TITLE:  Foundation Engineering Sciences, Inc., B-292834; B-292834.2, December 12, 2003
BNUMBER:  B-292834; B-292834.2
DATE:  December 12, 2003
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Foundation Engineering Sciences, Inc., B-292834; B-292834.2, December 12, 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:   Foundation Engineering Sciences, Inc.
    
File:            B-292834; B-292834.2
    
Date:              December 12, 2003
    
Robert E. Korroch, Esq., Williams Mullen, for the protester.
Paul R. Smith, Esq., and Robert E. Little, Esq., Naval Facilities
Engineering Command, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency should have selected the protester, the fourth-ranked
firm, as the most highly qualified firm with which to negotiate an
architect-engineer contract is denied where the record shows that the
agency reasonably evaluated the protester's and the awardee's
qualifications consistent with the evaluation factors and applicable
procurement rules, and reasonably determined that, due to its relatively
limited equipment availability, protester was not the most highly
qualified of the firms.
DECISION
    
Foundation Engineering Sciences, Inc. protests the selection by the
Department of the Navy of GeoEnvironmental Resources, Inc. as the firm
with which to negotiate an architect-engineer (A-E) contract for
geotechnical engineering services at various activities within the
geographical area of the Atlantic Division, Naval Facilities Engineering
Command. Foundation argues that it was improper for the agency to credit
GeoEnvironmental with the experience and qualifications of that firm's
subcontractors and consultants, broadly alleges that it should have been
found technically superior to the awardee, and asserts that the agency
unreasonably ranked the protester lower than the awardee due to its
concerns about the number of drilling rigs the protester proposed.
    

   We deny the protest.
    
This procurement of A-E services is being conducted pursuant to the
procedures set forth in the Brooks Act, as amended, 40 U.S.C. S:S: 541 et
seq. (2000), and its implementing regulations, Federal Acquisition
Regulation (FAR) subpart 36.6.  In accordance with those regulations, on
March 24, 2003, the Navy synopsized the requirement; the procurement, set
aside for small business concerns, was referenced as solicitation No.
N62470-03-R-1133.  Firms were invited to submit qualifications statements
to be considered for negotiations with the agency for an
indefinite-quantity contract for A-E services, including subsurface
investigation, field and laboratory material testing and evaluation,
geotechnical/foundation analysis, and construction and building material
testing.[1]   Interested A-E firms were to submit a completed standard
form (SF) 254 (A-E and Related Services Questionnaire) and SF 255 (A-E and
Related Services for Specific Project Questionnaire) detailing their
qualifications.  Firms were advised that their qualifications would be
evaluated under seven evaluation factors; the first five were equally
weighted, and the last two were of lesser importance.  The seven
evaluation factors were as follows:  (1) specialized experience; (2)
professional qualifications and technical competence in the type of work
required; (3) ability to perform the work (in terms of the firm's
permanent staff, projected workload, and performance schedule compliance);
(4) past performance; (5) quality control program; (6) firm location and
knowledge of the locality of the contract; and (7) volume of work.
    
Firms were instructed to demonstrate their own and their key consultants'
qualifications for evaluation.  For example, in terms of demonstrating the
ability to perform, firms were instructed to discuss both their own and
their consultants' experience, and the working history and relationship
between the team members; for this evaluation factor, firms were
specifically instructed to demonstrate the ability to complete an
emergency work order of $20,000 or less within 10 days, as well as the
ability to complete multiple concurrent projects, such as four work orders
issued within a 10‑day period.
    
Fifteen firms submitted their qualifications for evaluation.  The agency's
evaluation panel reviewed each firm's submissions, chose the five
highest-rated firms, and conducted interviews with those firms.  At the
conclusion of its review, the evaluation board ranked GeoEnvironmental
first in line for further negotiations; the protester, Foundation, was
ranked fourth of the five firms.  An award of a contract for the required
services ultimately was made to GeoEnvironmental.
    
By letter of May 29, the agency notified the protester that it was
considered highly qualified, but that the firm which was considered most
highly qualified, GeoEnvironmental, was selected for the contract
negotiations.  Foundation's debriefing took place on June 18, and,
pursuant to the protester's request, the agency confirmed the debriefing
information in writing on June 20.  The agency explained to Foundation
that, although the firm was considered to have excellent qualifications,
the evaluation board recommended GeoEnvironmental over Foundation based
upon the substantial, relevant experience of GeoEnvironmental's
subcontractors and its significantly larger fleet of drilling rigs (eight)
compared to the two owned by Foundation.  The additional drilling rigs
were considered by the evaluators as important to best meeting the
multiple tasking and emergency work requirements, as they more strongly
demonstrated the ability to perform four drilling work orders within a
10-day period; this determination became a material discriminator in the
selection.
    
Foundation filed an agency-level protest of the evaluation and selection
on June 25, challenging the agency's consideration of the qualifications
of GeoEnvironmental's subcontractors, and the agency's downgrade of
Foundation in terms of the firm's limited drilling rig availability.  That
protest was denied on August 27.  This protest, incorporating the same
protest grounds, followed.[2]
    
In reviewing an agency's selection of a contractor for A-E services, our
function is not to make our own determination of the relative merits of
the submissions, or to substitute our judgment for that of the procuring
agency by conducting an independent examination.  See Pickering Firm Inc.,
B-277396, Oct. 9, 1997, 97-2 CPD P: 99 at 4.  Rather, our review is
limited to examining whether the agency's selection was reasonable, and
consistent with the evaluation factors and applicable procurement statutes
and regulations.  Id.  A protester's mere disagreement with the agency's
evalution does not make it unreasonable or improper.  See CH2m Hill, Ltd.,
B-259511 et al., Apr. 6, 1995, 95-1 CPD P: 203 at 4.  The protester's
contentions here provide no basis to question the propriety of the
agency's evaluation of the firm's qualifications or the selection of
GeoEnvironmental.
    
Initially, the protester argues that it was improper to select
GeoEnvironmental because that firm plans to subcontract required drilling
and laboratory work, and, according to Foundation, the solicitation's
evaluation scheme required the prime contractor to be evaluated on its own
experience, separate from any experience of its proposed subcontractors
and consultants.  Our review of the synopsis and evaluation terms shows,
however, that the protester's interpretation of the evaluation scheme is
unreasonable.  First, as a general matter, the experience of proposed
subcontractors properly may be considered in determining whether a firm
meets experience and qualification requirements in a solicitation where it
is not expressly prohibited by the solicitation's terms.  See Rolf Jensen
& Assocs., Inc., B‑289475.2, B‑289475.3, July 1, 2002, 2002
CPD P: 110 at 6.  Second, here, the solicitation not only did not restrict
the consideration of proposed subcontractors' experience and
qualifications, it specifically requested the submission of such
information for evaluation.  As early as in the published synopsis, and as
late as in the written invitation issued to the firms for their
interviews, firms were expressly instructed to provide consultant
experience and qualification information under each evaluation factor. 
Foundation's contention that the agency was precluded from considering the
awardee's subcontractors' strong qualifications in addition to its own
relevant experience is unsupported, and thus fails to present any basis to
question the agency's consideration of the information.[3] 
    
Next, Foundation alleges that it was unreasonable for the the agency to
have concerns about the protester's limited number of drilling rigs as
they related to the ability to complete multiple concurrent projects as
contemplated by the solicitation.  The agency, while finding Foundation
highly qualified, concluded that the two drilling rigs Foundation owns did
not provide as persuasive a demonstration of that firm's ability to
perform concurrent drilling orders as had been shown by the awardee's
proposal of eight drilling rigs to meet the same needs.
    
Our review of the record confirms the reasonableness of the agency's
view.  First, it is clear that the awardee offered four times as many
drilling rigs for the same work requirements; in our opinion, the
comparative numbers of rigs themselves support the agency's view regarding
the benefits of the awardee's proposal in this area.  Second, although
Foundation generally contends that the agency should have known from the
firm's interview that the protester was prepared to subcontract for
additional rigs, if necessary, neither the protester nor the record
provides any particular drilling subcontractor information for evaluation
on Foundation's behalf.[4]  Third, our review of the record shows that
Foundation currently holds eight other annual contracts.  Although
Foundation generally asserted in its qualifications statement that the
intermittent needs arising under those contracts would not interfere with
its performance here, it appears that the agency had a reasonable basis
for concern that Foundation's limited number of drilling rigs might be
unavailable to the agency if they are in use on any of those contracts. 
There plainly is risk involved when a contractor simply offers to
interrupt its other work in order to use its limited equipment for the
agency's needs, or offers to subcontract for additional rigs on an
as-needed basis from unidentified sources.  While the protester generally
asserts that it has a good record of meeting its performance schedules,
and that it plans to do so here, we cannot find unreasonable the agency's
concern that the protester may not be as readily able to supply a
sufficient number of drilling rigs in a timely fashion to meet the
agency's needs.
    
In sum, the record shows that the agency's comparison of the five,
similarly rated highly qualified firms ultimately rested upon a single
area of the evaluation scheme-- the demonstrated ability to perform
multiple work orders under tight deadlines and the conclusion that a
limited number of drilling rigs may affect a firm's ability to perform. 
We agree with the agency that the availability of drilling rigs to
complete work is directly relevant to the firms' ability to perform.  The
protester's disagreement with the evaluation simply does not show that it
was unreasonable.
    
In its comments on the agency report, Foundation raises several
supplemental arguments.  For instance, Foundation generally argues that
the agency improperly failed to conduct a qualitative review of the firms'
technical qualifications and instead evaluated only whether the firms
*met* requirements.  The agency explains that whether a firm met the
evaluation requirements was an initial assessment performed by the agency
to differentiate the highly qualified firms from those that were not
considered to be highly qualified.  As the agency points out, a
qualitative narrative was provided for each firm during the evaluation,
including brief notes as to the merits of each submission under the
evaluation factors.  The qualitative comments noted by the evaluators were
used to prepare short evaluation summaries illustrating strengths for the
firms.  For instance, beyond having met the stated requirements,
GeoEnvironmental was found to have submitted a favorable, detailed
management approach, shown a wide variety of experience in the locality,
and demonstrated repeat business with clients; these are just some
examples of the qualitative strengths noted for the firm.  Similarly,
Foundation was noted to have extensive experience, registered and
qualified personnel, and cost-savings efforts.  The summary for Foundation
also discusses the distinguishing factor, its limited number of drilling
rigs compared to other firms.  The agency reports, and our review of the
record confirms, that the full evaluation record (including the
qualitative narrative comments) had accompanied the evaluation board's
ranking of firms and selection recommendation forwarded to the source
selection official for review.[5]  Accordingly, based on the documented
qualitative review in the record, we cannot agree with the protester's
general contention that the evaluators improperly limited their review of
the qualifications submissions to a determination of technical
acceptability.
    
In its comments, Foundation generally alleges that the agency failed to
evaluate each firm under every evaluation factor and subfactor. 
Foundation, however, fails to identify any evaluation factor or subfactor
for which it believes an evaluation is missing from the record. 
Foundation also broadly argues without any specificity that if the
evaluation had included all factors and subfactors, it would have been
found technically superior to GeoEnvironmental.  It was not until its
response to the agency's supplemental report that Foundation offered the
type of details required to state a valid basis for protest.  This
detailed submission purporting to support Foundation's earlier broad
allegations, however, was not filed until approximately 1 month after the
protester had received the evaluation documents it relies on.  The
arguments raised in this latter response are untimely.  Under our Bid
Protest Regulations, protests based on other than solicitation
improprieties must be filed within 10 days of when the protester knew or
should have known their bases.  4 C.F.R. S: 21.2(a)(2).  Our timeliness
rules do not contemplate the piecemeal presentation or development of
protest issues.  Where a protester raises a broad ground of protest in its
initial submission but fails to provide details within its knowledge until
later, so that a further response from the agency would be needed to
adequately review the matter, these latter more specific arguments and
issues cannot be considered unless they independently satisfy the
timeliness requirements under our Bid Protest Regulations.  See
Biospherics, Inc., B‑285065, July 13, 2000, 2000 CPD P: 118 at
12-13.  Since Foundation failed to provide these latter detailed
contentions within 10 days of its receipt of the evaluation record upon
which they are based, they are untimely and will not be reviewed further. 
Id. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
     
    
    
    
    
    
    
    
    

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

   [1] Under the regulatory provisions at FAR subpart 36.6, agencies must
publicly announce their A-E requirements, listing general and
project-specific evaluation criteria, appoint A-E evaluation boards to
review qualification statements already on file, as well as those
submitted in response to the synopsis, and evaluate and rank at least
three firms on a short list for further contract negotiations in order of
ranking.  See Geographic Res. Solutions, B-260402, June 19, 1995, 95-1 CPD
P: 278 at 1-2.
[2] Foundation also raises several issues in its protest to our Office
that were not raised in its agency-level protest.  By waiting to raise
these issues for the first time in its protest to our Office, Foundation
failed to assert them within 10 days of when the bases of protest were
known (or should have been known), so that they are untimely.  Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(2) (2003).  For example, in its September
8 protest to our Office, Foundation argues, for the first time, that it
believes GeoEnvironmental will exceed applicable subcontracting
limitations, and that the agency failed to hold adequate discussions with
Foundation, despite acknowledging that it became aware of these bases of
protest upon learning of the selection and receiving its debriefing.  It
is clear that the protester could have raised the same contentions in its
agency-level protest, but did not. 
[3] We note that although Foundation generally challenges the
acceptability of the awardee's laboratory subcontractor, alleging that the
offered laboratory is not accredited, there is, as the agency points out,
no laboratory accreditation requirement in the solicitation.  As to
GeoEnvironmental's drilling subcontractor, Foundation generally argues
only that, despite the larger number of drilling rigs proposed by the
awardee through its subcontractor, greater risk exists in using a
subcontractor rather than the in-house drilling operation Foundation can
provide.  Given that the solicitation did not preclude, and, in fact,
contemplated the use of subcontractors and key consultants for the work,
and since GeoEnvironmental's drilling subcontractor is the incumbent for
these services for the agency, the record does not support the protester's
suggestion that there is additional risk in the selection of
GeoEnvironmental or that the evaluation was otherwise unreasonable.  The
protester's argument in this regard also is undermined by the fact that,
as discussed later in this decision, Foundation itself had argued that it
was prepared to subcontract for additional drilling rigs and sought credit
in the evaluation for doing so.
[4] In its agency-level protest, Foundation also stated that it had told
the agency during its interview that it would be able to obtain additional
drilling rigs through subcontracts, if necessary.  However, in a
supplemental submission to our Office, filed several months later,
Foundation asserted that the matter was not discussed in its interview. 
Protester's Supplemental Comments, Nov. 12, 2003, at 4.  Foundation offers
no explanation of this apparent inconsistency in its position.  In any
event, while Foundation generally suggests that the agency should have
credited the firm for the ability to obtain additional rigs if necessary,
it remains the firm's obligation to submit an adequately supported
technical submission to serve as the basis of the agency's evaluation of
the firm's purported ability to perform.  See Educational Computer Corp.,
B-227285.3, Sept. 18, 1987, 87-2 CPD P: 274 at 3.  Foundation did not do
so as to this subcontracting issue.
[5] We note that while the protester suggests that the source selection
official acted improperly in approving the evaluation board's
recommendations, rather than generating a separate evaluation report,
Foundation fails to provide any persuasive legal basis to support its
contention, and, thus, we see no need to discuss the issue further.