TITLE: B-400145.2, Ahntech-Korea Company, Ltd., August 18, 2008
BNUMBER: B-400145.2
DATE: August 18, 2008
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B-400145.2, Ahntech-Korea Company, Ltd., August 18, 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: Ahntech-Korea Company, Ltd.

   File: B-400145.2

   Date: August 18, 2008

   Leigh T. Hansson, Esq., Gregory S. Jacobs, Esq., and Steven D. Tibbets,
   Esq., Reed Smith LLP, for the protester.
   Megan E. Stephens, Esq., Department of the Army, for the agency.
   Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency improperly evaluated protester's experience is denied
   where record shows agency properly determined that protester did not have
   3 years of relevant experience, as required by solicitation, and
   experience of protester's parent company could not properly be considered
   because proposal did not establish that parent company's resources were
   committed to contract performance.

   DECISION

   Ahntech-Korea Company, Ltd. protests the award of a contract to Kyungil
   Industrial Development Co., Ltd. under request for proposals (RFP) No.
   W91QVN-08-R-0010, issued by the Department of the Army, U.S. Army
   Contracting Command Korea (CCK), for civil engineering services at several
   U.S. Army bases that serve the United States Forces Korea. Ahntech-Korea
   principally asserts that its proposal was improperly determined to be
   technically unacceptable based on a failure to demonstrate adequate
   experience.

   We deny the protest.

   The solicitation, issued December 21, 2007, contemplated the award of a
   fixed-price requirements contract for civil engineering services,
   including customer support, infrastructure and facility maintenance,
   physical plant operations, civil engineering support, environmental
   protection, engineering support, and property management, at six U.S. Army
   locations in Korea, for a 1-month phase-in/transition period, a base year,
   and four 1-year option periods. RFP at 3-68. Award was to be made to the
   offeror submitting the lowest-priced, technically acceptable proposal
   based on consideration of three evaluation factors: technical (comprised
   of three subfactors--prior experience, technical excellence, and personnel
   qualifications); past performance; and price. All factors were of equal
   importance and proposals were to be rated as acceptable or unacceptable
   under each factor and subfactor; a rating of unacceptable under any factor
   or subfactor would result in an overall unacceptable rating. RFP at 100.
   Offerors were required to have 3 years of experience in facility
   maintenance for the same or similar services, RFP at 86, and were to
   include in their proposals a list of all contracts or subcontracts during
   the past 3 years that were relevant to the efforts required by this
   solicitation. RFP at 113. Offerors also were to identify subcontractors
   and/or affiliated offerors. Id. at 111. On January 28, 2008, CCK issued
   amendment 0007, which advised offerors that "Only Korean companies will be
   eligible for award." RFP amend. 7, at 3-4.

   Twelve proposals, including Kyungil's and Ahntech-Korea's, were received
   by the closing time. In its proposal, Ahntech-Korea indicated that it was
   a Korean company and a wholly owned subsidiary of Ahntech, Inc., a small
   disadvantaged business headquartered in San Diego, California (Ahntech-San
   Diego). To demonstrate its prior experience, Ahntech-Korea identified in
   its proposal two prior contracts: a contract for the operation and
   maintenance of the Korean Training Range Complex (KTRAC), to be performed
   by the protester from October 2006 until September 2011, and a contract
   performed by Ahntech-San Diego from January 2000 until July 2007, for the
   operation and maintenance of various primary training ranges (PTR) within
   the U.S.

   Proposals were initially evaluated by a technical evaluation board (TEB),
   which determined that Ahntech-Korea's proposal was acceptable under all
   three evaluation factors. Agency Report (AR), Tab 17, TEB Report, at 1.
   However, the contracting officer, upon review of the TEB's evaluation,
   determined that Ahntech-Korea's proposal was technically unacceptable
   under the experience subfactor. Specifically, the contracting officer
   found that the scope of the KTRAC contract was not comparable to the work
   under the RFP, since it did not involve maintaining a large number of
   bases. AR, Tab 20, Contracting Officer's Memorandum for the Record, at 4.
   The contracting officer further noted that the information regarding
   Ahntech-San Diego's PTR contract was "general in nature," and insufficient
   to allow the contracting officer to conclude that Ahntech-Korea met the
   3-year experience requirement. The contracting officer therefore rejected
   the TEB's recommendation that Ahntech-Korea be found technically
   acceptable, and stated that he had "determined [Ahntech-Korea] to be
   technically unacceptable based upon [a] lack of similar 3 years of
   experience." Id. at 5. On April 29, the agency notified Ahntech-Korea that
   award had been made to Kyungil. After a debriefing, Ahntech-Korea filed
   this protest in our Office.

   Ahntech-Korea protests on a number of grounds, including, for example,
   that the solicitation did not define "Korean company," that the
   solicitation did not provide that the awardee had to be a Korean company,
   and that the agency improperly failed to take Ahntech-San Diego's
   experience into account in evaluating Ahntech-Korea's experience.[1]
   Protester's Comments at 11; Protester's Supplemental Comments at 3.
   Ahntech-Korea also argues that the contracting officer's post-protest
   statement that he determined not to consider Ahntech-San Diego's
   experience because it is not a Korean company and was not listed as an
   affiliate of Ahntech-Korea, is inconsistent with the contemporaneous
   record. Protester's Comments at 14. Ahntech-Korea asserts that the
   experience of Ahntech-San Diego should be evaluated because, even though
   Ahntech-San Diego was not listed as an affiliate, Ahntech-Korea's proposal
   clearly demonstrated that Ahntech-San Diego would "guide and support"
   Ahntech-Korea under the contract. Protester's Comments at 16.

   The evaluation of technical proposals is a matter largely within the
   agency's discretion. C. Lawrence Const. Co., Inc., B-287066, Mar. 30,
   2001, 2001 CPD para. 70 at 4. In reviewing an agency's technical
   evaluation, we will not reevaluate the proposals; rather, our review is
   limited to determining whether the evaluation was reasonable and
   consistent with the solicitation's evaluation criteria and with all
   applicable procurement statutes and regulations. See, e.g., Shumaker
   Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002
   para. 169 at 4.

   We agree with the protester that the contracting officer's explanation of
   his evaluation, in response to the protest, does not entirely track the
   contemporaneous record. For example, the protester is correct that there
   is nothing in the contemporaneous record supporting the contracting
   officer's claim that he did not consider Ahntech-San Diego's PTR contract
   in evaluating Ahntech-Korea's experience because Ahntech-San Diego is not
   a Korean company. In fact, as discussed above, the record shows that the
   contracting officer did consider Ahntech-San Diego's PTR contract; he
   concluded that the proposal information concerning this contract was too
   "general in nature" to allow the contracting officer to find that
   Ahntech-Korea met the 3-year experience requirement. However,
   notwithstanding the agency's unsupported statements in response to the
   protest, it is clear from the contemporaneous record that it reasonably
   found that Ahntech-Korea did not meet the 3-year experience requirement.

   As discussed, Ahntech-Korea's proposal identified two contracts to show
   that it met the 3-year similar experience requirement--the firm's own
   KTRAC contract and Ahntech-San Diego's PTR contract. Regarding the KTRAC
   contract, as noted, the agency determined that it was not sufficiently
   similar to the effort under the RFP because it did not involve managing
   multiple bases. Moreover, as the agency notes in its report, Ahntech-Korea
   had been performing under the KTRAC contract for fewer than the 3 years
   required under the solicitation. AR, Tab 1, Legal Memorandum, at 13. The
   protester does not question the agency's findings, or its resultant
   conclusion that the KTRAC contract did not demonstrate the required
   3 years of experience, and we thus have no basis to question the
   evaluation in this regard.

   Regarding Ahntech-San Diego's PTR contract, an agency properly may
   attribute the experience or past performance of a parent or affiliated
   company to an offeror only where the firm's proposal demonstrates that the
   resources of the parent or affiliated company will affect the performance
   of the offeror. Perini/Jones Joint Venture, B-285906, Nov. 1, 2000, 2000
   CPD para. 68 at 4. The relevant consideration is whether the resources of
   the parent or affiliated company--its workforce, management, facilities,
   or other resources--will be provided or relied upon, such that the parent
   or affiliate will have meaningful involvement in contract performance. Id.
   at 5.

   Although the record shows that the agency did consider the PTR contract in
   the evaluation (finding that the proposal information concerning this
   contract was too "general in nature"), since Ahntech-San Diego was not an
   offeror, it would be appropriate for the agency to impute that entity's
   experience to Ahntech-Korea only if Ahntech-Korea's proposal committed
   Ahntech-San Diego's resources to performance of the contract. We find that
   the proposal did not commit Ahntech-San Diego's resources. There is
   nothing in Ahntech-Korea's proposal that purports to offer the workforce,
   management, facilities or other resources of Ahntech-San Diego for
   performance of the contract. The protester points to proposal language
   that it believes was sufficient to commit Ahntech-San Diego's resources.
   However, the cited language consists of only general statements regarding
   guidance, instruction, and support. For example, the proposal states that
   "[s]ince Ahntech-Korea's inception, the parent company has provided
   support mentoring, and training to develop the subsidiary's management
   structure to one that focuses heavily on the needs of the customer and how
   the company can satisfy them," Ahntech-Korea Proposal, at 1, and that
   "[c]orporate experience comes from the dual experiences of Ahntech-Korea,
   combined with those of the parent company, Ahntech-San Diego. In the
   parent role, Ahntech-San Diego provides guidance, instruction, and support
   to each contract performed by Ahntech-Korea and as such Ahntech-Korea
   benefits heavily from the experiences gained by the parent company over
   years of performance on Government contracts." Id. at 3. While these
   statements perhaps are sufficient to indicate that there is a business
   relationship between the two entities, there is nothing in the
   language--or elsewhere in the proposal--that actually commits any of
   Ahntech-San Diego's resources to performance of the contract. This being
   the case, the contracting officer could not properly consider Ahntech-San
   Diego's experience in its evaluation of Ahntech-Korea.

   Since the agency reasonably determined that the KTRAC contract did not
   satisfy the 3-year experience requirement, and since the agency could not
   properly consider Ahntech-San Diego's experience in the evaluation, it is
   clear that the protester did not meet the 3-year experience requirement.
   It follows that the contracting officer's conclusion that Ahntech-Korea's
   proposal was technically unacceptable was unobjectionable. The protester's
   other arguments--regarding, for example, the absence of any RFP
   requirement that warranted rejecting the protester's proposal on the basis
   that the protester is not a Korean company--are irrelevant, since they
   have no bearing on the propriety of the agency's rejection of the proposal
   as unacceptable under the experience requirement.

   The contracting officer also found Ahntech-Korea to be nonresponsible
   based on its determination that it did not have an office in Korea, had
   insufficient financial resources, and had no facilities or existing
   organization. The protester challenges this determination. However, since
   the protester's proposal was properly rejected as technically
   unacceptable, the firm could not receive the award even if we found its
   challenge meritorious. This aspect of the protest therefore is academic.
   Dyna-Air Eng'g Corp., B-278037, Nov. 7, 1997, 97-2 CPD para. 132.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Army asserts, as a preliminary matter, that GAO lacks jurisdiction
   to hear the protest because the protest is being funded by the Republic of
   Korea and not with appropriated funds, citing our Bid Protest Regulations.
   Agency's Dismissal Request at 3-4. The Army also claims that the
   procurement is not within our jurisdiction because the Republic of Korea
   selected the awardee. Id. Our authority to decide bid protests extends to
   alleged violations of the procurement statutes and regulations by federal
   agencies, 31 U.S.C. sect. 3552 (2000); 4 C.F.R. sect. 21.1(a) (2008), and
   is based on whether the procurement was conducted by a federal agency; our
   jurisdiction is not dependent upon whether appropriated funds were
   involved in a procurement. Yoosung T&S, Ltd., B-291407, Nov. 15, 2002,
   2002 CPD para. 204 at 3 n.2. The record shows that, although the Republic
   of Korea made the award decision, the Army conducted the procurement--it
   issued the solicitation, evaluated the proposals, and made the award
   recommendation. This being the case, we consider the procurement to be by
   a federal agency. Consequently, the protest falls within our jurisdiction.