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) |
