TITLE: B-298239; B-298239.2, PPG-CMS-PSI JV, July 19, 2006
BNUMBER: B-298239; B-298239.2
DATE: July 19, 2006
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B-298239; B-298239.2, PPG-CMS-PSI JV, July 19, 2006

   Decision

   Matter of: PPG-CMS-PSI JV

   File: B-298239; B-298239.2

   Date: July 19, 2006

   Leslie Vallie for the protester.

   Joseph G. Councill Jr., Esq., Army Corps of Engineers, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest arguing that agency's evaluation of proposals under solicitation
   set aside for service-disabled veteran-owned (SDVO) small business
   concerns was improper because the agency allegedly selected for award
   firms that were not valid small businesses or qualified SDVO small
   business concerns is dismissed; protest ultimately involves the question
   of the status of the awardees as eligible small business and SDVO small
   business concerns, matters within the exclusive statutory authority of the
   Small Business Administration.

   DECISION

   PPG-CMS-PSI JV protests the award of a contract to B&M Construction, Inc.
   under request for proposals (RFP) No. W29128F-05-R-0021, issued by the
   U.S. Army Corps of Engineers, Omaha District, for construction and design
   services in the state of Colorado. PPG challenges the agency's evaluation
   of proposals and argues that B&M is ineligible for award.[1]

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

   On December 5, 2005, the Corps of Engineers issued the solicitation as a
   service-disabled veteran-owned (SDVO) small business set-aside for the
   award of multiple (not more than three)
   indefinite-delivery/indefinite-quantity contracts "to accomplish
   relatively minor projects" for "miscellaneous construction services with
   minor design capabilities for miscellaneous projects located at various
   locations in Colorado", with a base period of 2 years, plus three 1-year
   options. RFP at 00100 - 10 (as amended).[2] While there was no yearly
   dollar limit, or limit to the amount of particular task orders issued
   under the contracts, each contract had a total maximum value of $60
   million.

   Proposals were to be evaluated based on the following factors listed in
   descending order of importance: (1) design experience; (2) construction
   experience (design and construction experience were of equal importance);
   (3) design personnel; (4) construction personnel (design and construction
   personnel were of equal importance); (5) past performance, design; (6)
   past performance, construction; (design and construction past performance
   were of equal importance); (7) project management plan; and (8) price.
   Price was considered "much less important than" factors 1 through 7. RFP
   at 00110 - 17.

   As it relates to the protest, under both the design and construction
   experience factors, offerors were required to identify three projects they
   completed within the past 5 years, each with a construction value of at
   least $1 million. In evaluating offerors' proposals, the agency scored
   them under each of the seven technical evaluation factors using the
   following adjectival ratings: exceptional; above average; average;
   marginal; unacceptable; and neutral. RFP at 00110 -- 6. With regard to
   price, the RFP required offerors to provide hourly rate information for
   various construction and design personnel positions, which would be
   evaluated for reasonableness, realism and completeness. RFP at 00110 --
   16.

   By the RFP's January 11, 2006 closing date for receipt of proposals, the
   Corps had received a total of 10 proposals, including the proposals
   submitted by PPG and B&M. In evaluating PPG's proposal, the Corps assigned
   PPG the following technical factor ratings: (1) design experience --
   average; (2) construction experience -- marginal; (3) design personnel --
   above average; (4) construction personnel -- marginal; (5) past
   performance, design -- above average; (6) past performance, construction
   -- marginal; and (7) project management plan -- average. With these
   ratings, PPG was ranked seventh of the ten offerors. Agency Report (AR)
   Tab 5, Source Selection Authority Report, Apr. 6, 2006, at 7. On April 17,
   the Corps made awards to the three most highly rated offerors: (1) NDG
   Constructors JV; (2) enVision-Kurtz JV; and (3) B&M Construction, which
   had teamed with two other firms, Merrick & Company and Torix General
   Contractors.

   Upon learning of the award decisions, PPG filed a protest with the Corps
   dated April 21 challenging B&M's eligibility as an SDVO small business
   concern and challenging its small business size status. On April 26, the
   Corps forwarded PPG's protest to the Small Business Administration (SBA)
   for resolution. The SBA bifurcated PPG's protest and separately considered
   two issues: the status of B&M as an SDVO small business and whether B&M's
   arrangement with its two principal subcontractors should result in B&M
   being considered other than a small business concern.[3] The SBA dismissed
   the first issue, but as to the second, found that B&M's principal
   subcontractors were "affiliates" and, as a consequence, B&M was other than
   a small business concern and not eligible for award.[4] AR, Tab 10, Letter
   from SBA to B&M Construction, Inc., May 11, 2006. Prior to resolution of
   the size status protest, PPG filed the subject protest with our Office on
   April 25.

   While PPG articulates numerous bases for protest, the gravamen of PPG's
   complaint is that the Corps's entire evaluation was merely a "ruse"
   designed to select large businesses as opposed to SDVO small business
   concerns. Protester's Comments at 6. According to PPG, by comparing the
   capabilities of offerors who were in fact large businesses with those of
   small businesses, the Corps selected offerors capable of performing very
   large projects in contravention of the actual requirements of the RFP,
   which entailed relatively small projects. Not only was this contrary to
   the RFP, but, in PPG's view, it also created an unfair playing field since
   the capacity of large businesses is naturally greater than that of small
   businesses such as PPG.

   As support for its contention, PPG alleges that "many of the firms ranked
   higher [than PPG] were just `Fronts' for large businesses or others" and
   contends that the Corps failed to consider this fact in its evaluation
   since the Corps failed to evaluate the "management and control" of the
   offerors to determine whether they were eligible SDVO small business
   firms. Protester's Comments at 8. By way of example, PPG highlights the
   fact that the Corps had selected B&M for award, yet the SBA later found
   B&M to be other than small and therefore ineligible for award under the
   solicitation.[5]

   While PPG believes that the Corps improperly applied the evaluation
   criteria by selecting firms with capabilities that greatly exceeded the
   requirements of the RFP, it has failed to present any specific support for
   its contention that the agency's evaluation deviated in any way from the
   RFP's evaluation scheme. Rather, PPG's challenge is based solely on the
   supposition that the evaluation must have been improper because the
   awardees and other offerors more highly rated than PPG were, according to
   PPG, not in fact small businesses or did not qualify as valid SDVO small
   businesses concerns.[6] This argument, however, hinges on the small
   business and SDVO small business status of the awardees and other
   offerors, issues which are not for consideration by our Office.
   Specifically, the Small Business Act, 15 U.S.C. sect. 637(b)(6) (2000),
   gives the SBA, not our Office, conclusive authority to determine matters
   of small business size status for federal procurements. Bid Protest
   Regulations, 4 C.F.R. sect. 21.5(b)(1); Randolph Eng'g Sunglasses,
   B-280270, Aug. 10, 1998, 98-2 CPD para. 39 at 3. Similarly, the SBA is the
   designated authority for determining whether a firm is an eligible SDVO
   small business concern, and it has established procedures for interested
   parties to challenge a firm's status as a qualified SDVO small business
   concern. 15 U.S.C. sections 632(q), 657(b); 13 C.F.R. sections 125.25,
   125.27 (2006); Federal Acquisition Regulation (FAR) sections 19.307,
   19.1403. As a consequence, our Office will neither make nor review SDVO
   small business status determinations. Accordingly, we deny PPG's challenge
   to the Corps's evaluation of proposals since it is unsupported by any
   specific evidence demonstrating that the evaluation was unreasonable or
   deviated from the terms of the RFP, and to the extent PPG challenges the
   size status of the awardees or other offerors, or whether they were
   eligible SDVO small business concerns, these aspects of its protest are
   dismissed.

   The protest is denied in part and dismissed in part.

   Gary L. Kepplinger

   General Counsel

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

   [1] PPG also filed a subsequent protest challenging the Corps's issuance
   of RFP No. W9128F-06-R-0013 (RFP 0013), for design and construction work.
   In this separately filed protest, PPG argued that RFP 0013 provided for
   essentially the same scope of work as that covered by RFP No.
   W9128F-05-R-0021 (RFP 0021), the RFP at issue here, and was therefore an
   effort by the Corps to circumvent PPG's protest against the award under
   RFP 0021 and render any decision by our Office meaningless. The agency,
   however, explained, and the record reflects, that the subsequently
   challenged solicitation was issued at the behest of the U.S. Air Force
   Space Command for design and construction of various military projects
   along the Rocky Mountains with work anticipated at Air Force bases in
   Wyoming and Colorado. While, as the agency notes, there could potentially
   be some overlap of work between the solicitations, RFP 0013 differs in
   scope from RFP 0021 since RFP 0013 anticipates the award of contracts with
   a maximum value of $75 million to firms with greater construction and
   design experience, the issuance of task orders with higher dollar values
   (but capped at $10 million), and performance of work at locations in
   Colorado as well as Wyoming. PPG's protest in this regard therefore is
   without merit.

   [2] As originally issued, the RFP provided for the performance of work in
   North Dakota, South Dakota, and Wyoming. However, through an amendment to
   the RFP, the Corps deleted these states, substituting solely the state of
   Colorado. See RFP amend. 1.

   [3] SBA regulations expressly provide that the protest procedures
   governing size protests are separate from those governing a firm's SDVO
   status. 13 C.F.R. sect. 125.25 (2006).

   [4] The Corps has indicated that it intends to take "appropriate action"
   in response to the SBA's decision holding that B&M is not eligible for
   award. Agency Report at 2. At the time of this decision, the Corps
   indicated to our Office that it is awaiting the final resolution of B&M's
   appeal of its size status determination to SBA's Office of Hearings and
   Appeals (OHA).

   [5] In its comments on the agency report, PPG objected to the limited
   documents produced by the agency and requested the proposals of all the
   offerors more highly rated than PPG, as well as the agency's evaluation of
   these firms. The agency did not furnish PPG with this information because
   it had properly designated the information proprietary and source
   selection sensitive; as such, these documents would only be available to a
   protester's legal counsel, through our protective order process. See 4
   C.F.R. sect. 21.4 (2006). PPG decided to proceed without counsel and thus
   the agency properly did not provide PPG with the requested documents.

   [6] PPG argued for the first time in its comments on the agency report
   that the evaluation of the awardee enVision-Kurtz JV was tainted by a
   conflict of interest because, according to PPG, the owner of enVision and
   other employees are former employees of the Corps and PPG suspects that
   they are "close friends with those on the evaluation committee" and that
   the members of the evaluation panel "may be hoping to migrate to the
   private business and join enVision." Protester's Comments at 5. Under our
   Bid Protest Regulations, however, a protester is required to raise issues
   other than alleged solicitation improprieties within 10 days of the time
   it knows, or should have known, of the basis for its protest. 4 C.F.R.
   sect. 21.2(a)(2). Because PPG first raised this issue in its comments on
   the agency report, more than 10 days after PPG learned of the award to
   enVision, this protest ground is untimely and therefore dismissed.