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.
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.
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.
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
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.”
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,
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,
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.”
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
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