TITLE: B-310003; B-310003.2, Doyon-American Mechanical, JV; NAJV, LLC, November 15, 2007
BNUMBER: B-310003; B-310003.2
DATE: November 15, 2007
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B-310003; B-310003.2, Doyon-American Mechanical, JV; NAJV, LLC, November 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: Doyon-American Mechanical, JV; NAJV, LLC
File: B-310003; B-310003.2
Date: November 15, 2007
Antonio R. Franco, Esq., Jonathan T. Williams, Esq., Isaias Alba IV, Esq.,
and Gunjan R. Talati, Esq., PilieroMazza PLLC, for Doyon-American
Mechanical, JV; and Traeger Machetanz, Esq., Oles Morrison Rinker & Baker,
LLP, for NAJV, LLC, the protesters.
William A. Roberts III, Esq., Richard B. O'Keeffe, Jr., Esq., William J.
Grimaldi, Esq., and John R. Prairie, Esq., Wiley Rein LLP, for Chugach
Government Services, Inc.; and William K. Walker, Esq., Walker Reausaw,
for Alutiiq International Solutions, LLC, the intervenors.
Phillip E. Santerre, Esq., and Gregory W. Vanagel, Esq., U.S. Army Corps
of Engineers, for the agency.
Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where solicitation provided that evaluation of an offeror's experience
would be based on the offeror's submission of previously performed
projects, and specifically provided that only projects for which the
offeror or a primary teaming partner was the prime contractor should be
submitted, the awardees' submission of projects that were performed by the
awardees' parent/affiliate corporations, and the agency's reliance on such
projects in evaluating the awardees' experience, was improper.
DECISION
Doyon-American Mechanical, JV and NAJV, LLC protest the U.S. Army Corps of
Engineers' award of contracts to Alutiiq International Solutions (AIS),
Bristol Design Build Services, LLC (BDBS) and Chugach Government Services
(CGS), pursuant to request for proposals (RFP) No. W911KB-07-R-0006 to
provide construction services in Alaska. Among other things, the
protesters maintain that the agency violated specific solicitation
provisions regarding the agency's evaluation of offerors' experience.
We sustain the protests.
BACKGROUND
The solicitation was issued in February 2007 and contemplated multiple
awards of contracts to perform various construction-related services
throughout Alaska on a task-order basis.[1] The solicitation contemplated
award of up to six contracts, with a maximum of three contracts awarded
pursuant to full and open competition, and three contracts awarded as
set-aside contracts under section 8(a) of the Small Business Act. The
awards challenged by Doyon and NAJV are the 8(a) set-aside contracts.
Offerors were advised that award would be made on the basis of "best
overall value," and that the source selection decisions would reflect the
agency's evaluation of two factors--offerors' qualifications and proposed
prices; the solicitation established that offerors' qualifications would
be "significantly more important" than price. RFP at 1886. Within the
qualifications factor, the solicitation established the following
subfactors, listed in descending order of importance: construction
experience, past performance, design experience, and execution plan.
With regard to the most important evaluation subfactor, construction
experience, the solicitation provided that proposals would be evaluated
"based on projects . . . similar in nature, scope, and complexity to the
project types identified in this solicitation," and provided that the
agency's evaluation would be based on the offerors' submission of no more
than three past projects for each type of experience required.[2] RFP
at 20, 1888. The solicitation further directed as follows:
Only those projects for which the Offeror or a primary teaming partner
was the Prime Contractor should be submitted. The projects selected
should clearly demonstrate the construction capabilities of the Offeror
on projects that are similar in scope and magnitude to the work required
in this RFP.
RFP at 19. [3]
On or before the April 13, 2007 closing date, proposals were submitted by
six firms qualified to compete for the 8(a) set-aside contracts, including
AIS, BDBS, CGS, Doyon, and NAJV. Thereafter, the proposals were evaluated
by the agency.
There is no dispute that, in responding to the solicitation requirement to
submit prior projects reflecting the required experience, the awardees
submitted projects that had been performed by the parent corporations
and/or other subsidiaries of the parent corporations, and that the agency
relied on performance of those projects in performing its evaluation. See
Agency Report, Sept. 11, 2007, at 2-6.[4] Based on the agency's
evaluation, including its consideration of the prior projects performed by
the parent/affiliate corporations, each of the awardees' proposals was
rated [deleted] with regard to qualifications; in contrast, each of the
protester's proposals was rated [deleted]. Contracting Officer's
Statement, Sept. 11, 2007, at 6. Each of the awardees' proposed prices was
higher than each of the protesters' proposed prices.[5] Id.
On July 27, the agency selected AIS, BDBS, and CGS for award. These
protests followed.
DISCUSSION
Doyon and NAJV each protest that, pursuant to the provisions of this
solicitation, it was improper for the agency to consider the experience of
the awardees' parents/affiliates in making the source selection decision.
We agree.
It is well-settled that an agency may consider the experience or past
performance of an offeror's parent or affiliated company under certain
circumstances. See, e.g., Perini/Jones, Joint Venture, B-285906, Nov. 1,
2000, 2002 CPD para. 68 at 4.[6] However, our Office has consistently
recognized that reliance on a third party's experience, even if otherwise
permissible, is contingent upon the absence of any solicitation provision
precluding such consideration. See, e.g., Hot Shot Express, Inc.,
B-290482, Aug. 2, 2002, 2002 CPD para. 139 at 3; Physician Corp. of Am.,
B-270698 et al., Apr. 10, 1996, 96-1 CPD para. 198 at 13; Tutor-Saliba
Corp, Perini Corp., Buckley & Co., Inc. and O & G Indus. Inc., A Joint
Venture, B-255756, Mar. 29, 1994, 94-1 CPD para. 223 at 5; Fluor Daniel,
Inc., B-262051, B-262051.2, Nov. 21, 1995, 95-2 CPD para. 241 at 12.
Here, as noted above, the solicitation provided that the agency's
evaluation would be based on the offerors' submission of no more than
three projects for each type of experience required; that the projects
submitted should demonstrate the capabilities of the offeror; and that
only projects for which the offeror or a primary teaming partner was the
prime contractor should be submitted. With regard to the identity of the
offerors, none of the parent/affiliate corporations on which the agency
relied for its assessment of the awardees' experience would appear to
qualify as "offerors" for this 8(a) set-aside procurement. Further, while
each of the awardees' proposals identified various subcontractors or
teaming partners that would perform under the contract, the
parent/affiliate corporations were not identified as such. Nonetheless,
the record shows that the awardees submitted prior projects performed by
parent/affiliate corporations other than the 8(a) offerors themselves, and
that the
agency relied on those projects in evaluating the awardee's experience;
both actions were inconsistent with the provisions of this solicitation.
The protests are sustained.
RECOMMENDATION
As discussed above, consideration of the experience of the awardees'
parent/affiliate corporations was precluded by the provisions of this
solicitation. Accordingly, the agency should re-evaluate the proposals
considering only the prior experience of the 8(a) offerors. Alternatively,
the agency should amend the solicitation to put all offerors on notice
that it will consider the experience of parent/affiliate corporations,
request revised proposals, and make new source selection decisions based
on those revised proposals. We also recommend that the agency reimburse
the protesters for the costs of filing and pursing the protests, including
reasonable attorneys' fees. Bid Protest Regulations, 4 C.F.R. sect.
21.8(d)(1) (2007). Doyon's and NAJV's certified claims for costs,
detailing the time expended and costs incurred, must be submitted directly
to the agency within 60 days of receiving this decision. 4 C.F.R. sect.
21.8(f)(1).
Gary L. Kepplinger
General Counsel
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[1] More specifically, the solicitation provided that the construction
services to be acquired will include design-build or fully designed new
construction, upgrades, and additions to, or alteration of, existing
buildings, and advised offerors that the government intends to
subsequently compete task orders among the various awardees for various
Alaska District construction projects. RFP at 11.
[2] The solicitation provided that experience would be evaluated in three
areas: design-build construction experience, military construction
experience, and experience constructing projects similar to those listed
in an attachment to the solicitation. RFP at 19.
[3] The solicitation contained virtually identical provisions regarding
the evaluation subfactor, design experience, stating:
Only those projects for which the Offeror or a primary teaming partner
performed the actual design effort should be submitted. The projects
selected should clearly demonstrate the design capabilities of the
Offeror on projects that are similar in scope and magnitude to the work
required in this RFP.
RFP at 20.
[4] Specifically, the agency states that "each of the awardees . . .
relied upon the previous experience, as well as past performance, of its
parent and other affiliated companies," and that the agency evaluated "the
previous experience and past performance of affiliate and parent companies
of the awardees." Id. at 3, 5, 6. AIS's proposal states that "AIS is a
wholly owned subsidiary of Alutiiq, LLC." AIS Proposal, Apr. 13, 2007, Vol
I at 9. BDBS's proposal state that "BDBS is a recent corporate offshoot of
the Bristol Companies," and that the "Bristol Alliance of Companies . . .
are wholly owned subsidiaries of Bristol Bay Native Corporation." BDBS
Proposal, Apr. 12, 2007, Vol. I at 1, 2. CGS's proposal states that CGS is
"a subsidiary of Chugach Alaska Corporation." CGS Proposal, Apr. 13, 2007,
Vol. I at B-1. In responding to the protests, neither the agency nor the
intervenors have suggested that any of the awardees' parent/affiliate
corporations would qualify to compete in this procurement as 8(a)
contractors in their own right.
[5] The proposed prices of AIS, BDBS, and CGS were [deleted], [deleted]
and [deleted], respectively; the proposed prices of Doyon and NAJV were
[deleted] and [deleted], respectively. Id.
[6] One prerequisite for such consideration is a demonstration in the
proposal that the resources of the parent or affiliate will affect
contract performance. Id.