TITLE: Impregilo Edilizia S.p.A., B-292468.4, November 25, 2003
BNUMBER: B-292468.4
DATE: November 25, 2003
**********************************************************************
Impregilo Edilizia S.p.A., B-292468.4, November 25, 2003
Decision
Matter of: Impregilo Edilizia S.p.A.
File: B-292468.4
Date: November 25, 2003
Livio Calanca for the protester.
William A. Roberts, III, Esq., Phillip H. Harrington, Esq., and Jonathan
L. Kang, Esq., Wiley Rein & Fielding, for La Termica S.r.l., an
intervenor.
Richard G. Welsh, Esq., Naval Facilities Engineering Command, for the
agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's contention that agency improperly downgraded its past
performance rating after a reevaluation of proposals in connection with
the agency's implementation of corrective action is denied where agency
reasonably determined that protester's past performance projects
materially differed from the projects contemplated by the solicitation.
DECISION
Impregilo Edilizia S.p.A. protests the award of a contract to La Termica
S.r.l. under request for proposals (RFP) No. N33191-03-R-0214, issued by
the Naval Facilities Engineering Command (NAVFAC) for miscellaneous
design, construction, alterations, repair, and/or improvements to real
property in southern Italy. Impregilo principally alleges that the
agency's evaluation of its technical proposal was improper.
We deny the protest.
The RFP, issued on March 10, 2003, provided for award of an
indefinite-delivery, indefinite-quantity task order construction contract
for a base period of 1 year, with total orders not to exceed the euro
equivalent of $2 million, and up to four 1-year options, with a total
contract amount not to exceed the euro equivalent of
$10 million. Task orders issued under the contract would be for *all
labor, supervision, transportation, materials, tools, and equipment to
provide miscellaneous design, construction, alteration, repair, and/or
improvements to real property* at locations in *Naples, Gaeta, and other
possible Southern Italy areas.* RFP S: 01110, at 1. An individual task
order could not be for an amount more than the euro equivalent of
$450,000.
Award was to be made to the firm submitting the proposal that provided the
best value to the government, considering technical merit and price. In
connection with the agency's technical evaluation of the proposals, the
RFP set forth four technical evaluation factors: (1) past performance; (2)
organizational structure and capabilities; (3) design capabilities; and
(4) quality control. These four factors were of equal importance to each
other and, when combined, were approximately equal to price.[1]
Regarding the past performance factor, the RFP provided in relevant part
that offerors *must have performed at least satisfactorily on recent
(completed in the past three years) similar projects with regard to
construction features, dollar value, and complexity.* RFP S: 00202, at
4. Under the second factor, organizational structure and capabilities,
the RFP required offerors to demonstrate their *ability to provide
adequate staff/organizational structure, and resources to successfully
accomplish the requirements of this RFP. Demonstrate relevant corporate
experience and resources that indicate the ability to successfully manage
and complete a variety of projects.* RFP S: 00202, at 5. The third
factor, design capabilities, required offerors to demonstrate their
*ability to provide adequate project design experience and a knowledge and
familiarity with Italian and U.S. building codes and design criteria.*
Id. The *standard of acceptability* under this factor is defined as
follows: *The extent to which the contractor provides experienced
personnel with project design experience which demonstrates a high
potential for success.* Id.
The agency received seven proposals, including a proposal from Impregilo.
Upon receipt of the proposals, pursuant to the source selection plan, the
agency convened a technical evaluation board (TEB) to evaluate the
offerors' technical proposals and a price evaluation board (PEB) to
evaluate their prices. The TEB rated the proposals under each of the four
technical evaluation factors using the following adjectival rating scale:
poor, marginal, satisfactory, good, or excellent. Based on these scores,
the TEB gave each proposal an overall technical rating using the same
adjectival scale.[2] The RFP further provided that the ratings could be
assigned *rating factors of +/- to differentiate various level of ability
within each factor and between proposals as a whole.* RFP S: 00202, at 2.
Based on its evaluation, the TEB assigned Impregilo's proposal an overall
technical score of good. With respect to Impregilo's past performance,
the TEB identified several strengths and no weaknesses, and specifically
stated that all the projects submitted by Impregilo *were similar and/or
exceeded the size, scope, and complexity to that contemplated by the RFP.
On each of these projects [Impregilo] received comments indicating that
they had 'Outstanding' performance and that they consistently met and/or
exceeded all contractual requirements for schedule, quality and safety.*
Agency Report (AR), Tab 11, TEB Report, May 13, 2003, at 17.
Under the second factor, organizational structure and capability, the TEB
noted various strengths, stating that *Impregilo has demonstrated an
excellent capability to manage a variety of projects simultaneously*and
that *Impregilo presents a MILCON level staff, far beyond the requirements
listed in the solicitation, that has demonstrated exceptional experience
with the U.S. Navy and indicates a clear understanding of the RFP and a
strong capability of success in the execution of this [contract].* Id. at
18. One of the other strengths identified by the TEB was that Impregilo's
safety supervisor exceeded the RFP's requirements. The TEB, however,
raised a concern regarding the use of subcontractors, which it noted as a
*minor weakness* with Impregilo's proposal. [3] However, the TEB further
stated in its report that it did not feel this to be a weakness, *only a
point of concern that needs to be clarified before award.* Id. Impregilo
received the highest score of any of the offerors for this factor.
Under factor 3, design capability, the TEB questioned whether Impregilo's
proposed architect/engineer would be *able to devote attention to the size
of projects contemplated by the RFP* but further stated that this concern
*was not considered by the TEB to appreciably increase the risk of
non-performance, so they are considered to represent a high probability of
success with little risk of failure.* Id. As a consequence, the TEB
considered this issue to be a *minor weakness.*
The TEB assigned Impregilo's proposal an overall technical score of good,
the highest technical rating received by any of the offerors and forwarded
its report to the source selection board (SSB) indicating that award could
be made without discussions to either Impregilo or La Termica. The SSB
reviewed the TEB report, as well as a report by the PEB, finding both
Impregilo's and La Termica's prices to be reasonable, and submitted its
own report to the source selection authority (SSA) recommending award to
La Termica. The SSA reviewed the reports from the TEB, PEB, and the SSB
and selected La Termica's proposal as the best value. The contract was
then awarded to La Termica.
After the agency provided Impregilo with a debriefing, Impregilo filed a
protest with our Office. Upon review of the protest, the agency indicated
that it had *discovered defects in the protested source selection decision
documentation* and therefore intended to reevaluate proposals and reach a
new source selection decision. AR, Tab 21. Our Office dismissed the
protest as academic.
During the agency's reevaluation the TEB and the SSB reviewed all of the
proposals. While the TEB found its initial report to be substantiated,
the SSB *disagreed with some of the TEB findings.* AR, Tab 24, Revised
SSB Report, Sept. 3, 2003, at 1. In its report on the reevaluation, the
SSB noted that the SSB and the TEB *had divergent philosophies regarding
assessment of Past Performance.* Id. at 5. According to the SSB, the TEB
gave credit to firms submitting past performance on projects that exceeded
or greatly exceeded the size, scope, and complexity of the RFP's
requirements. The SSB maintained that past performance of this sort *may
not necessarily meet the needs of the solicitation.* Id.
As it relates to this case, the SSB lowered Impregilo's past performance
score and also modified some of the narrative comments in connection with
the other evaluation factors, although the SSB did not change Impregilo's
original ratings for any of the other factors. In lowering Impregilo's
past performance score, the SSB concluded that the size and variety of the
projects submitted by Impregilo differed from the solicitation's
requirements. The SSB highlighted the fact that Impregilo's projects
ranged from $1.7 million to $112 million, which greatly exceeded the size
of the task orders contemplated by the solicitation (noting that,
historically, projects had ranged from $1,000 to $460,000 with the average
cost of a project being $92,000). The SSB also noted that the work under
the projects listed by Impregilo was limited to a single or a few
locations. Thus, according to the SSB, Impregilo's experience with
managing a few large dollar value projects differed from the
solicitation's requirement for administering numerous, smaller dollar
value projects, at various locations.
Under the second factor, organizational structure and capability, the SSB
agreed with the TEB's rating but questioned several of the strengths noted
by the TEB.[4] Specifically, the SSB disagreed with the TEB's conclusion
that Impregilo proposed *an excellent organization to manage a variety of
projects simultaneously.* AR,
Tab 24, supra, at 9. The SSB found that the projects submitted by
Impregilo were limited in terms of *variety* because there were no smaller
valued projects and the extent to which Impregilo had managed projects
*simultaneously* was unclear. Id. The SSB also disagreed with the TEB's
conclusion that Impregilo's safety supervisor exceeded the RFP's
requirements. Regarding the TEB's concern over a subcontracting issue in
connection with Impregilo's proposal, which the TEB had noted as a *minor
weakness,* the SSB clarified that the concern was not considered a
weakness or a strength.
As to the third factor, design capability, the SSB indicated that the
TEB's initial narrative was in error where it stated that the size of
Impregilo's architect/engineer firm *was not considered by the TEB to
appreciably increase the risk of non-performance, so they [Impregilo] are
considered to represent a high probability of success with little risk of
failure.* AR, Tab 24, supra, at 10. According to the SSB report, the TEB
report should have stated that Impregilo was *considered to represent a
reasonable probability of success* and that Impregilo *met the
requirements of the [solicitation] without exceeding them.* Id.
Impregilo's overall score for this factor, however, did not change upon
reevaluation.
Overall, Impregilo's technical rating of good remained unchanged after the
reevaluation. The SSB forwarded its reevaluation report to the SSA,
recommending award to La Termica. The SSA agreed with the SSB's
recommendation and concluded that La Termica's proposal again represented
the best value. After receiving notice of the agency's decision and a
debriefing, Impregilo filed this protest.
In its protest, Impregilo essentially contends that the Navy's
reevaluation of its proposal was flawed.[5] Impregilo maintains that the
agency should not have reduced its past performance rating in the course
of the reevaluation and also incorporated by reference the argument from
its previous protest that its technical ratings for factors two and three
should have been higher.[6] Impregilo suggests in its comments on the
agency report that the agency manipulated these reevaluation ratings in
order to justify the agency's prior award decision in favor of La
Termica. Impregilo also argues in its comments that the reevaluation was
contrary to the agency's source selection plan because the SSB and the SSA
prepared the technical ratings, rather than the TEB.
Because the evaluation of proposals is a matter within the discretion of
the contracting agency, we will not reevaluate proposals, but will examine
the agency's evaluation to ensure that it was reasonable and consistent
with the solicitation's evaluation criteria and applicable statutes and
regulations. Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24,
2003, 2003 CPD P: 96 at 6. In this regard, an offeror's mere disagreement
with the agency's assessment of its proposal does not render the
evaluation unreasonable. Weber Cafeteria Servs., Inc., B-290085.2,
June 17, 2002, 2002 CPD P: 99 at 4.
As an initial matter we note that Impregilo's comments on the agency
report did not provide a substantive reply to the agency's detailed
responses in answer to the challenges raised concerning the reevaluation
of Impregilo's technical proposal. Instead, Impregilo merely suggested
that the agency manipulated the reevaluation and argued that the
reevaluation was improper, as a general matter, because it was conducted
by the SSB and the SSA, not the TEB. The record, however, does not
support these allegations concerning the agency's failure to conduct a
proper reevaluation from a procedural standpoint nor does it support
Impregilo's suspicions regarding improper motives by the agency.
Contrary to Impregilo's assertions, the TEB reviewed all the proposals and
confirmed the findings of its initial report in its reevaluation. AR, Tab
24, Revised SSB Report, at 1; AR, Tab 25, Revised Pre/Post Negotiation
Business Clearance Memorandum, at 2. Regarding Impregilo's suggestion
that the agency manipulated the reevaluation, procurement officials are
presumed to act in good faith. As a consequence, our Office will not
attribute unfair or prejudicial motives on the basis of inference or
suppositions; a protester alleging bias or bad faith must provide
convincing proof of the officials' improper motives. ACC Constr. Co.,
Inc., B-289167, Jan. 15, 2002, 2002 CPD P: 21 at 4. Here, Impregilo has
not provided any support for its allegation that the agency improperly
manipulated the reevaluation.
Having failed to demonstrate that the reevaluation process was inherently
flawed, and given Impregilo's lack of substantive comment regarding the
agency's determinations in connection with the reevaluation, we have no
basis to question the reasonableness of the agency's reevaluation of
Impregilo's proposal based on our review of the record. For example, as a
consequence of the agency's reevaluation, the SSB reduced Impregilo's past
performance score. As noted above, the RFP required offerors to submit
past performance references for *similar projects with regard to
construction features, dollar value, and complexity.* RFP S: 00202, at
4. The SSB downgraded Impregilo's past performance rating from that
awarded by the TEB, because, according to the SSB, the TEB failed to
consider that Impregilo's reference projects were materially different
from those contemplated by the RFP. The RFP's projects, as noted by the
SSB, required the administration of numerous, small dollar value projects
at various locations in Italy. Impregilo's reference projects, however,
greatly exceeded the size and complexity of those contemplated by the
solicitation and involved a few large dollar value projects at one
location. The SSB concluded that the skills required to administer the
types of projects envisioned by the solicitation were not the same as
those needed to administer the types of projects submitted by Impregilo.
Absent any argument to the contrary from Impregilo, we have no basis to
conclude that the agency's position in this regard is unreasonable.
Similarly, we have no basis to conclude that the agency unreasonably
evaluated Impregilo's proposal under factor 2, organizational structure
and capability, or under factor 3, design criteria. Specifically,
Impregilo argued that its rating for factor 2 should have been higher
given the various strengths identified in the agency's evaluation and
because the *minor weakness* identified by the agency under this factor
should not have been considered a weakness. The agency indicates,
however, that it did not consider Impregilo's proposal to have a weakness
under this factor upon reevaluation. Because Impregilo did not address
this issue, we have no basis from our review of the record to question the
agency's reevaluation of Impregilo's proposal under this factor.
As to factor 3, design capability, Impregilo argued that it should have
received a higher rating, again highlighting the various strengths
identified in the agency's evaluation and arguing that the weakness noted
by the agency, concerning the large size of its architect/engineer firm,
was unfounded. In its reevaluation, however, the SSB concluded that the
size of Impregilo's architect/engineer firm *was not considered by the TEB
to appreciably increase the risk of non-performance* and also stated,
changing the TEB's report in this regard, that Impregilo represented *a
reasonable probability of success* and met the requirements *without
exceeding them.* As with the other factors, Impregilo does not address
this issue. Based on our review of the record, we have no reason to
conclude that the agency improperly evaluated Impregilo's proposal in this
regard.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Offerors were required to submit unit prices for various labor
categories, as well as indirect costs and design costs. The offerors were
then to apply their unit prices for the base period and all option periods
to a sample task order provided in the solicitation.
[2] The RFP provided that if a proposal received a marginal rating for any
one of the four factors, the proposal would receive an overall technical
rating of marginal as well.
[3] The protester here proceeded pro se and thus did not have access to
certain information in the record subject to protection from disclosure
other than to counsel pursuant to the terms of a protective order.
Accordingly, our discussion in some areas is necessarily general in nature
in order to avoid reference to protected information (such as the agency's
evaluation of specific aspects of Impregilo's proposal). Our conclusions,
however, are based on our review of the entire record.
[4] After the reevaluation, Impregilo's score for this factor remained the
highest received by any of the offerors.
[5] Impregilo also notes that the agency's reevaluation resulted in La
Termica's overall technical rating being increased from *satisfactory+* to
good. While Impregilo may have disagreed with this change, its mere
disagreement, absent any factual or legal basis indicating why La
Termica's rating was improper, does not present an adequate basis for
protest. See 4 C.F.R. S: 21.5(f) (2003); Garco Constr., Inc.; Triton
Marine, Constr. Corp., B-282231, B-282231.2, June 15, 1999, 99-2 CPD P: 8
at 3 n.1. Consequently, our Office limited the agency report to those
issues concerning the reevaluation of Impregilo's proposal.
[6] In its protest challenging the agency's initial evaluation and award
decision, Impregilo argued that it should have received higher ratings
under factor 2, organizational structure and capability, and under factor
3, design capability. Because the reevaluation did not alter Impregilo's
ratings under these two factors, Impregilo incorporated these arguments by
reference in the current protest.