TITLE:  The Austin Company, B-291482, January 7, 2003
BNUMBER:  B-291482
DATE:  January 7, 2003
**********************************************************************
The Austin Company, B-291482, January 7, 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:    The Austin Company
    
File:             B-291482
    
Date:              January 7, 2003
    
Keith L. Baker, Esq., Barton, Baker, McMahon & Tolle, for the protester.
Edward H. Kim, Esq., Whiteford, Taylor & Preston, for Poole & Kent
Company/Gaudreau, Inc. Joint Venture, an intervenor.
J.J. Cox, Esq., and Madeline Shay, Esq., U.S. Army Corps of Engineers, for
the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
In procurement for the design and construction of a laboratory to conduct
research of toxic chemical warfare agents, agency properly excluded
protester's proposal from the competitive range where protester's proposal
was reasonably evaluated as requiring a virtual rewrite due to its failure
to comply with the solicitation requirements under each of four evaluation
factors.
DECISION
    
The Austin Company protests the U.S. Army Corps of Engineers' elimination
of Austin's proposal from the competitive range under request for
proposals (RFP) No. DACA31-02-R-0013 to design and construct an advanced
chemistry laboratory (ACL) at Aberdeen Proving Ground, Maryland.  Austin
protests that exclusion of its proposal was based on the agency's
unreasonable application of the solicitation's stated evaluation factors.
    
We deny the protest.
    
BACKGROUND
    
On December 19, 2001, the agency issued RFP No. DACA31-02-R-0013, seeking
proposals for the design and construction of an ACL research facility,
advising offerors that the facility would be dedicated to *the study of
super-toxic chemical warfare agents, lethal industrial materials, related
weapons of mass destruction, and defensive counter-measures.*  Agency
Report, exh. 1, RFP at 5.  Due to the facility's intended use, the
solicitation directed that the proposals *shall employ the necessary
engineering controls and building systems to accommodate a safe working
environment,* advising offerors that *this project has critical life
safety, health and environmental issues.*  Id.  In this context, the
solicitation further directed that proposed facilities must include, among
other things, *custom-built chemical fume hoods,* *ultra-efficient carbon
and HEPA [high efficiency particulate air] filters in the exhaust
systems,* and *sophisticated ventilation and air distributions systems and
environmental controls.*  Id.
    
The solicitation provided that the procurement would be conducted in two
phases.  In phase I, offerors were required to submit *qualifications*
proposals, consisting of information regarding their past performance,
prior experience, and technical qualifications.  Agency Report, exh. 1,
RFP at 13.  The solicitation explained that, following review of phase I
proposals, the agency would issue an RFP amendment containing the design
and construction requirements for phase II proposals, and would request
proposals from the most qualified phase I offerors.
    
On February 15, 2002, eleven offerors, including Austin, submitted phase I
proposals; these proposals were thereafter reviewed and evaluated.  Based
on that evaluation, the agency selected six offerors, including Austin, to
proceed to phase II. 
    
On July 2, the agency issued RFP amendment No. 0004, establishing the
requirements and evaluation criteria for phase II proposals.  Agency
Report, exh. 2(D).  As finally amended, the RFP provided that the agency's
source selection decision would be made on a *Best Over-all Value* basis
considering both price and non-price factors, and established the
following, equally weighted non-price factors:  materials and equipment;
subcontractor qualifications, past performance and personnel; review of
presented design and criteria; and oral presentations.[1]  Under the
heading *cost limitation,* the amended RFP also provided as follows:
    
The target ceiling for contract award for the design and construction is
$38,000,000 based on funds made available for this project.  The
Government cannot guarantee that additional funds will be made available
for award.  Offerors are under no obligation to approach this ceiling.
Agency Report, exh. 2(G), at 3.
    
On August 22, five of the offerors selected to proceed to phase II,
including Austin, submitted price and technical proposals; thereafter,
each offeror made an oral presentation to the agency's evaluators. 
Following oral presentations, the agency's technical evaluation committee
(TEC) rated each offeror's proposal under an adjectival rating system
using the following ratings:  *excellent,* *above average,* *high
average,* *average,* *low average,* *poor* and *unacceptable.*  Agency
Report, exh. 8, at 2. 
    
Austin's proposal received ratings under each of the four non-price
evaluation factors reflecting its failure to meet some or all of the
requirements for the factor.  With regard to the first factor, equipment
and material, Austin's proposal was rated [deleted];[2] among other
things, the TEC noted that Austin's proposal failed to identify the
specific equipment and materials that it intended to use.  Agency Report,
exh. 6, at 4.  With regard to the second factor, subcontractor
qualifications/past performance/personnel, Austin's proposal was rated
[deleted];[3] among other things, the TEC noted that Austin's proposal did
not provide necessary subcontractor information.  Agency Report, exh. 6,
at 4.  With regard to the third factor, review of the presented design and
criteria, Austin's proposal was rated [deleted];[4] among other things,
the TEC expressed concern that Austin did not understand its
responsibility to *advance the design or approach beyond what was provided
in the RFP.*  Agency Report, exh. 6 at 5.  Finally, with regard to the
fourth factor, oral presentations, Austin's proposal was rated [deleted];
the TEC noted that Austin's oral presentation failed to resolve the
agency's concerns regarding, among other things, Austin's responsibility
for final project design.  Id. 
    
Overall, Austin's technical proposal was ranked fifth of the five
proposals and the agency concluded that *a virtual re-write of the entire
proposal [would be required] to be considered acceptable.*  Agency Report,
exh. 7, at 2.  Based on this overall assessment, the agency established a
competitive range which excluded Austin's proposal.[5]  Id.  By letter
dated September 9, Austin was advised that its proposal would not be
further considered.  This protest followed. 
    
DISCUSSION
    
Austin protests that the agency's evaluation of its proposal under each of
the evaluation factors was unreasonable and that, in any event, the agency
was required to include Austin's proposal in the competitive range and
afford Austin an opportunity to address the agency's concerns during
discussions.  We disagree.
    
The evaluation of technical proposals is a matter within the discretion of
the
contracting agency, since that agency is responsible for defining its
needs and determining the best method of accommodating them, and must bear
the results of a defective evaluation.  Orion Research, Inc., B-253786,
Oct. 21, 1993, 93-2 CPD P: 242 at 3.  Where an agency's technical
evaluation is challenged, our Office will not independently reevaluate the
proposals; rather, we will examine the evaluation to ensure that it was
reasonable and consistent with the stated evaluation factors. Integrity
Private Sec. Servs., Inc., B-255172, Dec. 17, 1993, 93-2 CPD P: 332 at 3. 
A protester's mere disagreement with the agency's conclusions does not
render them unreasonable.  Id.
    
With regard to the first evaluation factor, materials and equipment, the
solicitation directed that *[t]he offeror will submit design details for
specific equipment and material to be used in the project.*  Agency
Report, exh. 2(D), RFP S: 8.1.  Further, this section of the solicitation
specifically listed the following items for which this directive was
applicable:  fumehoods, casework, chillers, cooling tower, steam turbines,
steam converters, exhaust fans, air handling units, exterior steam and
condensate system, major pumps, air compressors, vacuum pumps, waste
decontamination systems, generators, and switchgear.  Id.
    
Contrary to the requirement to identify the specific equipment intended to
be used, Austin's proposal stated that all of the material and equipment
identified therein were Austin's *preliminary selections,* and that *final
selection* would subsequently occur.  Agency Report, exh. 17, Austin's
Technical Proposal, at 3.  Austin repeated this qualification,
specifically referring to *preliminary equipment* and *final selection*
under each required item of equipment listed in the solicitation.[6] 
Agency Report, exh. 17, Austin Technical Proposal, at 36-37. 
    
As noted above, the solicitation advised offerors that, due to the
agency's intent to conduct research involving toxic chemical warfare
agents, the offerors' proposed design and construction of the facility
*has critical life safety, health, and environmental issues.*  Agency
Report, exh. 1, RFP at 5.  It was in this context that the solicitation
expressly directed offerors to identify the *specific equipment and
materials to be used.*  Our Office has long held that, where a procurement
involves matters of human life and safety, an agency has greater
discretion to establish requirements that achieve the highest possible
level of reliability and effectiveness.    See, e.g., American Airlines
Training Corp., B-217421, Sept. 30, 1985, 85-2 CPD P: 365 at 6; Marine
Transport Lines, Inc., B-224480.5, July 27, 1987, 87-2 CPD P: 91 at 4. 
Here, we find no basis to question the agency's determination that
Austin's multiple, express qualifications regarding its *preliminary
selection* of the multiple items of equipment listed by the solicitation
as necessary for contract performance, rendered its proposal
unacceptable. 
    
In addition to evaluating Austin's proposal as [deleted] with regard to
material and equipment, Austin's proposal was reasonably evaluated as
failing to meet the solicitation's requirements under each of the other
three non-price evaluation factors. 
    
With regard to the next evaluation factor, subcontractor
qualifications/past performance/key personnel, the solicitation stated,
among other things:  *Identify the subcontractor's proposed personnel
team.  Submit resumes detailing the qualifications and experience for the
key personnel.*  Agency Report, exh. 2(D), RFP amend. No. 0004 S: 8.2.  In
evaluating Austin's proposal as [deleted],[7] the agency stated, *No
details were provided on personnel for the St. Charles [f]umehood
[sub]contractor.*[8]  Agency Report, exh. 6, at 4.  Austin does not
dispute this criticism, complaining only that, if it had been given an
opportunity during discussions, it could have addressed this deficiency. 
    
Regarding the third non-price factor, review of presented design and
criteria, the solicitation noted that the successful offeror *will be
required to design and construct the [laboratory]* and *be responsible for
the final design.*  The solicitation further required that offerors review
the agency's preliminary design and performance criteria and *present
items of concerns and solutions to problematical criteria.*  Agency
Report, exh. 2(D), RFP amend. No. 0004 S: 8.3.  In evaluating Austin's
proposal as [deleted] under this factor,[9] the agency found that Austin
*did not advance the design or approach beyond what was provided in the
RFP.*  Agency Report, exh. 6, at 5.  The agency notes that, in responding
to this portion of the solicitation, Austin submitted what the agency
describes as a *scant two page narrative.* Agency Report, Contracting
Officer's Statement at 7.  Rather than discussing specific design issues,
this portion of Austin's proposal included the statements, *[Austin]
assumes that the lab and equipment layout as prescribed in the RFP
drawings have been approved by the Government* and, similarly, *[Austin]
assumes that [structural steel framing as prescribed in a particular RFP
drawing] has been reviewed . . . and is an acceptable design.* Agency
Report, exh. 17, Austin Technical Proposal, at S: 3.  The agency expressed
concern that these statements indicated Austin's intent to avoid design
responsibility, contrary to the solicitation requirement that the
successful offeror will be responsible for final design.  Agency Report,
exh. 2(D), RFP amend. No. 0004 S: 8.3.[10]  Overall, the TEC expressed
concern that *[Austin's] proposal has a high risk for change order[s]
during construction,* concluding that the proposal *was not indicative of
understanding the requirements of the project.*    Agency Report, exh. 6,
at 5.
    
Finally, with regard to the fourth evaluation factor, oral presentation,
the solicitation provided:  *The offeror will address the following items
in an oral presentation:  An implementation of the proposed design of the
[ACL] . . . addressing the items of concerns and solutions to the
problematical criteria.*  Agency Report, exh. 2(D), RFP amend. No. 0004 S:
8.4.  In evaluating Austin's proposal as [deleted] under this factor, the
agency concluded that Austin's oral presentation did not resolve many of
the agency's concerns; among other things, during the oral presentation,
Austin stated, *Lab programming is complete and we will move forward,* and
indicated it would do engineering/design on site as a *voluntary
alternative.*  Agency Report, Contracting Officer's Statement at 7-8. 
    
Thus, in addition to our conclusion, above, that the agency reasonably
evaluated Austin's proposal as [deleted] with regard to materials and
equipment--which, in our view, provides ample basis for rejecting Austin's
proposal--our review of the record regarding the agency's evaluation of
the remaining three non-price evaluation factors provides no basis to
question the agency's ratings under those factors.  On the basis of the
entire evaluation record, we find nothing unreasonable in the agency's
conclusion that, due to Austin's lack of detail and responsiveness to the
solicitation requirements, Austin would have had to virtually rewrite its
entire proposal in order for the proposal to be made acceptable.
    
An agency is not required to include an offeror in the competitive range
when the proposal, to be acceptable, would have to be revised to such an
extent that it would be tantamount to a new proposal.  Source AV, Inc.,
B-234521, June 20, 1989, 89-1 CPD P: 578.  Even where individual
deficiencies may be susceptible to correction through discussions, the
aggregate of many such deficiencies may preclude an agency from making an
intelligent evaluation, and the agency is not required to give the offeror
an opportunity to rewrite its proposal.  Ensign-Bickford Co., B-211790,
Apr. 18, 1984,
84‑1 CPD P: 439.  Accordingly, on the basis of the record here, we
find no basis to question the agency's exclusion of Austin's proposal from
the competitive range. 
    
The protest is denied.[11]        
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The solicitation provided that the combined non-price factors were
approximately equal in importance to price.
[2] An [deleted] rating was defined as [deleted].  Agency Report, exh. 6,
at 2.   
[3] A [deleted] rating was defined as [deleted].  Agency Report, exh. 6,
at 2.
[4] A [deleted] rating was defined as [deleted].  Agency Report, exh. 6,
at 2. 
[5] The competitive range consisted of three proposals.  The agency
subsequently requested final proposal revisions from these offerors, and
selected for award the proposal submitted by Poole & Kent
Company/Gaudreau, Inc. Joint Venture. 
[6] Austin's proposal asserted that it would, ultimately, provide *equal
or better* equipment than that proposed.  Id.  We do not view this
statement as complying with the solicitation requirement that offerors
identify the *specific equipment and material to be used in the project.* 
Austin's assertion regarding *equal or better* equipment leaves unresolved
the issue of whether one piece of equipment actually is *equal [to] or
better* than another and effectively precluded the agency's evaluating the
*specific equipment* that Austin intended to use.
[7] As noted above, a [deleted] rating was defined as [deleted].  Agency
Report, exh. 6, at 2.
[8] As noted above, the solicitation required that proposed facilities
include *custom-built chemical fume hoods.*  Agency Report, exh. 1, at 5. 
[9] As noted above, a rating of [deleted] was defined as [deleted]. 
Agency Report, exh. 6, at 2.
[10] The agency also noted that, in responding to this portion of the
solicitation, Austin requested that the agency waive (*as a supplemental
agreement to this contract*) the solicitation requirement that 20 percent
of the total contract work be performed by the prime contractor.  Agency
Report, exh. 17, Austin Technical Proposal, S: 3.  The agency expressed
concern that Austin intended to subcontract more work than the
solicitation permitted.
[11] Austin also complains that the agency failed to consider its low
proposed price, and/or failed to properly apply the solicitation's *cost
limitation* provision to the other offerors' proposals.  With regard to
Austin's proposed price, a technically unacceptable proposal cannot be
considered for award; accordingly, any purported cost savings flowing from
the offeror's stated price regarding its technically unacceptable proposal
are irrelevant.  See EMSA Ltd. Partnership, B-254900.4, July 26, 1994,
94-2 CPD P: 43; Color Ad Signs and Displays, B-241544, Feb. 12, 1991, 91-1
CPD P: 154.  Further, with regard to the *cost limitation* provision,
Austin erroneously asserts that this provision established a *ceiling*
which, if exceeded, rendered proposals unacceptable.  To the contrary, the
specific language of the provision, quoted above, describes the limitation
as a *target ceiling,* based on currently available funds, and merely
warns offerors that the agency *cannot guarantee* that additional funds
will become available.  Accordingly, to the extent Austin challenges the
agency's actions based on allegedly improper consideration of Austin's or
the other offerors' proposed prices, none of Austin's assertions provide a
basis for sustaining the protest.