TITLE: International Roofing & Building Construction, Inc., B-292833, November 17, 2003
BNUMBER: B-292833
DATE: November 17, 2003
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International Roofing & Building Construction, Inc., B-292833, November 17, 2003
Decision
Matter of: International Roofing & Building Construction, Inc.
File: B-292833
Date: November 17, 2003
Neal K. Aoki, Esq., Koshiba Agena & Kubota, for the protester.
William A. Alicar, for Allied Pacific Builders, Inc., an intervenor.
Ron R. Ashlock, Esq., and Richard G. Welsh, Esq., Department of the Navy,
for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably downgraded the protester*s lower-priced proposal because
it lacked a required plan to identify, list, and sample lead paint, and,
to test lead paint surfaces, and thus had a reasonable basis to select
higher-priced, lower risk proposals for award of roof repair contracts.
DECISION
International Roofing & Building Construction, Inc. protests the awards of
contracts to Allied Pacific Builders, Inc. and D&A Joint Venture by the
Department of the Navy pursuant to request for proposals No.
N62742-03-R-2230, for roof installation and repairs.
We deny the protest.
The RFP, issued January 10, 2003 as a competitive section 8(a) set-aside,
provided for the award of an indefinite-quantity contract or contracts for
a 1-year base period with options to extend the term of the contract up to
60 months. The subject contracts are for roof installation and repairs at
various locations on Oahu, Hawaii. One provision in the contracts is a
specific requirement for identifying, listing and sampling hazardous waste
materials, such as lead paint, and the testing of lead paint surfaces.
The RFP advised that the offers would be evaluated for award based on the
equally weighted evaluation factors of price and technical. The technical
factor was comprised of two equally weighted subfactors: past
performance/experience and technical approach. Amendment No. 9 to the RFP
stated the following regarding the technical approach subfactor:
(a) The Government will evaluate your plan to execute abatement
work. Include your process to identify, list, sample and abate the
hazardous material.
The agency received ten proposals, including those of International,
Allied and D&A, by the March 3 closing date. International, Allied and
D&A each received *exceptional* past performance ratings, and
International*s and D&A*s experience was found *substantial,* whereas
Allied*s was found *adequate.* All three offerors* past
performance/experience risk was considered low. Allied*s and D&A*s
technical approaches were rated *acceptable* with low risk, while
International*s was rated *marginal* with moderate risk.[1] Agency
Report, encl. 10, Business Clearance Memorandum, at 7. The reason that
International*s technical approach was rated *marginal* was that its
*proposal lack[ed] details on the identification, listing, and sampling
procedures for hazardous waste materials,* which the agency considered to
be a *significant weakness.* Agency Report, encl. 10, International*s
Rating Sheet, at 1-2. International*s evaluated price was $12,597,800,
Allied*s $14,045,000, and D&A*s $14,062,500.8. Agency Report, encl. 10,
Business Clearance Memorandum, at 8. On July 7, the agency determined
that the proposals of Allied and D&A offered the best value to the
government, and made award to those firms. This protest followed.
International disagrees with the agency*s determination that its proposal
was deficient because its work plan for removing lead-containing paint
lacked identification, listing and sampling procedures for lead paint.
In reviewing a protest against an agency*s evaluation of proposals, we
will examine the record to determine whether the agency*s judgment was
reasonable and consistent with the solicitation*s evaluation criteria as
well as with procurement statutes and regulations. Symetrics Indus.,
Inc., B-274246.10, Sept. 17, 1998, 98‑2 CPD P: 78 at 5. In order
for a protester to demonstrate that an evaluation was unreasonable, it is
not enough merely to express disagreement with that evaluation. Cubic
Applications, Inc., B-274768 et al., Jan. 2, 1997, 97-1 CPD P: 98 at 3.
Here, while International contends that its 69-page lead-containing paint
removal work plan demonstrates its appreciation and understanding of the
hazardous risks associated with the project, our review confirms that it
lacked a plan to identify, list and sample lead paint and to test lead
paint surfaces. A procuring agency*s technical evaluation is dependent
upon the information furnished in the offeror*s proposal, Computerized
Project Mgmt. Plus, B-247063, Apr. 28,1992, 92-1 CPD P: 401 at 3, and all
offerors are expected to demonstrate their capabilities and submit
required information in their proposals. McAllister & Assocs., Inc.,
B-277029.3, Feb. 18, 1998, 98-1 CPD P: 85 at 4; EOD Tech., Inc., B-266026,
Dec. 18, 1995, 95-2 CPD P: 273 at 4.
International also contends that because its work plan for removing
lead-containing paint was prepared by *certified* personnel, who
*presumably* have the *requisite knowledge, training and experience to
responsibly deal with hazardous materials,* and because International has
successfully completed seven contracts during the past 3 years for
projects of similar scope involving hazardous materials, including
lead‑based paint, the agency should have reasonably deduced that
there was no risk that International would not successfully perform the
work here. Protester*s Comments at 3-4. However, the agency was not
required to accept International*s experience, or that of its *certified*
subcontractors who prepared the plan, as a substitute for the firm*s
providing this required information in its proposal. Neeser Constr.,
Inc./Allied Builders Sys., A Joint Venture, B‑285903, Oct. 25, 2000,
2000 CPD P: 207 at 10-11. Accordingly, the agency*s technical evaluation
and marginal rating for International*s technical approach were
reasonable.[2]
International*s challenge to the price/technical tradeoff is primarily
premised on its contention that its technical approach was misevaluated, a
contention we have rejected. Here, the agency reasonably determined that
the low risk rating that the higher-priced proposals of Allied and D&A
received for technical approach gave a greater assurance of high quality
work and was therefore worth the associated cost premium.
International finally asserts that Allied does not possess adequate
financial resources to obtain the required performance bond for the entire
contract price, and that the agency unreasonably determined that Allied
was responsible. Because the determination that an offeror is capable of
performing a contract is largely committed to the contracting officer*s
discretion, our Office will generally not consider a protest challenging
an affirmative determination of responsibility except under limited,
specified exceptions. 4 C.F.R. S: 21.5(c) (2003); Verestar Gov*t Servs.
Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD P: 68 at 3. The
exceptions to this rule are protests that allege that definitive
responsibility criteria in the solicitation were not met and those that
identify serious concerns that a contracting officer in making an
affirmative determination of responsibility unreasonably failed to
consider available relevant information or otherwise violated statute or
regulation. 4 C.F.R. S: 21.5(c). International*s protest of the
determination of Allied*s responsibility does not fall under the
designated exceptions. First, International*s protest does not raise
serious concerns that the agency failed to consider relevant information
in making her responsibility determination. Also, while International
asserts that the requirements in Federal Acquisition Regulation S: 9.104-1
constitute definitive responsibility criteria, the requirements contained
in that regulation are only intended to be *general standards* of
responsibility involving the exercise of subjective business judgments,
and are not definitive responsibility criteria, that is, specific and
objective standards established by the agency as a pre‑condition for
award and included in the solicitation. See The Mary Kathleen Collins
Trust, B‑261019.2, Sept. 29, 1995, 96‑1 CPD P: 164 at 3.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The definition of a marginal rating was *[p]roposal contains no more
than two significant weaknesses that increase the risk of unsuccessful
contract performance.* RFP amend. 9.
[2] International contends that the agency erroneously evaluated Allied*s
experience as *adequate* with low risk, rather than *little,* with
moderate or high risk. Based on our review, we find that Allied*s more
limited experience with similar projects was reflected in the *adequate*
rating it received, and we therefore find the agency*s evaluation in this
area reasonable.