TITLE: B-309869, KIC Development, LLC, September 26, 2007
BNUMBER: B-309869
DATE: September 26, 2007
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B-309869, KIC Development, LLC, September 26, 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: KIC Development, LLC
File: B-309869
Date: September 26, 2007
William K. Walker, Esq., Walker Reausaw, for the protester.
Daniel L. Winand, Esq., Department of Homeland Security, U.S. Coast Guard,
for the agency.
Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Allegation that awardee's prior contracts were not sufficiently similar in
dollar value to work being solicited to be deemed relevant under past
performance evaluation factor is denied where solicitation did not contain
dollar threshold for relevance and past performance evaluation was
otherwise reasonable and consistent with solicitation.
DECISION
KIC Development, LLC protests the award of a contract to Sergent
Mechanical Systems, Inc. under request for proposals (RFP) No.
HSCG88-07-R-623221, issued by the Department of Homeland Security, U.S.
Coast Guard, for construction services. KIC asserts that the agency
improperly determined that the awardee had relevant past performance.
We deny the protest.
The RFP, issued on March 30, 2007 as a small business set-aside, sought
proposals for all labor, materials, and equipment necessary to
rehabilitate six buildings, design and construct a seventh building, and
demolish and reconstruct an eighth building at the Coast Guard facility on
Yerba Buena Island, San Francisco, California. Award was to be made to the
offeror whose proposal provided the "best value," with the evaluation to
be based on two equally-weighted factors--"price and relevant past
performance." RFP at 37 (emphasis in original). The past performance
evaluation factor was further broken down into seven subfactors (of equal
importance): relevant experience, timeliness, quality of project
execution, quality of construction services, management/business
relations, effective subcontractor coordination, and customer
satisfaction. RFP at 37. While the RFP defined "relevant experience" under
the subfactor as similar services and "comparability of dollar value,"
id., it did not provide a similar definition of relevance under the
relevant past performance evaluation factor; rather, the solicitation
included only a general statement that "... the source selection authority
shall determine the relevance of similar past performance information."
RFP at 36.
Under section L of the RFP, offerors were to identify past or current
contracts for "efforts similar" to those being procured here and were to
submit with their proposals a past performance evaluation--to be filled
out by the company providing the reference--for each contract. RFP at 36.
This form consisted of a general introductory paragraph explaining the
work to be performed, and then listed the seven past performance
subfactors, providing space for the reference to rate the offeror and
provide comment. Under the first subfactor, the form stated "Relevant
Experience: Contract involve[s] construction work: rehabilitate facilities
and construct new pre-engineered facilities. $1mil-$5mil." Agency Report
(AR), Past Performance Survey, Tabs 15, 16. The reference was to explain
the design and/or construction services the offeror had provided, and to
list the contract dollar value.
The agency received five proposals in response to the solicitation. In
evaluating KIC's proposal, the agency found its past performance sources
to be not relevant (on the basis that the contracts, for elevator
maintenance work, were unrelated to the work here) and so evaluated its
past performance as neither favorable nor unfavorable (i.e., neutral).
Sergent's past performance was evaluated as acceptable based on four prior
contracts for related work, valued at $707,000, $535,000, $317,000, and
$148,000,[1] as well as on comments from a Coast Guard contracting officer
technical representative regarding his experience with Sergent's
performance. KIC's proposed price was $4.5 million, and Sergent's
$4.6 million. The Coast Guard subsequently selected Sergent for award,
concluding that its proven past performance, quality work, and cooperation
under previous contracts (based on the comments the agency received)
warranted paying its $85,719 higher price.
KIC challenges the agency's determination that the awardee had relevant
past performance.[2] Specifically, KIC asserts that the awardee's four
past performance contracts should not have been found to be relevant,
since the value of each was not sufficiently similar to the work being
solicited here. In support of this argument, the protester asserts that
the solicitation established a $1 million relevance threshold, which the
awardee's past performance contracts failed to meet.
In reviewing a protest challenging an agency's past performance
evaluation, we will examine the record to determine whether the agency's
judgment was reasonable and consistent with the stated evaluation criteria
and applicable statutes and regulations. Ostrom Painting & Sandblasting,
Inc., B-285244, July 18, 2000, 2000 CPD para. 132 at 4.
We find nothing unreasonable in the agency's evaluation here. First,
contrary to the protester's assertion, the RFP did not establish a $1
million value as necessary for prior contracts to be considered relevant
under the past performance factor. Rather, as noted above, the
solicitation stated with regard to past performance only that the
determination of what was "relevant past performance" would be made by the
source selection authority; it established no specific requirements for a
contract to be found relevant. RFP at 36. As also noted above, the rating
forms for contract references did include a $1-$5 million range; however,
this was solely in reference to the "relevant experience" subfactor, not
the past performance factor. Thus, under this scheme, while contract value
would be considered under the past performance evaluation through the
relevant experience subfactor, the agency nevertheless reasonably could
evaluate an offeror's past performance as relevant even in the absence of
similarly valued prior contracts.
As for the evaluation itself, as noted above, Sergent's four prior
contracts were valued at approximately $150,000 to $700,000. While the
total cost of the work here was approximately $5,000,000, this was divided
among eight different line items for various buildings, and Sergent
proposed line item pricing of approximately $40,000 to $2 million. AR,
Sergent's Proposal, Tab 14, at 2-3. Finding that Sergent's prior contracts
were similar in magnitude (and scope) to many of the line items here (for
example, there were line items priced at approximately $250,000, $370,000,
$119,000, $725,000, $113,000, and $44,000), the agency concluded that
those contracts were sufficiently similar to the current requirements to
be deemed relevant. In this regard, the agency noted that
the [total project] consisted of multiple smaller projects
("rehabilitate portions of six separate buildings, design/construct a
4,800 square foot, concrete boat maintenance/public works building and
demolish/construct a new pre-engineered buoy paint storage
building..."). The magnitude and similarity of services of many of the
distinct parts of the entire [project] closely approximated projects for
which the SSA [source selection authority] had found excellent and
outstanding past performance evaluations [for Sergent].... The SSA's
consideration of the known facts and evaluation under the appropriate
criteria clearly meets the standards of "reasonableness[ ]" and
"rationality[ ]" required by the GAO.
Agency Letter to GAO, Sept. 10, 2007, at 5. We think the agency's approach
in determining relevance--considering the comparabilty of the magnitude
and similarity of Sergent's prior contracts to the significant component
parts of the current project--was reasonable. Since this approach also was
not prohibited by the RFP, there is no basis for us to question the
agency's evaluation conclusion.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] We note that the protest submissions state that the awardee's prior
contracts were valued at $561,500, $481,543, $275,000, and $114,400,
respectively. It appears that the lower amounts were the value of the
original contract awards, while the higher amounts are the net amount paid
to the contractor after contract modifications. AR, Tab 21. Since the
source selection memorandum identifies the net amounts, including
modifications, those are the amounts relevant here.
[2] KIC raised additional arguments in its initial protest (e.g., that the
agency unreasonably discounted the relevance of KIC's prior contracts, and
improperly relied upon personally-known information in assessing the
awardee's past performance). The agency responded to these arguments in
its agency report. Since KIC did not then rebut the agency's position in
its comments on the report, we consider these arguments to be abandoned.
Planning Sys., Inc., B-292312, July 29, 2003, 2004 CPD para. 83 at 6.