TITLE: B-295582.4, Brewbaker White Sands JV, October 5, 2005
BNUMBER: B-295582.4
DATE: October 5, 2005
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B-295582.4, Brewbaker White Sands JV, October 5, 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: Brewbaker White Sands JV
File: B-295582.4
Date: October 5, 2005
F. Randolph Burroughs, Esq., Burroughs & Rhodes, for the protester.
Maj. Lawrence M. Anderson and Eric Beckstrom, Esq., Department of the Air
Force, 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 of award to offeror that submitted slightly lower-rated,
lower-priced proposal in a best value procurement is proper where record
shows source selection authority performed a rational integrated
assessment of proposals and reasonably determined that (1) both offerors'
past performance proposals were essentially equal in terms of performance
risk, and (2) despite protester's higher adjectival rating for past
performance, price premium involved in an award to the protester on the
basis of its slightly higher-rated, higher-priced proposal was not
warranted given the acceptable level of technical competence available at
the awardee's lower price.
DECISION
Brewbaker White Sands JV protests the award of a contract to NASCENT Group
JV under request for proposals (RFP) No. FA801-04-R-0004, issued by the
Department of the Air Force for Simplified Acquisition of Base Engineering
Requirements (SABER) services at Holloman Air Force Base, New Mexico. The
protester contends that the agency failed to follow the RFP's evaluation
terms, since past performance was the most important evaluation factor,
and the protester's proposal received a higher adjectival rating for past
performance, but the award was made to NASCENT on the basis of its
slightly lower-rated, lower-priced proposal.
We deny the protest.
The RFP, issued on May 10, 2004, contemplated the award of a fixed-price,
indefinite-delivery, indefinite-quantity contract for a base year and 4
option years for a broad range of maintenance, repair, minor
construction/alteration and renovation work.[1] RFP at 139. The following
evaluation factors were provided: technical, past performance, and price.
Offers found to be technically acceptable were to be evaluated for past
performance and price, with past performance more important than price.
RFP at 142. Offerors were advised that
[t]he government will consider awarding to an Offeror with higher
qualitative merit and/or experience and past performance, provided the
difference in price is commensurate with added value. Conversely, the
Government will consider making award to an Offeror whose offer has lower
qualitative merit and/or relevant experience and past performance if the
price differential between this Offeror's proposal and other proposals
warrant[s] doing so.
Id. Both the protester's and NASCENT's technical proposals were evaluated
as acceptable.
Brewbaker White Sands received favorable ratings of very good to
exceptional from its past performance references, and was rated
exceptional for past performance by the evaluators, although the
evaluators noted that no past performance information was referenced for
the joint venture separate from its individual members, and that only
limited government contract experience was identified for the joint
venture's members. The evaluators also noted that several of the
protester's references could not be reached for comments to support their
unexplained high ratings.
NASCENT's past performance reference ratings were also favorable,
predominantly in the very good to exceptional range; NASCENT's past
performance was given an overall rating of very good. While two reference
questionnaires were incomplete and discounted, and a third, less favorable
one, was also discounted after the awardee explained that it pertained to
a different entity, the evaluators noted that the offeror's other past
performance reviews were favorable and demonstrated relevant experience,
including two other SABER contracts.
Price proposals containing proposed price coefficients (multipliers to be
applied to standard unit prices at estimated quantities provided in the
RFP, and reflecting the offeror's profit, general and administrative
expenses, overhead, and mobilization costs) were to be evaluated for
reasonableness. Offerors were also required to provide for evaluation
prices for design task line items related to the different levels of SABER
tasks anticipated by the agency.
NASCENT's pricing coefficients were lower than those proposed by the
protester, resulting in an evaluated price of $109,502,000 for the firm.
The Brewbaker White Sands proposal was evaluated at $115,410,050. Both
firm's evaluated prices were considered reasonable. For the design task,
the protester's price was evaluated at $91,800 for the sum of the design
line items and NASCENT's price was evaluated at $5,625; NASCENT had
proposed a price of "$0.00" for several of the design line items,
explaining to the agency that under its SABER contracts, it considers the
type of design work it priced at zero dollars to be inherent to the
overall SABER services to be provided by the firm.
The SSA in her source selection decision document (SSDD) compared the past
performance strengths, weaknesses, and adjectival evaluation ratings noted
for each of the offerors' proposals, and considered whether the higher
evaluation rating and associated past performance strengths warranted the
payment of the price premium associated with an award to the protester.
For instance, the SSA noted that while the protester's past performance
proposal was credited for one of its members' (White Sands) incumbent
contract for the services, and that favorable past performance ratings had
been given for a variety of work by each of the joint venture's individual
members, no past performance information was available to assess the
performance capability of the joint venture offeror itself. The SSA also
pointed out a lack of any support from several references for the
protester for favorable ratings it received, lessening the usefulness of
those ratings. There was also a concern that only limited information
about Brewbaker's individual past performance was provided, and that,
other than the White Sands incumbent contract for the services, the record
did not demonstrate government contract experience for the protester.
Accordingly, the SSA concluded that the protester's past performance
rating was "barely Exceptional." SSDD at 5.
As for NASCENT's past performance, the record shows that the majority of
past performance reference ratings were all very good to exceptional, and
that several of the references rated work performed by the same joint
venture (rather than its individual members) pursuing the current award
including two similar SABER contracts. The SSA also recognized favorably
that one of the awardee's joint venture members "has a proven track record
for taking over failing ventures and developing successful joint
ventures." Id. at 4. Based on these considerations, the SSA concluded that
NASCENT's past performance deserved a "strong overall `Very Good' rating."
Id. Given their comparative strengths, the SSA reasoned that both offerors
are essentially equal in their ability to provide the required service to
the government . . .[b]oth offerors have demonstrated ability to perform
to the required task magnitude . . . and there is little difference in the
risk posed to the government, leaving price as the factor with primacy
when determining best value to the government.
Id. at 5.
Noting that the RFP provides for award to an offeror with a lower past
performance rating if the price differential associated with a
higher-rated proposal warrants doing so, the SSA determined that, in light
of the offerors' essentially equal ability to successfully perform the
work, the price premium associated with the protester's proposal was not
warranted; the SSA concluded that the NASCENT proposal offered the best
overall value to the government. The agency awarded a contract to NASCENT
on June 27, 2005. This protest followed.
Brewbaker White Sands contends that the agency failed to evaluate the
proposals for award in accordance with the RFP, since the RFP's evaluation
scheme provided that past performance was more important than price. In
this regard, the protester contends that, despite its higher price, it
should have been awarded the contract since it received a higher
adjectival rating for past performance.
In reviewing a protest against an agency's evaluation of proposals and
award, including tradeoff determinations, we examine the record to
determine whether the agency's judgment was reasonable and consistent with
the solicitation's evaluation criteria and applicable statutes and
regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18,
2000, 2000 CPD para. 132 at 4. An agency may properly select a
lower-rated, lower-priced proposal where it reasonably concludes that the
price premium involved in selecting a higher-rated proposal is not
justified in light of the acceptable level of technical competence
available at a lower price. Bella Vista Landscaping, Inc., B-291310, Dec.
16, 2002, 2002 CPD para. 217 at 4. A protester's mere disagreement with
the agency's determinations as to the relative merit of competing
proposals and its judgment as to which proposal offers the best value to
the agency, does not establish that the evaluation or source selection was
unreasonable. Weber Cafeteria Servs., Inc., B-290085.2, June 17, 2002,
2002 CPD para. 99 at 4. Our review of the record here supports the
reasonableness of the agency's comparative review of the merits of the
proposals, its price/past performance tradeoff, and the award decision.[2]
In its comments on the agency report, which included the full evaluation
record and source selection decision documentation, the protester does not
persuasively refute the noted strengths in the evaluation record of the
awardee's past performance, the reasonableness of the SSA's consideration
of the two past performance proposals as being essentially equal, or the
SSA's concerns about the protester's limited joint venture and government
contract experience (and the limited supporting commentary for high past
performance ratings). Rather, the firm generally alleges that because the
RFP provided that past performance is the most important factor for award,
and because it received a higher past performance adjectival rating, it
should have been selected for award. We disagree.
It is well-established that adjectival ratings are merely guides to
intelligent decisionmaking; they do not mandate automatic selection of a
particular proposal. See Calspan Corp., B-255268, Feb. 22, 1994, 94-1 CPD
para. 136 at 10. Rather, selection officials must decide whether the
different ratings show technical superiority and what that difference may
mean in terms of contract performance in determining whether a price
premium associated with that superiority is warranted. See Computer Tech.
Servs., Inc., B-271435, June 20, 1996, 96-1 CPD para. 283. Here, as
discussed above, the SSA performed a comprehensive integrated assessment
of the proposals and concluded that in terms of performance risk, based on
a comparative review of the offerors' past performance, the proposals were
essentially equal, making price the determinative factor for award.
Neither the protester, nor our review of the record, provides a basis to
question the reasonableness of that determination.
As set forth above, while the protester's past performance had noted
strengths, the SSA also noted its related weaknesses and the agency's
concerns about the offeror's limited relevant experience as a joint
venture and government contractor. Conversely, while the awardee's past
performance was rated as very good, rather than exceptional, the SSA noted
the strengths of the firm's past performance and its direct relevance to
the current SABER contract. Moreover, the protester provides no basis to
challenge the reasonableness of the SSA's determination that, given
NASCENT's lower price, and the acceptable level of technical competence
and the high probability of successful performance by this experienced
SABER contractor, any technical superiority that might be associated with
the slightly higher adjectival rating received by the protester does not
justify the payment of the price premium associated with an award to that
offeror. Therefore, whether the SSA viewed the proposals as essentially
technically equal, making price the proper basis of selection, or
concluded that the adjectival ratings of the proposals did not warrant
paying the price premium associated with the Brewbaker White Sands
proposal, we find nothing improper in the SSA's selection decision.[3] Id.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] We note, as a matter of background, that Brewbaker White Sands
originally protested a December 9, 2004 award to NASCENT under this RFP;
that protest was dismissed as academic after the agency agreed to
reevaluate the proposals. The protester then challenged the agency's
subsequent selection of NASCENT for award; that protest was dismissed as
academic when the agency agreed to provide a new source selection
authority for a final award decision. The current protest relates to the
new source selection authority's selection of NASCENT for award.
[2] We also note that to the extent the protester alleges that the
procurement was tainted by bias by the SSA, the protester has not provided
any support for the contention; our Office will not attribute unfair or
prejudicial motives to procurement officials on the basis of inference or
supposition. ACC Constr. Co., Inc., B-289167, Jan. 15, 2002, 2002 CPD
para. 21 at 4. We point out that while the protester questions certain
similarities in the final and previous SSDDs, the agency has explained
that the similarities, which appear in the SSDD's procurement history
provisions, stem from the use by both SSAs of a standard form for that
purpose. The agency reports, however, that each SSA's review of the
proposals and evaluation record for technical merit and price, and the
analysis supporting the award decision, are not based on any standard
provisions, but rather reflect each SSA's independent review and
consideration of the procurement record.
[3] To the extent that the protester generally challenges the adequacy of
the price evaluation, our review of the record shows no valid basis of
protest. For instance, although the protester alleges that the awardee's
price proposal should have been rejected for submitting an offer of
"$0.00" for several design line items, there is nothing improper in an
offeror electing not to charge for certain items or services; where, as
here, an offeror indicates a commitment to furnish the item in question by
inserting "$0.00" in its proposal, its proposal is compliant. GTSI Corp.,
B-286979, Mar. 22, 2001, 2001 CPD para. 55 at 6. Further, it is
insufficient for a protester to challenge the propriety of a fixed-price
contract award on the ground that the awardee submitted a below-cost
proposal; fixed-price contracts generally are not subject to adjustment
during performance, and NASCENT, not the agency, will bear the financial
risk, if any, including a low profit margin. SatoTravel, B-287655, July 5,
2001, 2001 CPD para. 111 at 4-5 n.3. The protester also provides no
support for its contention that the awardee's pricing is unbalanced; there
has been, for instance, no showing of any overstatement of prices. See RFP
at 139; Federal Acquisition Regulation sect. 15.404-1(g). Lastly, the
protester gives no support for, or showing of prejudice related to, its
contention that it was unreasonable for the agency to use a pricing
formula for evaluation purposes that resulted in evaluated prices in
excess of the contract's maximum price.