TITLE: B-309740; B-309740.2, C. Young Construction, Inc., October 15, 2007
BNUMBER: B-309740; B-309740.2
DATE: October 15, 2007
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B-309740; B-309740.2, C. Young Construction, Inc., October 15, 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: C. Young Construction, Inc.

   File: B-309740; B-309740.2

   Date: October 15, 2007

   David T. Ralston, Jr., Esq., and Frank S. Murray, Esq., Foley & Lardner
   LLP, for the protester.

   Damon A. Martin, Esq., Naval Facilities Engineering Command, 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 challenging agency's evaluation of protester's proposal is denied
   where evaluation was reasonable and consistent with solicitation's
   evaluation terms.

   DECISION

   C. Young Construction, Inc. protests the rejection of its proposal and the
   award of a contract to Sauer, Inc. under request for proposals (RFP) No.
   N69450-07-R-1266, issued by the Department of the Navy, Naval Facilities
   Engineering Command, for the construction of the P333V Fleet Support
   Facility at Naval Air Station Jacksonville, Florida. The project involves
   the construction of a sensitive compartmented information facility;
   optional work includes installation of a parking lot, sidewalks, and
   sanitary service. C. Young challenges the reasonableness of the agency's
   evaluation of its proposal, rated as poor, and its subsequent elimination
   from further consideration for award for proposing a single individual to
   fill three of the four required key personnel positions. The protester
   contends that the RFP did not prohibit its proposed staffing approach and
   that the agency unreasonably determined that its proposal of one
   individual for multiple key personnel positions failed to meet stated
   requirements.

   We deny the protest.

   The RFP, issued on May 10, 2007, contemplated the award of a fixed-price
   contract to the firm submitting the proposal deemed to offer the best
   value to the agency; technical merit (evaluated under four equally
   weighted technical subfactors--past performance, relevant experience,
   technical qualifications, and small business subcontracting) was
   approximately equal in importance to price. RFP at 24, 25. Offerors were
   advised that, since discussions might not be conducted, their best terms
   should be included in their initial proposals. Id. at 23. Adjectival
   ratings (ranging from exceptional to poor) were to be assigned to the
   proposals under each technical evaluation factor. The rating of "poor" was
   defined as failing to meet stated requirements of the RFP, indicating an
   insufficient understanding of the requirements, lacking essential
   information, presenting an unacceptable level of risk to the government,
   and containing deficiencies that require a major revision of the proposal.
   Id. at 25. Offerors were advised that a proposal receiving a technical
   subfactor rating of poor would be rated poor overall, and that the
   government reserved the right to not make award to a firm with a technical
   proposal rated marginal or poor. Id.

   Special construction features were noted in the RFP, and project
   specifications provided detailed staffing requirements and descriptions of
   the work to be performed. The RFP noted, for example, that the facility
   was located adjacent to a hangar and apron construction project at the air
   station, requiring special consideration of the site's surroundings and
   coordination of work efforts (for instance, involving flight line fencing
   work, use of equipment near landing areas and taxiways, and aircraft
   operating schedules). Id. at 24. Project specifications provided
   additional requirements regarding, among other things, quality control,
   airfield operation and safety, and key personnel responsibilities. Project
   Specification sect. 013513, para. 3.1.1; sect. 013529, para. 1.6.2;
   sect. 014500.0020, para. 1.5-1.16.

   For evaluation under the RFP's technical qualifications subfactor, each
   proposal was to include information about the qualifications and
   experience of the individuals proposed for four key personnel positions:
   Project Manager; Project Superintendent; Quality Control (QC) Manager; and
   Safety Specialist (also referred to as the Site Safety and Health Officer
   (SSHO)). RFP at 29. Key personnel duties were listed in the project
   specifications, which also set out a general organizational framework in
   which the QC Manager was to report to an officer of the firm, and was not
   to be subordinate to the Project Superintendent or Project Manager. Id.,
   sect. 014500.0020, para. 1.4. In addition, the specifications expressly
   stated that while "the QC Manager is the primary individual responsible
   for quality control, all individuals will be held responsible for the
   quality of work on the job." Id.

   Prior to the closing date for the submission of initial proposals, C.
   Young requested clarification of certain solicitation provisions it
   apparently found to be conflicting, since one provision allowed the
   proposal of multiple positions for certain personnel, while another
   prohibited multiple roles. Specifically, the protester noted that
   specification sect. 013529, para.1.6.1.1 provided that the QC Manager
   could be the SSHO on the project, but that specification sect.
   014500.0020, para. 1.5.1.1 provided that the QC Manager "shall not be
   designated as the safety competent person." The agency issued amendment
   No. 4 to the solicitation on June 13, 2007, in response to the inquiry.
   The amendment expressly deleted in their entirety the only two provisions
   in the solicitation that had specifically allowed more than one key
   personnel position to be held by a single individual. Specifically, the
   amendment deleted the sentence of specification sect. 013529, para.
   1.6.1.1 that, as initially issued, had provided that the QC Manager could
   be the SSHO on the project. Amendment No. 4, at 2. The amendment also
   deleted a sentence of specification sect. 014500.0020, para. 1.5.1.1 that,
   at the time the RFP was issued, had provided that the QC Manager could
   perform the duties of the Project Superintendent. Id.

   Six proposals were received by the scheduled June 15 closing date for the
   receipt of initial proposals. The protester's proposal received the
   following technical evaluation ratings: very good for past performance;
   satisfactory for relevant experience; poor for technical qualifications
   (for proposing a single individual to perform three of the four key
   personnel positions of QC Manager, SSHO, and Project Superintendent);
   acceptable for small business subcontracting; and poor for overall
   technical merit due to its poor rating under the technical qualifications
   subfactor.[1] The evaluators noted that the protester's proposal of one
   individual to fill three of the four required key personnel positions was
   "not allowed" by the RFP. Business Clearance Memorandum at 20. The
   evaluators found that the protester's proposal failed to provide adequate
   staffing to accomplish the work of the RFP, showed a lack of understanding
   of the specifications, and provided an unacceptable level of risk to the
   agency; the proposal, rated poor for failing to meet stated requirements,
   was eliminated from further consideration for award. Id. at 20-21. This
   protest followed.

   C. Young contends that the evaluators acted improperly in concluding that
   the firm's proposal was materially deficient for proposing a single
   individual to fill multiple key personnel positions. The protester
   acknowledges that amendment No. 4, issued in response to its own inquiry
   regarding whether multiple positions could be assigned to key personnel,
   deleted all of the provisions in the specifications that had expressly
   allowed the firms to propose a single individual for multiple positions.
   Nonetheless, the protester argues that the amendment's deletion of
   provisions that had allowed the proposal of multiple positions for key
   personnel does not constitute an express prohibition against such a
   proposal. Since there is no express prohibition against the proposed use
   of a single individual to fill multiple key personnel positions, the
   protester argues, the agency improperly used an unstated evaluation
   criterion in concluding that its staffing approach was unacceptable for
   failing to meet key personnel requirements.

   The agency responds that the solicitation, read as a whole, contemplated
   that each key personnel position was to be filled by a separate individual
   in order to accomplish key personnel performance requirements identified
   in the project specifications. The agency also contends that even without
   an express prohibition against proposing multiple positions for key
   personnel, the protester should have realized from the express deletion of
   the original RFP provisions allowing the proposal of individuals to fill
   multiple key personnel positions, and from provisions in the project
   specifications requiring individual participation by each key personnel
   position, that the proposal of multiple positions for key personnel would
   not meet the agency's personnel performance requirements; several of those
   requirements, for instance, clearly require various key personnel to
   participate both individually and collectively at meetings with other key
   personnel. The agency asserts that it was therefore reasonable to evaluate
   the protester's proposal of a single individual for three of the four
   required key personnel positions as deficient, for failing to meet
   solicitation requirements, indicating a lack of understanding of the
   requirements, and increasing the agency's risk in the performance of the
   work. We agree.

   In reviewing protests against an agency's proposal evaluation, we will
   consider whether the evaluation was reasonable and consistent with the
   terms of the solicitation and applicable statutes and regulations.
   National Toxicology Labs, Inc., B-281074.2, Jan. 11, 1999, 99-1 CPD para.
   5 at 3. Where a dispute exists as to the actual meaning of a solicitation
   requirement, our Office will resolve the matter by reading the
   solicitation as a whole and in a manner that gives effect to all of its
   provisions. See Sea-Land Serv., Inc., B-278404.2, Feb. 9, 1998, 98-1 CPD
   para. 47 at 5. Here, when the solicitation is read as a whole, it is clear
   that proposing a single individual for three key personnel positions
   simply will not meet the terms of numerous personnel performance
   requirements set out in the project specifications which contemplate a
   coordinated work effort by a team of individuals holding distinct key
   personnel positions.

   Our review of the record confirms the agency's position that numerous
   performance requirements in the project specifications require attendance
   and participation by multiple individuals in key personnel positions,
   including the Project Manager, QC Manager, Project Superintendent, and
   SSHO. For instance, the Project Superintendent, SSHO, and QC Manager are
   each to approve the contractor's accident prevention plan, which provides
   multiple levels of review of the plan. Project Specification
   sect. 013529, para.1.7. A single individual representing three of the four
   required key personnel positions, as the protester proposed, would
   effectively eliminate the benefit of the multi-tiered input and review
   process contemplated by that provision. Similarly, both the Project
   Superintendent and the QC Manager are to prepare and approve daily
   construction operations documentation (id. at sect. 014500.0020,
   para.1.16.1); each referenced key personnel position is to be represented
   at the preconstruction conference (id. sect. 013529, para.1.6.3.1); and
   quality control meetings are to be attended by all relevant key personnel,
   (id. sect. 014500.0020, para. 1.8.3), as are preparatory phase meetings
   (id. sect. 014500.0020, para. 1.10.1) and final acceptance inspections
   (id. sect. 014500.0020, para. 1.14.3). Clearly, the project specifications
   here contain material requirements which will not be met by the attendance
   or participation of a single individual, when instead the collaboration of
   a team of individuals acting in their respective positions is
   contemplated.[2]

   While C. Young generally alleges that an unstated evaluation criterion (in
   essence, a prohibition against the proposal of multiple-position
   personnel) was used by the evaluators, there is nothing objectionable in
   the agency considering the protester's proposal of key personnel with
   multiple positions under the technical qualifications subfactor, as the
   protester's staffing approach is reasonably related to, and encompassed
   by, that subfactor. In sum, our review of the record confirms the
   reasonableness of the agency's evaluation of the protester's proposal as
   poor under the technical qualifications subfactor for failing to meet
   stated requirements, and, consequently, rating it as poor overall and
   excluding it from further consideration for award.[3] See RFP at 25.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Sauer's technical proposal was rated substantially higher than the
   protester's; the Sauer proposal received a rating of very good for overall
   technical merit based on ratings of exceptional for past performance, very
   good for relevant experience, satisfactory for technical qualifications,
   and acceptable for small business contracting. C. Young offered a slightly
   lower price (approximately 2 percent lower) than Sauer offered.

   [2] Additionally, contrary to the specifications' express statement that
   "while the QC Manager is the primary individual responsible for quality
   control, all individuals will be held responsible for the quality of the
   work on the job," id. sect. 014500.0020, para. 1.4, the protester's
   proposal of fewer individuals to perform all key personnel positions
   effectively increases the performance risk to the agency, as fewer
   individuals would be accountable to the agency.

   [3] Given the reasonableness of the agency's evaluation and elimination of
   the protester's proposal under the technical qualifications factor, we
   need not discuss the remaining evaluation challenges. We do note, however,
   that the protester is mistaken in arguing that clarifications or
   discussions were required here. Clarifications would have been
   inappropriate to cure the material deficiency of failing to provide a
   sufficient number of personnel to perform the work, and the solicitation,
   as stated above, did not contemplate discussions. See National Beef
   Packing Co., B-296534, Sept. 1, 2005, 2005 CPD para. 168 at 11. Similarly,
   there is no support in the record for the protester's claim of unequal
   evaluations. C. Young's proposal contained a material deficiency (its
   failure to propose an adequate staffing level, including all required key
   personnel); the Sauer proposal, on the other hand, was cited for a minor
   weakness regarding whether the firm's SSHO had the qualifications for that
   position, a matter that subsequently was resolved through consideration of
   agency personnel's knowledge that the individual in fact possesses the
   requisite skills and experience from his work on prior projects.