TITLE: J.C.N. Construction Company, Inc., B-293063, January 9, 2004
BNUMBER: B-293063
DATE: January 9, 2004
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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
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Matter of: J.C.N. Construction Company, Inc.
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File: B-293063
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Date: January 9, 2004
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Robert J. Symon, Esq., and Christyne K. Brennan, Esq., Spriggs &
Hollingsworth, for the protester.
Charles R. Lucy, Esq., Holland & Hart, for MCC Construction, Inc.; Lewis
R. Lear, Esq., City, Hayes & Dissette, for Patel Construction Company,
Inc.; and Jeffrey E. Zachau for Zachau Construction, Inc., intervenors.
Richard G. Welsh, Esq., and Kenneth M. Homick, Esq., Naval Facilities
Engineering Command, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
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Adjectival rating of protester*s proposal as acceptable rather than very
good under relevant past performance subfactor was unobjectionable,
notwithstanding protester*s favorable past performance record, where past
record was not the sole basis for the evaluation, and agency reasonably
identified weaknesses in other areas under the subfactor.
DECISION
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J.C.N. Construction Company, Inc. protests the award of construction
contracts to five other offerors under request for proposals (RFP) No.
N62472-03-R-0041, issued by the Department of the Navy for construction
services. J.C.N. challenges the evaluation of its technical proposal.
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We deny the protest.
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The RFP sought proposals to provide new construction, alterations,
renovations, maintenance, repairs, demolition, and design/build projects
at federal installations in Maine, Vermont, and New Hampshire, plus a
*seed project* consisting of construction of a military working dog kennel
at Naval Air Station Brunswick. The RFP contemplated the award of up to
five indefinite-delivery, indefinite-quantity construction contracts for a
period of 5 years. Subsequent task orders were to be competed among the
awardees. A significant number of projects were to include design/build
tasks. Projects were anticipated to have an estimated cost of between
$25,000 and $1.7 million, with a maximum of $30 million for all projects
ordered during the contract performance period.
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Proposals were to be evaluated as exceptional (Except.), very good (VG),
acceptable (Accept.) deficient but correctable, or unacceptable under four
equally-weighted technical subfactors--relevant past performance,
management approach, safety record, and commitment to small
businesses--and price.[2] The combined technical subfactors were of equal
importance to price. Award was to be made to the offerors whose proposals
were most advantageous to the government. (Award of the seed project, not
in issue here, was to be made to the firm among the awardees submitting
the lowest price.)
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Seventeen offerors, including J.C.N., submitted timely proposals, which
were evaluated by a technical evaluation team (TET). After the initial
evaluation round, J.C.N.*s proposal was ranked seventh of the nine
included in the competitive range. The agency conducted discussions with
the offerors, including J.C.N., and obtained revised proposals and final
proposal revisions. The final evaluation results for all proposals, in
order of technical merit, were as follows:
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+------------------------------------------------------------------------+
|A |Past Perf |Management |Safety |Small Bus.|Overall|Price |
|----------+----------+-----------+---------+----------+-------+---------|
|MCC |VG |Except. |VG |Except. |Except.|$512,285 |
|----------+----------+-----------+---------+----------+-------+---------|
|Haskell |VG |VG |Except. |Except. |Except.|$558,200 |
|----------+----------+-----------+---------+----------+-------+---------|
|Offeror 3 |Except. |VG |Accept. +|Except. |Except.|[deleted]|
|----------+----------+-----------+---------+----------+-------+---------|
|Offeror 4 |VG |VG |Except. |Accept. |VG |[deleted]|
|----------+----------+-----------+---------+----------+-------+---------|
|DTC |VG |Accept. |Accept. +|Except. |VG |$543,217 |
|----------+----------+-----------+---------+----------+-------+---------|
|Zachau |VG |Accept. |Except. |Accept. |VG |$521,300 |
|----------+----------+-----------+---------+----------+-------+---------|
|J.C.N. |Accept. |Accept. |VG |Accept. |Accept.|$545,700 |
|----------+----------+-----------+---------+----------+-------+---------|
|Offeror 1 |VG |Accept. |Accept. -|Accept. |Accept.|[deleted]|
|----------+----------+-----------+---------+----------+-------+---------|
|Patel |Accept. |Accept. |Accept. -|Except. |Accept.|$345,775 |
+------------------------------------------------------------------------+
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After review of the TET*s report and recommendations, the source selection
board (SSB) recommended award to: Patel (proposal technically acceptable
and lowest price), MCC (proposal ranked first technically and offered the
second lowest price), Zachau (sixth technically and third lowest price),
DTC (fifth technically and fourth lowest price), and Haskell. Regarding
Haskell, the agency reasoned that its proposal*s technical superiority
over J.C.N.*s (second versus seventh)--was worth Haskell*s higher price.
The source selection authority adopted the SSB*s recommendation and
awarded the five contracts. After receiving a debriefing, J.C.N. filed
this protest challenging the evaluation of its own proposal.
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J.C.N. asserts that the agency improperly evaluated its proposal under the
relevant past performance subfactor, and that, had it been evaluated
properly, J.C.N. would have been in line for one of the awards. According
to J.C.N., its proposal rating of acceptable is inconsistent with its
favorable past performance record, which included projects under which its
performance was rated by references as exceptional (4 projects), very good
(7), acceptable (4), satisfactory (1), and fair (1). In J.C.N.*s view,
its proposal should have been rated very good.[3]
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In reviewing a protest of an agency*s proposal evaluation, it is not our
role to reevaluate proposals. Rather, we will consider only whether the
evaluation was reasonable and consistent with the terms of the
solicitation and applicable statutes and regulations. CWIS, LLC,
Ba**287521, July 2, 2001, 2001 CPD PA 119 at 2.
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The evaluation here was unobjectionable. The record shows that J.C.N.*s
favorable past performance record was considered by the TET, evaluated as
very good, and noted as J.C.N.*s sole strength. Agency Report (AR), Tab
6, at 33. The TET further commented on J.C.N.*s extensive experience with
government contracts in the New England area. Id. However, J.C.N.*s past
performance record was not the sole basis for the evaluation under the
past performance subfactor. The TET also evaluated each proposal on the
basis of 19 other questions concerning each offeror*s relevant past
performance; J.C.N.*s proposal was evaluated as acceptable or not
applicable under these questions.[4] Id. at 33-34.
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J.C.N. asserts that the considerations under the additional questions
should not have diminished the favorable rating for its past performance
record. We find that the evaluation is supported by the record. For
example, J.C.N.*s proposal was rated as acceptable under question 1,
concerning the similarity of its past projects in magnitude and complexity
to the seed project, and under question 10, regarding whether the past
projects demonstrated the offeror*s ability to successfully perform the
RFP-identified projects, which range in value from $25,000 to $1.7
million. As to both questions, the TET observed that most of J.C.N.*s
projects ranged from $500,000 to well over $1A million, and that few were
valued at under $500,000; on this basis, it rated the proposal as only
acceptable under these questions. AR, Tab 6, at 33. J.C.N. asserts that
any downgrading of its proposal on the basis of a lack of experience
performing smaller projects is *nonsensical* (Comments at 6). However,
performance of the solicited requirement involves the management of
multiple projects ranging in value from $25,000 to $1.7 million dollars,
and the RFP specifically advised offerors that their proposals would be
evaluated based on performance of contracts within this range. RFP
SA 00160, IV(A). This being the case, there was nothing unreasonable in
the agency*s rating J.C.N. only acceptable for these questions based on
the firm*s limited small project experience. See CA Constr. Co., Inc.,
Ba**291792 et al., Mar. 17, 2003, 2003 CPD PA 73 at 5 (where RFP provided
for evaluation of ability to manage projects ranging from small to large,
lower evaluation rating based on limited experience with small projects
was reasonable).
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J.C.N. similarly challenges its acceptable rating for questionA 5, under
which offerors could obtain a *preference* for providing an example of
completed design/build projects. RFP SA 00160, IV(A). J.C.N.*s proposal
was rated as acceptable under question 5, with the evaluators noting that
J.C.N. had only submitted one design/build example. J.C.N. asserts that,
since the RFP only called for one example, it was improper to rate its
proposal only acceptable for including only one example. This argument is
without merit. While the RFP provided a preference for firms that
submitted a single example, the RFP*s evaluation plan also provided for
proposals meeting minimum requirements to be rated as acceptable and those
exceeding the requirements to be rated very good or exceptional. RFP at
21. The agency rated the proposals of three of the contract awardees as
exceptional or very good for question 5 based on multiple design/build
examples. The proposals of [deleted], which, as did J.C.N., only
submitted a single design/build example, were rated as acceptable. This
evaluation was consistent with the evaluation plan. See KMS Fusion, Inc.,
B-242529, May 8, 1991, 91-1 CPD PA 447 at 9 (agency reasonably rated one
proposal higher than another where evaluation plan provided for assigning
proposals greater credit based on extent to which they exceeded minimum
requirements, and first proposal was superior to the other by this
measure).
The protest is denied.
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Anthony H. Gamboa
General Counsel
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A
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[1] The five awardees were Diversified Technology Consultants (DTC),
Haskell Company, MCC Construction Corporation, Patel Construction Company,
Inc., and Zachau Construction, Inc.
[2] Because future task orders would be competed on a technical and price
basis, the only price submitted by offerors was for performing the seed
project.
[3] For the first time in its comments on the agency report, J.C.N.
challenges its proposal rating under the management approach subfactor,
and the agency*s best value determination. These separate and independent
allegations are untimely because they were raised more than 10 days after
J.C.N. received the information on which they are based (in the agency
report). 4 C.F.R. S 21.2(a)(2) (2003). In this regard, J.C.N. was
granted an extension of time in which to file its comments and, as a
result, the comments were received in our Office more than 10 days after
J.C.N. received the report; such an extension does not suspend the
requirement that new protest grounds based on the agency report be raised
within 10A days after the report is received. Litton Sys., Inc., Data
Sys. Div., B-262099, Nov. 17, 1995, 95-2 CPD P 261 at 4 n.4.
[4] By contrast, four of the awardees* proposals, all rated very good
under this subfactor, received multiple ratings of exceptional and very
good for the various questions. Patel, while rated acceptable under this
subfactor, was rated as exceptional under another subfactor, and offered
the lowest price. AR, Tab 9, at 9.