B-400709, Sauer, Incorporated, December 22, 2008
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Decision
Matter of: Sauer, Incorporated
Kent
P. Smith, Esq., Smith Currie & Hancock LLP, for the protester.
Peter N. Ralston, Esq., Oles Morrison Rinker Baker LLP, for Oregon Iron Works, Inc., an intervenor.
Kevin
M. Finley, Esq., U.S. Army Corps of Engineers, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency
unreasonably evaluated proposal as technically unacceptable is denied where the
record shows that the evaluation was reasonable and consistent with the
solicitation’s stated evaluation criteria.
DECISION
Sauer, Incorporated of Jacksonville, Florida protests the award of a contract to Oregon Iron Works, Inc. of Clackamas, Oregon under request for proposals (RFP) No. W912QR-08-R-0072, issued by the U.S. Army Corps of Engineers for construction of Markland Lock and Dam miter gates. Sauer challenges the agency’s evaluation of its proposal.
The RFP was issued on
The RFP advised offerors to include information
sufficiently detailed to clearly describe the offeror’s capabilities to
successfully complete the project. As
relevant here, with respect to the welding experience requirement, the RFP
required offerors to provide descriptions of up to three similar projects that included
fabrication of large welded structures substantially completed or completed
within the last 5 years for the prime contractor or subcontractor to be used on
the current project.
RFP sect. 5.2.1.B. The RFP also
required offerors to provide “documentation showing AWS [American Welding
Society] certification for this type of work.”
For the welding experience and the weld testing
requirements, the RFP set forth identical requirements. Specifically, the RFP advised that “documentation
of completion of projects similar in scope and size to the current requirement
and AWS certification for similar work will be considered to have met
the minimum requirements of the RFP and will receive a “Go” rating.” RFP sect. 5.2.2.B and C, (emphasis added). Offerors were warned that proposals that did
not include substantial evidence that the offeror has experience,
qualifications and production capability to successfully perform the work would
be considered to not satisfy the minimum requirements of the RFP.
Four proposals were received in response to the RFP. After the initial evaluation by the source selection
evaluation board (SSEB), all four proposals received an overall rating of “No
Go,” primarily because of the offerors’ failure to satisfy the RFP experience
requirements. Agency Report (AR), Tab E,
Source Selection Report, at 3. The
proposed prices were evaluated as fair and reasonable based on a comparison to
the Independent Government Estimate (IGE) and market prices. After the SSEB noticed that all four offerors
also failed to meet a requirement for a Site Safety Health Officer, the agency
reevaluated the need for this position and eliminated the requirement. As a result,
Sauer received an overall rating of “No Go” primarily because its proposal was rated “No Go” under the experience evaluation factor. Specifically, with respect to the welding and weld testing experience subfactors, Sauer was rated “No Go” because Sauer did not provide any documentation demonstrating that AWS certifications were required for performance of its prior projects.[1] The final evaluation results were as follows:
NAME |
TECHNICAL
RATING |
PRICE |
Offeror
A |
NO-GO |
$18,040,882.00 |
Sauer |
NO-GO |
$19,100,269.10[2] |
|
GO |
$17,438,000.00 |
Offeror
B |
NO-GO |
$19,798,500.00 |
IGE |
$18,541,145.97 |
AR, Tab E, Source Selection Decision at 17.
The source selection authority (SSA) reviewed the
evaluation results and concluded that since
Sauer essentially argues that the agency unreasonably
evaluated its proposal. Specifically,
Sauer contends that the RFP only required offerors to describe in narrative
form how the offeror could meet the contract requirements and that the RFP
permits the AWS certification requirement to be met through a narrative
description and that Sauer did mention in its narratives that AWS standards
were used on prior projects.[3]
In reviewing a protest against an agency’s proposal
evaluation, our role is limited to ensuring that the evaluation was reasonable
and consistent with the terms of the solicitation and applicable statutes and
regulations. National Toxicology
Labs., Inc., B-281074.2,
Although the RFP allowed offerors to describe in narrative form their ability to satisfy the RFP’s requirements, the RFP emphasized the importance of providing information sufficiently detailed to clearly describe the offeror’s capabilities to successfully complete the project. The RFP also warned that proposals that did not include substantial evidence of the offeror’s experience, qualifications and production capability would be considered unacceptable. With respect to the welding and weld testing experience requirements, the RFP clearly required offerors to provide “documentation showing AWS certification for this type of work.” Moreover, the RFP specifically provided that offerors providing documentation of completion of projects similar in scope and size and AWS certification for similar work would be considered to have satisfied the minimum requirements of the RFP.
Sauer’s proposal did not provide any documentation to
demonstrate that its prior experience involved welding work that required AWS
certifications. Rather, Sauer merely
described its prior projects and stated that “[w]eldment required certified
welders and weld testing of full pen welds to AWS standards.” Sauer Proposal Section 2, Experience at 1. Sauer’s explanation that it performed weld
testing to AWS standards is not the same as establishing that it performed
welding work that required AWS certifications or documentation to that effect. In contrast, other offerors provided copies
of the AWS certification for the individual employees that performed the work
on their prior contracts. Given that the
RFP was very specific concerning the requirement for documentation showing AWS
certification on prior projects, the agency reasonably concluded that Sauer’s
proposal was unacceptable based on Sauer’s lack of documentation concerning AWS
certification with respect to any of its prior projects.
To the extent the protester argues that the requirement
for documentation demonstrating AWS certification work was improper because
only individuals receive AWS certifications not businesses, this issue involves
a challenge to the terms of the solicitation impropriety that cannot be raised
at this juncture. Bid Protest
Regulations, 4 C.F.R. sect. 21.2 (a)(1) (2008).
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]
Although the evaluators noted that only two of Sauer’s past projects were
similar in size to the current project, notwithstanding the RFP’s requirement
for three similar projects, the evaluators still concluded that Sauer satisfied
this requirement of the RFP. AR, Tab E,
Evaluation Report, at 7.
[2]
Sauer’s actual proposed price was $17,363,881.
However, the agency applied a HubZone evaluation preference to the total
amount for evaluation purposes.
[3]
Sauer also argued in its initial protest that the agency improperly applied the
HubZone preference to its proposed price on the grounds that