New
In reviewing protests against allegedly improper
evaluations of firms’ qualifications statements for A/E
services, our Office examines the record to determine
whether the agency’s judgment was reasonable and in
accordance with the stated selection criteria and
applicable procurement laws and we will not substitute our
judgment for that of the agency evaluators. AMEL Techs.,
Inc., B-412611, Apr. 1, 2016, 2016 CPD ¶ 103 at 5; OLBN
Architectural Serv., Inc., B-402444.4, B-402444.5, Oct. 4,
2010, 2011 CPD ¶ 55 at 3. A protester’s disagreement with
the agency’s evaluation, without more, does not show that
it is unreasonable. Design Eng’g, Inc., B-408336.3, May 6,
2014, 2014 CPD ¶ 144 at 3.
Here, with regard to the most important criterion,
professional qualifications of firm and staff, the
selection board found that AMEL had proposed only two
professionally licensed and experienced mechanical
engineers. Although the protester’s organizational chart
listed three licensed mechanical engineers, the evaluators
noted that the accompanying resumes showed that only two
of these three individuals were professionally licensed
mechanical engineers with the needed experience to perform
the solicited mechanical services. The three other members
of AMEL’s mechanical staff were found to possess 1, 2, and
3 years of experience, respectively, and that “their
relevant experience only includes retro‑commissioning and
energy modeling/assessment surveys” and not preparation of
design bid build construction documents. AR exh. 5,
Selection Board Revised Memorandum at 21. Because the
resulting contract would involve various types of
specialized engineering requirements, the evaluators
considered the use of only two professionally licensed
mechanical engineers with the requisite experience to be
inadequate.
Next, the evaluators found that none of the protester’s
key personnel possessed “specialized experience in design
of industrial type of systems such as industrial exhaust
and ventilation systems, compressed air systems, water
pumping systems, hydraulic systems, gas piping systems,
and petroleum/oils/lubricant (POL) systems” as would be
required under this A/E contract. Id. Finally, the
evaluators found that AMEL’s key personnel did not have
any specialized experience in the design of fire
protection systems, i.e., fire suppression and fire alarm,
but noted that AMEL’s subcontractor did have experience in
fire protection engineering. Id. As a result of these
evaluative findings, the selection board assigned AMEL’s
qualification statement a not met rating under this
selection criterion.
AMEL asserts that the selection board’s evaluation of its
qualification statement under the professional
qualifications criterion was based on the improper
consideration of unstated selection criteria. In this
regard, the protester argues that the solicitation failed
to disclose that the agency would evaluate the years of
experience of its key personnel. A solicitation, however,
need not identify every possible consideration under each
stated evaluation criteria, provided the matters the
agency considers are reasonably related to, or encompassed
by, the stated criteria. See Avogadro Energy Sys.,
B-244106, Sept. 9, 1991, 91-2 CPD ¶ 229 at 4.
Here, the solicitation required firms to demonstrate their
qualifications to provide A/E design and other required
services, and to establish the professional qualifications
of their personnel. The requirement to demonstrate the
professional qualifications of their personnel placed
firms on notice that the experience of their personnel
would be assessed. In this regard, it is apparent from
AMEL’s qualification statement that AMEL submitted the
education and years of experience of the six mechanical
engineers it identified as key personnel, which the agency
considered and ultimately found to be inadequate. AR exh.
4, AMEL’s Qualification Statement Part 1, §§§ D, H, and I.
Given the terms of the solicitation, we have no basis to
conclude that the agency’s identified concerns regarding
the lack of experience of AMEL’s mechanical engineers were
unreasonable or otherwise improper.
Similarly, while conceding that it did not have a licensed
fire protection engineer, see Protester’s Comments at 12,
the protester complains that it was improperly downgraded
in this regard. According to the protester, the
solicitation did not require the prime A/E firm to have a
fire protection engineer on its staff; therefore, the
protester relied on the experience of its subcontractor.
The record reflects that the agency noted AMEL’s reliance
on the subcontractor for this experience, but found the
lack of AMEL’s experience, as the prime contractor, in
this important area, to be a concern. As noted above, the
solicitation established that the agency would assess the
experience of a firm’s personnel pertaining to, among
other things, “the design of fire protection systems and
controls, fire protection studies and surveys, fire
protection investigative reports, [and] fire hazard
analysis.” Solicitation at 2. Ultimately, the significance
of, and the weight to be assigned to, the prime’s
experience--or lack thereof--and the weight to be assigned
to the experience of proposed subcontractors or team
members, are matters of contracting agency discretion. See
MIRACORP, Inc., B-410413.2, Feb. 23, 2015, 2015 CPD ¶ 98
at 5; Loral Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD ¶
241 at 5. Accordingly, we have no basis to find the
selection board’s concerns regarding AMEL’s lack of
requisite experience in fire protection to be unreasonable
or otherwise improper.
Regarding selection criterion 2, the second most important
criterion, specialized recent experience and technical
competence, the selection board reviewed the ten projects
submitted by AMEL and concluded that the firm did not have
sufficient experience relevant to the type of specialized
industrial mechanical systems as would be required under
the solicitation. For example, the selection board
reviewed three projects where AMEL was a mechanical
sub‑consultant on a multi-discipline A/E team. The
evaluators found that the scope of these projects “was
mainly to provide small packaged HVAC systems and to
provide commissioning services.” AR exh. 5, Selection
Board Revised Memorandum at 22. In sum, the agency found
that AMEL’s experience did not include any projects
involving multiple disciplines where it was the lead
consultant, as would be required by the contemplated
contract. Although the protester disagrees with the
selection board’s analysis and continues to argue that it
has extensive and relevant experience, it has not shown
that the selection board’s evaluative conclusions, which
were based on the solicitation’s selection criterion, were
unreasonable. On this basis, we view the protester’s
arguments as reflecting nothing more than disagreement
with the agency’s assessments of its qualification
statement. Design Eng’g, Inc., supra.
Finally, AMEL alleges that the agency’s reevaluation of
its qualification statement reflected bias against the
firm because it is woman-owned. In this regard, AMEL
submitted a number of reports and academic papers to
support its arguments that women are discriminated in
scientific fields such as architecture and engineering. As
further support, AMEL cites an alleged discrepancy on a
previous contractor performance assessment report system
report for a NAVFAC contract that AMEL performed in 2012.
AMEL claims that the contracting officer assigned
significantly lower past performance ratings than the
project manager, and that this allegedly proves the
“agency’s [prejudicial] evaluation and discrimination
against AMEL.” Protest at 9.
By decision dated April 1, 2016, we denied a protest filed
by AMEL against another Navy procurement for A/E services
with similar qualification requirements. We rejected the
protester’s arguments regarding gender bias, finding no
evidence of wrongdoing or bias on the part of the agency.
We found that the Navy’s evaluation of AMEL’s
qualification statement was reasonable and consistent with
the stated selection criteria. AMEL Techs., Inc., supra at
7-8. As explained in our prior decision, government
officials are presumed to act in good faith, and we will
not attribute unfair or prejudicial motives to procurement
officials on the basis of inference or supposition; where
a protester alleges bias, it must not only provide
credible evidence clearly demonstrating bias against the
protester or in favor of the successful firm, but must
also show that this bias translated into action that
unfairly affected the protester’s competitive position.
See McKissack-URS Partners, JV, B‑406489.7, Jan. 9, 2013,
2013 CPD ¶ 25 at 7; IDG Architects, B‑235487, B‑235487.2,
Sept. 18, 1989, 89‑2 CPD ¶ 236 at 3 (GAO will not
attribute bias in the evaluation of qualifications
statement for A/E contract on the basis of inference or
supposition about the ethnic composition of the evaluation
panel). Like the record in the prior case, there is no
evidence here of wrongdoing or bad faith by the agency.
The protest is denied. (AMEL
Technologies, Inc. B-412587.2: Jun 20, 2016) (pdf)
In reviewing a protest of an agency’s selection of a
contractor for A/E services, our Office will not
substitute its judgment for that of the agency evaluators.
OLBN Architectural Serv., Inc., B‑402444.4, B‑402444.5,
Oct. 4, 2010, 2011 CPD ¶ 55 at 3. Rather, the evaluation
of offerors’ qualifications statements is within the
discretion of the agency, and our review examines whether
the agency’s selection was reasonable and in accordance
with the published criteria. ARTEL, Inc., B‑248478, Aug.
21, 1992, 92-2 CPD ¶ 120; James W. Hudson & Assocs.,
B‑243277, July 5, 1991, 91-2 CPD ¶ 29; Ward/Hall Assocs.
AIA, B-226714, June 17, 1987, 87-1 CPD ¶ 605. A
protester’s disagreement with the agency’s evaluation,
without more, does not show that it is unreasonable.
Design Eng’g, Inc., B‑408336.3, May 6, 2014, 2014 CPD ¶
144 at 3.
The synopsis, as described above, stated that A/E firms
must demonstrate their qualifications with respect to the
seven selection criteria for all services. Synopsis at 1.
The solicitation required firms to provide detailed
descriptions of the A/E support services rendered for each
project under the experience and technical competence
selection criterion, which included:
conducting geotechnical
investigations and consulting work relating to
earthwork, pavement, and foundation design in support of
multi-discipline architect-engineering services that
include Military Construction project documentation (DD
Form 1391), Functional Analysis and Concept Development
(FACD), Design Charrette, and Request for Proposal (RFP)
Design-Build (DB) and [DBB] solicitation documents for
projects in the Hawaii, Guam, and tropical areas within
the NAVFAC Pacific AOR. [S]upporting elements of work
[include] environmental investigations; hazardous waste
handling and disposal; and solid waste handling and
disposal.
Id. at 2. The solicitation stated
that projects located within the NAVFAC Pacific AOR would
be evaluated more favorably, and that for DB RFP projects,
familiarity with the NAVFAC 6-part DB RFP format, would be
evaluated more favorably. Id.
We find, based on our review of the record, that the Navy
evaluated AMEL’s SF 330 consistent with these solicitation
provisions. The contemporaneous record shows that in
evaluating projects under the second selection criterion,
the SSB considered an offeror’s experience and technical
competence with the various multi-discipline A/E services
cited above. In our view, the SSB reasonably determined
that AMEL’s three disputed projects involved services that
did not reflect the types of multi-discipline A/E services
required to demonstrate an offeror’s relevant experience
and technical competence. Although AMEL disagrees with the
SSB’s evaluation findings, AMEL has not identified where,
in its SF 330’s descriptions of those projects, services
such as Military Construction project documentation, FACD,
Design Charrette, or DB/DBB solicitation documents are
included. In this regard, AMEL has not persuaded us that
the SSB unreasonably determined that AMEL presented a high
risk because it submitted only two relevant projects.
Moreover, we agree with the Navy that, contrary to the
solicitation’s instructions, AMEL did not provide detailed
descriptions of the A/E services that it rendered for
those projects. An A/E firm has the responsibility to
submit a well-written qualifications statement, with
adequately detailed information, which clearly
demonstrates compliance with the solicitation requirements
and allows a meaningful review by the procuring agency,
and that contains all the information that was requested
or necessary to demonstrate its capabilities in response
to the solicitation. Electronic Interiors, Inc., B-405576,
Nov. 18, 2011, 2011 CPD ¶ 267 at 3. In this regard, an
offeror must affirmatively demonstrate the merits of its
qualifications statement and risks the rejection of its SF
330 if it fails to do so. Id. Agencies are not required to
infer information from an inadequately detailed proposal
or information that the protester elected not to provide.
See, e.g., Optimization Consulting, Inc., B‑407377,
B‑407377.2, Dec. 28, 2012, 2013 CPD ¶ 16 at 9 n.17.
For example, with regard to project no. 1, AMEL’s SF 330
explicitly states that AMEL provided geotechnical
engineering inspection services and testing, and describes
the relevance of that project as follows: “RELEVANCY: AMEL
can provide soil sampling, field tests, geotechnical
laboratory testing, analysis, reports and related work[.]”
AR, Tab 4, AMEL SF 330, Part 1, § F, Example Projects,
No.1, at 35 (emphasis in original). The SF 330 highlights
AMEL’s provision of construction inspection, laboratory
services, and field testing for that project, but
identifies neither the design and engineering services
that the protester now asserts it provided during that
project (supra n.4), nor the multi‑discipline A/E services
cited above. Insofar as AMEL maintains that the Navy
should have considered a past performance survey for that
project in order to evaluate all of the services that AMEL
provided, as the agency correctly points out, it was
AMEL’s responsibility to provide a detailed description
that properly identified the services that AMEL wanted the
agency to consider.
Similarly, AMEL’s SF 330 is at best ambiguous regarding
the services it provided on project no. 5. Instead of
providing a detailed description of the services rendered,
as required by the solicitation, AMEL simply provided a
list of five bullet points for project no. 5 that listed
AMEL as the geotechnical engineer and conducting integrity
testing, among other things. AR, Tab 4, AMEL SF 330, Part
1, § F, Example Projects, No. 5, at 47. The description
(i.e., the list of bullet points) referenced an attached
support letter from the project’s prime contractor, who
explicitly stated that AMEL was hired to provide
construction inspection services. Id. at 47-48. Neither
AMEL’s bullet points, nor the prime contractor’s letter,
describe any of the multi‑discipline A/E services above.
See id.
Quite simply, the contemporaneous record here supports the
Navy’s conclusion that AMEL’s limited experience and
technical competence presented a high risk. Moreover, we
find that the agency equally evaluated the submissions and
reasonably found that AMEL had the least amount of
relevant projects among the three A/E firms interviewed.
For example, the record demonstrates, and AMEL does not
dispute, that its projects did not demonstrate experience
outside of Hawaii. By contrast, the other two firms
demonstrated experience in Hawaii, as well as in Guam,
which the SSB considered more favorably consistent with
the solicitation terms cited above. AR, Tab 10, SSB Mem.,
Encl. 4, Selection & Ranking Rationale, at 2-3. Similarly,
unlike AMEL, one of the higher ranked A/E firms
demonstrated experience and competence with military
construction project documentation and familiarity with
NAVFAC 6-part DB RFP format, which the SSB also considered
more favorably. Id. Accordingly, the protester has
provided no basis on which to sustain the protest. (AMEL
Technologies, Inc. B-412611: Apr 1, 2016) (pdf)
The protester maintains that the Brooks Act may only be used
where an agency is acquiring A-E services in connection with the
construction of a building, structure or facility that is
immovable and erected on land. According to the protester,
Congress never intended the Brooks Act to be applicable to naval
architecture and marine engineering services. Tridentis argues
that the agency instead is required to use negotiated
procurement procedures under part 15 of the Federal Acquisition
Regulation (FAR) to meet its requirements.
The agency responds that it properly may use Brooks Act
procedures for its acquisition. The agency maintains that the
definition of A-E services included in the statute and FAR part
36 is broad enough to encompass the services it is soliciting.
We agree with the agency that the language of the Brooks Act is
broad enough to encompass the solicited services. The Brooks Act
provides as follows:
Architectural and engineering services. The term
"architectural and engineering services" means--
(A) professional services of an architectural or engineering
nature, as defined by state law, if applicable, that are
required to be performed or approved by a person licensed,
registered, or certified to provide the services described in
this paragraph;
(B) professional services of an architectural or engineering
nature performed by contract that are associated with
research, planning, development, design, construction,
alteration, or repair of real property; and
(C) other professional services of an architectural or
engineering nature, or incidental services, which members of
the architectural and engineering professions (and individuals
in their employ) may logically or justifiably perform,
including studies, investigations, surveying and mapping,
tests, evaluations, consultations, comprehensive planning,
program management, conceptual designs, plans and
specifications, value engineering, construction phase
services, soils engineering, drawing reviews, preparation of
operating and maintenance manuals, and other related services.
40 U.S.C. § 1102(2). The agency relies on the terms of
subsection “C” in support of its position.
Our review of the statutory language leads us to conclude that
the limitation urged by the protester--that Brooks Act
procedures may be used only to acquire A-E services performed in
connection with the construction of a building, structure or
facility on land--does not exist. We note at the outset that
subsection “B” of the statute specifically identifies acquiring
professional services of an architectural or engineering nature
that are “associated with research, planning, development,
design, construction, alteration, or repair of real property.”
This specific statutory language appears to be precisely the
limitation that the protester is urging.
However, subsection “C” of the statute (on which the agency
relies) provides a separate, different, and supplemental
definition of A-E services that is not tied to any activity
associated with real property. It simply defines A-E services as
“other professional services of an architectural and engineering
nature” that may be performed by members of the architectural
and engineering professions, without limitation. 40 U.S.C. §
1102(2)(C). The statute does not identify or enumerate--and
indeed is silent about--which architectural and engineering
disciplines or professions to which it refers. It also lists a
number of generic examples of activities that clearly encompass
the activities contemplated under the current solicitation,
including performing studies, preparing conceptual designs,
preparing plans and specifications, and reviewing drawings.
Thus, we conclude that the agency reasonably has determined that
the disciplines of naval architecture and marine engineering are
encompassed by this broad definition, and that the activities
for which the agency seeks to contract are included in the list
of activities identified in the statute.
In support of its position, the protester directs our attention
to the legislative history of the Brooks Act, H. R. Rep. No.
92-1188 (1972) and S. Rep. No. 92-1219 (1972). However, those
materials are not probative because the 1972 version of the
Brooks Act included a definition of A-E services that was
different from the definition in the current version of the
statute. The prior definition was as follows:
The term, '”architectural and engineering services” includes
those professional services of an architectural or engineering
nature as well as incidental services that members of these
professions and those in their employ may logically or
justifiably perform.
Pub. L. No. 92-582, 86 Stat. 1278-9 (1972). The current
definition was the product of a 1988 amendment[2] clarifying the
definition of A-E services, in part, in reaction to decisions of
our Office that appeared to narrow the definition of A-E
services. In this connection, the legislative history of the
amended definition provided as follows:
Section 8 of H.R. 3345 amends a section of title IX of the
Federal Property and Administrative Services Act of 1949 (40
U.S.C. 541 et seq. [currently 40 U.S.C. § 1101 et seq.]),
which provides a qualifications-based process for the
selection of architects, engineers, and providers of related
services. This procedure was enacted into law in 1972 as P.L.
92-572. In the intervening years, changing technology and
applications, as well as several decisions of the Comptroller
General which might have been interpreted as narrowing the
applicability of this law, have made clear the need to clarify
for Federal agencies the range of services that are subject to
the 1972 Act's procedures. To that end, Section 8 amends
section 541 of 40 U.S.C. to provide a more complete and
explicit definition of subject services than exists in current
law.
H. R. Rep. No. 100-911 at 24 (1988); see also H. R. Rep. No.
100-1070 (Conference Report) at 89 (1988); 134 Cong. Rec. H30062
(daily ed. Oct. 12, 1988) (Statement of Mr. Myers, (emphasis
supplied)): “It is the intent of this new definition . . . to
clarify and make permanent the application of the Brooks A/E law
to the services of surveying and mapping firms and other
appropriate services for all Federal agencies.”
The amended definition was the subject of a request for an
advance decision from our Office by the Forest Service. Forest
Service, Dep’t. of Agriculture--Request for Advance Decision,
B-233987, B-233987.2, July 14, 1989, 89-2 CPD ¶ 47. That
decision responded to the Forest Service’s inquiry regarding
whether it was appropriate to acquire mapping and surveying
services, property line marking services, preliminary surveys,
construction surveys, construction sampling and testing, map
scribing, map digitizing, map aerotriangulation, map
compilation, mapping photolab activities, and value analysis
engineering studies.[3] In response, we advised the Forest
Service as follows:
However, with regard to other specific services not associated
with a specific A-E project that are mentioned by the Forest
Service, the determination of Brooks Act applicability should
be made initially on a case-by-case basis by the contracting
officer in accordance with the definition provided in the 1988
amendment and the FAR, since, as indicated in the conference
report, this initial decision is within the discretion of the
contracting agency. See H.R. Rep. No. 100-1070 at 89. We will
review such determinations where it is alleged that the
contracting officer has abused his discretion or made the
determination in bad faith.
Forest Service, Dep’t. of Agriculture--Request for Advance
Decision, supra. at 6.
We recognize that agencies typically use Brooks Act procedures
to acquire A-E services in connection with the construction of
buildings, structures and facilities. We also recognize that
there is nothing in the express terms of the Brooks Act or its
legislative history that specifically mentions the acquisition
of naval architectural and marine engineering services.
Nonetheless, agencies enjoy a degree of discretion in deciding,
on a case-by-case basis, whether or not the services they are
acquiring are A-E services. Forest Service, Dep’t. of
Agriculture--Request for Advance Decision, supra. at 6; see also
White Shield, Inc., B-235967, Oct. 30, 1989, 89-2 CPD ¶ 392;
Photo Science, Inc., B-296391, July 25, 2005, 2005 CPD ¶ 140.
Where an agency reasonably determines that the services being
acquired are A-E services, the requirements of the Brooks Act
apply, even where the ultimate object of the acquisition is not
the construction of a building, structure or facility.
In the final analysis, as discussed above, there is nothing on
the face of the statute that would preclude using Brooks Act
procedures for acquiring naval architectural and marine
engineering services, as the agency proposes to do here. There
also is nothing on the face of the statute that limits its
application to the acquisition of A-E services solely in
connection with the construction of a building, structure or
facility, as urged by the protester. (Tridentis
LLC B-412539: Mar 18, 2016) (pdf)
EII challenges numerous aspects of the agency’s evaluation of its proposal
under the first two criteria. As discussed below, we see no
merit to the arguments.
In reviewing protests of alleged improper evaluations, our
Office examines the record to determine whether the agency’s
judgment was reasonable and in accord with the stated evaluation
criteria and applicable procurement laws. L-3 Commc’ns Westwood
Corp., B-295126, Jan. 19, 2005, 2005 CPD ¶ 30 at 5. It is an
offeror’s responsibility to submit a well-written proposal, with
adequately detailed information which clearly demonstrates
compliance with the solicitation and allows a meaningful review
by the procuring agency. CACI Techs., Inc., B-296946, Oct. 27,
2005, 2005 CPD ¶ 198 at 5. In this regard, an offeror must
affirmatively demonstrate the merits of its proposal and risks
the rejection of its proposal if it fails to do so. HDL Research
Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5.
Here, with regard to factor 1, professional qualifications
necessary for satisfactory performance of the required services,
the agency found that EII had listed projects for its key
personnel, indicating their experience with various courts. EII
did not, however, “elaborate on what work was done, what design
services were offered or what they offered/brought to the table
as experts,” nor did they “articulate any specifics that
demonstrate what they do or do not have expertise in.” AR, Tab
C, EII Consensus Evaluation at 1. Moreover, the agency noted
that EII did not provide information regarding cable or
telephone experience. Id. Similarly, regarding factor 2,
specialized experience and technical competence of the firm with
all of the Courthouse Technology electronic systems described in
the solicitation, the agency found that the information provided
by EII was overly brief and did not provide the technical
evaluation panel with adequate substantive information. Legal
Memo at 4. Specifically, the consensus evaluation report states
that, while EII listed various projects in its SF 330, EII did
not provide “the scope, duties performed, the details of the
project or a demonstration of their ability.” AR, Tab C, EII
Consensus Evaluation at 1. In addition, the agency found that
EII failed to discuss its experience with cabling or telephone
projects, so that the technical evaluation panel was unable to
identify any EII experience in those areas. Id.
As an initial matter, the record reflects that the protester
submitted a bare-bones proposal. In describing the experience
and qualifications of its various key personnel, EII simply
repeated the same generic statement for each representative
project--“designed electronic systems technology.” EII SF 330 at
3-6. Similarly, for each project example provided by EII to
illustrate its team’s qualifications, EII again, generically
repeated the same project description--“designed electronic
systems technology.” EII SF 330 at 7-16. EII faults the format
of the SF 330 for precluding more comprehensive responses. See
Protest at 7 (noting that “[o]fferors were only allowed to
submit their information within the confines of the SF 330”),
and 11 (noting that the SF 330 “does not lend itself to the
lengthy descriptions that the AOUSC would seem to require . . .
the amount and type of information able to be conveyed is
fixed”).
We note that the protester’s failure to submit a more detailed
proposal may have stemmed from its decision to use a PDF version
of the SF 330 form as opposed to completing the Microsoft
Word-based version of the form, both of which are available on
the General Services Administration’s (GSA) website. The
Microsoft-based version states the following: “The Word version
of this form is intended as a totally flexible document to allow
for photos, charts, and varying lengths of text. It is NOT
intended to look like the pdf version. Information requested is
identical.”(Emphasis in original). Other offerors made use of
the Word version to submit lengthy, illustrated, and informative
proposals, in stark contrast to the proposal submitted by EII.
In any event, regarding factor 1, the protester argues that some
of its key personnel achieved industry-recognized
certifications, and that those certifications should have
satisfied the agency’s desire to know what work these
individuals had done, what design services they offered, and
what the experts had contributed to the listed projects. See
Comments at 3-4. While the protester correctly identifies the
certifications listed for its personnel, these certifications
simply do not convey any information regarding the specific work
actually performed by its key personnel on the particular
projects listed. Rather, the only information regarding the
particular projects listed for EII’s key personnel was, as noted
above, the following statement: “designed electronic systems
technology.” There simply was no basis for the agency to have
inferred from the certifications of EII’s key personnel the type
of information that EII failed to include in its proposal.
Regarding factor 2, EII maintains that the examples and
descriptions of relevant projects should have warranted a higher
rating than marginal. Again, however, the project descriptions
provided by EII were generic and contained no meaningful detail
regarding the scope of the projects performed. This was in
contrast to the myriad of tasks to be performed as established
by the terms of the solicitation. Moreover, EII did not rebut
the agency’s finding that it failed to specifically address its
experience with cabling or telephone projects. Given the record
in this case, we have no basis to conclude that the agency
unreasonably evaluated EII’s proposal under factor 2. (Electronic
Interiors Inc., B-405576, November 18, 2011) (pdf)
EBA challenges
the agency's selection process, arguing that responding firms
were not adequately notified that the agency expected them to
provide cemetery designers as part of their teams and would rate
them significantly lower if they failed to do so. The protester
also argues that it was inconsistent with the terms of the
solicitation for the agency to assign equal weights to the
interview factors, and that it was improper for the agency to
base its selection decision solely on the interview round
scores.
In reviewing an agency's selection of a contractor (or
contractors) for A/E services, our Office will consider whether
the agency's selection was reasonable and in accordance with the
published criteria. OLBN Architectural Serv., Inc., B-402444.4,
B-402444.5, Oct. 4, 2010, 2011 CPD para. 55 at 3.
Turning first to EBA's argument about the agency's improper
reliance on the interview scores to make its selection
decisions, we agree with the protester, and we sustain the
protest.[4] At the outset, it is apparent from the record that
the agency, in essence, used a two-step evaluation and selection
process. Specifically, for the first step, the agency considered
the information submitted by the firms per the solicitation
instructions, and used the nine evaluation criteria established
in the solicitation to winnow the field down to the six
most-highly-rated firms. For the second step, the agency used
the scores from the interview round as the sole basis for the
agency's final selection, effectively abandoning any
consideration of the evaluation criteria established by the
solicitation. In this regard, the VA explicitly acknowledges in
its report that "[its] final evaluation consisted of the
evaluation of the oral interviews of the six short-listed
firms." Agency Report at 11. Moreover, the selection decision
memorandum solely discusses the interview results, and the final
interview ratings mirror the final ranking for selection.
In its defense, the agency argues that the selection was not
based solely on the interview round scores since the scores on
the written qualification packages determined which firms were
interviewed and asserts that ranking firms based solely on their
interview scores was proper, citing our decision in Brooks Range
Contract Servs., Inc., B‑401231, June 23, 2009, 2009 CPD para.
129. The agency's arguments are without merit.
First, our decision in Brooks Range is inapposite since the
issue before us in that case was whether, based on the terms of
the solicitation (which expressly provided for oral
presentations), the agency properly considered the content of
oral presentations as one element of its selection decision.
Here, the issue before us is whether it was proper for the
agency to consider only the content of the oral presentations in
its final selection analysis, and thereby abandon the
solicitation's stated evaluation factors.
Second, the fact that the scores assigned to the written
packages were used to determine which firms would be interviewed
fails to acknowledge that the ultimate selection decision was
determined entirely by the interviews. Abandonment of the
solicitation's stated evaluation factors in favor of the
interview scores was inconsistent with the terms of the
solicitation, which established nine specific criteria that
would be considered for selection, and never advised offerors
that interview scores would be of paramount significance in the
selection process (or advised of an interview round at all).
Moreover, the nine announced evaluation factors differed
materially from the interview evaluation factors. For example,
the solicitation's evaluation factors of commitment to small
business, and volume of work previously awarded to the firm by
the VA, were not considered in the evaluation of the interviews.
Thus, as explained above, when the agency based its selection
decision exclusively on the content of the oral interviews, it
failed to properly consider the specific evaluation factors
established by the solicitation. (EBA
Ernest Bland Associates, P.C., B-404825.5; B-404825.6,
October 11, 2011) (pdf)
This procurement
of A-E services is being conducted pursuant to the procedures set forth in the
Brooks Act, 40 U.S.C. sections 1101, 1104 (2002), and its implementing
regulations, Federal Acquisition Regulation (FAR) subpart 36.6. In accordance
with those regulations, on May 16, 2007, the EPA synopsized the requirement. The
procurement envisioned the award of two “response action contracts” (RAC), one
under full and open competition and one as a small business set-aside (RAC II);
the subject of this protest is the RAC II contract, which is to be awarded under
solicitation No. PR‑R9‑07‑10112. To be considered for negotiations with the
agency, firms were invited to submit a completed standard form (SF) 330 (A-E
Qualifications) detailing their qualifications to provide various A‑E services,
including site management; remedial investigation feasibility studies;
engineering services to design remedial actions; engineering evaluation and cost
analysis for one-time critical removal actions; construction management for
implementing remedial actions and one-time critical removal actions; enforcement
support; and other technical assistance.
(Sections deleted)
Oral Presentations
While the primary discriminator in the ranking determination was the personnel
staffing issue discussed above, the record shows that the agency also considered
the fact that HGL’s oral presentation was considered weaker than the other two
offerors’ presentations. AR, Tab 12, Ranking Determination, at 30. The specific
weaknesses are memorialized in a contemporaneous written summary of the
evaluation of the oral presentations, where the AEEB noted, for example, that
HGL did not present “an in-depth understanding of the Superfund that was
[commensurate] with the written proposal.” AR, Tab 11, AEEB Final Report, at 3.
While HGL vigorously disputes the agency’s evaluation, the agency’s
contemporaneous evaluation record contains a detailed summary of why the agency
considered HGL’s oral presentation, though sound, inferior to ITSI’s, and we see
nothing unreasonable in the evaluation.
On a related point, the protester argues that the oral presentations did not
satisfy the requirement for meaningful discussions in the FAR. The Brooks Act
and its implementing regulations in FAR subpart 36.6 provide that agencies
“shall conduct discussions with at least 3 firms to consider anticipated
concepts and compare alternative methods for furnishing the services.” 40 U.S.C.
sect. 1103(c) (2002); FAR sect. 36.602-3(c). The protester asserts that the
agency’s meetings with the offerors did not constitute adequate discussions
under the Brooks Act because the agency’s “failure to discuss any potential
weaknesses. . . negates any meaningfulness of any discussions.” Comments, Mar.
31, 2008, at 22. We disagree.
The questions that the agency posed to HGL more than adequately probed “concepts
and the relative utility of alternative methods of furnishing the required
services,” as provided in FAR sect. 36.602-3(c). Specifically, questions 7
through 13 asked for examples of innovative approaches, methods for implementing
certain processes, and examples of projects where certain processes were
successfully used. Each of those seven questions, nearly half of the 15
questions asked, dealt with the relative merits of various methods of delivering
services. In our view, this is precisely the kind of discussion that is
contemplated under FAR sect. 36.602-3(c). See URS Consultants, B-275068.2, Jan.
21, 1997, 97-1 CPD para. 100 at 5-6 n.4. Moreover, FAR sect. 36.602-3(c)
includes no requirement that, during discussions, an agency identify any
weaknesses in an offeror’s proposal; in fact, FAR sect. 36.601-3(b) states that
FAR part 15--which includes the requirement to discuss proposal deficiencies and
significant weaknesses with offerors whose proposals are included in the
competitive range--is inapplicable to A-E procurements under FAR subpart 36.6.
Id. In any event, the record clearly shows that the protester was advised of the
agency’s concerns with its proposed staffing during discussions. (HydroGeoLogic,
Inc., B-311263; B-311263.2, May 27, 2008) (pdf)
Therefore, Brooks Act procedures will not apply to a solicitation for both A-E
and non-A-E services if the A-E services do not constitute a substantial or
dominant extent of the work required. See Terra Surveys , supra ,
at 4 n.6; Consulting Eng'rs Council of Metro. Washington , B-211553, Nov.
7, 1983, 84-1 CPD Paragraph 92 at 3. Here, the parties agree that the
photogrammetry services in the contract-- i.e., surveying and making maps
through the use of aerial photography--are surveying services that are
"incidental services" under the Brooks Act. The protester has not refuted the
agency's statements that the government's inventory of base maps and photographs
is large, and that photogrammetry services will only be required in the rare
instance that the government does not have an existing map or photograph of an
area covered under a task order. Since there is nothing in the record to suggest
that photogrammetry services would be a substantial or dominant extent of the
work under this RFP, the photogrammetry services alone do not provide a basis to
require the agency to apply Brooks Act procedures to this RFP.
The protester asserts that the surveying
services required here are "traditional" or "incidental" A-E services, which are
required to be obtained under the Brooks Act. See 40 U.S.C.A Section 1102(2)(C).
The agency responds that the services included in this RFP (other than
photogrammetry services) are not professional services of an A-E nature or
"incidental services" that members of the A-E profession may logically or
justifiably perform. Previously, our Office had held that traditional surveying
services were not professional services of an A-E nature, and interpreted
"incidental services," as defined in the Brooks Act, to mean services performed
in conjunction with professional services of an A-E nature; therefore, we found
that the acquisition of surveying services alone did not require application of
Brooks Act procedures. See Ninneman Eng'g--Recon. , B-184770, Mar. 9, 1977, 77-1
CPD Paragraph 171 at 4-6. In response to our decisions, Congress amended the
Brooks Act definition of A-E services to the current statutory language. Pub. L.
No. 100-656, Section 742, 102 Stat. 3853 (1988); Pub. L. No. 100-679, Section 8,
102 Stat. 4055 (1988). Our Office reviewed the corresponding legislative
history, which revealed that Congress considered that the decisions by our
Office had interpreted the definition of A-E services more narrowly than was
intended, particularly in the case of surveying and mapping services. Forest
Serv., Dept. of Agriculture--Request for Advance Decision , supra , at 4. We
accordingly amended our test for identifying A-E services to reflect the amended
statutory language now in force. Based on that amendment, and specifically the
"incidental services" portion of the definition of A-E services, 40 U.S.C.A.
Section 1102(2)(C), we now first identify whether a service is the type which is
incidental to professional services of an A-E nature, and if so, whether the
service is one which members of the architectural and engineering profession may
logically or justifiably perform. Forest Serv., Dept. of Agriculture--Request
for Advance Decision , supra , at 4-5. Consistent with the language in the
statute that surveying and mapping services are "incidental services," we have
since held that "traditional" surveying services are "incidental services"
requiring application of Brooks Act procedures, and have rejected agency
determinations to the contrary. White Shield, Inc. , B-235967, Oct. 30, 1989,
89-2 CPD Paragraph 392 at 2-3 (cadastral surveying services); Fodrea Land
Surveys , B-235413, Oct. 19, 1989, 89-2 CPD Paragraph 364 at 1-2 (same); White
Shield, Inc. , B-235522, Sept. 21, 1989, 89-2 CPD Paragraph 257 at 2-3 (same).
Here, however, the RFP does not solicit traditional surveying services, and the
protester has not shown that the services solicited are incidental to
professional services of an A-E nature which members of the A-E profession (and
individuals in their employ) may logically or justifiably perform. The
contractor will not perform land surveys or produce maps reflecting land surveys
(except for the photogrammetry services discussed above). Rather, the contractor
will be primarily identifying and recording the location of flora, fauna and
cultural resources using existing maps. According to the agency, and not
rebutted by the protester, this work has traditionally been performed by field
biologists and archeologists ( i.e. , field technicians) using compass and
camera to crudely record the locations of target species on existing maps. The
advent of commercially available GPS equipment has made the recording of
location more efficient, but it has not changed the nature of this activity from
one of life sciences to one of architecture, engineering or surveying. According
to the agency, the required professional expertise has always been, and
continues to be, knowledge of what to locate on an existing map, not how to
identify geographic position with the accuracy and reliability of a professional
surveyor. There is nothing in the protest record demonstrating that the mere use
of GPS equipment to identify location should be considered surveying services.
The GPS system was not developed for the surveying or the A-E professions;
rather, GPS is a satellite-based positioning system operated by the Department
of Defense (DOD). RFP Section C.7.2.7. In recent years, GPS technology has
become available to the general public, and many fields, both professional and
non-professional, have applied the technology to their particular uses. The
agency states, and the protester does not deny, that the A-E profession has only
developed and applied GPS (and GIS technologies) to A-E work in the past 10
years. We note that at the same time other segments of society have developed
and applied GPS technology to just about any activity in which geographic
location is of relevance. According to the agency, one such application has been
by the natural resources community to record the location of transient
biological resources. Specifically with regard to the services solicited under
the RFP, a biologist or other field technician walks the land, notes where a
given species being observed is at that point in time, and records and reports
that information. We agree with the agency that the fact that such a biological
field study adopts modern technology to record and report field observations
does not transform the activity from that of a biological field study to
something else. In this regard, the agency reports that the advantage of using
GPS equipment to record the location of field observations is the ease with
which the field technician can determine his or her location at any point in
time simply by pressing a button on the GPS equipment without needing to
reference any other point on the land. Thus, the record provides no basis to
consider this activity to be surveying services that would customarily be
performed by a professional surveyor, or by other A-E professionals or
individuals in their employ. (Photo Science, Inc.,
B-296391, July 25, 2005) (pdf) |
