FAR 36.3:  Two-Phase Design-Build Selection Procedures

Comptroller General - Key Excerpts

New The protester first argues that the Corps violated FAR § 15.306 by failing to engage in communications with ICCI regarding the negative past performance information in PPIRS. Protests at 9-11. Specifically, ICCI argues that the agency established a competitive range when it selected the most highly-rated proposals to participate in phase two, and therefore the agency was required to engage in communications with ICCI since the Corps relied on its negative past performance information to exclude ICCI from the competitions. Id. at 9-10; see also Comments & Supp. Protest at 3-4. The Corps responds that FAR § 15.306 is inapplicable because it could not and did not establish a competitive range; rather, as set forth in the RFPs, a competitive range would only be established after phase two of the procurement following the evaluation of proposed prices, and then only if the agency decided it could not make award without discussions. Consolidated Memorandum of Law (MOL) at 14-15.

Section 15.306(b)(1) of the FAR states that before establishing a competitive range, an agency must conduct "communications" with offerors whose past performance information is the determining factor preventing them from being placed within the competitive range to allow the offeror to address adverse past performance information to which an offeror has not had a prior opportunity to respond. Part 15 of the FAR requires agencies to evaluate offerors' cost or price prior to establishing a competitive range. FAR § 15.306(c)(1); see also id. at § 15.305(a); SPAAN Tech, Inc., B-400406, B-400406.2, Oct. 28, 2008, 2009 CPD ¶ 46 at 9. Under FAR subpart 36.3 procedures, the evaluation of phase one proposals does not permit the consideration of cost or price as an evaluation factor. FAR § 36.303-1(a)(2)(iii). Rather, the contracting officer selects the most highly qualified offerors to submit phase two proposals. Id. § 36.303-1(b). Only phase two of the procurement is to be conducted in accordance with FAR part 15, including the evaluation of technical and price proposals to be submitted by offerors. Id. § 36.303-2.

Here, in accordance with FAR subpart 36.3, the RFPs did not provide for the submission or evaluation of price proposals until phase two of the procurement. RFP at 9, 27-28, 32. Therefore, contrary to the protester's assertions, FAR § 15.306(b) concerning exchanges before establishment of the competitive range does not apply. Further, our Office has stated before that there is nothing in the regulations concerning phase one of the design-build selection procedures, FAR § 36.303-1, or the authorizing statute for these procedures, 10 U.S.C. § 2305a, that makes the discussions requirements of FAR part 15 applicable to the first phase of a FAR subpart 36.3 procurement, and we will not import these requirements--absent a provision in the solicitation that does so. See Linc Government Servs., LLC, B-404783.2, B-404783.4, May 23, 2011, 2012 CPD ¶ 128 at 7.  (Intercontinental Construction Contracting, Inc. B-415040, B-415040.2, B-415041, B-415041.2: Nov 8, 2017)

The RFP established a two-phase acquisition process. During phase one, at issue here, offerors were required to submit detailed information relating to their own experience and past performance and that of their proposed lead design firm, and also were to submit information relating to the experience and technical qualifications of proposed key personnel, and management approach. RFP at 9-10. This information was to be evaluated to select up to five firms deemed by the agency to be the most highly qualified; these five firms would then submit phase two proposals. RFP at 16. During phase two, the selected firms will make a second proposal submission comprised of a small business utilization plan, proposed engineering solution to the requirement, and proposed price. RFP at 10. Based on an evaluation of the phase two submissions, award will be made to the firm offering the best overall value to the government based on price and technical considerations (approximately equal in weight). RFP at 17.

CTI asserts that the projects it submitted to demonstrate its experience should have been deemed relevant because, although they were not for the design and construction of a complete new structure, they nonetheless demonstrated its experience in every type of construction activity (such as the construction of a foundation, roofing and reinforced concrete walls) that might be called for in connection with the requirement. The protester points out, in this regard, that the RFP did not expressly state that only the design and construction of a complete new structure would be considered relevant; rather, the RFP provided that the projects only had to be similar, not identical, to the current requirement.

In considering protests challenging the evaluation of proposals, our Office will not reevaluate proposals; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Engineered Elec. Co. d/b/a/ DRS Fermont, B-295126.5, B-295126.6, Dec. 7, 2007, 2007 CPD para. 4 at 3-4. While agencies are required to limit their evaluation to the factors stated in the solicitation, they properly may apply evaluation considerations that, while not expressly stated in the solicitation, are nonetheless reasonably and logically encompassed by the stated evaluation factors. American Artisian Prods., Inc., B‑293801.2, June 7, 2004, 2004 CPD para. 127 at 3.

The agency’s evaluation here was unobjectionable. While the solicitation did not expressly state that the agency would limit its consideration to firms with experience in constructing complete, new structures, we think this was reasonably and logically encompassed by the solicitation’s experience factor. The RFP is for the design and construction of a new, multi-story housing facility, and the RFP advised that the agency sought concerns with experience in construction projects similar in scope, size and complexity to the solicited project. We find nothing unreasonable in the agency’s determining that the projects listed by CTI, which involved only the renovation of preexisting structures, not the ground-up construction of a new facility, was not sufficiently similar in scope, size, and complexity to the ground-up project required here. While CTI may well have experience in the different construction areas involved in the requirement, again, we find that it was reasonable for the agency to conclude that there was a significant qualitative difference between this segmented experience and the desired experience performing a complete ground-up project. There thus is no basis for us to object to the evaluation.  (CTI-NAN JV, LLC, B-400979, April 6, 2009)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Intercontinental Construction Contracting, Inc. B-415040, B-415040.2, B-415041, B-415041.2: Nov 8, 2017  
CTI-NAN JV, LLC, B-400979, April 6, 2009  (pdf)  


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