TITLE:  Knightsbridge Construction Corporation, B-291475.2, January 10, 2003
BNUMBER:  B-291475.2
DATE:  January 10, 2003
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Knightsbridge Construction Corporation, B-291475.2, January 10, 2003

   Decision
    
    
Matter of:   Knightsbridge Construction Corporation
    
File:            B-291475.2
    
Date:              January 10, 2003
    
Joel S. Rubinstein, Esq., Bell, Boyd & Lloyd, for the protester.
Phillipa L. Anderson, Esq., Kenneth MacKenzie, Esq., and Charlma Quarles,
Esq., Department of Veterans Affairs, for the agency.
Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Where solicitation requires that to be considered technically
acceptable, an offeror must demonstrate experience in completing at least
three projects of similar type and magnitude within the last 5 years on a
contract similar in size and scope to the project being awarded, the
agency reasonably considered whether the past projects referenced in
proposals were comparable in dollar value as well as complexity.  Where
protester had not performed three projects of contract dollar value
comparable to that of the requirement being solicited, agency reasonably
rejected protester's proposal as unacceptable.
    
2.  While agency improperly conducted exchanges with offerors in a manner
that favored other offerors over protester, GAO will not sustain protest
where it is clear that agency's improper actions did not prejudice
protester.
DECISION
    
Knightsbridge Construction Corporation protests the rejection of its
proposal and the award of a contract to TCL Contractors Corporation under
request for proposals (RFP) No. 10N3-131-02, issued by the Department of
Veterans Affairs (VA) for renovation of the dermatology clinic area of a
VA Medical Center in New York.  Knightsbridge maintains that it submitted
the lowest priced, technically acceptable proposal and should have
received the award, and that the agency improperly conducted exchanges
with other offerors, which prejudiced Knightsbridge.
    
We deny the protest.
    
On June 7, 2002, the VA issued this RFP for the renovation of the 8th
floor dermatology clinic.  The work was to include general construction,
alterations, removal of some existing structures, asbestos abatement and
monitoring, and mechanical, electrical and plumbing renovations.  RFP P:
1.2.  Award was to be made to the lowest priced technically acceptable
offeror.  RFP amend. 4, at 1.
    
As relevant here, to be considered technically acceptable, an offeror was
required to *[d]emonstrate experience in completing at least three
projects of similar type and magnitude within the last five years in
active, occupied medical facilities on a contract similar in size and
scope to this project.*  The RFP also notified offerors that the
government estimate for this project was from $2 to $5 million.  The
solicitation required that offerors identify each project, the project
title, location, and a brief description of the design and construction of
the project, including the contracting method, the start and completion
dates, the square footage and the cost.  Id. at 2.
    
Several proposals, including those of Knightsbridge and TCL, were received
by the closing date for receipt of proposals.  With respect to the
requirement for having completed three projects of similar type and
magnitude in occupied medical facilities, Knightsbridge's proposal listed
six projects, ranging from $300,000 to $500,000.  The VA found that a
number of offerors, including TCL, had failed to provide the required
dates, size and scope of the projects they identified.  Because the lack
of information *prevented a fair and reasonable evaluation,* on
September 24, 2002, the VA contacted these offerors requesting the
required information.  Agency Report, (AR), Tab 8, Reports of Contact. 
TCL responded and furnished the required information.
    
On September 26, the technical evaluation board (TEB) evaluated all
proposals.  Knightsbridge's proposal was found technically unacceptable
because the evaluators found that Knightsbridge had failed to identify
three projects in occupied medical facilities of similar size and scope. 
The evaluators specifically found that Knightsbridge's listed projects
were small in dollar value and therefore not similar in size to the
current requirement.  The largest dollar value of any single project
listed by Knightsbridge for occupied medical facilities was $516,000, as
compared to the government estimate range of $2 to $5 million for the
current project.  Award was made to TLC at $1,720,400, as the offeror that
submitted the low priced, technically acceptable proposal.  After
receiving a debriefing, Knightsbridge filed this protest. 
    
Knightsbridge first argues that its listed projects met the experience
requirements.  Knightsbridge argues that it understood *similar in size
and scope* to mean square footage and that all its identified projects
involved square footage that was greater than the subject project. 
Knightsbridge's position is that the evaluators improperly considered size
to include dollar value.
    
Knightsbridge's challenge to the evaluation is without merit.  As stated
above, the RFP required offerors to demonstrate experience completing at
least three projects in the past 5 years similar in size and scope to this
project.  The solicitation explicitly asked offerors to identify the cost
of the projects identified, as well as the square footage and other
criteria.  In our view, it was reasonable and consistent with the
evaluation criteria for the evaluators to view cost as a factor in
determining whether the projects identified by Knightsbridge were
comparable in size to the work contemplated under the proposed contract. 
Cf. Marathon Constr. Corp., B-284816, May 22, 2000, 2000 P: 94 at 5
(noting that language similar to that used by the VA
here‑‑requiring experience with *projects of the same or
similar size, scope and complexity*‑‑could reasonably include
consideration of whether the projects were comparable in value to the
project being awarded).  Nothing in the RFP at issue here limited the
assessment of size to square footage, and the request that offerors
identify the dollar value of their past projects put Knightsbridge on
notice that those dollar values, and their comparability to the
anticipated value to the current project, would be evaluated.
    
Accordingly, while the projects Knightsbridge listed were similar in
square footage to the current project, we do not find unreasonable the
agency's conclusion that those projects, when measured by the dollar
values that Knightsbridge listed, did not meet the RFP experience
requirements, and that Knightsbridge's proposal was therefore
unacceptable.  As previously stated, the dollar value of Knightsbridge's
projects was significantly less than the dollar value of the current
project. 
    
Knightsbridge also protests as improper the exchanges between TCL and the
agency regarding the required project information, and the agency's
failure to engage in similar exchanges with Knightsbridge.  We agree with
Knightsbridge that the agency's decision to conduct exchanges with the
other offerors was improper, especially in light of the fact that the
discussions centered on providing information necessary to evaluate the
acceptability of the offers, that is, whether the identified projects were
similar in size and scope to the contract being awarded--essentially the
very concern the VA had with Knightsbridge's proposal.  The Federal
Acquisition Regulation (FAR) provides that, in conducting exchanges with
offerors, agency personnel *shall not engage in conduct that . . . favors
one offeror over another.*  FAR S: 15.306(e)(1); see Chemonics Int'l,
Inc., B-282555, July 23, 1999, 99-2 CPD P: 61 (agency conducted
discussions in manner which unreasonably favored awardee over protester in
violation of FAR S: 15.306(e)). 
    
However, while we believe the record shows that the agency's actions were
improper, we will, as the agency points out, sustain a protest only where
there is a reasonable possibility that the protester was prejudiced by the
agency's actions, that is, that, but for the agency's actions, the
protester would have had a substantial chance of receiving the award. 
McDonald-Bradley, B‑270126, Feb. 8, 1996, 96-1 CPD P: 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).  As
explained below, we conclude that the record demonstrates that
Knightsbridge was not prejudiced here.
    
Our Office conducted a conference call with the parties to discuss the
case.  During that call, the GAO attorney asked counsel for Knightsbridge
to address whether his client could have identified the required minimum
of three projects similar to the scope and size of the procurement at
issue here, had it been advised that dollar value would be considered in
assessing similarity.  In response, Knightsbridge provided our Office and
the VA comments, including a document entitled *Technical Information As
It Would Have Been Submitted Had Discussions Been Held.*  In that
submission, the protester addressed, in particular, three of its six
previously identified projects that were performed at the VA Medical
Center in Montrose, New York, and two that were performed at the VA
Medical Center in East Orange, New Jersey.
    
It is Knightsbridge's position that, although the Montrose projects were
three separate contracts in separate buildings, the three contracts were
performed in one medical facility, at the same time (or in overlapping
timeframes), and with much of the same work crew and supervisory staff. 
On that basis, the protester contends that it would have advised the
agency, if discussions had been held, that those three contracts represent
one project with a value of $1,151,000.  Knightsbridge makes a similar
argument with respect to the two East Orange projects, which it contends
it would have identified as one combined project with a value of
$854,000. 
    
In our view, the protester's submission establishes that it was not
prejudiced by the agency's failure to give the firm an opportunity to
provide further information on the dollar value of its past projects.  If
we were to accept the protester's position concerning the combining of the
projects, Knightsbridge still cannot claim even a single project with a
value between $2 and $5 million, which was the RFP's estimated value for
this project, nor a single project near the value of the prices proposed
by the offerors here (as noted above, the awardee's price was over $1.7
million, and Knightsbridge's own proposed price was over $1.6 million). 
Moreover, even if we further assumed, arguendo, that the protester should
have been given credit for these two projects, despite their being
considerably smaller than the current procurement in terms of dollar
value, that would still leave Knightsbridge with only two projects that
meet the size standard in terms of dollar value, not the three required by
the RFP.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel