TITLE: M. Erdal Kamisli, Ltd., B-291522, December 23, 2002
BNUMBER: B-291522
DATE: December 23, 2002
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M. Erdal Kamisli, Ltd., B-291522, December 23, 2002
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: M. Erdal Kamisli, Ltd.
File: B-291522
Date: December 23, 2002
Christopher M. Anzidei, Esq., and Christopher J. Brasco, Esq., Watt,
Tieder, Hoffar & Fitzgerald, for the protester.
Stephen G. Anderson, Esq., and Damon O. Burrows, II, Esq., Baker,
Donelson, Bearman & Caldwell, for Kulak Insaat Ticaret ve Sanayi, the
intervenor.
James C. Brent, Esq., and Katherine D. Denzel, Esq., U.S. Army Corps of
Engineers, for the agency.
Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency's evaluation of offerors' experience and past performance and the
resulting price/technical tradeoff and award determination are
unobjectionable where they are reasonable and consistent with the
solicitation evaluation criteria.
DECISION
M. Erdal Kamisli, Ltd. (ERKA) protests the award of a contract to Kulak
Insaat Ticaret ve Sanayi (Kulak), under request for proposals (RFP) No.
DACA90-02-R-0045, issued by the Army Corps of Engineers, for the
construction of a base supply warehouse at Incirlik Air Base, Turkey.
ERKA contends that the agency failed to apply the evaluation criterion for
experience in the manner that was called for by the solicitation, and that
in determining to award to Kulak the agency improperly concluded that
Kulak had better experience which justified paying its higher price.
We deny the protest.
BACKGROUND
The solicitation, issued on August 8, 2002, called for the submission of
fixed-price proposals by September 16, 2002. Award was to be made without
discussions on a *best value* basis considering the evaluation factors of
price, experience and past performance, with price equal in importance to
the non-price factors which, in turn, were equal in importance to each
other. RFP S: 00100 P: 6. With respect to the experience factor, the RFP
provided that relevance, depth and breadth would be evaluated and called
for offerors to provide information on at least 3 projects performed
within the last 5 years that show experience constructing *facilities of a
similar cost, physical size, complexity and function.* RFP S: 00100 P:
4. The RFP explained that projects considered most relevant are those
that demonstrate experience as follows:
Similar physical size shall be considered for projects with a construction
award amount over $1,000,000.
Similar complexity shall be considered new construction of all major
building systems (architectural, electrical, mechanical, etc.) for a
warehouse.
Similar function shall be considered construction or renovation of
industrial buildings.
Id.
The RFP stated that *[t]he number of relevant projects in the past five
years determines depth of experience.* RFP S: 00100 P: 6.
The agency received 18 proposals by the closing date, which were evaluated
on September 17 and 18 by a technical evaluation board (TEB). The
lowest-price proposal was that of [Deleted], at a price of $1,740,000,
which was evaluated as *fair/good* for experience and past performance.
The two next lowest‑price proposals were ERKA's, at a price of
$2,143,143, which was also evaluated as *fair/good* for experience and
past performance, and Kulak's, at a price of $2,448,000, which was
evaluated as *good/good.* The lowest-price proposal that received a
higher overall technical rating was one submitted by [Deleted], at a price
of $2,580,000, which was evaluated as *good/outstanding.*
In making his award determination, the contracting officer noted that the
Kulak proposal was the lowest-price proposal that received a consensus
rating of *good/good* on experience and past performance. The contracting
officer determined that the price premium associated with the [Deleted]
proposal that received a higher overall technical evaluation was not
warranted since it did not reflect a *significant specific benefit.*
Agency Report (AR), Tab 20, Source Selection Document, at 6. The
contracting officer concluded that the strengths reflected in the Kulak
proposal warranted payment of the $708,000 cost premium compared to the
[Deleted] proposal, as well as the lesser cost premium compared to the
similarly rated ERKA proposal. Id. at 6-7. Accordingly, award was made
to Kulak and, after receiving a debriefing, ERKA filed this protest with
our Office.
PROTEST ALLEGATIONS
ERKA contends that *the Contracting Officer did not correctly apply the
criteria set forth in the Solicitation and failed to provide a rational,
defensible basis for awarding the [c]ontract to an offeror other than
ERKA, the low bidder by 12.5 [percent], and an established construction
company that has extensive, recent experience in performing several
similarly complex construction projects in the area of Incirlik Air
Base.* Protest at 3. In particular, ERKA objects that in determining
relevant experience the agency improperly applied an undisclosed
*conjunctive three-factor matching test,* Protest at 9‑10,
contending that:
the Contracting Officer erroneously required ERKA to provide that it met
each factor on three separate projects before those projects merited
positive consideration in the Corps' analysis of ERKA's experience. The
Corps' irrational approach amounted to an undisclosed invitation to bid
that was, in essence, directed only to construction companies that have
built three separate $1 million warehouses over the past five years. The
Corps' insistence on applying the Solicitation's three experience factors
conjunctively as a rigid, three-factor matching test more than likely
eliminated nearly every construction company in the world.
Protest at 11.
The protester further alleges that the agency *mistakenly ignored the
significant price difference between ERKA and the selected offeror.*
Protester's Comments at 1.
EXPERIENCE EVALUATION
The evaluation of technical proposals is primarily the responsibility of
the contracting agency, since the agency is responsible for defining its
needs and the best method of accommodating them, and it must bear the
burden of any difficulties resulting from a defective evaluation. Federal
Envtl. Servs., Inc., B-260289, B-260490, May 24, 1995, 95-1 CPD P: 261 at
3. In reviewing protests challenging an agency's evaluation of proposals,
we will not substitute our judgment for that of the agency regarding the
merits of proposals; rather, we will examine the agency's evaluation only
to ensure that it was reasonable and consistent with the solicitation's
evaluation criteria, and with procurement statutes and regulations.
Valenzuela Eng'g Inc., B‑283889, Jan. 13, 2000, 2000 CPD P: 1 at
4. A protester's mere disagreement with the agency's evaluation does not
render it unreasonable. CORVAC, Inc., B-244766, Nov. 13, 1991, 91-2 CPD
P: 454 at 5.
With respect to ERKA's allegation that the agency improperly applied a
*conjunctive* test as to the three listed experience factors, this
*conjunctive* evaluation is consistent with the solicitation provision
that relevance would be evaluated in terms of satisfying all of these
factors and the provision, noted above, which explicitly states that the
number of relevant projects would be used as the basis to evaluate depth
of experience. Accordingly, in evaluating experience represented by the
projects listed in the offerors' proposals, the TEB considered whether
each of the projects listed met the RFP size, complexity and function
factors. Offerors that listed a greater number of more relevant projects
were evaluated as having more depth of experience, consistent with the RFP
evaluation scheme.
While ERKA contends that the agency simply discounted projects that did
not satisfy all three factors, the record reflects otherwise. The TEB
members and the contracting officer considered the listed experience with
respect to all three factors; offerors that listed a greater number of
projects that satisfied more of the factors received higher experience
evaluations than offerors who listed fewer projects satisfying the
factors. ERKA's proposal listed numerous projects, only two of which
appeared to meet the $1,000,000 project size threshold. However, the
agency recognized that only one actually met the size threshold because
the second project was an indefinite-delivery/indefinite-quantity paving
contract which was for numerous smaller projects. AR, Tab 20, Source
Selection Document, at 6. ERKA's BX Shopping center project, the only
listed project that met the size threshold, also met the complexity
requirements, but was evaluated as not meeting the industrial function
criterion. The other smaller projects that ERKA listed were recognized to
the extent that they encompassed similar complexity and function, but on
balance they were considered less relevant because of their relatively low
award amounts. As a result, ERKA's proposal was evaluated as only *fair*
under experience. AR, Tab 18, TEB Synopsis, at 3. In contrast, Kulak
listed six projects that met the size and complexity criteria. As a
result, Kulak's proposal was evaluated as *good* for experience. In our
view, this *conjunctive* application of the RFP experience criteria
reflects an appropriate weighing and balancing of the specifically listed
experience factors, consistent with the evaluation scheme set forth in the
solicitation.
ERKA also objects that its experience is actually *indistinguishable from
(or even better than) Kulak's [e]xperience with respect to this project.*
Protester's Comments at 7. In this regard, ERKA explains that its BX
project, which was evaluated as meeting the size and complexity factors,
but not the industrial function factor, actually included the requisite
industrial features. Protester's Comments at 8. However, while ERKA now
contends that the BX project included construction of a warehouse
facility, including a conveyor belt system and other industrial features,
id., this information was not provided in ERKA's proposal under the
project description. ERKA believes that the agency should have known that
this was the case because the project was constructed on the same base
where the warehouse to be constructed is located. However, in this
regard, the RFP instructed offerors to submit descriptive information on
projects to enable evaluation of the specified features, RFP S: 00100 P:4,
and further required offerors to submit an information sheet for each
listed project which called for a description of the nature and scope of
the contract work.
An agency's evaluation is dependent upon information furnished in a
proposal, and it is the offeror's burden to submit an adequately written
proposal for the agency to evaluate. Chant Eng'g Co., Inc., B-279049,
B-279049.2, Apr. 30, 1998, 98-2 CPD P: 65 at 7. It was ERKA's
responsibility to provide sufficient information in its proposal, as was
required by the RFP, regarding the nature of the listed project experience
to enable a meaningful review of the offeror's experience. ERKA failed to
do so, and our Office will not entertain the protester's complaint that it
was entitled to evaluation credit simply because it believes that the
agency should have been aware of the omitted information.
ERKA's other main basis for objecting to the overall experience evaluation
is predicated on its comparison of the individual evaluation sheets
prepared by the three TEB evaluators with the consensus evaluation. ERKA
contends that the individual evaluations of the two offerors are very
close, pointing out that two of the three evaluators initially rated both
offerors as *fair* under experience, and only one gave Kulak's proposal a
slightly higher *outstanding* rating compared to the *good* rating he gave
to ERKA's proposal. Protester's Comments at 9-11. We see no conflict
between the fact that two evaluators evaluated the two proposals as *fair*
and one evaluator rated Kulak's higher than ERKA's, and the fact that the
rollup consensus evaluation of Kulak's experience was better than ERKA's.
This consensus evaluation was not based on simply averaging the individual
ratings, but was the product of a September 19 TEB meeting at which the
evaluators discussed their assessments in order to develop a consensus
rating for each factor. AR, Tab 2, Memorandum of Law, at 5.
Agency evaluators may discuss their individual evaluations with each other
in order to reach a valid consensus score, since such discussions
generally operate to correct mistakes or misperceptions that may have
occurred in the initial evaluation. A consensus rating need not be the
same as the rating initially assigned by the individual evaluators;
rather, the final evaluation rating may reasonably be determined after
discussions among the evaluators. I.S. Grupe, Inc., B-278839, Mar. 20,
1998, 98-1 CPDP: 86 at 5-6. The overriding concern in these matters is
whether the final ratings assigned reasonably reflect the relative merits
of the proposals. Here, the TEB reached consensus evaluations of *fair*
for ERKA's experience and *good* for Kulak's experience. The protester
has failed to show that the agency's final evaluation judgments are
unreasonable since the record establishes that the evaluations accurately
reflect the relatively greater breadth and relevance of Kulak's projects.
Thus, we see no basis to object to the agency's final consensus scoring.
AWARD DETERMINATION
ERKA asserts that the agency mischaracterized the 12.5 percent ($304,857)
price savings associated with its proposal compared to Kulak's as
*meager,* and used the faulty premise that Kulak's proposal is only
*slightly higher priced,* to reach an *erroneous best value award
decision.* Protester's Comments at 11-12. The discretion to determine
whether the technical advantages associated with a higher-priced proposal
are worth the price premium exists notwithstanding the fact that price is
equal to or more important than other factors in the evaluation scheme.
Butt Constr. Co., Inc., B-284270, Mar. 20, 2000, 2000 CPD P: 73 at 3.
Source selection officials have broad discretion in determining the manner
and extent to which they will make use of the technical and price
evaluation results, and their judgments are governed only by the tests of
rationality and consistency with the stated evaluation criteria. Chemical
Demilitarization Assocs., B-277700, Nov. 13, 1997, 98-1 CPD P: 171 at 6.
Where, as here, the RFP allows for a price/technical tradeoff, the
selection official retains discretion to select a higher-priced but also
technically superior submission, if doing so is in the government's best
interest and is consistent with the solicitation's stated evaluation and
source selection scheme. 4-D Neuroimaging, B‑286155.2, B-286155.3,
Oct. 10, 2001, 2001 CPD P: 183 at 10.
Here, the RFP provided that the agency would *determine the best overall
value based on offeror capability, the extent to which the proposal
demonstrates the Offeror is likely to perform successfully and the risks
associated with contract performance.* RFP S: 00100 P: 5(2). In making
his best-value determination, the contracting officer focused on a
comparison of the Kulak proposal with the lowest-priced [Deleted]
proposal, which had received the same *fair/good* technical evaluation as
the ERKA proposal. The [Deleted] proposal's *fair* evaluation for
experience was driven by the same limited number of projects meeting the
relevant size threshold as was the case with ERKA, and [Deleted]
experience was otherwise substantially comparable to ERKA's. AR, Tab 20,
Source Selection Document, at 6. The contracting officer recognized that
Kulak's *strengths were that they had significant experience in
construction of similar size and complexity.* Id. at 7. He also
recognized that while Kulak had limited experience in industrial property,
Kulak had breadth of experience, including physical fitness centers, youth
activity centers, a bowling alley, a high-rise apartment building, and
earthquake repair. Id. He determined that in view of Kulak's favorable
references indicating that it did good work and was cooperative, and its
demonstrated experience in completing projects of similar size and
complexity, Kulak could complete the project with an acceptable level of
risk. The contracting officer concluded that awarding to an offeror whose
proposal reflected the experience and resources to perform the work at an
acceptable level of risk warranted payment of the $708,000 cost premium
relative to [Deleted], with its lesser experience. Id. at 7, 10.
While focusing on a comparison with the [Deleted] proposal, the
contracting officer also considered that ERKA's lower technically rated
proposal reflected many small projects, but did not include three similar
projects, and that most of the work was not of similar cost magnitude or
complexity. The contracting officer has explained that he determined that
these projects indicated differences in overall technical ability that
made the firm a higher risk than Kulak. AR, Tab 1, Contracting Officer's
Statement, at 4. Further, in making the award determination, the
contracting officer considered [Deleted]. AR, Tab 20, Source Selection
Decision, at 6. In this regard, the contracting officer also explains
that while both the Kulak and ERKA's proposal received ratings of *good*
for past performance, he considered that ERKA's *good* was not as strong
as Kulak's *good,* in light of the uniformly favorable comments received
with respect to Kulak, versus a negative comment from an ERKA reference,
which indicated that ERKA's owner was not cooperative. AR, Tab 1,
Contracting Officer's Statement, at 4-5. The record is clear that the
contracting officer specifically considered the $304,857 cost savings
associated with ERKA's proposal, and, irrespective of the particular terms
that he may have used to describe these savings, in view of the discretion
afforded to the contracting officer, we see no basis to question his
determination that the lower performance risk associated with the Kulak
proposal warranted payment of the associated 12.5 percent price premium.
The protest is denied.
Anthony H. Gamboa
General Counsel