B-400342, Burchick Construction Company, October 6, 2008
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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: Burchick Construction Company
D.
Matthew Jameson III, Esq., Peter H. Schnore, Esq., and Patrick R. Malone, Esq.,
Babst Calland Clements Zomnir, P.C., for the protester.
David A. Levine, Esq., Blumling & Gusky, LLP, for Massaro Corporation, the
intervenor.
Kenneth MacKenzie, Esq., Department of Veterans Affairs, for the agency.
Peter D. Verchinski, Esq., and Guy R. Pietrovito, Esq.,
Office of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Agency failed to conduct meaningful discussions in a negotiated procurement, where discussions conducted with offerors were limited to cost proposals and did not identify significant weaknesses or deficiencies that the agency had identified in the protester’s technical proposal.
DECISION
Burchick Construction Company
protests the award of a contract to Massaro Corporation under request for
proposals (RFP) No. VA-101-07-RP-0043, issued by the Department of Veterans
Affairs (VA) for the construction of an ambulatory care center and related
work. Burchick challenges VA’s
evaluation of the firm’s technical proposal, conduct of discussions, and source
selection decision.
The RFP provided for the award of a fixed-price contract
for the construction of a new ambulatory care center and associated support
systems and for minor demolition work at the VA Pittsburgh Health Care System,
H. J. Heinz Division,
Instructions for the preparation of proposals were provided for each evaluation factor. For example, with respect to the past performance factor, offerors were instructed to demonstrate corporate construction experience on a minimum of four projects consisting of ambulatory clinics, hospitals, or projects of similar size, scope, and complexity. As another example, with respect to the construction management factor, offerors were instructed to demonstrate the relevant experience of key project personnel, such as the project manager. RFP at 5-6.
The agency received five proposals, including Burchick’s and Massaro’s, which were evaluated by the agency’s technical evaluation board (TEB). Burchick’s and Massaro’s technical proposals received the following point scores:[2]
Evaluation Factor |
Burchick |
Massaro |
Past Performance (40 points) |
22 |
25.4 |
Construction Management (30 pts.) |
14.4 |
19 |
Schedule (20 pts.) |
14.4 |
14.4 |
Small Business Participation (10
pts.) |
0 |
8.5 |
TOTAL (100
pts.) |
50.8 |
67.3 |
Agency Report (AR), Tab 3, Price Negotiation Memorandum, at 6-7.[3]
Buchick’s lower technical point scores reflected the
evaluators’ judgment that the firm’s proposal contained “weaknesses” in a
number of regards.
did not include qualifications for anyone to fill the capacity as a project manager and this was considered a weakness. Although, quality control was mentioned in the technical proposal little to no information was provided as to how Burchick manages the quality control process.
AR, Tab 3, Price Negotiation Memorandum, at 7. With respect to the small business
participation factor (for which Burchick’s proposal received none of the 10
available points), the evaluators found that Burchick, a large business
concern, had “presented no small business participation in management, [that
the firm’s] subcontracting plan did not exceed any goals, and past performance
did not meet all established goals.”
Based upon the TEB’s evaluation of initial proposals, the contracting officer determined that all offerors were qualified to perform the project; the contracting officer also decided that the agency would not conduct discussions with the offerors with respect to the firms’ technical proposals, because “none of the offerors could materially improve its technical proposal.” Contracting Officer’s Statement, Tab 6, at 2. However, because all of the initial proposals exceeded the government’s estimate and available funding, the contracting officer decided to conduct discussions with the firms with respect to only their price proposals. AR at 4.
Accordingly, the contracting officer “discussed the
[architect-engineer’s] cost estimate for each line item, including a comparison
[of] the [architect-engineer’s] estimate with the offeror’s cost proposal, the
areas in which each offeror’s cost could be improved and other issues such as
project phasing and scheduling, which could impact the cost.”
Burchick complains that VA did not conduct meaningful discussions with Burchick, given that VA did not apprise the firm of, or provide it with the opportunity to address, significant evaluated weaknesses in its technical proposal. The protester contends that it could have resolved the agency’s concerns with the firm’s proposal had the firm been provided with discussions concerning its technical proposal.
VA argues that the scope and extent of discussions to be conducted with offerors is “a matter of contracting officer judgment” and that agencies are not required to discuss every area in which a proposal can be improved. In this regard, VA contends that the agency was not required to conduct discussions with respect to Burchick’s technical proposal, given that the contracting officer concluded that the firm could not have materially improved its technical proposal. AR at 6-7.
We agree with VA that a procuring agency has considerable
discretion in determining whether and how to conduct discussions in a
negotiated procurement under Federal Acquisition Regulation (FAR) Part 15. However, where, as here, discussions are
conducted, they must at a minimum identify deficiencies and significant
weaknesses in the proposals of each competitive range offeror. FAR sect. 15.306(d)(3); Multimax, Inc.,
et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at
12; PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. Discussions must be “meaningful,” that is,
sufficiently detailed so as to lead an offeror into the areas of its proposal
requiring amplification or revision. Smiths
Detection, Inc., B-298838, B‑298838.2,
We find that VA did not conduct meaningful discussions with Burchick, since the agency limited its discussions to the firm’s cost proposal and did not identify any of the agency’s significant concerns with Burchick’s technical proposal that resulted in the firm’s proposal receiving only 50.8 points out of 100 possible points.[6] In particular, the protester’s proposal received only 22 of 40 available points under the past performance factor, based upon the agency’s judgment that Burchick had provided detailed information on only one relevant project, where the solicitation requested a minimum of four projects. Similarly, Burchick’s proposal received only 14.4 of 30 available points under the construction management factor, based upon the agency’s conclusion that Burchick had failed to identify a project manager and to detail its quality control plan, as required by the RFP. Burchick’s proposal received no points under the small business participation factor, because the agency found that Burchick had essentially not provided the required small business participation plan. Given the significant reductions in Burchick’s technical point score associated with these identified concerns, and the importance to the agency of the omitted information, we find that these concerns can only be considered to be significant weaknesses or deficiencies, and that the agency’s failure to identify them during discussions was inconsistent with its obligation to conduct meaningful discussions.
We also do not agree with VA that Burchick could not have
materially improved its proposal if discussions were conducted with the firm
with respect to the evaluated concerns in its technical proposal. The protester has explained that it could
have addressed each of the agency’s concerns that resulted in Burchick’s
technical proposal being downgraded. For
example, with respect to the evaluation of the firm’s past performance, Burchick
contends that it identified 37 other healthcare projects in its technical
proposal, which the protester could have detailed if the firm had been asked in
discussions. Protester’s Comments at 4. With respect to the identity of its project
manager and to its proposed quality control plan under the construction
management factor, Burchick states that, had it received discussions, the firm
would have clarified the identity of its project manager and provided further
detail with respect to its quality control plan.[7]
In sum, we find that VA failed to conduct meaningful
discussions with Burchick, because the agency failed to identify significant
weaknesses or deficiencies in the firm’s technical proposal. We also find a reasonable possibility that
Burchick was prejudiced by the agency’s failure to conduct meaningful
discussions, given that Burchick offered the lowest price and could have
addressed these concerns in its technical proposal such that it may have been
found to offer the best value to the agency.[8]
The protester also alleges that the agency may have unreasonably
evaluated its proposal in retaliation for Burchick’s current contract claim
that the firm filed against VA with the U.S. Court of Federal Claims. The protester, however, presents no evidence
supporting this allegation other than its inference based upon the protester’s belief
that its technical proposal was evaluated unreasonably. Government officials are presumed to act in
good faith, and a protester’s assertion that contracting officials were
motivated by bias or bad faith must be supported by convincing proof; we will
not attribute unfair or prejudicial motives to procurement officials on the
basis of inference or supposition. Shinwha
Elecs., B‑290603 et al.,
The protest is sustained.[9]
We recommend that VA conduct discussions with the offerors with respect to their technical proposals, obtain and evaluate revised proposals, and make a new source selection decision. If a firm other than Massaro is selected for award, the agency should terminate Massaro’s contract and make award to that other firm. We also recommend that Burchick be reimbursed the reasonable costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2008). Burchick should submit its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).
Gary L. Kepplinger
General Counsel
[1] Subfactors were also identified for the past performance and construction management evaluation factors. For example, one of the past performance subfactors was “awards received on projects completed within the last 5 years.” RFP at 8.
[2] The evaluators assigned point scores for each offeror’s proposal under each technical evaluation factor and subfactor.
[3] During the protest, VA informed our Office and the parties that it had improperly assigned too many points to the awardee’s proposal under the small business participation factor, and that Massaro’s proposal should have received only 6 points (2.5 fewer points) under this evaluation factor. Supplemental AR, Tab 12, Supplemental Declaration of VA Project Manager, at 1.
[4] As noted above, the agency now acknowledges that Massaro’s combined point score should have been 159.8, because the agency assigned too many points to Massaro’s proposal under the small business participation factor.
[5] Another firm had a higher combined point score than Massaro, but that firm’s proposed price exceeded the funds available for award. AR at 5.
[6]
An agency may limit discussions to price alone, and not conduct technical
discussions, only where a proposal contains no significant technical weaknesses
or deficiencies. See FAR sect.
15.306(d)(3); Metron Corp., B‑227014,
[7] Burchick contends that its proposed “project executive” was the firm’s project manager, although the firm did not use that precise title for that individual. Burchick states that it would have clarified that person’s role, if discussions on technical issues had been conducted. Protester’s Comments at 6-7.
[8]
Our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility
of prejudice, that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award.
McDonald-Bradley, B-270126,
[9]
The protester also challenges the agency’s evaluation of its technical proposal
and source selection decision. We need
not address these contentions, given our recommendation to reopen the
competition and make a new selection decision.
Nevertheless, and although not specifically challenged by the protester,
we note that the agency’s selection decision is based upon a mechanical
comparison of the firms’ technical and price point scores, which is not a valid
substitution for the qualitative assessment of the technical differences of the
proposals or of the benefits associated with a proposal’s additional cost. See FAR sect. 15.308; Midland Supply,
Inc., B-298720, B‑298720.2,