TITLE: Dix Corporation, B-293964, July 13, 2004
BNUMBER: B-293964
DATE: July 13, 2004
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Decision
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Matter of: Dix Corporation
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File: B-293964
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Date: July 13, 2004
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Patrick J. Kirby, Esq., Ryan D. Yahne, Esq., and Richard D. Campbell,
Esq., Dunn & Black, for the protester.
John Breiling, Esq., and Misty Latcu, Esq., Department of the Army, for
the agency.
Henry J. Gorczycki, Esq., and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
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1. Where a solicitation states that award will be made on the basis of
lowest price among quotations found satisfactory under the past
performance/experience criteria, but also includes language suggesting
that the agency would make a *best value* selection, including a
cost/technical tradeoff if necessary, the solicitation is ambiguous on its
face, and a protest of an award made on a lowest price, technically
acceptable basis is untimely.
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2. Where request for quotations did not include separate evaluation
criteria for evaluating the experience of individual key personnel and did
not otherwise expressly restrict the consideration of key personnel
experience under the corporate experience subfactor, agency properly could
consider the individual experience of vendor*s key personnel in
determining whether the vendor*s experience satisfied the requirement for
a minimum of 3 years of corporate experience rehabilitating cranes of
similar size and scope.
DECISION
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Dix Corporation protests the U.S. Army Corps of Engineers* issuance of a
purchase order to Service Crane, LLC, under request for quotations (RFQ)
No. W9127N-04-Q-0020, for bridge crane rehabilitation at the powerhouses
at Detroit Dam and Big Cliff Dam, Oregon. Dix protests the agency*s
evaluation and resulting source selection decision.
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We deny the protest.
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The RFQ, issued as a simplified commercial item acquisition under Federal
Acquisition Regulation (FAR) Parts 12 and 13, contemplated the award of a
fixeda**price purchase order. The RFQ, at section 3-7, included language
from the clause at FAR SA 52.212-2, *Evaluationa**a**Commercial Items (Jan
1999),* including subsection (a):
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The Government will award a contract resulting from this solicitation to
the responsible offeror whose offer conforming to the solicitation will be
most advantageous to the Government price and other factors considered.
The following factors shall be used to evaluate offers: . . .*
RFQ SA 3-7. Other than price, section 3-7 set forth only one evaluation
factor, *Past Performance and Experience.* Past performance/experience
included four subfactors: (1) timeliness of services, (2) quality of
services, (3)A responsiveness of contractor to changes or problems, and
(4) a minimum of 3A years experience rehabilitating cranes of similar size
and scope. The RFQ stated that the subfactors would be evaluated as
follows:
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All sub-factors are of equal weight, and except for sub-factor 4 that will
be rated just Satisfactory or Unsatisfactory, they will be rated as
Excellent, Good, Satisfactory, Marginal, or Unsatisfactory.
RFQ SA 3-7(a)(1). Following these provisions, however, section 3-7 also
provided as follows:
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Technical and past performance are of equal importance, and, when
combined, are somewhat more important than price. A rating of
Unsatisfactory for any factor or sub-factor shall cause the quote to be
rejected. It is the Government*s intent to award to the offeror who
receives a Satisfactory or better rating in sub-factors 1, 2, 3, and 4,
and who has the lowest price.
Id.
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The Corps received five quotations by the closing time. Service Crane
submitted the quotation with the lowest price. Dix quoted the next lowest
price.
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Service Crane as a company did not have the required 3 years of
experience. Its quotation instead cited the experience of its two key
personnela**a**its president (16A years of relevant experience) and lead
technician (22 years of relevant experience)a**a**who previously were
employed as key personnel in the crane rehabilitation department of a
major supplier of crane maintenance and rehabilitation services. In
addition, Service Crane stated in its quotation that its subcontractor for
electrical work had 30 years experience in the crane business. Service
Crane stated that these three individuals would do all the *hands on* work
under the contract. Service Crane Quotation at 6. Moreover, Service
Crane*s president and its subcontractor had inspected and prepared a
report on the condition of the cranes to be rehabilitated, and the agency
considered these individuals to be most knowledgeable about the condition
of the cranes. Evaluation Documents at 2-1 to 2-2. Based on this
experience of the firm*s key personnel and subcontractor, the agency
determined that Service Crane satisfied the minimum experience requirement
and accordingly rated the firm *satisfactory* under past
performance/experience subfactor 4.
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The Corps also rated Service Crane satisfactory or higher under the
remaining three past performance/experience subfactors. The agency
thereupon issued a purchase order to Service Crane on the basis that its
quotation was satisfactory under all of the evaluation criteria and quoted
the lowest price. This protest followed.
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Dix asserts that the agency improperly made award based on the lowest
price without performing a cost/technical tradeoff considering the
difference in experience of other vendors. Dix also asserts that the
agency unreasonably evaluated Service Crane as satisfactory under the
3-year minimum experience requirement under past performance/experience
subfactor 4.
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Dix*s arguments furnish no basis upon which to question award of the
purchase order to Service Crane. As an initial matter, the protester*s
allegation that the agency improperly failed to make a cost/technical
tradeoff, including crediting Dix with superior experience, is an untimely
protest of an ambiguity apparent on the face of the RFQ. Although RFQ, at
section 3-7, included language consistent with making a *best value*
selection, such as the relative weights of evaluation factors, suggesting
that the agency would conduct a cost/technical tradeoff if necessary, that
section of the RFQ also stated that *[i]t is the Government*s intent to
award to the offeror who receives a Satisfactory or better rating in
sub-factors 1, 2, 3, and 4, and who has the lowest price.* RFQ
SA 3-7(a)(1). As the protester itself acknowledges, these provisions are
in *inherent conflict.* Dix Comments, May 19, 2004, at 5. Where a
solicitation contains such a patent ambiguity, an offeror has an
affirmative obligation to seek clarification prior to the first due date
for responding to the solicitation following introduction of the ambiguity
into the solicitation. 4 C.F.R. S 21.2(a)(1) (2004); see American
Connecting Source d/b/a/ Connections, B-276889, July 1, 1997, 97-2 CPD
PA 1 at 3. The purpose of our timeliness rule in this regard is to afford
the parties an opportunity to resolve ambiguities prior to the submission
of solicitation responses, so that such provisions can be remedied before
firms formulate their responses. Gordon R. A. Fishman, Ba**257634, Oct.
11, 1994, 94-2 CPD P 133 at 3. Where a patent ambiguity is not challenged
prior to submission of solicitation responses, we will dismiss as untimely
any subsequent protest assertion that is based on one of the alternative
interpretations as the only permissible interpretation. U.S. Facilities,
Inc., Ba**293029, B-293029.2, Jan. 16, 2004, 2004 CPD P 17 at 10.
Dix asserts that Service Crane did not have the required minimum of 3
years of experience rehabilitating cranes of similar size and scope to be
rated satisfactory under subfactor 4; according to the protester, it was
improper for the agency to consider the experience of the Service Crane*s
key personnel in determining the relevant experience of Service Crane. We
disagree. Although an agency may not substitute the experience of a
firm*s key personnel for corporate experience where the terms of the
solicitation reasonably preclude such substitution, such as where the
solicitation includes separate evaluation criteria for corporate and key
personnel experience, Advanced Resources Int*l, Inc., B-249679, Nov. 18,
1992, 92-2 CPD PA 357 at 6; Washington State Comm*n for Vocational
Educ.*Recon., B-218249.2, July 19, 1985, 85-2 CPD PA 59 at 8-9, absent
such a preclusion, an agency generally may consider the experience of key
personnel in evaluating the corporate experience of a new business.
Technical Resources, Inc., B-253506, Sept. 16, 1993, 93a**2 CPD PA 176
atA 5; General Offshore Corp., B-246824, Apr. 1, 1992, 92-1 CPD PA 335 at
4.
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Here, since the RFQ did not include separate evaluation criteria for
evaluating the experience of individual key personnel, or otherwise
expressly restrict the consideration of key personnel experience under the
corporate experience subfactor, the agency properly could consider the
individual experience of a vendor*s key personnel in determining whether
the vendor*s experience satisfied the 3-year minimum experience
requirement. Since Service Crane*s key personnel had substantially more
than 3 years of relevant experience in crane rehabilitation, the agency*s
satisfactory rating for Service Crane under the experience subfactor was
reasonable. Further, inasmuch as the record does not support the
protester*s allegation that Service Crane*s quotation should have been
rejected as unsatisfactory, there is no basis to object to the agency
award to Service Crane based on lowest price.
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The protest is denied.
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Anthony H. Gamboa
General Counsel
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