TITLE: Independence Construction, Inc.�, B-292052, May 19, 2003
BNUMBER: B-292052
DATE: May 19, 2003
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Independence Construction, Inc. , B-292052, May 19, 2003
Decision
Matter of: Independence Construction, Inc.
File: B-292052
Date: May 19, 2003
Jay Stoddard for the protester.
Mark G. Garrett, Esq., Department of Agriculture, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency did not misevaluate protester's proposal using unstated evaluation
criteria, where the weaknesses found in the protester's proposal were
reasonably encompassed in the evaluation factors and were attributable to
a lack of detail in the protester's proposal.
DECISION
Independence Construction, Inc. protests the award of a contract to DG&S
Co. under request for proposals (RFP) No. R1-04-03-12, issued by the
Department of Agriculture, Forest Service, for the restoration and
construction of roads and a segment of Hamilton Creek in the Idaho
Panhandle National Forests. Independence contends that the agency
misevaluated its technical proposal using unstated evaluation criteria.
We deny the protest.
The RFP, issued September 19, 2002, provided for award of a fixed-price
contract to the offeror *whose proposal is technically acceptable and . .
. whose technical/cost relationship is the most advantageous to the
Government.* RFP at 85. The evaluation factors were past performance,
technical approach/organization structure, and cost/price. The first two
factors were said to be of equal importance and together were more
important than cost. The technical approach/organization structure factor
included four subfactors: (1) how the project will be managed and
staffed, addressing the contractor's proposed schedule of operations; (2)
skills and skill levels within the firm to accomplish the project; (3)
quality control; and (4) safety. RFP at 85-86.
In response to the RFP, seven offerors submitted proposals by the October
18 closing date. A technical evaluation team (TET) reviewed and evaluated
proposals, and, on November 12, the agency made award to DG&S.
Independence protested the award on November 22. The agency then took
corrective action to better document its award decision, and we dismissed
that protest. The TET reconvened to *memorialize[] their earlier
analysis* and the contracting officer (who was also the source selection
authority) documented the cost/technical tradeoff.[1] Agency Report (AR)
at 2.
The agency again selected DG&S for award after determining that its
proposal presented the *best value to the government considering the
factors stated in the solicitation.* AR, Tab H, Memorandum of
Negotiations, at 5. The agency found that both DG&S and Independence had
acceptable past performance.[2] However, DG&S's technical
approach/organization structure was rated *green [acceptable] plus,*
whereas Independence's technical approach/organization structure was rated
*yellow [marginal] plus.* AR, Tab J, TET Report, at 1. Only DG&S's
proposal was rated acceptable overall among the proposals received;
Independence's proposal was rated marginal overall. Independence's
proposed final price was $107,800.00 and DG&S's was $124,624.44. AR, Tab
H, Memorandum of Negotiations, at 2.
Independence's technical approach/organization structure was considered
marginal because it *contained critical omissions* and *failed to
adequately address the evaluation criteria.* For example, the agency
found that the proposal provided *[o]nly general statements with no
supportive documentation to demonstrate sound project management.* The
proposal only *briefly addressed a schedule of operations,* and *did not
adequately address a timeline for performance.* The agency found that the
qualifications and experience of key personnel were *not demonstrated* or
*tied to specific projects,* and no resumes were provided. Additionally,
*no organizational chart or explanation of the workforce was provided.*
The size of the workforce was also *a concern.* AR, Tab H, Memorandum of
Negotiations, at 2-4; Tab J, TET Report, at 2.
The agency also noted that Independence's quality control plan was *weak*
and consisted of only one *terse and conclusory* sentence that *does not
give any assurance that Independence understands the requirements, and
will deliver quality work.* Although Independence's proposal indicated
that this work would be subcontracted out, it *did not identify firms or
personnel for quality control.* AR, Tab H, Memorandum of Negotiations, at
3-4; see Tab J, TET Report, at 2.
With regards to project safety, Independence's proposal contained only a
five‑sentence paragraph that the agency found to be *very
conclusory, in essence merely saying 'we are safety conscious, and have
performed accident-free jobs in the past.'* Although the agency noted
that two of Independence's employees were Emergency Medical Team (EMT)
certified, it was concerned that the firm *provided no safety plan or
further discussion of safety.* AR, Tab H, Memorandum of Negotiations, at
3-4; see Tab J, TET Report, at 2.
With regards to Independence's proposed price, the agency expressed
*concern with regard to the firm's ability to meet contract specifications
at that price,* given that it was approximately $40,000 below the
government estimate of $148,180.87. AR, Tab H, Memorandum of
Negotiations, at 3.
In comparing Independence's proposal to DG&S's, the agency found that the
*overall quality of the DG&S submission was superior to that submitted by
Independence.* More specifically, it found superior *DG&S['s] planned
approach to accomplishing the work, as well as the highly qualified and
experienced personnel and equipment being offered, . . . skilled
subcontractors, . . . [and] comprehensive safety plan.* The agency
concluded that the *vast differences* between proposals *showed that
[DG&S] had a greater understanding of the job, a more detailed approach to
the job, a greater appreciation of the risks to be encountered in
performance, and a higher assurance that the job would be subjected to
quality assurance oversight throughout the project[, and that for] the . .
. cost premium, [the agency] expect[s] to get a better job, a safer job,
and a job with greater assurance of timely performance.* [3] AR, Tab H,
Memorandum of Negotiations, at 3-5.
Our review confirms that Independence's proposal contained far fewer
specifics than DG&S's proposal, and that the agency's evaluation
conclusions regarding Independence's proposal were reasonably based.
Independence complains, however, that the agency used unstated evaluation
criteria in evaluating its proposal, in that the weaknesses found by the
agency in Independence's proposal do not reflect requirements of the
RFP.[4]
Where an agency's evaluation is challenged, we will consider whether the
evaluation was reasonable and consistent with the terms of the
solicitation and applicable statutes and regulations. Preferred Sys.
Solutions, B-291750, Feb. 24, 2003, 2003 CPD P: 56 at 2. In evaluating a
proposal, an agency properly may take into account specific, albeit not
expressly identified, matters that are logically encompassed by or related
to the stated evaluation criteria. North Am. Military Housing, LLC,
B-291750, Mar. 20, 2002, 2002 CPD P: 69 at 5.
Independence specifically contends that it was improperly downgraded for
failing to provide items not required by the RFP, such as documentation of
project management, project timelines or flowcharts, organizational
charts, key personnel resumes, quality control plan, safety plan, and the
identity of subcontractors. However, offerors were specifically
instructed by the RFP to provide a detailed technical proposal that
contained *sufficient information to reflect a thorough understanding of
the requirements and a detailed, description of the techniques, procedures
and program for achieving the objective of the specifications/statement of
work.* RFP at 82. Offerors were also specifically instructed to *at a
minimum* provide information concerning the *name and qualifications of
key personnel* and to *address[] supervision and communication,* *crew
size and experience,* *quality control plan,* *proposed schedule of
operations,* and *safety.* RFP at 84.
Given these requirements, we think that the items noted as missing or
deficient in Independence's proposal were reasonably encompassed under the
four listed subfactors of the technical approach/organization structure
factor: (1) how the project will be managed and staffed, addressing
contractor's proposed schedule of operations--which reasonably encompassed
project management information and organizational charts as an indicator
of how the project will be managed, subcontractor identity as an indicator
of staffing, and the time frame for completion of the work as an indicator
of scheduling; (2) skills and skill levels within the firm to accomplish
the project--which reasonably encompassed key personnel qualifications and
experience, as may be reflected in resumes; and (3) quality control and
(4) safety--which both reasonably encompassed providing plans.[5] RFP at
84, 86.
Independence also complains that it was improperly underrated under the
safety subfactor because it proposed two employees that are certified
EMTs, who, according to the protester, provide a *greater value* than a
safety plan. Protest at 5. However, the record shows that the agency
considered this and concluded, nonetheless, that the protester's *very
conclusory* statements concerning safety fell *far short of providing
adequate assurance that Independence understands the scope of this job,
the risks that may arise, and is adequately trained and prepared to deal
with those risks.* AR, Tab H, Memorandum of Negotiations, at 4. We do
not find the agency's conclusions unreasonable.
Independence finally complains that the agency overlooked the
identification and experience of key personnel in its proposal. However,
as the agency noted, the proposal did not identify key personnel, but only
listed three *[p]ersonnel available for this project,* provided no
detailed work experience or resumes for these individuals, and did not
identify either the project manager or entity responsible for quality
control. AR, Tab E, Independence Proposal, at 36. While Independence
contends that the skill levels of its key personnel could have been
ascertained from its past performance references, we note that there was
no requirement for the agency to undertake such an investigation. Indeed,
it is an offeror's obligation to submit an adequately written proposal for
the agency to evaluate. Innovative Communications Techs., Inc.,
B‑291728, B-291728.2, Mar. 5, 2003, 2003 CPD P: 58 at 5.
Based on our review, we find the agency's evaluation of Independence's
proposal to be reasonable, and we find no basis to object to the award.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Award was not immediately made to DG&S, however, due to concerns over
insufficient appropriations to fund the contract. When funding was
approved, award was made to DG&S on February 28, 2003. Contracting
Officer's Statement at 3.
[2] The agency received eight past performance evaluations for
Independence and six evaluations for DG&S. Two of the DG&S evaluations
were submitted by TET members who had dealt with DG&S on a prior
contract. Although Independence asserts that this gave DG&S *a little
help from the inside* and is *just plain wrong,* Protester's Comments at
4, we find the agency's actions were not improper. The RFP specified that
references other that those identified by the offeror *may be contacted by
the Government* for information to be used *in evaluation of the offerors'
past performance.* RFP at 83. Moreover, an evaluator's personal
knowledge of an offeror may properly be considered in a past performance
evaluation. Omega World Travel, Inc., B-271262.2, July 25, 1996, 96-2 CPD
P: 44 at 4.
[3] Independence contends that the agency should not have compared its
proposal to DG&S's. However, such a comparison was required. See Federal
Acquisition Regulation (FAR) S: 15.305(a) (*An agency shall evaluate
competitive proposals and then assess their relative qualities*).
[4] Independence also complains that the evaluation criteria were *vague
and ambiguous.* However, this allegation is untimely because it concerns
an impropriety in the solicitation, which should have been protested prior
to the closing date for receipt of proposals. 4 C.F.R. S: 21.2(a)(1)
(2003).
[5] Independence complains, however, that if additional detail was
required, the contracting officer should have requested it. However, the
contracting officer was not required to do so here because, as the RFP
instructed, offerors were to submit their *most favorable terms, from both
a price and technical standpoint* because *[a]ward may be made without
further negotiations.* RFP at 85.