TITLE: B-311383; B-311383.2, SKE International, Inc., June 5, 2008
BNUMBER: B-311383; B-311383.2
DATE: June 5, 2008
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B-311383; B-311383.2, SKE International, Inc., June 5, 2008

   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: SKE International, Inc.

   File: B-311383; B-311383.2

   Date: June 5, 2008

   William F. Savarino, Esq., John J. O'Brien, Esq., and Bryan T. Bunting,
   Esq., Cohen Mohr LLP, for the protester.
   Thomas Janczewski, Esq., and Mitchell W. Quick, Esq., Michael Best &
   Friedrich LLP, for All Star Services Corporation, an intervenor.
   Jana Lynn Strait, Esq., U.S. Army Corps of Engineers, for the agency.
   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Evaluation of protester's technical proposal was unobjectionable where
   agency reasonably found weaknesses associated with firm's timeliness of
   performance because of minor schedule delays in connection with some prior
   contracts; corporate experience, based on limited information regarding
   task orders; and management approach, based on questions regarding
   organizational structure and limited job order contract experience of key
   personnel.

   2. Agency reasonably evaluated awardee's past performance as very good
   notwithstanding some poor rating responses in limited areas of two
   Construction Contractor Appraisal Support System (CCASS) reports, where
   firm's rating was otherwise based on 5 past performance questionnaires and
   11 other CCASS reports, all of which contained a significant majority of
   excellent, outstanding, and above average ratings.

   DECISION

   SKE, International Inc. protests the award of a contract to All Star
   Services Corporation (ASSC) under request for proposals (RFP) No.
   W912DQ-07-R-0040, issued by the U.S. Army Corps of Engineers for
   construction services at Fort Leavenworth, Kansas. SKE challenges the
   agency's technical evaluation.

   We deny the protest.

   The RFP sought proposals for sustainment, restoration, and modernization
   projects at Fort Leavenworth including, but not limited to, mechanical,
   electrical, or fire protection systems, concrete, asphalt, building
   renovation or demolition, interior remodeling, roofing, siding, windows,
   and doors, and work on infrastructure systems. The RFP contemplated the
   award of an indefinite-delivery/indefinite-quantity (ID/IQ) job order
   contract for a base year (up to a $6 million ceiling), with four 1 year
   (up to $6 million ceiling) options.

   Proposals were to be evaluated for "best value" on the basis of four
   factors (with relevant subfactors)--(1) past performance (quality,
   customer satisfaction, and timeliness); (2) corporate experience; (3)
   management approach (organizational structure, plan for responding
   to/managing simultaneous task orders, and subcontractor management); and
   (4) price. Factor 1 was most important and its subfactors were of equal
   importance. Factors 2 and 3 were less important than factor 1, but were
   equally weighted and each subfactor under factor 3 was of equal
   importance. The non-price factors were rated on an adjectival basis
   (excellent, very good, satisfactory, marginal, and unacceptable). Price,
   which was less important than the technical factors, was determined based
   on the offerors' proposed price coefficients.

   Five offerors, including SKE and ASSC, submitted proposals. A source
   selection evaluation board (SSEB) evaluated the proposals (without
   conducting discussions) and reached the following consensus technical
   ratings for SKE and ASSC:

   +------------------------------------------------------------------------+
   |                                   |SKE              |ASSC              |
   |-----------------------------------+-----------------+------------------|
   |Factor 1: Past Performance         |                 |                  |
   |-----------------------------------+-----------------+------------------|
   |Quality of Product or Service      |Very Good        |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Customer Satisfaction              |Very Good        |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Timeliness                         |Satisfactory     |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Factor 2: Corporate Experience     |Very Good        |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Factor 3: Management Approach      |                 |                  |
   |-----------------------------------+-----------------+------------------|
   |Organizational Structure           |Satisfactory     |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Plan for Simultaneous Work         |Very Good        |Very Good         |
   |-----------------------------------+-----------------+------------------|
   |Subcontractor Management           |Very Good        |Very Good         |
   +------------------------------------------------------------------------+

   In evaluating the offerors' prices, the agency compared the proposed
   coefficients to the average market value for the services; lower
   percentages were considered more advantageous. Using this method, the
   agency determined that SKE's coefficient was 87 percent and ASSC's was 95
   percent of the average market value. Although ASSC proposed higher
   coefficients, the contracting officer, as source selection authority
   (SSA), found that the technical benefit offered by ASSC's proposal
   outweighed any benefit from SKE's lower prices. After receiving notice of
   the award and a debriefing, SKE filed this protest.[1]

   TECHNICAL EVALUATION

   SKE's Proposal

   SKE asserts that the evaluation was flawed because the agency improperly
   rated its proposal under each of the evaluation factors. The protester
   maintains that a proper evaluation would have resulted in its proposal
   being rated equal to or better than ASSC's, and that its proposal thus
   represented the best value for award.

   In considering a protest of an agency's proposal evaluation, our review is
   confined to determining whether the evaluation was reasonable and
   consistent with the terms of the solicitation and applicable statutes and
   regulations. United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD
   para. 75 at 10-11.

   The evaluation here was unobjectionable. For example, under the timeliness
   subfactor (under the past performance factor), proposals were evaluated on
   the basis of responses to three questions on past performance
   questionnaires (PPQ) completed by each offeror's past performance
   references. RFP at 67. The only relevant question here was No. 19--"To
   what extent did the contractor meet the contract schedule?"[2] RFP at 58.
   Respondents were given the following options--"[c]ompleted substantially
   ahead of schedule"; "[c]ompleted work on schedule with no time delays";
   "[c]ompleted work on schedule, with minor delays under extenuating
   circumstances"; and "[e]xperienced significant delays without
   justification." Id. Before sending the PPQs to its references, SKE
   re-typed them, inadvertently changing the wording for the two middle
   choices to read--"[c]ompleted work on schedule, with minor delays under"
   and "[c]ompleted work on schedule with no time delays extenuating
   circumstances." Protest at 6. Of the eight references for SKE, four
   responded that the firm had completed its work "substantially ahead of
   schedule" and four responded that it had completed its work "on schedule,
   with minor delays under." Based on these responses, the SSEB evaluated
   SKE's past performance as satisfactory under the timeliness subfactor.[3]

   SKE asserts that its proposal should have been rated very good under the
   timeliness subfactor because of its four ahead-of-schedule ratings, the
   fact that the other four responses were marked in the second highest block
   on the PPQ, and the positive responses to question No. 17 concerning (in
   part) customer satisfaction with schedule. Consolidated Comments at 3-9.

   SKE's assertions are without merit. Under the agency's source selection
   evaluation standards, to receive an excellent rating, an offeror's past
   performance record required a few "ahead of schedule" responses, with the
   remainder under the "no time delays" category; a very good rating required
   a majority of responses in the "no time delays" category; and a
   satisfactory rating required most responses in the "no time delays" and
   "minor delays" categories. Agency Report (AR), Tab 11. The protester's
   PPQs showed four projects completed ahead of schedule, and another four
   with minor delays. This array of responses did not meet the requirements
   under the above scheme for an excellent or a very good rating; the
   responses did meet the requirements for a satisfactory rating. Further,
   while SKE's modified PPQ placed the "with minor delays" category in the
   second highest block--where the "no time delays" category was listed on
   the original form--there is nothing in the record to suggest that the
   references who chose this response disregarded the actual language on the
   form and intended instead to indicate "no time delays." To the extent that
   references may have been confused--again, there is no evidence that this
   was the case--this was due, not to some improper action by the agency, but
   to the protester's failure to accurately copy the PPQ. Finally, even
   though the same references who evaluated SKE as completing its work with
   minor delays also marked question No. 17 as "highly" or "exceptionally"
   satisfied with SKE's schedule, there was no requirement that the agency
   consider those responses under the timeliness subfactor. In fact, under
   the terms of the RFP, only responses to question Nos. 19-21 were to be
   considered for the timeliness subfactor. RFP at 67. Question No. 17 was
   relevant only to the customer satisfaction subfactor and SKE's proposal
   received credit for the positive responses in the form of a very good
   rating for that subfactor. In any event, the references' satisfaction with
   SKE's completion schedule is not necessarily inconsistent with their
   recognition that SKE completed those schedules on time, with minor delays.
   Under these circumstances, there was nothing objectionable in the agency's
   rating SKE's past performance as satisfactory under the timeliness
   subfactor. [4]

   As a second example, under the corporate experience factor, offerors'
   experience with constructing multiple vertical construction
   multi-discipline projects simultaneously was to be evaluated. RFP at 67.
   Offerors were instructed to provide complete, organized, and detailed
   information and were advised that those proposals providing additional
   relevant information that strengthened the overall proposal and added
   significant value to the government would be rated higher than those that
   did not. Id. In rating SKE's proposal very good, the SSEB found a strength
   in the fact that all 10 listed example ID/IQ contracts were job order-type
   contracts on military installations, which demonstrated extensive
   experience performing multiple simultaneous projects. However, the SSEB
   also found a weakness in the lack of detail regarding completion dates and
   results of the task orders under the project examples.

   SKE asserts that this weakness was unwarranted--and that its proposal
   should have been rated excellent under this factor--because it provided
   detailed information for each of its 10 projects. We disagree. Since each
   overall example project submitted by SKE concerned an ID/IQ, job-order
   type contract, details of the task orders issued under the contracts were
   reasonably viewed as relevant to the firm's corporate experience; the
   agency thus could reasonably consider SKE's failure to provide more than a
   brief project description, order date, and amount, without providing task
   order results and completion dates, to be a proposal weakness. SKE claims
   that its failure to provide more detail on individual task orders was due
   to the agency's response to a presolicitation question. Specifically, the
   agency answered "yes" in response to a request that the agency confirm the
   offeror's understanding that the data and descriptions provided should be
   overall contract data, with each project profile identifying the task
   orders that fell within the dollar-size parameters in the RFP. Protest at
   11. We fail to see how the agency's response was misleading. While the
   agency confirmed that offerors needed to identify the task orders, its
   response cannot reasonably be read as mandating a simple listing of task
   orders or as otherwise limiting the information offerors were to provide
   in their proposals. Since the RFP specifically advised offerors that
   proposals providing additional detail would be rated higher, the SSEB
   reasonably assessed a weakness based on SKE's providing more limited
   information.

   As a final example, under the organizational structure subfactor offerors
   were required to submit an organizational chart clearly identifying the
   management, design, and construction teams, key positions to be used in
   executing task orders, and the relationship among teams. RFP at 68.
   Offerors were also to identify minimum key positions, including a project
   manager (PM) and quality control manager (QCM), and the minimum
   educational, licensing, and/or experience requirements and resumes for
   proposed personnel. Id. In this regard, the PM was to have a minimum of 4
   years experience supervising construction projects, and the QCM was to
   have a minimum of 5 years experience on construction similar to this
   project. RFP at 269, 01451A-4. The SSEB assigned SKE's proposal one
   strength--for key personnel meeting the RFP requirements and reflecting
   job order-type work--and two weaknesses--for failure of the organization
   chart to show to whom the QCM would report at the corporate level, and for
   failure of key personnel to have a greater amount of job order-type
   contract experience. SSEB Report at 9-10. SKE's proposal received a
   consensus rating of satisfactory under this subfactor.

   SKE asserts that the assessed weaknesses and subfactor rating were
   improper because they reflected consideration of undisclosed evaluation
   factors--the RFP did not require that the QCM report directly to a
   corporate officer and its key personnel met or exceeded the RFP's
   requirements. Protest at 13-14.

   This argument is without merit. The RFP called for the organizational
   chart to show the relationship between contract teams and the offeror's
   larger organization. RFP at 68. SKE's chart showed the QCM reporting to
   SKE International. However, it did not identify to whom or what office he
   would report. SKE Proposal at 56. We think the SSEB reasonably could view
   this as an omission of relevant organizational information and, thus, as a
   weakness. Likewise, we find nothing unreasonable in the SSEB's assignment
   of a weakness based on the QCM's limited job order contract experience.
   The record shows that SKE's proposed PM had more than the required 4 years
   of experience and had at least 6 years of job order-type contract
   experience, but the QCM only met the minimum 5-year experience
   requirement, and was identified as having less than 2 years of job order
   contract-related experience. SKE Proposal at 69, 74-75. Since the RFP
   specifically called for the QCM to have experience on "construction
   similar to this contract" (RFP at 01451A-4), the QCM's experience was a
   proper consideration under the evaluation scheme. In sum, while SKE met
   the RFP's requirements, the combination of the two weaknesses under this
   subfactor reasonably support the overall satisfactory rating under this
   evaluation subfactor. See Lear Siegler Servs., Inc., B-280834, B-280834.2,
   Nov. 25, 1998, 98-2 CPD para. 136 at 12-13.

   ASSC's Proposal

   SKE asserts that the agency improperly evaluated ASSC's past performance
   as superior to SKE's. Specifically, the protester maintains that ASSC's
   very good rating was undeserved, since the awardee's past performance
   record included some CCASS ratings of satisfactory, fair, and poor, while
   SKE's record contained no ratings of fair or satisfactory. Supplemental
   Protest at 19.

   The agency's evaluation of ASSC's past performance was unobjectionable.
   The source selection evaluation standards defined the criteria that had to
   be met in order for an offeror to receive a rating of very good. Under the
   quality subfactor, an offeror's PPQ references had to reflect a majority
   of responses in the above average or excellent category on all questions,
   with a majority of CCASS ratings of very good and excellent. AR, Tab 11.
   Under the customer satisfaction subfactor, the majority of PPQ responses
   had to be highly satisfied or exceptionally satisfied with regard to
   quality, cost, and schedule, and a majority of the CCASS ratings had to be
   very good and excellent. Id. Under the timeliness subfactor, the majority
   of responses had to be in the work completed with no time delays category,
   and a majority of CCASS ratings had to be very good and excellent. Id. In
   evaluating ASSC's past performance as very good under each of these
   subfactors, the SSEB considered the firm's five PPQs and 13 CCASS reports,
   all of which reflected consistently high ratings, the majority of which
   were in the outstanding, excellent, and above average categories.

   For example, with regard to quality, the PPQs reflected some 18 excellent
   and above average ratings, and only 1 average rating, while the CCASS
   ratings reflected more than 90 ratings of outstanding, excellent, and
   above average (very good) out of some 131 total responses. AR, Tabs 22 and
   23. With regard to timeliness of performance, four PPQs rated ASSC as
   completing projects substantially ahead of schedule, and only one reported
   completion on schedule with minor delays. AR, Tab 22. Under this same
   category, the CCASS reports reflected some 52 responses of outstanding,
   excellent, and above average compared to some 34 responses of good,
   satisfactory, and fair. AR, Tab 23. While, as the protester notes, ASSC
   received some poor CCASS ratings, there were only 6 of them out of more
   than 400 total ratings. Supplemental AR at 3. These appeared in two CCASS
   reports--one in the area of quality, four in the area of effectiveness of
   management/business relations, and one in the area of compliance with
   labor standards. Id. All three past performance subfactors contemplated
   the presence of a few negative remarks or statements of dissatisfaction
   under the respective definitions of very good. AR, Tab 11. Thus, SSEB's
   overall evaluation of ASSC's past performance as very good under all three
   subfactors was in no way inconsistent with the few unfavorable remarks in
   the CCASS reports, and we find no basis for objecting to it.

   In a related argument, SKE asserts that the evaluation was flawed because
   the SSA was not specifically apprised of ASSC's negative CCASS ratings.
   Consolidated Comments at 21. In the protester's view, had the SSA "looked
   behind" the very good ratings, he would have concluded that SKE's past
   performance was superior to ASSC's. Id. This argument is without merit.
   The record shows that the SSA was clearly aware that ASSC's very good past
   performance rating was based on some satisfactory, good, and fair CCASS
   ratings. AR, Tab 15 at 9. While he was not specifically advised of each
   poor rating, in view of ASSC's otherwise superior PPQ and CCASS ratings,
   there simply is no reason to believe that awareness of those few isolated
   ratings (6 out of more than 400 total ratings) would have resulted in a
   different source selection. In this regard, as discussed above, SKE's
   proposal was reasonably evaluated as inferior to ASSC's under two
   subfactors, one of which--timeliness--fell under past performance, the
   most important of the non-price factors.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] SKE challenges the agency's award on numerous bases. We have
   considered them all and find that they have no merit or did not prejudice
   the protester. This decision addresses SKE's most significant arguments.

   [2] The other questions concerned whether liquidated damages were assessed
   for work not completed on schedule and general remarks. All of SKE's
   projects were completed on time, and the only general remark relevant to
   timeliness was consistent with the reference's response to question No.
   19.

   [3] Because of its difficulty in evaluating the responses to SKE's
   modified questionnaires, the SSEB first assigned SKE a neutral rating for
   this subfactor; since there was a record of SKE's past performance, it is
   questionable whether this rating was appropriate. See Federal Acquisition
   Regulation sect. 15.305(a)(2)(iv) (a neutral rating is reserved for
   offerors without a record of relevant past performance or for which past
   performance information is not available). However, in preparing its
   consensus rating, the SSEB translated the neutral rating into a
   satisfactory rating, which was consistent with SKE's combined timeliness
   record. Thus, SKE was not prejudiced by the initial neutral rating. Our
   Office will not sustain a protest unless the protester demonstrates a
   reasonable possibility that it was prejudiced by the agency's actions.
   McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
   Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

   [4] SKE also asserts that the agency should have sought clarification from
   itself or its references. However, clarifications are not required in the
   context of an award without discussions. See AIA-Todini-Lotos, B-294337,
   Oct. 15, 2004, 2004 CPD para. 211 at 12. In any event, since the
   evaluation was consistent with the firm's past performance record, there
   is no possibility of prejudice from the agency's failure to seek
   clarifications from either it or its references.