TITLE: B-297367, Hera Constructive S.A./Synthesis S.A., Joint Venture, December 20, 2005
BNUMBER: B-297367
DATE: December 20, 2005
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B-297367, Hera Constructive S.A./Synthesis S.A., Joint Venture, December 20, 2005

   Decision

   Matter of: Hera Constructive S.A./Synthesis S.A., Joint Venture

   File: B-297367

   Date: December 20, 2005

   Constantinos Fotiadis for the protester.

   Damon A. Martin, Esq., Department of the Navy, the agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester's contention that the agency's evaluation of its and the
   awardee's proposals was unreasonable, and that the agency failed to
   consider the protester's extensive general experience, is denied where the
   record shows that the agency's evaluation of both proposals was consistent
   with the solicitation's stated scheme.

   DECISION

   Hera Constructive S.A./Synthesis S.A., Joint Venture protests the award of
   a contract to Ergodomi S.A. by the Department of the Navy pursuant to
   request for proposals (RFP) No. N33191-05-R-1206, issued for the
   demolition of an existing sewage treatment plant and the construction of a
   new reinforced concrete tertiary treatment plant at the Naval Support
   Activity located at Souda Bay on the island of Crete, Greece.
   Hera/Synthesis argues that the Navy's evaluation of its proposal, and the
   awardee's proposal, was unreasonable.

   We deny the protest.

   BACKGROUND

   The Navy issued the RFP on May 12, 2005, seeking offerors to construct a
   new tertiary sewage treatment plant at its Souda Bay facility. The
   solicitation advised that the award would be made without discussions, if
   possible, to the offeror whose proposal provides the best value to the
   government considering price and technical merits. RFP at 22. The RFP
   identified three evaluation factors: organizational experience,
   organizational past performance, and price. Potential offerors were
   advised that organizational experience and organizational past performance
   would be equal in importance, and together, would be approximately equal
   in importance to price. Id.

   The RFP directed offerors to submit a list of five relevant
   previously-performed contracts, advised that the list would be used for
   the evaluation of both experience and past performance, and warned that
   the evaluation would not consider more than five contracts. In fact, the
   solicitation explained that if an offeror submitted more than five
   contracts, only the first five would be evaluated. Id. at 23. The RFP did
   reserve to the government the right to consider an offeror's performance
   of other contracts known to the government, regardless of whether those
   contracts were identified in the proposal. Id. at 24. The RFP also
   identified several indicia of relevance the agency would use in assessing
   the previously-performed contracts, including that the contract involve
   new construction or renovation completed during the past 5 years, and be
   similar in size, construction features and other contract features. The
   RFP explained that higher ratings "may" be awarded for identified
   contracts involving performance on an island, at other remote locations,
   in high security areas, or at airports. Id. Offerors were also required to
   identify key personnel in their proposal, and the experience of the
   proposed key personnel was to be considered as part of the evaluation of
   the experience factor.

   The RFP advised that proposals would be rated overall, and under each
   factor, as either excellent, good, satisfactory, marginal, or poor. With
   respect to these ratings, the RFP explained that a rating of marginal or
   poor for any factor would result in a rating of marginal or poor overall;
   the RFP also explained that only those proposals rated satisfactory or
   higher would be eligible for award. Id. at 22, 25.

   By the June 16 closing date, the Navy received four proposals, including
   those of the protester and the awardee. The Hera/Synthesis proposal
   identified five previously-performed contracts, as the RFP directed, and
   also included a list of 46 separate projects either completed or underway
   by Hera/Synthesis (or a predecessor version of the joint venture) for the
   U.S. government in Greece. The evaluators reviewed the five contracts
   identified in the proposal as directed; they did not review the 46
   separate projects also identified.

   In the evaluators' view, only three of the contracts identified in the
   Hera/Synthesis proposal were relevant to the work here. These were: a
   contract for construction of an earlier phase of a sewage treatment plant
   (also at the Navy's Souda Bay location in Crete), a contract for
   construction of a Bachelor Enlisted Quarters (BEQ) at Souda Bay, and a
   contract for construction of base offices at Souda Bay. The remaining two
   contracts were not viewed as relevant, and thus were not evaluated
   further. These were: a contract for construction of a Department of
   Defense Dependents School in Larissa, Greece; and a commercial contract
   for the conversion of an existing building to a four-star hotel in
   Thessalonica, Greece.

   Under the experience factor, the evaluators noted certain strengths in the
   Hera/Synthesis proposal. For example, the key personnel team identified
   had previously worked together on the sewage treatment plant contract. The
   evaluators considered it a weakness, however, that only one of the five
   identified contracts involved construction of a sewage treatment plant.
   Thus, the proposal was rated marginal for experience. Based on information
   received from the references, the proposal received a past performance
   rating of good, and consistent with the RFP's admonition, the marginal
   rating received for experience resulted in a marginal rating overall.

   The Ergodomi proposal also identified five previously-performed contracts
   as required. Four of the five contracts identified were for the
   construction of sewage or water treatment facilities, and all five
   contracts were viewed as relevant by the evaluators. In addition, all five
   of the identified contracts--including the four for the construction of
   sewage or water treatment facilities--were performed on the island of
   Crete, which the evaluators viewed as a strength. As a result, the
   Ergodomi proposal received a rating of excellent for experience. Although
   Ergodomi received excellent ratings for past performance from the
   references the Navy was able to reach, there were some references the Navy
   was not able to contact. Agency Report (AR), Tab 10, at 5-6. As a result,
   the Ergodomi proposal received a rating of good under the past performance
   factor, but still received an overall rating of excellent.

   At the conclusion of the evaluation, the ratings, and prices of the
   offerors were as follows:

   +------------------------------------------------------------------------+
   |    Offeror     |  Experience  |    Past     |   Overall    |   Price   |
   |                |              |             |              |           |
   |                |              | Performance |    Rating    |           |
   |----------------+--------------+-------------+--------------+-----------|
   |Ergodomi        |  Excellent   |    Good     |  Excellent   |EUR675,000 |
   |----------------+--------------+-------------+--------------+-----------|
   |Offeror A       | Satisfactory |    Good     | Satisfactory |EUR745,000 |
   |----------------+--------------+-------------+--------------+-----------|
   |Hera/Synthesis  |   Marginal   |    Good     |   Marginal   |EUR740,000 |
   |----------------+--------------+-------------+--------------+-----------|
   |Offeror B       |   Marginal   |    Good     |   Marginal   |EUR598,000 |
   +------------------------------------------------------------------------+

   AR, Tab 10, at 6. Given these results, the selection official chose
   Ergodomi for award of this contract. This protest followed.

   DISCUSSION

   Hera/Synthesis challenges its overall rating of marginal and argues that
   the evaluation here was unreasonable. Specifically, the protester contends
   that its extensive contracting experience with the U.S. government should
   have resulted in a higher experience rating, argues that the agency's
   relevance determinations about the contracts it identified were
   unreasonable, challenges the past performance ratings it received, and
   argues that the Navy unreasonably failed to consider certain negative
   performance information about Ergodomi that was clearly known to the
   government. We have reviewed all of the challenges raised by
   Hera/Synthesis, as well as the record as a whole, and in our view the
   Navy's evaluation and selection decision had a reasonable basis. Although
   we will not discuss each of the contentions raised by the protester, we
   set forth below representative examples of the protester's arguments in
   each area identified above.

   Our Office examines an agency's evaluation of experience and past
   performance to ensure that it was reasonable and consistent with the
   stated evaluation criteria and applicable statutes and regulations;
   however, the necessary determinations regarding the relative merits of
   offerors' past performance records are primarily matters within the
   contracting agency's discretion. Kay & Assocs., Inc., B-291269, Dec. 11,
   2002, 2003 CPD para. 12 at 4. In this regard, our Office will not question
   an agency's determinations absent evidence that those determinations are
   unreasonable or contrary to the stated evaluation criteria. Id.

   As an initial matter, we recognize that the protester here has extensive
   experience as a valued contractor for the U.S. government. The protester's
   list of 46 separate projects completed or underway for the U.S.
   government, provided both in its proposal and to our Office, displays a
   wide range of construction experience. Nonetheless, the evaluation of
   proposals in a given procurement must follow the stated evaluation scheme
   set forth in the solicitation. Tennier Indus., Inc., B-286706.2,
   B-286706.3, Mar. 14, 2001, 2002 CPD para. 75 at 3.

   Here, the solicitation limited the review of an offeror's experience to
   the five previously-performed contracts identified in the offeror's
   proposal. These contracts formed the pool of information to be considered
   by the evaluators for determining whether the contractor has performed
   work that is "comparable to the types of work covered by this
   requirement." RFP at 22. As a result, there was no basis for the agency's
   evaluators to look to the protester's performance of other U.S. government
   contracts to assess the proposal under the experience factor, and this
   evaluation is not, in any way, flawed because the evaluators limited their
   review in precisely the way the solicitation advised. See Tennier Indus.,
   Inc., supra.

   We also see nothing unreasonable in the agency's determinations about
   which of the protester's identified contracts were relevant, and which
   were not. For example, the protester complains that the Navy failed to
   recognize that renovation work performed on the Tobacco Hotel required
   certain types of effort that meet the standards for relevance identified
   in the technical evaluation board report. AR, Tab 7, at 4. Even assuming
   the protester is right about the relevance of the work involved in this
   renovation, it is the responsibility of the offeror to provide sufficient
   information about the projects in its proposal to ensure they will be
   assessed as relevant. See, e.g., Interstate Gen. Gov't Contractors, Inc.,
   B-290137.2, June 21, 2002, 2002 CPD para. 105 at 5. On this subject, the
   proposal's narrative explanation of its previous effort related to the
   Tobacco Hotel, in its entirety, reads as follows:

   Conversion of [a] scheduled (listed) monumental building into a four (4)
   star hotel on 25, Ag. Dimitriou street in Thessalonica. The construction
   included strengthening and reinforcement of the existing structural frame
   of the building. The cell was maintained and a new hotel was built.

   AR, Tab 4 (Protester's Past Performance Proposal), at 5. Given this
   description, we see nothing unreasonable about the agency's conclusion
   that the work covered by the identified contract has little relevance to
   the construction of a new sewage treatment facility.

   With respect to the evaluation of its past performance, the protester
   argues it should have received a rating of excellent, rather than good. We
   need not address the protester's arguments regarding its past performance
   rating since it was not prejudiced by any alleged errors in this area.[1]
   As noted above, the RFP here specified that a rating of marginal under any
   factor would result in a rating of marginal overall, and that only those
   proposals rated satisfactory or higher would be eligible for award.
   Accordingly, given our conclusion that the agency reasonably rated the
   protester's proposal as marginal under the experience factor, the
   protester would be ineligible for award even if its rating under past
   performance factor were raised to excellent.[2] Med Optical, B-296231.2,
   B-296231.3, Sept. 7, 2005, 2005 CPD para. 169 at 4.

   The protester also argues that the agency should have used its
   discretionary authority, expressly identified in the RFP, to consider
   certain negative information about Ergodomi's performance of a contract
   the company did not identify in its proposal. In this regard, the
   protester claims that the awardee is running over schedule in completing
   the construction of a small veterinary clinic and dog kennel for the Navy
   at Souda Bay. Under the evaluation scheme identified in this solicitation,
   we think the agency could reasonably decide not to view as relevant to the
   construction of a sewage treatment facility performance issues arising
   from the
   construction of a veterinary clinic and dog kennel. We see nothing about
   this situation that renders unreasonable the agency's evaluation of
   Ergodomi's past performance.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Our Office will not sustain a protest unless the protester
   demonstrates a reasonable possibility that it was prejudiced by the
   agency's actions, that is, unless the protester demonstrates that, but for
   the agency's actions, it would have had a substantial chance of receiving
   the award. McDonald-Bradley, B-290126, Feb. 8, 1996, 96-1 CPD para. 54 at
   3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
   1996).

   [2] For the record, we recognize that the protester correctly argues that
   one of its references provided underlying performance ratings that appear
   inconsistent with the overall rating used by the Navy for that project.
   Assuming arguendo that there is an error in the protester's performance
   rating, the protester cannot overcome its marginal rating under the
   experience factor, which, as the RFP indicated, renders the proposal
   ineligible for award.