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
*********************************************************************************
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

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

   [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.