TITLE: B-299523, Head Inc., June 8, 2007
BNUMBER: B-299523
DATE: June 8, 2007
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B-299523, Head Inc., June 8, 2007

   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: Head Inc.

   File: B-299523

   Date: June 8, 2007

   Richard D. Lieberman, Esq., and Nicole S. Allen, Esq., McCarthy, Sweeney &
   Harkaway, PC, for the protester.

   James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc
   Kelly PLLC, for Hi-Way Paving, Inc., an intervenor.

   Allen E. Sebastian, Esq., Department of the Army, for the agency.

   Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency failed to conduct meaningful discussions with
   protester by not raising concerns about what was, in essence, an alternate
   proposal to compress the construction schedule for this effort from 38
   months to 11 months, with no supporting documentation, is denied where the
   protester offered the compressed construction schedule in a two-sentence
   response to the solicitation's call for "betterments," which were defined
   as components or systems that would exceed the solicitation's stated
   minimums, and the agency reasonably elected to view the response as
   inconsistent with the kind of improvements sought by the solicitation, and
   did not raise the matter during otherwise appropriate discussions, or
   consider it further in any way.

   DECISION

   Head Inc., protests the award of a contract to Hi-Way Paving, Inc., under
   request for proposals (RFP) No. W912QR-07-R-0005, issued by the Department
   of the Army, Army Corps of Engineers for airfield runway upgrades at
   Johnstown-Cambria Airport in Johnstown, Pennsylvania. Head argues that the
   agency failed to conduct meaningful discussions with the firm which
   resulted in an unreasonable price/technical tradeoff.

   We deny the protest.

   The RFP sought proposals for design-build construction services for
   airfield runway upgrades. The construction project was divided into a base
   requirement and six option requirements, such as turnaround pads, fence
   upgrades, runway shoulders, and shoulder lighting. The RFP advised that
   the successful contractor would commence work within 10 days after receipt
   of the notice to proceed, and that the entire project must be completed
   not later than 1,140 calendar days after receipt of the notice to proceed.
   RFP at 4, 22.

   The RFP provided for the award of a fixed-price contract, with a
   Historically Underutilized Business (HUB) Zone small business concern
   price evaluation preference, to the offeror whose proposal represented the
   "best value" to the government, all factors considered. The RFP listed, in
   descending order of importance, the following technical or non-price
   evaluation factors and subfactors: (1) experience (prime contractor
   experience and design team experience); (2) past performance (prime
   contractor past performance, design team past performance, and past
   performance on utilization of small businesses); and (3) management. Id.
   at 10-12. The RFP also provided that proposed prices would be evaluated
   for realism and reasonableness and stated that the technical or non-price
   evaluation factors when combined were equal to price. Id.

   The RFP included detailed instructions for the preparation of technical
   and price proposals, and offerors were advised to prepare their proposals
   in sufficient detail to enable the agency to make an effective and
   equitable evaluation of the offeror's experience, technical approach and
   management capabilities to successfully complete the project. Id. at 7. As
   it relates to this protest, the RFP advised that:

     Requirements stated in this RFP are minimums. Innovative, creative or
     cost-saving proposals that meet or exceed the requirements are
     encouraged and will be rated accordingly. Any deviations from
     requirements should be clearly noted and justified in the proposal.

   Id. In addition, offerors were informed that they could propose what the
   solicitation termed "betterments," which were defined as "any component or
   system which exceeds the minimum requirements stated in the [RFP]." Id. at
   23. With regard to price, the RFP required offerors to complete the
   solicitation's price schedule which included separate line items for the
   base and option requirements. The RFP stated that each offeror's proposed
   price would be evaluated based on the total prices proposed for the base
   requirements and all options. Id. at 4, 7. The RFP also stated that any
   "proposed betterments identified in the proposal are to be listed with a
   separate price included for each" but did not state how the proposed
   betterments would be evaluated. Id. at 8.

   Five firms submitted initial proposals, including Head (a HUBZone small
   business concern) and Hi-Way Paving (a small business concern). Proposals
   were evaluated by the agency's source selection evaluation board (SSEB)
   using adjectival ratings which were supported by narrative descriptions of
   the strengths, weaknesses, and deficiencies in each offeror's proposal.
   The initial proposal submitted by Head was evaluated technically as "good"
   overall, and had an evaluated total price of $19,121,251.30;[1] Hi-Way
   Paving's proposal was evaluated as "excellent" overall, and had an
   evaluated total price of $18,039,000. There were no weaknesses or
   deficiencies identified for either of the proposals submitted by Head or
   Hi-Way Paving and the proposals of all five offerors were included in the
   competitive range. Agency Report (AR) exh. 11, SSEB's Comparative Analysis
   Report, at 1-13; AR exh. 8, Contracting Officer's Determination of the
   Competitive Range.

   The agency then conducted written discussions with each offeror. In its
   letter to the protester, the agency stated: "Your price proposal exceeds
   the total amount of funds available for contract award. The funds
   available for this project are $15,919,200. Please re-evaluate your price
   proposal to determine if there are areas that can be reduced while
   maintaining the quality of work." AR exh. 10, Discussion Letter from
   Contracting Officer to Head (Dec. 11, 2006). In response, Head submitted a
   revised proposal with a total proposed price of $18,400,473.55.[2] AR exh.
   10, Head's Revised Proposal (Dec. 15, 2006). Each of the other competitive
   range offerors, including Hi-Way Paving, received a written discussion
   question concerning their proposed prices, all of which exceeded the funds
   available. See AR exh. 9, Discussion Letter from Contracting Officer to
   Hi-Way Paving (Dec. 11, 2006); AR exh. 8, Contracting Officer's
   Determination of the Competitive Range.

   Final proposal revisions were requested, received and evaluated.
   Thereafter, the agency reopened discussions to incorporate new wage rates
   applicable to this solicitation. The final overall technical ratings and
   prices for the four offerors that remained in the competition were as
   follows:

   +------------------------------------------------------------------------+
   |            |Hi-Way Paving |Offeror A     |Head[3]       |Offeror B     |
   |------------+--------------+--------------+--------------+--------------|
   |Overall     |Excellent     |Excellent     |Good          |Satisfactory  |
   |Rating      |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |1.          |Excellent     |Excellent     |Good          |Satisfactory  |
   |Experience  |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |Prime       |Excellent     |Excellent     |Good          |Satisfactory  |
   |Contractor  |              |              |              |              |
   |            |Good          |Good          |Excellent     |Satisfactory  |
   |Design Team |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |2. Past     |Good          |Excellent     |Satisfactory  |Good          |
   |Performance |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |Prime       |Excellent     |Excellent     |Satisfactory  |Good          |
   |Contractor  |              |              |              |              |
   |            |Satisfactory  |Good          |Good          |Satisfactory  |
   |Design Team |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |3.          |Excellent     |Good          |Good          |Satisfactory  |
   |Management  |              |              |              |              |
   |Plan        |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |4. Price    |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |Proposed    |$18,184,236.00|$21,992,600.00|$18,474,512.30|$18,524,377.48|
   |------------+--------------+--------------+--------------+--------------|
   |Evaluated   |$18,184,236.00|$24,191,860.00|$18,474,512.30|$20,376,815.23|
   |(with       |              |              |              |              |
   |HUBZone     |              |              |              |              |
   |preference) |              |              |              |              |
   |------------+--------------+--------------+--------------+--------------|
   |Government  |$21,329,865.00|              |              |              |
   |Estimate    |              |              |              |              |
   +------------------------------------------------------------------------+

   AR exh. 11, SSEB Comparative Analysis Report at 20-21, 23.

   The contracting officer, as the source selection official (SSO), reviewed
   the SSEB's evaluations of each proposal and performed a price/technical
   tradeoff. The SSO noted that while Hi-Way Paving's and Offeror A's
   proposals had received the highest technical rating overall, Offeror A's
   price was substantially higher than the Hi-Way Paving price. The SSO
   concluded that nothing in Offeror A's proposal justified paying the price
   premium associated with Offeror A's proposal and determined that the
   proposal submitted by Hi-Way Paving represented the best value to the
   government. Id. exh 12, Source Selection Decision Document at 2-3. The
   agency awarded the contract to Hi-Way Paving and, after receiving a
   debriefing, Head filed this protest.

   Head argues that the agency failed to engage in meaningful discussions
   regarding the firm's price proposal. More specifically, the protester
   states that it learned during its debriefing that the firm's lower-priced
   proposed betterments were not considered by the agency because Head had
   not explained how it could achieve a shorter construction schedule.
   According to the protester, it was led to believe by the terms of the
   solicitation that the agency desired acceleration of the overall
   completion of the project.[4] Head states that it was on this basis that
   the firm proposed the betterments which offered a shorter construction
   schedule with significant price reductions,[5] and insists that the Corps
   was obligated to "inquire about Head's proposed betterments, either
   concerning its price, its reasoning, or any other aspect of Head's
   betterments proposal" when the agency realized that Head's proposed prices
   exceeded the funds available. Protest at 3; Protester's Comments at 2-6.

   We disagree. In our view, Head's proposed betterment was not consistent
   with what the solicitation envisioned by this term. As mentioned above,
   the solicitation defined a betterment as "any component or system" that
   exceeds the minimum solicitation requirements. Head's offer to shorten the
   duration of this construction project (the base bid) from 38 months to 11
   months was essentially an alternate proposal with no supporting
   information. In this regard, we think an offer to dramatically compress an
   agency's construction schedule is a significant matter that could not be
   considered without a thorough explanation of how the schedule compression
   would be accomplished.

   Moreover, we note that the RFP specifically advised that offerors must
   provide detailed information in their proposals concerning technical
   approach and management capability to complete the construction project;
   the RFP also expressly stated that "any deviations" from the solicitation
   requirements--such as the construction schedule--should be justified in
   the offeror's proposal. RFP at 7. While the protester disputes that it was
   required to provide detailed information regarding the achievability of
   its proposed shorter construction schedule, see Protester's Comments at 2
   (solicitation "did not require or ask for such detail"), the protester
   does not demonstrate in any persuasive way that its interpretation of the
   solicitation's instruction provisions is reasonable.

   Given the solicitation's requirement that offerors provide details
   regarding any deviations in their proposals, we think the agency
   reasonably declined to consider Head's alternate proposal--tendered in the
   guise of a proposed betterment, and with no supporting information. To the
   extent that Head thinks its alternate approach should have been addressed
   during discussions, we note that offerors bear the burden for failing to
   submit an adequately written proposal, and contracting agencies are not
   obligated to go in search of needed information which the offeror has
   omitted or failed to present. Fluor Daniel, Inc., B-262051, B-262051.2,
   Nov. 21, 1995, 95-2 CPD para. 241 at 8.

   In any event, the record shows that the protester here submitted an
   acceptable proposal which received the second highest technical rating of
   "good" overall. In addition, Head's proposal--without considering the
   so-called betterment--had no weaknesses or deficiencies that kept Head's
   proposal from being fully acceptable, or from otherwise having a
   reasonable chance of being selected for award. As a result, we think the
   discussions that were held, which addressed only Head's detailed and
   supported proposal--as opposed to its unsupported alternate proposal--were
   reasonable. See Federal Acquisition Regulation sect. 15.306(d)(3);
   American States Utils. Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD
   para. 150 at 6; Northrop Grumman Info. Tech., Inc., B-290080 et al., June
   10, 2002, 2002 CPD para. 136 at 6.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Head's initial proposal included two proposed betterments explained,
   in their entirety, as follows:

     We propose to shorten the duration of the base bid to eleven (11) months
     in lieu of the thirty eight (38) months shown on the bid form. If this
     duration reduction is accepted our base bid price can be reduced to
     $13,394,000.00.

     Lighted portable runway closure crosses can be provided for the main
     runway at no additional cost.

   AR exh. 5, Head's Proposed Betterments. However, the protester's proposal
   did not describe its approach to completing this project under a shorter
   construction schedule. The agency reports that the evaluators did not
   consider Head's alternate lower price premised on a shorter construction
   duration because there was no supporting documentation explaining this
   betterment in its technical proposal.

   [2] The protester's revised proposal again included the proposed
   betterments, but lowered the price for its shorter construction schedule
   from $13,237,566.20 to $12,745,905.00. In addition, the revised proposed
   betterments also indicated that "[i]f the bid options are awarded, our
   duration would be twenty (20) months with our base bid remaining at
   $12,745,905.00." Id. Head's Proposed Betterments, Rev. 1 (Dec. 15, 2006).

   [3] In its final price revision, Head proposed:

     to shorten the duration of the base bid to eleven (11) months in lieu of
     the thirty-eight (38) months shown on the bid form. If this duration
     reduction is accepted our base bid price can be reduced from
     $13,299,446.20 to $12,807,785.00. If the bid options are awarded, our
     duration would be twenty (20) months with our base bid remaining at
     $12,807,785.00.

   AR exh. 10, Head's Proposed Betterments, Rev. 2 (Feb. 15, 2007).

   [4] For example, the solicitation indicates that the project was selected
   to be fast track design-build. RFP at 23. The agency reports that fast
   tracking is a process by which the design-build contractor can begin
   initial construction activities in advance of 100-percent design
   completion, and that the process is not dependent on any offeror's
   proposed construction schedule. Agency Legal Memorandum, at 7 n.1.

   [5] Head also initially challenged the technical and past performance
   evaluation of the awardee's proposal. The Corps specifically responded to
   these protest allegations in the agency report, but in its comments the
   protester did not substantively respond to the agency's detailed rebuttal.
   Thus, we consider Head to have abandoned these protest bases and will not
   consider them further. International Marine Prods., Inc., B-296127, June
   13, 2005, 2005 CPD para. 119 at 5 n.3; see Delco Indus. Textile Corp.,
   B-292324, Aug. 8, 2003, 2003 CPD para. 141 at 3 n.2.