TITLE: B-294980.5, Cooperativa Muratori Riuniti, July 27, 2005
BNUMBER: B-294980.5
DATE: July 27, 2005
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B-294980.5, Cooperativa Muratori Riuniti, July 27, 2005

   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: Cooperativa Muratori Riuniti

   File: B-294980.5

   Date: July 27, 2005

   Reed L. von Maur, Esq., for the protester.

   Susan L. Schor, Esq., and Laurence Schor, Esq., McManus, Schor, Asmar &
   Darden, LLP, for Impresa Pizzarotti & C. S.p.A., an intervenor.

   Damon Martin, Esq., Naval Facilities Engineering Command, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   1. Agency did not act improperly by revising request for proposals and
   soliciting revised proposals prior to conducting reevaluation that
   Government Accountability Office recommended as corrective action in
   sustaining prior protest where solicitation revisions were reasonably
   based and offerors were given the opportunity to revise their proposals in
   response to them.

   2. Where agency amends request for proposals after closing and permits
   offerors to submit revised proposals, it should permit offerors to revise
   aspects of their proposals that were not the subject of the amendment
   absent evidence that the amendment could not reasonably have any effect on
   other aspects of proposals, or that allowing such revisions would have a
   detrimental impact on the competitive process.

   DECISION

   Cooperativa Muratori Riuniti (CMR) protests the Department of the Navy's
   revision of request for proposals (RFP) No. N33191-04-R-4004, for
   construction of two facilities at Aviano Air Force Base in Italy. The
   agency revised the solicitation after we sustained a prior CMR protest
   objecting to award under the RFP to Impresa Pizzarotti & C. S.p.A.
   Cooperativa Muratori Riuniti, B-294980, B-294980.2, Jan. 21, 2005, 2005
   CPD para. 21. CMR argues that the agency's revisions to the RFP are
   restrictive of competition and contrary to the corrective action that we
   recommended in our earlier decision. The protester also objects to the
   agency decision not to permit it to revise its schedule in its revised
   proposal.

   We sustain the protest in part and deny it in part.

   BACKGROUND

   The original RFP requested prices for seven line items: two for work
   associated with construction of a personnel alert holding area (line items
   0001 and 0002) and five for work associated with construction of a heavy
   drop rigging facility (line items 0003-0007). The two facilities are to be
   constructed at separate sites approximately one-half mile apart, and work
   at the two sites is to be performed, at least in part, concurrently.

   The RFP provided for award on a "best value" basis, taking into account
   three equally-weighted technical evaluation factors (organizational
   experience, organizational past performance, and schedule) and price
   (which was to be approximately equivalent in weight to the technical
   factors combined). Proposals were to be rated overall and with regard to
   each evaluation factor as excellent, good, satisfactory, marginal, or
   poor.

   Six offerors, including CMR and Pizzarotti, responded to the RFP. The
   technical evaluation board (TEB) assigned Pizzarotti's proposal ratings of
   excellent under the past performance and schedule evaluation factors, and
   a rating of good under the organizational experience factor; overall, the
   TEB rated the proposal as excellent. The TEB rated CMR's proposal as good
   under the past performance and schedule factors, and satisfactory under
   the organizational experience factor, resulting in an overall technical
   rating of good. The other proposals received lower ratings. CMR's price
   was lower than Pizzarotti's, but the source selection board determined
   that the additional quality of Pizzarotti's proposal outweighed the price
   difference and selected it for award. After receiving notice of the award
   to Pizzarotti and a written debriefing, CMR protested to our Office.

   CMR's previous protest took issue with its ratings under each of the
   evaluation factors. We sustained CMR's protest, finding that the agency's
   evaluation of its proposal under the organizational experience and
   organizational past performance factors was unreasonable. We denied CMR's
   protest with regard to the evaluation of its proposal under the schedule
   factor, however. We recommended that the agency reevaluate the protester's
   proposal with regard to the experience and past performance factors, and
   that the agency terminate the contract awarded to Pizzarotti and make
   award to CMR, if after reevaluation CMR's proposal was found to represent
   the best value to the government.

   By letter dated March 2, 2005, the contracting officer notified both CMR
   and Pizzarotti that in response to our decision, the agency was
   "clarifying" the section of the RFP describing the organizational
   experience and past performance evaluation factors, reevaluating past
   performance information, and requesting revised proposals for reevaluation
   of the organizational experience and past performance factors. The
   contracting officer further notified offerors that because the agency was
   implementing our decision, "revisions to the proposal for Factor 3
   [schedule] will not be accepted." Letter from Contracting Officer (CO) to
   Protester, Mar. 2, 2005. The letter also advised offerors that "due to
   protest process delays," language in the RFP pertaining to the time
   periods for exercise of options was being changed, and, as a result, price
   proposal revisions would also be allowed. Copies of the revised evaluation
   factors, a revised contractor information sheet, and an amended price
   schedule were attached to the contracting officer's letter.

   As revised, the RFP provided for consideration of the following criteria
   in the evaluation of the relevance of an offeror's prior
   construction/renovation contracts:

   1) work was physically completed within the past five years;

   2) contract had a total value of 20 to 30 million euros (EUR 20-30 M).
   (The value of individual prior contracts will not be combined during
   evaluations, regardless of whether such contracts were performed
   concurrently, or at multiple sites.)

   3) contract was similar in construction features to the prospective
   contract, including facility use, and;

   4) contract was similar in contract complexity, including, but not limited
   to, performance at multiple sites, traffic management, and security
   issues, to the prospective contract. (The contract complexity of
   individual prior contracts will not be combined during evaluations,
   regardless of whether such contracts were performed concurrently, or at
   multiple sites.) [1]

   Id., Enclosure 1 at 1. Consistent with the language of criterion 4 above,
   the revised contractor information sheet requested information regarding
   the number of contemporary construction sites under prior contracts, in
   addition to information regarding security constraints and traffic
   management. In addition, the amended price schedule made certain changes
   to the start and end dates for construction options. Specifically, the
   time period for the exercise of certain option items was changed to
   provide that the options would be exercised within a specified number of
   days from notice to proceed on contract line item 0001, rather than from
   the date of award. Id., encl. 3, at 1.

   By letter dated March 8, the protester sought additional information
   regarding the terms of the revised RFP from the contracting officer, and
   on March 10, 1 day prior to the date specified for receipt of revised
   proposals, CMR protested the terms of the revised solicitation to our
   Office. By letter of March 10, the contracting officer responded to the
   protester's letter of March 8 and extended the due date for receipt of
   revised proposals to March 18. Attached to the letter were additional
   changes to the price schedule.[2] By letter dated March 15, the protester
   sought additional clarifying information from the contracting officer, and
   on March 17, CMR filed another protest with our Office. We dismissed both
   protests as premature on April 4, after the Navy represented that the
   RFP's terms were not yet final and that it had not set a closing date for
   receipt of final revised proposals.

   By letter dated April 8, the Navy responded to the protester's letter of
   March 15 and set April 25 as the closing date for receipt of proposal
   revisions. CMR again protested to our Office on April 18. The agency
   issued a final clarification to the terms of the solicitation, resolving
   one of the protest issues, on April 19.[3] This decision addresses the
   remaining issues raised by CMR.

   ANALYSIS

   CMR argues that the agency's decision to revise the RFP and solicit
   revised offers prior to reevaluating proposals is contrary to our
   recommendation for corrective action. The protester contends that our
   recommendation contemplated only that the agency would reevaluate CMR's
   originally submitted proposal under the original evaluation criteria, and
   argues that permitting proposal revisions is detrimental to its
   competitive position and favors Pizzarotti. In the alternative, CMR argues
   that if the agency does permit submission of revised proposals, it should
   not limit revisions as it currently plans. Specifically, as noted above,
   the agency advised offerors they could revise any part of their proposals,
   including their price, other than the portions responsive to the third
   evaluation factor, schedule. In CMR's view, barring any revision of an
   offeror's proposed performance schedule is unreasonable under the
   circumstances here. In addition, CMR contends that the agency improperly
   held discussions with Pizzarotti, but not with CMR, and that there is a
   conflict in the amended solicitation between the time period for
   exercising options and the performance schedule that could have a material
   impact on pricing.

   With respect to its argument that the agency should not have made changes
   to its requirements in this procurement, while  the protester correctly
   observes that our recommendation contemplated a reevaluation of CMR's
   originally submitted proposal under the original evaluation criteria, the
   fact that the agency has implemented our corrective action in a different
   manner does not, in and of itself, compel a conclusion that the agency
   acted improperly. The details of implementing our recommendations for
   corrective action are within the sound discretion and judgment of the
   contracting agency, and we will not question an agency's ultimate manner
   of compliance so long as it remedies the procurement impropriety that was
   the basis for the recommendation. Rel-Tek Sys. & Design,
   Inc.--Modification of Remedy, B-280463.7, July 1, 1999, 99-2 CPD para. 1
   at 3.

   The procurement impropriety that we identified in our earlier decision
   sustaining CMR's protest was that the agency lacked a reasonable basis for
   its rating of the protester's proposal under the organizational experience
   and past performance evaluation factors. We found that that the agency's
   evaluation of CMR's experience was unreasonable because the RFP did not
   advise offerors that only previous construction projects with values of
   20-30 million euros would be considered relevant, and because the agency
   had failed to furnish a reasonable basis for distinguishing between
   offeror experience in performing projects at multiple sites concurrently
   under multiple contracts, and offeror experience in performing projects at
   multiple sites concurrently under a single contract. Cooperativa Muratori
   Riuniti, supra, at 5-6. We also found that the agency's evaluation of
   CMR's past performance was unreasonable because the record revealed that
   the evaluators had re-rated the protester's performance on a different
   scale, and in response to different questions than those posed to the
   references, and it was not clear that the new ratings were reasonably
   based.[4] Id. at 7-10.

   In answer to the protester's contention that no changes to the
   solicitation were needed here, the agency offers several reasons for its
   view that experience in performing single contracts of 20 to 30 million
   euros is a more accurate predictor of success in performing the effort
   solicited here than experience in performing multiple contracts with an
   aggregate value of 20 to 30 million euros concurrently. First, the agency
   advises that it thinks the administration and management of a single large
   contract differ from the administration and management of multiple smaller
   ones. In this regard, the agency points out that each contract, no matter
   what its size, has only one management team. The agency concludes that the
   management team of a large contract is farther removed from day-to-day
   operations than the management team of a small contract, and therefore
   must be more skilled at delegation and personnel management. The agency
   also advises that it is more confident of the financial capability of a
   contractor with experience performing single contracts in the 20 to 30
   million euro range, than a contractor with experience performing multiple
   smaller contracts aggregating 20 to 30 million euros. The agency explains
   that multiple contracts, with separate invoicing schedules, provide for a
   more constant cash flow to the contractor than a single contract with a
   single invoicing schedule. Thus, in the agency's view, multiple smaller
   contracts may not impose the same sort of financing burden on a contractor
   that a single larger contract does. Affidavit of Chief Engineer, Mar. 2,
   2005.

   In view of the agency's explanation for its decision to amend its
   solicitation to provide additional guidance in the solicitation's
   evaluation scheme about the way in which past performance will be
   reviewed, we conclude that the agency's actions were reasonable.[5]
   Contracting agencies have the discretion to revise the terms of a
   solicitation at any time prior to contract award so long as the revisions
   are reasonably based and offerors are provided an opportunity to revise
   their proposals in response to them. DynaLantic Corp., B-274944.5, Aug.
   25, 1997, 97-2 CPD para. 75 at 4, 7. Since the agency had a reasonable
   basis for the changes it made during the course of implementing corrective
   action, we also conclude that the agency has not acted in a manner
   contrary to our recommendation in revising its solicitation and seeking
   revised proposals prior to conducting the recommended reevaluation.[6]

   CMR next argues, in the alternative, that if the agency allows offerors to
   revise their prices, it should also allow them to revise their schedules
   because changes to an offeror's schedule could have an impact on its
   pricing. The Navy contends in response that it made no revisions to the
   RFP that would have an impact on scheduling, and thus there is no reason
   for it to permit offerors to revise their schedules.

   An agency's discretion in the area of corrective action extends to
   deciding the scope of proposal revisions, and there are circumstances
   where an agency reasonably may decide to limit revisions offerors make to
   their proposals. See, e.g., Computer Assocs. Int'l, B-292077.2, Sept. 4,
   2003, 2003 CPD para. 157 at 5. Where, as here, an agency decides to amend
   a solicitation after closing and permit offerors to revise their proposals
   in response, however, we think that offerors should be permitted to revise
   any aspect of their proposals, including those that were not the subject
   of the amendment, unless the agency offers evidence that the amendment
   could not reasonably have any effect on other aspects of proposals, or
   that allowing such revisions would have a detrimental impact on the
   competitive process. Unlike in prior cases where we found that agencies
   could limit the extent to which proposals may be revised, see, e.g.,
   Rel-Tek Sys. & Design, Inc.--Modification of Remedy, supra; ST Aerospace
   Engines Pte. Ltd., B-275725.3, Oct. 17, 1997, 97-2 CPD para. 106 at 4;
   System Planning Corp., B-244697.2, June 15, 1992, 92-1 CPD para. 516 at 4,
   the agency has not made such a showing here.

   The record does not contain any argument from the Navy that allowing
   offerors to submit revised proposals would impair the competitive process
   in any way. With respect to the effect of the amendment on proposals, the
   Navy argues that it made no revisions to the RFP that would have an impact
   on scheduling, and thus there is no reason for it to permit offerors to
   revise their proposed schedules. We disagree. Clearly, amending the
   solicitation to permit exercise of the options for line items 0003-0007
   for up to 365 days after notice to proceed for line item 0001 could have
   an impact on offerors' schedules, which were based on exercise of these
   options 8 months after contract award. Even to the extent that the delay
   in the performance period could not reasonably be expected to have an
   impact on the sequencing and duration of the various construction tasks,
   we agree with the protester that it could be expected to have an impact on
   schedule-related matters such as the availability of subcontractors and,
   depending on the time of year at which notice to proceed is issued,
   accounting for holiday periods.[7] We are also persuaded that where, as
   here, price revisions are permitted, offerors should be allowed to revise
   any portions of their technical proposals that could have an impact on
   their pricing, which clearly would include schedule. In sum, without some
   rational basis for denying offerors the ability to make revisions to all
   portions of their proposals, we think the Navy's decision to limit the
   scope of revisions to technical proposals was unreasonable. Accordingly,
   we sustain CMR's protest against the agency's failure to permit it to
   revise its schedule in its final offer.

   Next, the protester argues that the agency conducted discussions with
   Pizzarotti regarding a weakness in Pizzarotti's proposal prior to
   requesting final offers, but did not conduct discussions with the
   protester regarding weaknesses in its proposal. The agency responds that
   there was no need to conduct discussions with CMR because the protester
   had obtained detailed information regarding the weaknesses in its own
   proposal through its debriefing and the protest process. We agree, and
   accordingly find no prejudice to CMR. Without a showing of prejudice, we
   will not sustain a protest allegation. McDonald-Bradley, B-270126, Feb. 8,
   1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102
   F.3d 1577, 1581 (Fed. Cir. 1996). The absence of prejudice is particularly
   clear here because, according to the agency, Pizzarotti did not make any
   changes to its proposal in response to the discussions.

   Finally, CMR argues that there is a conflict between solicitation section
   00202-4, which instructs offerors to base their schedules on the exercise
   of all Phase 1 options (i.e., line items 0003-0007) 8 months after
   contract award, and the language of the March 10 revision to the price
   schedule, which provides for exercise of the phase 1 options within 365
   calendar days after notice to proceed on line item 0001. The protester
   contends that the alleged conflict creates uncertainty regarding the
   potential performance period under the contract.[8]

   In our view, CMR's argument in this area is untimely, since the same
   inconsistency existed in the original solicitation (i.e., the RFP
   instructed offerors to base their schedules on exercise of the Phase 1
   options 8 months after contract award, but provided for exercise of the
   option for line item 0003 within 365 calendar days after contract award
   and line items 0004-0007 within 90 calendar days after exercise of line
   item 0003), and the protester did not raise the matter prior to the
   initial closing time. Our Bid Protest Regulations require that protests
   based upon alleged improprieties in an RFP be filed period to the time set
   for receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2005). Nonetheless,
   to the extent that the agency may otherwise be reviewing this solicitation
   prior to the submission of revised proposals, the agency may want to
   review this matter to determine whether there is any need for additional
   clarification in this area.

   Because we find that the Navy has offered no reasonable basis for not
   permitting offerors to revise their proposed schedules in their final
   offers, we sustain the protest on this ground. We recommend that the
   agency request another round of final offers in which offerors are
   permitted to revise all aspects of their proposals. We also recommend that
   the agency reimburse the protester the costs of filing and pursuing the
   protest, including attorney's fees. Bid Protest Regulations, 4 C.F.R.
   sect.21.8(d)(1). In accordance with our section 21.8(f) of our
   Regulations, CMR's claim for such costs, detailing the time expended and
   the costs incurred, must be submitted directly to the agency with 60 days
   after receipt of the decision.

   The protest is sustained in part and denied in part.

   Anthony H. Gamboa

   General Counsel

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

   [1] Prior to revision, the RFP had defined relevant experience as new
   construction or renovation where the project was physically completed
   within the past 5 years, similar in magnitude (euro amount), similar in
   construction features, and similar in other project features such as, but
   not limited to, traffic management and security issues.

   [2] The price schedule, as further amended on March 10, provided for
   exercise of line items 0004-0007 within 365 calendar days after notice to
   proceed on line item 0001. Prior to amendment, the price schedule provided
   for exercise of these line items within 90 calendar days after exercise of
   line item 0003.

   [3] One of the complaints raised by CMR in its protest was that
   specification section 01140N pertaining to one of the buildings stated
   that "[t]he Government reserves rights to delay construction in this area
   up to 700 days," but failed to specify the date from which the 700 days
   would be measured. Protest at 16. In its letter of April 19, the agency
   clarified the language to provide that "[t]he Government reserves rights
   to delay construction in this area up to 700 calendar days from notice to
   proceed for CLIN [contract line item number] 0001."

   [4] The agency's implementation of our recommended corrective action with
   regard to the past performance evaluation factor, which was that the
   offerors' references be contacted again to ensure that they were asked to
   rate performance on the same basis, is not at issue in the current
   protest.

   [5] For the record, and in response to the protester's objections,  we
   recognize that the agency is now raising arguments that it could have
   raised in responding to the earlier protest challenging the agency's
   evaluation of past performance. Nonetheless, we do not think that fact
   bars us from considering them now, since that they are now offered in
   response to a different protest, i.e., one challenging the reasonableness
   of the agency's decision to revise the RFP.

   [6] We also find unpersuasive the protester's argument that the revisions
   to the solicitation here should be considered unreasonable because they
   may be detrimental to the protester's competitive position, given its
   apparent lack of experience with contracts in the 20 to 30 million euro
   range. The fact that an offeror's competitive position will be adversely
   affected by a particular solicitation provision does not bar the agency
   from including that provision so long as the provision is related to its
   needs. Computer Maint. Operations Servs., B-255530, Feb. 23, 1994, 94-1
   CPD para. 170 at 2.

   [7] We recognize that the agency has argued that the due date for issuance
   of a decision on this protest will allow for award in early August 2005,
   which "roughly coincides with the period during which award was originally
   anticipated in 2004," and that, as a result, "performance periods should
   be rather similar to those originally anticipated by offerors in 2004."
   Agency Report at 15. Since we are sustaining this protest in part, we do
   not think that an award date of early August can be presumed.

   [8] The protester also complains that the RFP still contains conflicting
   guidance regarding the overall period of performance. The agency responded
   to a very detailed question from the protester regarding this matter in
   its April 8 letter. The response makes clear that the agency intends a
   36-month period of performance for each phase of the project.