reasonably concluded that the technical
differences between the Global and Kirlin proposals were distinct,
meaningful, and legitimate.  Given the relatively slight differences in
their overall pricing, the record makes clear that these technical
differences became determinative.  Our review of the record shows that
Kirlin*s technically superior proposal, in terms of its proven method of
performance and low performance risk, strong technical approach and
[deleted], was reasonably found to outweigh the slightly lower price of
Global*s technically inferior proposal.  Given the reasonableness of the
evaluators* and the SSA*s thorough and comprehensive evaluation of the
firms* proposals, consistent with the stated evaluation scheme for award,
we have no reason to question the propriety of the agency*s determination
that Kirlin*s higher-rated, higher priced proposal offered the best value
to the agency.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] The RFP*s statement of work described the contract objective as
providing *quick response to renovation/repair and minor construction
requests relating, but not limited to, the architectural, mechanical,
electrical, instrumentation, security and safety areas of Government
medical facilities in a cost effective manner.*  RFP at C‑1.
[2] The total dollar amount of task orders to be issued under the contract
was not to exceed $75 million over the 5-year contract term.  The
guaranteed task order minimum for the base year was $300,000; the base
year maximum was $15 million.  For each option year, the maximum was to be
set between $7.5 and $15 million; option year minimums were to be set at 1
percent of that year*s maximum dollar amount.  RFP at H-11.
[3] Prior to discussions and the evaluation of proposal revisions,
Global*s initial proposal had been rated higher than Kirlin*s.  Individual
evaluator workbooks containing the evaluators* notes about that initial
evaluation have already been destroyed by the agency.  However, Global
provides no support for its suggestion that the destruction of these
initial notes was intentional in order to favor Kirlin in some way. 
Rather, since the documents concerned only the earliest round of proposal
evaluation--and a consensus report of the initial evaluation was prepared
by the same evaluators and remains in the record--and, as discussed
further in this decision, the evaluation record of the revised proposals
fully supports the award determination, the destruction of the preliminary
evaluator notes here provides no basis to question the award.
[4] The reasonableness of Global*s prices was reviewed in terms of the
offeror*s proposal to self-perform the requirements; Global*s
self-performance of the work was evaluated under the sample tasks at a
price approximately [deleted] percent lower than the price evaluated for
Kirlin under Kirlin*s proposal to subcontract the work.  Since agency
personnel were familiar with Global*s history of subcontracting some of
the work under similar contracts, the firm*s proposal was also evaluated
on the basis of subcontracting some work under the sample tasks; under
that analysis, the Global price was evaluated as approximately [deleted]
percent lower than Kirlin*s price.
[5] Global fails to support its generally stated challenges to the
agency*s use of this sample task exercise (namely, that the agency failed
to adequately justify its choice of sample tasks or utilize appropriate
government estimates).  We find the agency*s price review to be consistent
with the RFP and otherwise unobjectionable in that it compared offerors*
competitive prices for types of tasks reasonably expected under the scope
of the current contract.  See Federal Acquisition Regulation S:
15.404-1(a)(b).  The protester*s contentions that work under the contract
will instead involve larger tasks for which Global*s lower overhead rates
will be even more beneficial to the agency than was shown by the task
analysis here, or that the government*s estimates are somehow otherwise
improper, are not supported by the record, which instead shows that the
three sample tasks reasonably approximate the three levels of effort set
out in the RFP and concern work which fits squarely within the RFP*s
requirements.  Moreover, neither the RFP*s guaranteed maximums nor
Global*s proposal*s description of work performed under its interim
contract for these services supports Global*s contention that larger
projects would be more representative of the work to be ordered under the
current contract.
[6] Global argues that the agency*s discussions with the firms must have
been improper in light of the fact that Kirlin*s proposal revisions caused
that firm*s proposal to be rated higher than the protester*s. 
Specifically, Global contends that the discussions were unequal, favoring
Kirlin or, alternatively, that discussions with Global were not
meaningful.  Our review of the record, however, provides no evidence to
support the protester*s general claims of impropriety in the challenged
discussions.  The record shows that more items were raised in discussions
with Global than Kirlin, and that Global was told of the areas in which
the evaluators had significant concern (e.g., [deleted].  As to Global*s
contention that all of the agency*s concerns about self-performance of the
contract by Global, including the firm*s proposed reliance on union
workers on an as-needed basis, were not adequately discussed, the record
shows that the proposal was fully acceptable in this area; thus, there was
no requirement for the agency to raise the concern in discussions.  See
MCR Fed., Inc., B-280969, Dec. 14, 1998, 99-1 CPD P: 8 at 11 (agency need
not discuss acceptable areas of proposals which failed to receive highest
evaluation rating).  An agency need not discuss perceived relatively minor
weaknesses in acceptable areas of proposals, even if those weakness
ultimately becomes determinative in terms of the source selection
decision.  See Uniband, Inc., B-289305, Feb. 8, 2002, 2002 CPD P: 51 at
11.
    
[7] Global only generally challenges the evaluation of Kirlin*s proposal
and suggests that the agency was more critical of the Global proposal. 
Global fails, however, to support its general contentions in this regard. 
To the extent Global for the first time in its comments on the
supplemental report suggests that the agency should have reviewed
additional available information about Kirlin*s alleged past performance
problems on other contracts, the allegations are vague and untimely.  A
protester has the duty to diligently pursue all information that may give
rise to a protest issue.  Here, Global knew of the award to Kirlin, yet
did not pursue such alleged past performance problems prior to filing its
post-debriefing protest.  Rather, the firm waited almost 2 months to
present a minimal identification of prior contracts of the awardee that
Global *believes* may have had performance problems.  This piecemeal
presentation of information and allegations will not be considered.  Bid
Protest Regulations, 4 C.F.R. S: 21.2(a)(2) (2003).