TITLE: Cooperativa Muratori Riuniti, B-294980; B-294980.2, January 21, 2005
BNUMBER: B-294980; B-294980.2
DATE: January 21, 2005
**********************************************************************
Decision
Matter of: Cooperativa Muratori Riuniti
File: B-294980; B-294980.2
Date: January 21, 2005
Reed L. von Maur, Esq., for the protester.
Susan L. Schor, Esq., and Laurence Schor, Esq., McManus, Schor, Asmar &
Darden, for Impresa Pizzarotti & C. S.p.A., an intervenor.
Damon Martin, Esq., and Shivaun White, 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. In evaluating proposals for construction work, agency has not provided
a reasonable basis for distinguishing between offerors' experience in
performing multiple projects at multiple sites under a single contract and
offerors' experience in performing multiple projects at multiple sites
under multiple contracts, particularly where solicitation called for
performance at two separate work sites.
2. Protest against evaluation of past performance is sustained where
record reveals that protester's past performance was re-rated by the
evaluators on a different scale and in response to different questions
than those posed to the references, and it is not clear that the new
ratings were reasonably based.
3. Evaluators reasonably rated protester's proposed construction schedule
as good, as opposed to excellent, where they determined that protester had
offered an accelerated schedule, but had failed to offer evidence that it
had thought through the implications of that schedule with regard to
matters such as staffing.
DECISION
Cooperativa Muratori Riuniti (CMR) protests the evaluation of its proposal
and the award of a contract to Impresa Pizzarotti & C. S.p.A. (Pizzarotti)
under request for proposals (RFP) No. N33191-04-R-4004, issued by the
Department of the Navy for construction of two facilities at Aviano Air
Force Base in Italy. The protester takes issue with the agency's
evaluation of its technical proposal.
We sustain the protest.
BACKGROUND
The RFP, which contemplated the award of a fixed-price contract, requested
prices for a base and six optional line items. Contract line item No.
(CLIN) 0001 (the base item) and CLIN 0002 sought prices for the work
associated with "Phase II" of the effort, construction of a personnel
alert holding area. CLINs 0003-0007 sought prices for the work associated
with "Phase I" of the effort, construction of a heavy drop rigging
facility. The agency notes that the sites at which the two "phases" will
be performed are approximately a half-mile apart. The solicitation
provided for exercise of CLIN 0002 within 180 days after contract award,
CLIN 0003 within
365 days after contract award, and CLINs 0004-0007 within 90 days after
exercise of CLIN 0003.
The RFP provided for award to the offeror whose proposal represented the
best value to the government. Three equally weighted
factors--organizational experience, organizational past performance, and
schedule--were to be considered in the evaluation of technical proposals;
taken together, these factors were to be of approximately equal weight to
price in the evaluation. Proposals were to be rated both overall and with
regard to each evaluation factor as excellent, good, satisfactory,
marginal, or poor.
Six offerors responded to the RFP. The technical evaluation board (TEB)
assigned Pizzarotti's technical proposal ratings of excellent for past
performance and schedule and a rating of good for organizational
experience; overall, the TEB rated the proposal as excellent. The TEB
rated CMR's proposal as good for past performance and schedule and as
satisfactory for organizational experience, resulting in an overall
technical rating of good. The other proposals were rated lower. CMR's
overall price, inclusive of all options, of [deleted] was [deleted], while
Pizzarotti's price of *20,716,210 was [deleted]. The source selection
board determined that the additional quality of Pizzarotti's proposal
outweighed the price difference between the two proposals and selected it
for award. On September 23, 2004, the Navy notified Pizzarotti and CMR
that Pizzarotti had been awarded a contract for CLINs 0001 and 0002. Upon
receipt of a written debriefing, CMR protested to our Office.
DISCUSSION
CMR takes issue with its proposal's rating under each of the evaluation
factors, contending that it should have received a rating of good rather
than satisfactory for organizational experience and ratings of excellent
rather than good for past performance and schedule. The protester argues
that if its proposal had received the technical ratings that it deserved,
the agency would have determined that it represented the best value to the
government.
In reviewing a protest challenging an agency's evaluation of a proposal,
we will not evaluate the proposal anew or substitute our judgment for that
of the agency; we will examine the record to determine whether the
agency's judgment was reasonable and in accord with the RFP evaluation
criteria and with applicable procurement statutes and regulations,
however. Symtech Corp., B-289332, Feb. 19, 2002, 2002 CPD P 43
at 4. As explained below, we conclude that the agency's evaluation of
CMR's proposal under both the organizational experience and past
performance evaluation factors was unreasonable. Because the errors in
the evaluation may have affected the outcome of the competition, and
therefore prejudiced CMR, we sustain the protest.
Experience
The solicitation defined relevant organizational experience as new
construction or renovation where the project was completed within the past
5 years, similar in magnitude (expressed in terms of euro amount), similar
in construction features, and similar in other project features such as,
but not limited to, traffic management and security issues. The RFP
instructed each offeror to submit a list of five relevant projects.
The TEB assigned CMR's proposal a rating of satisfactory under the
organizational experience evaluation factor, noting that "on an experience
basis, [CMR] could only be considered minimally qualified to tackle the
project at hand," and that awarding to the firm "would constitute some
risk to the government." Technical Evaluation Report at 6. The rating
was based on the evaluators' assessment of each of the protester's prior
projects as only "somewhat relevant."
The evaluators arrived at the relevance ratings under this factor by
assessing each project as relevant, somewhat relevant, or "non relevant"
with regard to completion date, construction features, project value, and
project complexity. Ratings of relevant on a minimum of three of the
foregoing criteria were required for the project to be considered
relevant, and ratings of relevant on a minimum of two criteria, or ratings
of somewhat relevant on all four criteria, were required for the project
to be considered somewhat relevant. All five of CMR's projects were rated
as relevant with regard to completion date and construction features, but
none was rated as relevant with regard to project value or project
complexity; because each of CMR's projects was rated as relevant under
only two criteria, each was rated as somewhat relevant overall.
None of CMR's projects was rated as relevant with regard to project value
because none had a completed cost within the agency's estimated price
range for the work to be accomplished pursuant to this solicitation of 20
to 30 million euros. Further, none of the projects was rated as relevant
with regard to project complexity because none was found to be
sufficiently similar, taking into account traffic management, security,
and number of job sites. In particular, CMR's first project was rated as
only somewhat relevant with regard to project complexity because while it
involved airport and job site security, it involved only one job site and
no traffic management; CMR's second project was rated only somewhat
relevant with regard to the criterion because there were no traffic
management or security issues other than job site security, and while the
project involved two sites, they were adjacent to one another; the
protester's third project was rated as somewhat relevant because it
involved only one site and no traffic management; and both the fourth and
fifth projects were rated as "non relevant" because they involved a single
site, job site security only, and no traffic management issues.
CMR argues that its projects demonstrated relevant experience and that it
should have received a rating of good, rather than merely satisfactory,
under the organizational experience factor. Specifically, the protester
takes issue with the agency's rating of its projects as merely somewhat
relevant with regard to project value and project complexity.
With regard to project value, the protester contends that the contract to
be performed here actually consists of two separate projects with a
combined value of 20 to 30 million euros that are to be performed (at
least in part) concurrently, and that it demonstrated experience in
handling multiple projects with a combined value of 20 to 30 million euros
concurrently. In this regard, the protester's proposal referenced the
following projects:
+------------------------------------------------------------------------+
|Project Title |Amount at completion|Date of award|Date of completion|
|------------------+--------------------+-------------+------------------|
|Alghero Airport |*16,380,000 |Jan 01 |Aug 03 |
|Terminal | | | |
|------------------+--------------------+-------------+------------------|
|Siena Recycling |*13,161,600 |Dec 00 |Nov 02 |
|Center | | | |
|------------------+--------------------+-------------+------------------|
|Aviano Fitness |*9,794,250 |Jul 00 |Feb 03 |
|Center | | | |
|------------------+--------------------+-------------+------------------|
|Shopping Center Le|*14,258,000 |Jul 02 |Aug 03 |
|Valli | | | |
|------------------+--------------------+-------------+------------------|
|Soccer Stadium |*8,702,000 |Feb 01 |Sep 02 |
|Expansion | | | |
+------------------------------------------------------------------------+
The proposal also included the following excerpt:
Multiple job sites at the same military base is a situation with which CMR
is extremely familiar. In calendar year 2002, for example, CMR had 5
separate U.S. NAVY managed projects under construction at 5 different
sites at Aviano Air Base alone: Integrated Communications Complex; DoDDs
Kindergarten, Radar Approach Control Facility, Fitness Center, and the
Golf Course Clubhouse. At that time, we had also recently completed work
on the very successful Main Gate Entry and Medical Clinic projects, also
for the U.S. Navy at Aviano. In addition to this $25M in Navy work at
Aviano, during this same time period, we were responsible for the $8.4M
U.S. Air Force Saber and $1.8M Total Maintenance contracts at Aviano Air
Base. Every project under these contracts was delivered with high quality
and respecting the required client delivery timelines. We have a similar
experience at Vicenza and Livorno, where in 2003, we had $19M and $9M in
projects under construction.
CMR Technical Proposal at 4.
The agency argues in response that it was clear from the terms of the
solicitation that only projects with values of 20 to 30 million euros
would be considered relevant, and that, therefore, it was appropriate for
it to rate the protester's projects, which each had a value below that
range, as only somewhat relevant with regard to project value. The agency
further argues that it was reasonable for the evaluators to distinguish
between experience in performing multiple projects under a single contract
with an overall value of 20 to 30 million euros and multiple projects
under multiple contracts with combined values of 20 to 30 million euros
because supervising and administering a 20 to 30 million euro contract is
a much bigger job than supervising and administering a smaller, e.g., 10
million euro, contract. In this regard, the agency notes that there "is a
significant difference in responsibility for [the positions of Project
Manager, Project Superintendent, Assistant Project Manager, Quality
Control Manager, and Safety Specialist] for a project between
*20-30 million compared to a *10 million." Agency Response to
Supplemental Protest and GAO Questions, Dec. 21, 2004, at 5.
Regarding the agency's first argument, the RFP did provide that for
experience to be considered relevant, a project needed to be "similar in
magnitude (euro amount)," which, we think, can only reasonably be
interpreted as meaning that the project needed to be similar in magnitude
to the project(s) here. It is not clear, however, whether the
solicitation here comprised a single project (the overall work effort),
with a value of 20 to 30 million euros, or two projects (construction of a
personnel alert holding area and construction of a heavy drop rigging
facility), with a combined value of 20 to 30 million euros. Either
interpretation is reasonable in our view, given that the RFP itself refers
to the work both as a project (in the specification table of contents) and
as projects (on the RFP cover page, SF 1442).[1] Accordingly, we do not
think that the RFP can be said to have clearly placed offerors on notice
that only projects with values of 20 to 30 million euros would be
considered relevant; rather, we think that it may reasonably be
interpreted as providing for consideration of projects similar in value to
one of the phases as relevant.[2]
Regarding the agency's argument that it was reasonable for the evaluators
to distinguish between experience in performing multiple projects under a
single contract with an overall value of 20 to 30 million euros and
multiple projects under multiple contracts with combined values of 20 to
30 million euros because supervising and administering a 20 to 30 million
euro contract is a much bigger job than supervising and administering a 10
million euro contract, the issue is not whether administering and
supervising a larger contract is more difficult than administering and
supervising a smaller one; the issue is whether administering and
supervising a larger contract is more difficult than administering two
smaller ones with an equivalent overall value concurrently. The agency
has offered no persuasive argument as to why such is the case, whereas the
protester has offered two reasonable arguments as to why concurrent
administration of multiple contracts is in fact more difficult: (1) under
multiple contracts, the contractor is required to deal with multiple
government contract managers, each of whom may interpret and apply
government procedures differently, while under a single contract, the
contractor deals with only one government contract manager, and (2)
increasing the number of contracts increases the number of submittals
since use of the same material at multiple sites under multiple contracts
requires a separate submittal for approval of the material under each,
whereas use of the same material at multiple sites under a single contract
does not. To the extent that the agency argues that it can assume that a
company with experience with a 20 million euro contract will staff
management positions under this contract with qualified individuals, but
that it cannot make the same assumption for companies that have performed
combined efforts of 20 million euros, see id., we do not think that the
agency can reasonably make assumptions about personnel qualifications
without instructing offerors to submit information pertaining thereto and
evaluating such information.
In our view, the agency's evaluation of CMR's projects under the
"similarity in magnitude" (or project value) criterion was unreasonable
because it failed to take into consideration CMR's experience in
concurrently performing smaller projects with combined values in the range
of the estimated value of the contract here. We think that it was
unreasonable for the evaluators not to consider concurrent performance
under multiple contracts at multiple sites as relevant experience with
regard to the effort to be performed here, given that concurrent
performance at multiple sites is precisely what the RFP here requires.
We also think that the agency's determination that none of CMR's projects
demonstrated sufficient similarity with regard to project complexity to be
rated as relevant under that criterion was unreasonable. In our view, it
was not reasonable for the agency to downgrade the relevance ratings of
CMR's projects on the basis that each project, on an individual basis,
failed to involve multiple sites, given that the projects, as a group,
demonstrated abundant experience with multiple sites. It simply makes
little sense that if an offeror presented two projects, each involving
security issues and multiple sites, both would be determined relevant with
regard to project complexity, whereas if an offeror presented two
projects, each involving security issues, that were performed at different
sites at the same time, neither would be determined relevant with regard
to project complexity.[3]
In our view, the record fails to demonstrate that the agency had a
reasonable basis for its determination that CMR could only be considered
minimally qualified with regard to experience and that awarding to the
firm would constitute some risk to the government, and thus that it should
be rated as merely satisfactory with regard to organizational experience.
Past performance
The agency evaluated CMR's past performance on the basis of information
collected by the evaluation boards for other solicitations for which CMR
competed at approximately the same time as the solicitation here. The
agency explains that contractors frequently cite the same projects in
their responses to multiple solicitations, and, thus, to save time and
reduce the intrusion on the references, where a reference check has
recently been made, the evaluators reuse the information rather than
repeating a call.
While we see nothing objectionable in this basic approach, i.e., basing a
past performance evaluation on information compiled in connection with a
different recent solicitation, we do find the manner in which it was
implemented here objectionable. In this connection and as explained more
fully below, the record reveals that the TEB here used the ratings
collected by the other TEBs to re-rate CMR in accordance with a different
rating scale and under different criteria than used by the original TEBs,
and there is no evidence that the new ratings were reasonably based.
Moreover, the record reveals that Pizzarotti, which received a past
performance rating of excellent, was rated pursuant to a different, more
liberal rating scale than either of the scales used to rate CMR's past
performance, and it appears that use of the more liberal rating scale may
have contributed to Pizzarotti's superior rating.
The agency has submitted statements from the individuals who completed the
reference checks for the other TEBs, all of whom indicate that they told
the references whom they contacted to rate CMR's performance on a scale of
excellent/good/satisfactory/marginal/poor. The TEB rating sheets included
in the agency report for four of CMR's five projects do not employ such a
rating scale for the individual questions, however; they use the following
rating scale: exceeded the standard, met the standard, departure from
standard increased risk/impact to the client, departure from standard
caused significant risk/impact to the client, unacceptable departure from
standard.[4] The statements further reveal that with regard to several of
the projects, the questions asked of the reference were not the same
questions as those on the rating sheets completed by the evaluators here.
For example, according to the statement of the chairperson of the TEB for
solicitation No. N33191-04-R-4003, who conducted several of the past
performance checks that were used as a basis for the evaluation of CMR's
past performance under the instant RFP, he asked the references whom he
contacted the following questions:
* Did the contractor achieve high level of coordination
between subcontractors, suppliers, and JV partners, of applicable, of the
project?
* Was the contractor successful at managing
schedule/delivery dates?
* Was the contractor successful at managing costs and
maintaining the project budget?
* Did the contractor complete on the schedule dates required
by the contract?
* Was the contractor responsive and cooperative during
performance, and committed to customer satisfaction?
* Did the contractor comply with safety requirements of this
contract?
* Did the contractor demonstrate proficiency with
computerized CPM schedules?
The forms completed by the TEB here for the same projects instead included
the following questions:
* Did the contractor's performance conform to the terms and
conditions of the contract, including schedule and budget, and
administrative aspects of performance?
* Was the Contractor capable, efficient, and effective?
* Did the contractor's performance conform to its safety
plan?
* Did the contractor's performance conform to its quality
control plan?
* Was the contractor responsive and cooperative during
performance?
* Was the contractor committed to customer satisfaction?
It is apparent from the foregoing that the TEB here re-rated CMR's
performance under the various projects using different questions and a
different rating scale than those used by the evaluators who conducted the
reference checks. Given the difference between the rating scales used and
the questions asked, there is no way that we can be certain that the
ratings on the forms completed by the TEB here accurately reflect the
opinions expressed by the individuals contacted. For example, there is no
evidence that any of the references contacted expressed an opinion as to
whether CMR's performance conformed to its quality control plan, yet the
TEB rated CMR's performance as having met the standard (but not exceeded
it) with regard to all four projects. Further, there is no evidence that
it was reasonable for the TEB to translate the references' original
ratings (of excellent/good/satisfactory/etc.) into virtually across-the
board ratings of "met the standard."[5] In this regard, the agency has
furnished us with neither the original rating sheets, nor with an
explanation as to how it translated the scores. For example, it has not
been explained (and it is unclear to us) whether ratings of "met the
standard" reflect original ratings of satisfactory (as would seem
appropriate) or original ratings of good (pursuant to the reasoning that
"met the standard" was the second highest rating under the original scale,
whereas "good" was the second highest under the scale used by the
TEB).[6] Without such information, we have no basis upon which to
conclude that the agency's evaluation of the protester's past performance
was reasonable.
Further, as noted above, the record reveals that Pizzarotti's past
performance was initially rated using a different, more liberal rating
scale than either of those described above. According to the statement of
the individual who conducted Pizzarotti's reference checks pursuant to an
earlier solicitation, he explained to the references whom he contacted
that they were to rate Pizzarotti's performance in accordance with the
following scale: met or exceeded the standard, close to the standard,
departure from the standard with increased risk, departure from the
standard with significant risk, unacceptable departure from the standard.
This scale differs from those used to rate CMR's past performance in that
it collapses the top two (in the case of the exceeded the standard/met the
standard/etc. scale) or possibly three ratings (in the case of the
excellent/good/satisfactory/marginal/poor scale) into the single top
category of met or exceeded the standard. It would obviously have been
easier for Pizzarotti to attain top ratings under this scale than for CMR
to attain top ratings using either of the others. In our view, the use of
these different rating scales calls into question the even-handedness of
the evaluation of CMR and Pizzarotti's past performance.
Schedule
The solicitation provided that offerors' proposed schedules would be
evaluated to determine the extent to which the offeror proposed to
complete the work within the time frames specified in the RFP. Offerors
were instructed to specify the duration of construction and to submit one
schedule for both phases, including no more than 100 major project
events. The solicitation also provided that the offeror's proposed
schedule would be "enhanced" by addressing the following elements
separately for each building: identified critical path, overall contract
construction schedule, account for holiday periods (U.S. and Italian),
critical equipment delivery dates, and critical submittal submission dates
for the submittals required by the solicitation. The RFP further provided
that "additional consideration" would be given for the following: (1) the
extent to which the management approach is sufficiently detailed to assess
validity, demonstrates flexibility and resourcefulness, and offers a high
probability of success, and (2) early time completion of the contract.
The TEB assigned CMR's proposal a rating of good for schedule. The
evaluators noted that CMR had proposed to complete both phases
significantly early, Phase II [deleted] days early and Phase I [deleted]
days early, according to the evaluators. The TEB went on to explain the
basis for its rating as follows:
Based on having a fully compliant schedule, with advance completion
dates[,] the schedule was rated Good overall. The board could not rate
the schedule excellent because significant justification of these early
completion dates was not provided. The firm provides a narrative that
demonstrates it understands all of the project constraints and phasing,
including stating that it will use [deleted]. In addition the firm states
that it intends to [deleted]. Based on its detailed, correctly
constrained, early completion schedule the firm was rated Good overall for
Factor 3.
Technical Evaluation Report at 6-7.
The protester takes issue with the evaluators' determination that its
schedule could not be rated as excellent because "significant
justification" of its proposed early completion dates was not provided.
CMR argues that the evaluators imposed a requirement for significant
justification based on their misunderstanding as to the degree to which
its proposed schedule was accelerated. In the alternative, the protester
argues that its proposal did offer significant justification.
With regard to the first point, the protester argues that the agency's
requirement for significant justification of its early completion dates
was based on the agency's misperception that its proposed completion dates
were in fact significantly early. The protester argues that it did not
propose to complete the contract work over [deleted] early, as the
evaluators determined; rather, according to the protester, it proposed to
complete the work [deleted] early. The difference is attributable to the
fact that the agency interpreted the solicitation as providing for a
36-month performance period for each phase of the work, with exercise of
the Phase I options to occur 8 months after contract award, while the
protester interpreted the RFP as providing for a single period of
performance of 36 months for accomplishment of both phases.[7]
While the protester has argued that the agency incorrectly calculated the
number of days early that it proposed to complete the work effort in its
entirety (i.e., both Phases I and II), it has not argued that the agency's
calculation that it proposed to complete Phase II of the work [deleted]
early was incorrect. We see no reasonable basis to conclude that the
agency would have required lesser justification for a schedule that
proposed completion of Phase II [deleted] early and completion of Phase I
[deleted] early than a schedule that proposed completion of Phase II
[deleted] early and completion of Phase I [deleted] early, since it is the
completion date for the Phase II work, which remains the same in the two
scenarios, that is the most accelerated. Accordingly, we are not
persuaded by the protester's argument that the agency's miscalculation of
the extent to which its schedule was accelerated resulted in the agency's
requiring a higher degree of justification for the schedule.
As noted, the protester also argues that its proposal did offer
significant justification for its accelerated schedule. CMR asserts that
it offered significant detail in support of its proposed schedule,
including:
* Reciting [deleted] events, rather than merely the required
100, in its CPM schedule.
* Itemizing the [deleted] to the job site for each project.
* Itemizing [deleted].
* Detailing how it intended to use the [deleted].
The protester is essentially disagreeing with the agency's judgment as to
what constitutes significant justification. The mere fact that a
protester disagrees with an agency judgment does not demonstrate that the
agency judgment was unreasonable, however. American States Utilities
Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD P 150 at 7. The
evaluators desired additional evidence that the protester had thought
through the implications of its accelerated schedule with regard to
matters such as staffing,[8] and the protester did not furnish this sort
of additional evidence. We do not think that the evaluators'
determination that the protester's proposed schedule could not be rated as
excellent due to this shortcoming was unreasonable. Accordingly, we deny
this ground of CMR's protest.
CONCLUSION AND RECOMMENDATION
Because we find 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 sustain the protest. We recommend that
the agency reevaluate CMR's proposal with regard to both factors. With
regard to the past performance factor, we recommend that both CMR and
Pizzarotti's references be contacted to ensure that they are asked to rate
performance on the same basis. If, as a result of the reevaluation, CMR's
proposal is determined to represent the best value to the government, we
recommend that the agency terminate the contract awarded to Pizzarotti and
make award to CMR. We also recommend that the agency reimburse the
protester for its costs of filing and pursuing the protest. Bid Protest
Regulations, 4 C.F.R. S 21.8(d)(1) (2004). In accordance with 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
within 60 days after receipt of the decision.
The protest is sustained.
Anthony H. Gamboa
General Counsel
------------------------
[1] We also note that the introductory section of the agency report
describes the work effort as consisting of two projects. See Agency
Report at 2 ("The total estimated cost range for the two projects was
between twenty million (. . .) and thirty million
(. . .) euros.")
[2] Each of the phases represented roughly half of the overall value of
the work effort according to the government estimate.
[3] Regarding CMR's alternative argument that the TEB improperly limited
the factors that it considered in determining whether a project was
similar in complexity to whether the project involved multiple sites,
whether it involved security issues, and whether it involved traffic
management issues, and that it should also have considered similarity in
project features such as safety program management, quality control
program management, CPM [Critical Path Method] management, and
coordination with the customer, we think that it was within the agency's
discretion to determine which project features it would consider in
assessing similarity with regard to project complexity.
[4] The fifth project was rated on a scale of
excellent/good/satisfactory/marginal/poor on a form that included eight
questions. (The questions were similar, but not identical, to either of
the lists of questions set out below.) The reference rated CMR's
performance as satisfactory in response to four questions, as good in
response to three, and as excellent in response to the final question,
which pertained to contractor commitment to customer satisfaction. The
reference rated CMR's overall performance on the contract as good, and
commented that he "considered CMR ROICC Aviano's #1 Contractor for
projects with dollar value of <=$10M." Agency Report, Tab 5(B), at 8.
[5] CMR was rated as having "met the standard" in 21 of 24 instances. (In
one of the remaining three, it was rated as having exceeded the standard,
and it was not rated in the remaining two.)
[6] There is some evidence in the record that ratings of good were
translated into ratings of "met the standard." In this regard, the
protester has submitted a statement from the individual whom the agency
contacted regarding CMR's performance on the Siena Recycling Center
project, who reports that he rated CMR as good or excellent in response to
all questions posed him. The rating sheet completed by the TEB here rates
CMR as having "exceeded the standard" with regard to only one question and
as having merely "met the standard" with regard to the remaining five,
however.
[7] The RFP was ambiguous with regard to the time period for completion of
the entire work effort. In section 00202 (Evaluation Factors for Award),
the solicitation instructed offerers that they should:
Provide the total number of calendar days for the construction duration.
The maximum duration for construction is not to exceed
36 months. . . . Provide one schedule for both phases, including no more
than 100 major project events. The schedules shall be based on exercise
of all Phase I options eight months after contract award and include
government review times.
We think that this passage clearly conveys the intent that both phases of
construction are to be completed within 36 months. A contrary intent is
conveyed in the clause entitled Commencement, Prosecution and Completion
of Work, incorporated into the solicitation on page 00710-19, however.
This clause provides in relevant part as follows:
The Contractor shall be required to . . .
1. CLIN 0001 Basic Work Personnel Alert Holding Area Phase
II: complete the entire work, inclusive of CLIN 0002, not later than 1095
calendar days after contract award; and
2. CLIN 0003 Heavy Drop Rigging Facility Phase I: complete
the entire work, inclusive of CLINs 0004, 0005, 0006, and 0007, not later
than 1095 calendar days after CLIN 0003 option exercise date.
[8] The agency explains that "[t]he issue for the board was that CMR did
not provide the manpower or any other information explaining how it was
projecting to accomplish the tasks in its schedule, which the TEB would
have been able to use to ascertain if it was reasonable for CMR to
accomplish the tasks in the schedule." Agency Response to Supplemental
Protest and GAO Questions, Dec. 21, 2004, at 8.