Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Selection of higher-rated, higher-priced proposal is unobjectionable where the selection official reasonably determined that awardee’s higher technical rating outweighed the protester’s lower price.
General Counsel P.C. Highlight:
Burchick challenges, in general, VA’s evaluation of the firm’s technical proposal, conduct of discussions, and source selection decision. Burchick argues that there are several anomalies regarding the point scoring and that despite two protests, [Burchick] still ha[s] absolutely no idea how the VA arrives at the scores that it has assigned to its technical review. GAO states that ratings, be they numerical, adjectival, or color, are merely guides for intelligent decision-making in the procurement process. Where the evaluators and the source selection official reasonably consider the underlying bases for the ratings, including advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and equitable and consistent with the terms of the solicitation, a protester’s disagreement over the actual adjectival, color ratings, or point scores is essentially inconsequential, in that it does not affect the reasonableness of the judgments made in the source selection decision.
Here, the contemporaneous evaluation record shows that the agency qualitatively evaluated the firms’ technical proposals under the solicitation’s evaluation factors, identifying strengths and weaknesses in the firms’ respective proposals. The record also shows that the contracting officer’s judgment as to the technical merit of the competing proposals was not based upon a mechanical comparison of the offerors’ point scores but rather was grounded upon the contracting officer’s consideration of the various strengths and weaknesses identified in the agency’s technical evaluation. Given the contracting officer’s discussion and assessment of the relative advantages and disadvantages associated with the specific content of the offerors’ proposals, GAO finds that Burchick’s disagreement with the point scores assigned to its proposal does not affect the reasonableness of the judgments made in the source selection decision.
Burchick next complains that the VA’s assessment of Burchick’s lack of corporate healthcare construction experience with projects of the Ambulatory Care Center’s type, size and complexity as well as the lack of experience in that area for the projected staff is unreasonable because Burchick’s proposal identified numerous examples of such construction experience. GAO states that it reviews challenges to an agency’s evaluation of proposals only to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment is not sufficient to establish that an agency acted unreasonably.
Here, GAO finds, from a review of the record, that there is no basis to question the VA’s determination that Burchick had limited construction experience with projects of the type, size and complexity of the ambulatory care center sought by the RFP. Although Burchick identified six projects in its proposal’s discussion of the firm’s corporate project experience, only one of these six projects related to hospital and clinical construction, and that was for an OB/GYN surgery center with a stated cost of $16.8 million. The remaining projects identified in the protester’s proposal were for the construction of a federal office building, a business park, a U.S. Army training center, a multi-purpose academic complex, and a national cemetery. Although Burchick was informed during discussions that the VA found that the firm had limited clinic and hospital construction experience, Burchick identified no further experience in its revised proposal. The record shows that the TEB considered Burchick’s identified experience and found that it demonstrated limited construction experience similar to the project solicited here.
Burchick also disagrees with the VA’s assessment under the construction management factor that the firm had failed to recognize that quality control was Burchick’s responsibility, and not the government’s. This conclusion, according to Burchick, does not take into account the solicitation’s statement that the VA would provide a resident engineer who would conduct surveillance of all construction work to assure compliance with the contract documents, which, according to Burchick, is the very definition of quality control.
GAO finds no merit to Burchick’s arguments in this regard. The RFP provided for the evaluation of an offeror’s quality assurance and quality control plan under the construction management factor; thus clearly placing responsibility for quality assurance and quality control on the contractor. In this regard, the RFP provided that the contractor would be required to furnish all labor and material, equipment, transportation, supervision, coordination and services necessary to perform and complete the contract work. GAO finds that the RFP informed offerors that quality assurance and quality control would be the contractor’s responsibility. Furthermore, GAO finds the protester’s reliance on the agency’s resident engineer to perform quality control to be misplaced. As described by the RFP, the resident engineer is the contracting officer’s authorized on-site representative responsible for protecting the Government’s interest in the execution of the construction contract work. Reviewing a contractor’s work to ensure that it was done in compliance with the contract does not replace the contractor’s own obligation to ensure that work is performed in a quality manner.
Burchick also complains that the VA did not acknowledge Burchick’s identification in its revised proposal of another person who would assist Burchick in implementing its quality assurance/quality control plan. The VA informed Burchick during discussions that the agency had found the firm’s quality assurance/quality control plan to be very generic and did not address a number of things, such as, for example, the testing and inspections, commissioning, preparatory meetings, and quality control of subcontracts. In fact, as the agency informed Burchick during discussions, the VA found that Burchick’s quality control plan for managing the construction project is almost non-existent — it is only a few sentences, and that [a] specific individual is not listed to manage quality control. GAO has no basis from its review of the record to conclude that the agency unreasonably evaluated Burchick’s revised proposal, given that Burchick’s responses to the agency’s discussions were very general and not specifically responsive to the agency’s concerns.
Burchick also complains that the agency did not conduct meaningful discussions with the firm, because the VA did not discuss with Burchick the agency’s concerns regarding [Burchick’s] ability and past performance for On Time Delivery. Burchick contends that, not only did the VA not raise this concern with the firm, but that, in any case, Burchick had never been late completing a project.
Burchick’s arguments are not supported by the record, which shows that Burchick was informed of two weaknesses concerning the firm’s on-time performance. Specifically, the agency brought to Burchick’s attention the firm’s delay in completing some punchlist items according to the Owner’s Evaluation at an identified project, and with regard to a different project that the firm’s missing of milestone dates has been a concern on past projects according to past Owner/Architect evaluations. Burchick’s responses to the agency’s discussion questions did not show that the agency was unreasonably concerned with the firm’s on-time performance. With respect to late performance of punchlist items, Burchick merely stated that it had performed the punchlist items prior to occupancy and these related to design conflicts. With respect to the agency’s other concern with missing milestones, Burchick did not unequivocally state that it had not missed milestones but instead complained that the project was a multi-prime contract delivery system that was not an effective contracting method for this project.
Burchick also complains that the TEB apparently performed extensive follow-up regarding Walsh’s technical proposal, but did not do the same for Burchick. The evaluation panel looked into this and was generally satisfied that the team composition was changed to reflect those concerns. Burchick apparently believes that it has not been equally treated (although GAO does not find that the record establishes that this is so); however, Burchick does not specifically state what if anything it would have done differently if the agency had further followed-up with the firm.
Finally, the protester contends that the contracting officer mechanically compared point scores in selecting Walsh’s proposal for award and did not adequately justify paying the approximately $1.6 million price premium associated with the Walsh’s proposal. The contracting officer did not mechanically evaluate the firms’ proposals using point scoring; rather, she considered the firms’ evaluated strengths and weaknesses in assessing the proposals’ respective technical merit. Where, as here, the RFP allows for a cost/technical tradeoff, the agency retains discretion to select a higher-priced, higher technically rated proposal if doing so is reasonably found to be in the government’s best interest and is consistent with the solicitation’s stated evaluation scheme. The contracting officer found the awardee’s evaluated technically superior proposal to outweigh Burchick’s price advantage, and Burchick has not shown this judgment to be unreasonable. The protest is denied