TITLE: B-310311.2, Engineering Construction Services, Inc., December 12, 2007
BNUMBER: B-310311.2
DATE: December 12, 2007
**********************************************************************
B-310311.2, Engineering Construction Services, Inc., December 12, 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: Engineering Construction Services, Inc.

   File: B-310311.2

   Date: December 12, 2007

   Telena Moore for the protester.

   Charmaine A. Howson, Esq., Young Ha Cho, Esq., and Dationa Carter, Esq.,
   Department of Energy, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that awardee materially revised its proposal after the agency
   established a competitive range and that the agency failed to consider the
   revisions in its reevaluations is denied where there is no evidence in the
   record to support the allegation.

   2. Protest that the agency failed to conduct several portions of the
   required evaluations is denied where the record shows that the agency in
   fact conducted the evaluations.

   3. Protest that the agency conducted inadequate discussions is denied
   where the record shows that the agency included in the first request for
   revised proposals all of the significant weaknesses identified in the
   final evaluation of the protester's proposal.

   4. Protest that agency improperly evaluated subcontractor's relevant
   experience is denied where the requirement that relevant experience
   references must be for contracts that have been in performance for a
   minimum of 6 months merely established a minimum, and the agency
   reasonably considered the subcontractor's relative lack of experience as a
   weakness in the proposal.

   DECISION

   Engineering Construction Services, Inc. (ECS) protests the award of a
   contract to Environmental Safety & Health, Inc. (ES&H) by the Department
   of Energy under request for proposals (RFP) No. DE-RP05-07OR23256 for
   roads, grounds, and heavy equipment maintenance services. The protester
   challenges various aspects of the technical and price proposal evaluations
   and alleges that the agency conducted inadequate discussions with the
   protester.[1]

   We deny the protest.

   The RFP, issued on December 1, 2006 as a small business set-aside,[2]
   contemplated the award of an indefinite-delivery/indefinite-quantity
   contract for a 2-year base period with three 1-year options, under which
   the agency would issue both time-and-materials and fixed-price task
   orders. The RFP contained the following three evaluation criteria and
   percentage weights: technical and business management approach (35
   percent); key personnel (35 percent); and relevant experience and past
   performance (30 percent), with sub-criteria relevant experience (25
   percent) and past performance (5 percent). The RFP called for an
   evaluation of the relevant experience of the offeror and its teaming
   partners and subcontractors. Proposals would be assigned adjectival scores
   based on the number of points earned, with a possible perfect score of
   1,000 points. The RFP stated that the agency reserved the right to conduct
   oral or written discussions with all offerors whose proposals were in the
   competitive range.

   The RFP specified that the agency would develop an evaluated price by
   "applying the offeror's proposed labor prices to the labor hours
   (adjusting for any increase or decrease in estimated hours resulting from
   the technical evaluation) and material costs (adjusting for any increase
   or decrease in proposed material costs resulting from the technical
   evaluation)." Id. sect. M.6(b)(2), Cost/Price Evaluation Criteria. Award
   was to be made to the offeror whose proposal represented the best value to
   the government, using the evaluated price. The RFP stated that the agency
   was more concerned with obtaining a superior technical proposal than in
   making an award at the lowest evaluated price, but that the agency would
   not pay a price premium that it considered "disproportionate to the
   benefits associated with the evaluated superiority of one proposal over
   another." Id. sect. M.3, Basis for Contract Award. To the extent that the
   technical proposals were evaluated as "similar in merit," the RFP provided
   that the proposals' evaluated prices could be the deciding factor. Id.

   The agency received seven timely proposals, including the awardee's and
   the protester's. The protester's proposal included a "seconding
   agreement"[3] between the protester and a subcontractor, Revolutions
   Performance Management Group, LLC (RPM), for RPM to supply the project
   manager. The protester's project manager would not be an ECS employee but,
   under the seconding agreement, he would be authorized to act on behalf of
   ECS for all contract-related matters. See ECS Proposal, Vol. II, part II,
   Key Personnel at 36.

   The agency evaluated the initial proposals, created a competitive range of
   four offers, which included the protester's and the awardee's, and
   conducted two rounds of written discussions. The following chart
   summarizes the final technical evaluations and evaluated prices.

   +------------------------------------------------------------------------+
   |Offeror|Technical/ |   Key   | Relevant |  Past   |  Total  | Evaluated |
   |       | Business  |Personnel|          |Perform. |         |   Price   |
   |       |   Mgmt.   |         |Experience|         |Technical|           |
   |       | Approach  |350 pts. |          | 50 pts. |  Score  |           |
   |       |           |         | 250 pts. |         |         |           |
   |       | 350 pts.  |         |          |         |  1,000  |           |
   |       |           |         |          |         |  pts.   |           |
   |-------+-----------+---------+----------+---------+---------+-----------|
   |Offeror| Excellent |Excellent|Excellent |  Good   |   990   |$12,525,523|
   |1      |           |         |          |         |         |           |
   |       |    350    |   350   |   250    |   40    |         |           |
   |-------+-----------+---------+----------+---------+---------+-----------|
   |Offeror| Excellent |Excellent|   Good   |Excellent|   950   |$12,832,909|
   |2      |           |         |          |         |         |           |
   |       |    350    |   350   |   200    |   50    |         |           |
   |-------+-----------+---------+----------+---------+---------+-----------|
   |ECS    |   Good    |Excellent|   Good   |Excellent|   880   |$16,067,015|
   |       |           |         |          |         |         |           |
   |       |    280    |   350   |   200    |   50    |         |           |
   |-------+-----------+---------+----------+---------+---------+-----------|
   |ES&H   | Excellent |Excellent|   Good   |  Good   |   940   |$10,980,708|
   |       |           |         |          |         |         |           |
   |       |    350    |   350   |   200    |   40    |         |           |
   +------------------------------------------------------------------------+

   Thus, after the final evaluations, the protester's proposal had the lowest
   technical score, with an evaluated price ($16,067,015) over 40 percent
   higher than the awardee's ($10,980,708) and over 25 percent higher than
   the next highest evaluated price ($12,525,523). The agency concluded that
   all the proposals were similar in merit and that price would be the
   determining factor. The source selection official determined that the
   strengths of ES&H's technical proposal, combined with its lowest evaluated
   price, made its proposal the best value to the government, and the agency
   made the contract award to ES&H. The protester's written debriefing
   identified three weaknesses in the protester's final proposal: RPM's
   limited project management experience, the potentially awkward reporting
   relationships involving the seconded employee, and the low ratings that
   the protester's proposed business manager received.

   The protester alleges that it has first-hand knowledge that the awardee
   materially changed the composition of its team--by removing its large
   business mentor from the team--after the agency placed the awardee's
   proposal in the competitive range and that the agency's subsequent
   reevaluations failed to account for those changes. The agency has produced
   excerpts from the awardee's proposal that show that the awardee's initial
   proposal did not include its mentor as a team partner and that the
   protester's allegation is factually incorrect. The protester has furnished
   no factual support for its allegation that the awardee substantially
   changed the composition of its team during the evaluation process, and we
   can find nothing in the record to support the claim. eMind, B-289902, May
   8, 2002, 2002 CPD para. 82 at 5.

   The protester alleges that the agency failed to conduct several required
   portions of the evaluation, including a comparative analysis of the
   proposed prices and the independent government estimate (IGE) of
   $13,575,773 and a comparative assessment of proposals against the RFP's
   source selection criteria. As a preliminary matter, the RFP contains no
   requirement for a comparison of the proposals' evaluated prices with the
   IGE. See RFP sect. M.6, Cost/Price Evaluation Criteria. In any event, the
   record shows that the agency in fact conducted such a comparison. See
   Agency Report (AR), Tab 13, Source Evaluation Board (SEB) Report, sect. E,
   Price Proposals, 37-41. Moreover, to the extent that the protester argues
   that the agency improperly made award to an offeror with a proposed price
   below the IGE, the mere fact that an offeror's price is below the IGE is
   not a basis for finding the price realism evaluation inadequate. EC Corp.,
   B-266165, B-266165.2, Feb. 21, 1996, 96-1 CPD para. 153 at 4 n.2.

   Nor does the record support the protester's other allegation. The source
   selection statement contains an extensive consideration of the proposals
   in the competitive range, comparing each of the proposals to the source
   selection criteria and each other. AR, Tab 15, Source Selection Statement
   at 8-12; see also AR, Tab 13, SEB Evaluation Report. There is ample
   evidence in the record that the agency conducted a thorough evaluation of
   the proposals against the RFP requirements.

   The protester alleges that the final evaluation of its proposal identified
   significant weaknesses that were not identified in the two rounds of
   discussions, and that therefore the agency conducted inadequate
   discussions. Where contracting agencies conduct discussions with offerors
   whose proposals are within the competitive range, the discussions must be
   meaningful; that is, an agency must, at a minimum, point out deficiencies
   and significant weaknesses that must be addressed in order for the offeror
   to have a reasonable chance for award. Federal Acquisition Regulation
   sect. 15.306(d)(3); PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124
   at 8. Agencies are not required to afford an offeror multiple
   opportunities to cure a weakness remaining in a proposal that previously
   was the subject of discussions. Portfolio Disposition Mgmt. Group, LLC,
   B-293105.7, Nov. 12, 2004, 2004 CPD para. 232 at 2. An agency's continuing
   concern with an offeror's proposal does not obligate the agency to
   reiterate those concerns during successive rounds of discussions. Id.

   The record does not support the protester's allegation that it was not
   made aware, during discussions, of the weaknesses in its proposal. A
   comparison of the agency's first request for revised proposals, AR, Tab 7,
   with the agency's notification of selection of contractor, AR, Tab 16,
   demonstrates that the three weaknesses for which the protester's proposal
   was downgraded in the final evaluation--RPM's limited project management
   experience, the potentially awkward reporting relationships involving the
   seconded employee, and the low ratings that the protester's proposed
   business manager received--were all clearly identified in the first
   request for revised proposals.

   The protester challenges the agency's finding that a lack of relevant
   experience of RPM, one of the protester's proposed subcontractors, is a
   weakness in the protester's proposal. Because the evaluation of proposals
   is a matter within the discretion of the contracting agency, we will not
   reevaluate proposals, but will examine the agency's evaluation to ensure
   that it was reasonable and consistent with the solicitation's evaluation
   criteria and applicable statutes and regulations. Kellogg Brown & Root,
   Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 CPD para. 96 at 6. An
   offeror's mere disagreement with the agency's evaluation does not render
   the evaluation unreasonable. Weber Cafeteria Servs., Inc., B-290085.2,
   June 17, 2002, 2002 CPD para. 99 at 4.

   The RFP required major subcontractors to list "the three most recently
   awarded contracts which each major subcontractor has been performing for
   at least six months as of the deadline for proposal submission." RFP,
   sect. L.23(b)(2), Proposal Preparation Instructions, Relevant Experience &
   Past Performance. Each of the three relevant experience references
   supplied by RPM was for a contract that had been in place for less than a
   year, and the agency evaluated this as a weakness in the protester's
   proposal. The protester argues that the agency had advised offerors that
   it would consider contracts having been performed for 6 months or more and
   that, because the subcontractor met this 6-month requirement, the agency's
   evaluation was improper. We disagree. The 6-month requirement was a
   minimum length of time that a contractor needed to have been performing a
   contract before that contract, if it met certain other requirements, could
   be included in a proposal. The 6-month period was only a minimum, and
   meeting that minimum was not sufficient by itself to establish that the
   contractor otherwise met the RFP's experience requirements. See AHNTECH,
   Inc., B-291044, Oct. 10, 2002, 2002 CPD para. 182 at 3. Further, even
   though the protester's proposal was assessed a weakness under this
   technical evaluation factor, the proposal received an overall rating of
   "good" for relevant experience, and we see nothing unreasonable in the
   agency's evaluation of the protester's proposal.

   The protester alleges that the agency improperly reduced its proposal's
   score because the proposal included a seconding agreement, when the RFP
   did not prohibit the use of seconding agreements to fill key personnel
   positions. The protester also disputes the agency's evaluation finding
   that the seconding agreement was not provided in the proposal as specified
   in the RFP. We dismiss this protest ground, and other ancillary grounds,
   because the protester is not an interested party to raise them.[4] Under
   the bid protest provisions of the Competition in Contracting Act of 1984,
   31 U.S.C. sections 3551-56 (2000 & Supp. V 2005), only an "interested
   party" may protest a federal procurement. That is, a protester must be an
   actual or prospective supplier whose direct economic interest would be
   affected by the award of a contract or the failure to award a contract.
   Bid Protest Regulations, 4 C.F.R. sect. 21.0(a). Determining whether a
   party is interested involves consideration of a variety of factors,
   including the nature of issues raised, the benefit or relief sought by the
   protester, and the party's status in relation to the procurement. Four
   Winds Servs., Inc., B-280714, Aug. 28, 1998, 98-2 CPD para. 57. A
   protester is not an interested party where it would not be in line for
   contract award were its protest to be sustained. Id.

   Here, even if the protester prevailed on this protest ground and received
   all of the points available under the technical and business management
   approach criterion, its score would increase by 70 points, for a total
   score of 950. Two other offers with substantially lower evaluated prices
   received the same or higher technical scores, and those offers would be
   next in line for award. Because there has been no viable challenge to
   those intervening offers that precede the protester's in eligibility for
   award under this solicitation, the protester is not an interested party to
   raise these grounds of protest.[5] Medical Info. Servs., B-287824,
   July 10, 2001, 2001 CPD para. 122 at 5-6.

   The protester also alleges that the agency should have evaluated the
   offerors' prices to account for the differing number of hours that
   proposals included for a safety specialist.[6] Again, the protester is not
   an interested party to raise this issue. The evaluated price of the
   protester's proposal was over $5 million more than the awardee's, and over
   $3 million more than the prices of the intervening offerors' proposals.
   Based on this record, any adjustment to the offerors' prices, as a result
   of differences in the hours included for the position of safety
   specialist, would be immaterial.[7]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The protester also alleges various improprieties in the way that the
   agency conducted the protester's debriefing. Because the conduct of
   debriefings is a procedural matter which has no effect on the evaluation
   of proposals or the validity of the agency's determinations, this basis of
   protest, that the agency failed to properly debrief the protester, will
   not be considered. See Wilderness  Mountain Catering, B-280767.2, Dec. 28,
   1998, 99-1 CPD para. 4 at 4.

   [2] To the extent the protester challenges the agency's decision not to
   set aside the RFP for Historically Underutilized Business Zone small
   businesses, the protest, filed after award was made, is untimely. Under
   our Bid Protest Regulations, a protest based upon alleged improprieties in
   a solicitation, which are apparent prior to the time set for receipt of
   initial proposals, must be filed prior to the time set for receipt of
   initial proposals. See Bid Protest Regulations 4 C.F.R. sect. 21.2(a)(1)
   (2007). Likewise, the protester's allegation that the terms of the RFP
   precluded the agency from making a true comparative price analysis,
   Protest at 5, is untimely.

   [3] A seconding takes place when an employee (or group of employees) is
   temporarily assigned to work for another organization or a different part
   of their employer.

   [4] Moreover, the protester mischaracterizes the agency's principal
   concern, noted above, which was that the seconding agreement created
   awkward reporting relationships involving a key member of the protester's
   team, with the operations maintenance manager, an ECS employee, reporting
   to the project manager, an RPM employee, who reported to the ECS
   president. The agency had misgivings that the project manager was
   essentially a subcontractor to his subordinates. Contracting Officer's
   Statement of Facts at 4-5.

   [5] The protester also speculates that the awardee could not have proposed
   minimum labor hours required under the RFP--a claim the agency denies.
   Because there are intervening offers in line for award, whose ratings are
   unchallenged by the protester, once again the protester is not an
   interested party to raise this ground of protest.

   [6] In its filing dated November 8, the protester notes several other
   positions that it maintains were required to perform the work called for
   under the RFP. To the extent that the protester is alleging that the
   agency failed to properly evaluate the way that the various proposals
   treated these positions, the protest is untimely. See 4 C.F.R.
   sect. 21.2(a)(2). Similarly, the protester's allegation that the agency's
   price evaluation is flawed because it failed to account for the cost of
   those positions is untimely. Id.

   [7] Moreover, the protester's argument ignores the potential for differing
   numbers of hours based on the firms' different technical approaches.
   General Atomics, B-287348, B-287348.2, June 11, 2001, 2001 CPD para. 169
   at 7.