TITLE: B-310340.2, Angel Menendez Environmental Services, Inc., April 11, 2008
BNUMBER: B-310340.2
DATE: April 11, 2008
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B-310340.2, Angel Menendez Environmental Services, Inc., April 11, 2008

   Decision

   Matter of: Angel Menendez Environmental Services, Inc.

   File: B-310340.2

   Date: April 11, 2008

   A. S. Menendez and Gil Bakshi for the protester.

   Phillipa L. Anderson, Esq., Stacey North Willis, Esq., and Charlma
   Quarles, Esq., Department of Veterans Affairs, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of award to firm that submitted lower-rated, lower-priced proposal
   in negotiated procurement where all technical factors combined were
   approximately equal in importance to cost is denied where protest is based
   on an unreasonable interpretation of a solicitation provision (calling for
   selection of lower-priced proposal if technical proposals are found
   essentially equal) as prohibiting award to lower-priced offeror if
   technical proposals are not considered essentially equal.

   DECISION

   Angel Menendez Environmental Services, Inc. (AMES) protests the award of a
   contract to Strategic Perspectives Development, LLC under solicitation No.
   VA-101-07-RP-0030, issued by the Department of Veterans Affairs (VA) for
   general construction, asbestos abatement, and lead abatement work at the
   VA Medical Center (VAMC) in San Antonio, Texas. AMES contends that the
   agency's evaluation and selection of the awardee's proposal were
   inconsistent with the evaluation scheme provided in the solicitation.

   We deny the protest.

   The RFP, issued as a service-disabled veteran-owned small business
   set-aside procurement, sought proposals for the award of a fixed-price
   contract for construction services, including architectural construction
   and work on mechanical, electrical, utility, fire alarm, and fire
   protection systems. RFP at 1. The RFP advised that the evaluation and
   award would be "made on the basis of both cost and technical
   considerations most advantageous to the Government . . . ." Id. at 2-3.
   Offerors were advised that the stated technical evaluation factors
   (construction management, past performance, and schedule, listed in
   descending order of importance) combined were to be "approximately equal
   in importance to cost or price." Id. at 3. The RFP also advised that "if
   the technical proposals are essentially equal, the award will be made on
   the basis of lowest cost." Id. The RFP further provided that cost would be
   evaluated "on the basis of its realism and acceptability to the
   Government." Id.

   For the evaluation of technical proposals, under the construction
   management factor, offerors were to describe project personnel experience
   and technical/management approach (including a list of all proposed major
   subcontractors). Id. at 6. The past performance evaluation factor included
   a subfactor for corporate project experience (regarding recent projects of
   similar size and scope) and a less important subfactor for client
   satisfaction (based on past performance reference responses). Id. at 6-8.
   For the corporate project experience subfactor, the evaluation was to
   include the offeror's "experience as a prime contractor, subcontractor or
   other," with prime contractor experience being most important. Id. at 3.
   For the final technical evaluation factor, schedule, the offeror's
   proposed schedule was to be evaluated for realism and reasonableness. Id.

   As a matter of background, the agency notes that an initial award that had
   been made under the RFP was terminated after a successful size status
   protest; that award had been made on the basis of that firm's higher-rated
   technical proposal, which also offered a lower price than that offered by
   AMES. The remaining three technically acceptable proposals were then
   reevaluated for a new source selection. Strategic's technical proposal was
   rated lower than AMES's proposal and offered a lower price. A third
   offeror submitted the highest-rated technically acceptable proposal, and
   also offered a higher price. Having determined that the price premiums
   involved in selecting either of the two higher-rated proposals were not
   warranted in light of the acceptable level of technical competence offered
   in Strategic's lower-priced proposal, the agency concluded that
   Strategic's proposal presented the best value to the agency and made an
   award to the firm. This protest followed.

   In its protest, AMES initially alleged that the agency improperly
   evaluated Strategic's past performance; AMES argued that, as a new
   business, Strategic lacked corporate experience. AMES also argued that the
   agency failed to conduct a cost realism analysis, and had failed to follow
   the RFP's best value evaluation terms by instead awarding the contract to
   Strategic on the basis of its lower-priced, technically acceptable
   proposal. In its report on the protest, the agency responded to each of
   the protester's allegations. Regarding the evaluation of Strategic's past
   performance, the agency's report explained that, as a new business, the
   awardee was credited with its personnel's general construction and
   management experience, as well as its major subcontractor's relevant prime
   contractor experience with similar construction projects at other VAMCs.
   The agency also contended that no cost realism evaluation was required
   under the RFP, and that the agency's price analysis fully supported the
   reasonableness and realism of the awardee's proposed price. The agency
   also reported that in considering strengths and weaknesses of the
   technically acceptable proposals, the agency determined that the price
   premiums associated with both the AMES and the third offeror's
   higher-rated, higher-priced technical proposals were not warranted given
   the level of technical competence of the lower-priced Strategic proposal.
   Although the agency responded to each of the protester's initial protest
   contentions, AMES failed to rebut the substantive responses in its
   comments on the agency's report. Since the protester failed to respond to
   the agency's responses on these issues, we consider them abandoned. Citrus
   College; KEI Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD para.
   104 at 8 n.4; MFVega & Assocs., LLC, B-291605.3, Mar. 25, 2003, 2003 CPD
   para. 65 at 4.

   Rather, in its comments, AMES contends that award on the basis of
   Strategic's lower-priced, lower-rated proposal is improper because the
   record shows that its and the awardee's technical proposals were not
   technically equal. According to AMES, the solicitation required a finding
   of technical equality in order to make award to a lower-rated,
   lower-priced proposal.

   As an initial matter, the protester's argument in this regard is untimely,
   as it is based on information known to the protester as early as when it
   filed its protest, but was not raised until weeks later in its comments on
   the agency report. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2)
   (2007). In any event, the protester's argument is unpersuasive as it
   reflects an unreasonable interpretation of the RFP. To be reasonable, an
   interpretation of solicitation language must be consistent with the
   solicitation when read as a whole and in a manner that gives effect to all
   of its provisions. Stabro Labs, Inc., B-256921, Aug. 8, 1994, 94-2 CPD
   para. 66 at 4. The protester's interpretation that the RFP does not permit
   the agency to find that a lower-rated, lower-priced proposal represents
   the best value to the agency unless the proposals are found to be
   technically equal, is unreasonable because it renders meaningless the
   RFP's clear instruction to all offerors that all technical factors
   combined were to be approximately equal in importance to price.[1]
   Contrary to the protester's position, the solicitation permitted a
   tradeoff between technical and price factors and did not prohibit an award
   to an offeror that submitted a lower-rated, lower-priced proposal.[2]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] While AMES, as stated above, has abandoned its initial contention that
   the agency failed to conduct a proper technical/price tradeoff to support
   its determination that Strategic's lower-rated, lower-priced offer
   presented the best value, we note generally that in a negotiated
   procurement, an agency may properly select a lower-rated, lower-priced
   proposal where it reasonably concludes that the price premium involved in
   selecting a higher-rated proposal is not justified in light of the
   acceptable level of technical competence available at a lower price. Bella
   Vista Landscaping, Inc., B-291310, Dec. 16, 2002, 2002 CPD para. 217 at 4.

   [2] We also do not find persuasive the protester's suggestion that, since
   the initial, terminated award under the RFP was made at a higher price to
   a firm with a proposal rated higher technically than Strategic's or AMES's
   proposals, the current award to Strategic shows there has been a new
   emphasis on price by the agency. The basis of the initial, terminated
   award is irrelevant here as it was based on a separate technical/price
   tradeoff determination reflecting that offeror's higher technical rating
   (as it was rated higher technically than both AMES's and Strategic's
   proposals) at a price higher than Strategic's but lower than AMES's
   proposed price.