TITLE: B-310119, HERA Constructive S.A., November 7, 2007
BNUMBER: B-310119
DATE: November 7, 2007
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B-310119, HERA Constructive S.A., November 7, 2007

   Decision

   Matter of: HERA Constructive S.A.

   File: B-310119

   Date: November 7, 2007

   Constantinos Fotiadis for the protester.

   Kate Bazylewicz, Esq., and Tracy M. Humphrey, Esq., Department of the
   Navy, for the agency.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest is denied where provision in solicitation requiring offerors to
   present a certificate issued by the Greek government authorizing
   construction of "projects of the cost value, type, and magnitude" of the
   solicitation was reasonably interpreted in accepting certificate submitted
   by awardee.

   DECISION

   HERA Constructive S.A. protests the award of a contract to Michael M.
   Tsontos S.A. under request for proposals (RFP) No. N33191-05-B-1204 by the
   Department of the Navy, Naval Facilities Engineering Command, for
   construction and renovation of the Navy Exchange buildings (known as the
   "NEXMART") at the Naval Support Activity Souda Bay in Crete, Greece. HERA
   argues that Tsontos was ineligible for award because it does not possess
   the appropriate construction license, which the RFP required.

   We deny the protest.

   BACKGROUND

   The Navy issued the RFP on June 8, 2007, seeking proposals to renovate the
   existing NEXMART building and to construct a new NEXMART building. The RFP
   provided that the contract would be awarded "to the offeror whose offer
   represents the best value to the Government," and listed four
   equally-weighted non-price evaluation factors: organizational experience,
   organizational past performance, schedule, and safety. The non-price
   factors, taken as a whole, were to be approximately equal in importance to
   the fifth factor, price.

   Price proposals were to be figured in euros, and consistent with this, the
   RFP provided an "estimated cost range" for the scope of work, also priced
   in euros. The RFP cost estimate was between 2 million and 4 million euros.
   RFP at 1. The Navy's internal government cost estimate (which was not
   released to offerors) was EUR2,274,952. Contracting Officer's (CO)
   Statement at 2.

   The RFP provided that technical proposals should also include a certified
   copy of a particular type of Greek construction license:

     The offerors must be bearers of, and submit a certified copy of an
     updated Certificate of Classification issued by the Greek Ministry of
     Environment, Planning and Public Works covering the classification
     category under which they are licensed to undertake the construction of
     projects of cost value, type, and magnitude as this request for
     proposal. The certified copy must be provided with their proposal
     package.

   RFP at 11.

   HERA and the Navy agree that, under Greek law, the required certificates
   come in several classes, and that a class 3 certificate authorizes a firm
   to perform construction work valued up to EUR3,750,000, while a class 4
   certificate permits work valued up to EUR7,500,000. Protest at 3; CO
   Statement at 2.

   The Navy received three proposals for the NEXMART construction and
   renovation project. The lowest price was proposed by Tsontos, with a total
   price of EUR1,709,000. Tsontos was also ranked highest by the technical
   evaluation panel under the non-price evaluation factors. CO Statement at
   2. Tsontos submitted a copy of its class 3 certificate with its proposal.
   HERA's proposal was ranked third by the technical evaluation panel, and
   offered a price of EUR2,250,000. HERA submitted a class 4 certificate with
   its proposal. Id. at 3.

   Overall, the Navy's source selection board ranked Tsontos first, and HERA
   second. Since Tsontos was rated highest technically, and offered the
   lowest price, the CO selected Tsontos for award on that basis. After a
   requesting and receiving debriefing, HERA filed this protest.

   DISCUSSION

   HERA argues that the class 3 certificate provided by Tsontos does not meet
   the RFP's certificate requirement, and that Tsontos's proposal should have
   been rejected as unacceptable for that reason. HERA's argument is based on
   the cost estimate for this project in the RFP. Since the cost estimate was
   stated as a range from 2 million to 4 million euros, HERA argues that
   offerors had to have a certificate covering the entire range. Since a
   class 3 certificate has an upper limit of EUR3,750,000, HERA argues that a
   class 4 (or higher) certificate was required, and that Tsontos must be
   found unacceptable.

   The Navy responds that the estimated cost range in the RFP was required by
   Federal Acquisition Regulation (FAR) sect. 36.204, and was provided only
   as a general description of the magnitude of the project. The RFP did not
   state that either the prices proposed--or more importantly, the
   certificates of classification--had to cover the entire range specified.
   In short, the Navy contends that there is no basis for arguing that an
   offeror had to have a certificate covering the entire estimated range, as
   opposed to one covering the offeror's actual price.

   The Navy also argues that the government estimate of EUR2,274,952--and
   even the highest price offered, at EUR2,948,000--were well within the
   ceiling of EUR3,750,000 applicable to a class 3 certificate, and that
   these facts further confirm the reasonableness of the decision to accept
   Tsontos's certificate.

   In considering the meaning of a solicitation provision, we will read it in
   the context of the solicitation and in a reasonable manner. Burns & Roe
   Servs. Corp., B-251969.4, Mar. 1, 1994, 94-1 CPD para. 160 at 7. We will
   not adopt a restrictive interpretation of a solicitation provision where
   it is not clear from the solicitation that such a restrictive
   interpretation was intended by the agency. M & M Ret. Enters, LLC,
   B-297282, Dec. 15, 2005, 2005 CPD para. 224 at 3; International Data
   Prods., Commax Techs., Inc., B-275480.2 et al., Apr. 3, 1997, 97-1 CPD
   para. 179 at 4.

   The purpose of supplying offerors with a range of costs or prices is
   merely to describe the relative magnitude of the construction project.
   Western Ventures, Inc., B-210611, Mar. 1, 1983, 83-1 CPD para. 218 at 1;
   McCain Trail Constr. Co., B-196856, July 8, 1980, 80-2 CPD para. 16 at 5.
   The cost range establishes the general parameters of the acquisition, and
   even if an estimated cost range were inaccurate, it is without effect
   since prices offered are not limited to the confines of the estimated cost
   range. RNJ Interstate Corp., B-241946, Feb. 26, 1991, 91-1 CPD para. 219
   at 3 (agency reasonably determined that bid prices were excessive, even
   though bids were within estimated range specified pursuant to FAR
   sect. 36.204).

   Here, we agree with the Navy that the RFP requirement for a certificate
   that covers "projects of cost value, type, and magnitude as this request
   for proposal" was a reference to the scope of work set forth in the RFP,
   rather than the upper limit of the estimated cost range. In light of the
   fact that the awardee's price was well within the limits of a class 3
   certificate, the Navy reasonably concluded that an offeror holding a class
   3 certificate was eligible for award.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel