ASFA International Construction, Inc.

Decision

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.

Matter of: ASFA International Construction, Inc.

File: B-422594

Date: August 13, 2024

Edward J. Tolchin, Esq., Offit Kurman, P.A., for the protester.
Regina Schowalter, Esq., Department of the Army, for the agency.
Heather Self, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In procurement conducted using two-phase selection procedures of Federal Acquisition Regulation subpart 36.3, protest of agency's evaluation of phase one proposal and decision to exclude protester from phase two is denied where the agency's evaluation was reasonable and consistent with the solicitation.

DECISION

ASFA International Construction, Inc. (ASFA), of Seyhan, Turkey, protests its exclusion from consideration for award under request for proposals (RFP) No. W912GB23R0041, issued by the Department of the Army, Army Corps of Engineers for construction services in Poland. The protester challenges the agency's evaluation of the firm's proposal.

We deny the protest.

BACKGROUND

On September 6, 2023, the agency issued the solicitation using the two-phase selection procedures of Federal Acquisition Regulation (FAR) subpart 36.3 for design-bid (DB) and design-bid-build (DBB) construction services. Agency Report (AR), Tab 4, Initial RFP at 21; Tab 14, Conformed RFP at 845, 849-850.[1] The solicitation contemplated award of “a target of five” indefinitedelivery, indefinite-quantity (IDIQ), multiple-award task order contracts (MATOCs) “for DB and DBB construction requirements providing new facilities and real property repair and maintenance in support of defense operations in Poland.” RFP at 850. The awarded contracts will have a 5-year base period of performance, a minimum guarantee of $2,000 each, and a cumulative ordering ceiling of $98,000,000. Id. at 850, 910. The solicitation explained that work under the awarded MATOCs “may include, but is not limited to, new building construction, general building repair and renovation, road and pavement repair, general environmental, incidental minor construction, excavation, plumbing, demolition, electrical, structural, mechanical, concrete work, and environmental remedial work (hazardous waste abatement and disposal).” Id. at 910.

For phase one of the competition, offerors were required to submit proposals addressing the following two non-price evaluation factors, which were of equal importance: (1) past performance and (2) management approach. RFP at 850. The solicitation provided that each offeror's past performance would “be reviewed to determine relevancy and confidence assessment,” and set forth possible confidence ratings of substantial, satisfactory, neutral, limited, or no confidence. Id. at 852, 857. Under the management approach factor, offerors' proposals would “be reviewed to determine that offerors possess a clear understanding of the work and an ability to coordinate resources to ensure successful pursuit of the work,” and assigned an adjectival rating of outstanding, good, acceptable, marginal, or unacceptable. Id. at 852, 858.

The solicitation established that after phase one evaluations, proposals would be “down-selected”; that is, only the most “highly qualified” offerors would be allowed to proceed and be invited to submit proposals for phase two. RFP at 851. In phase two, the agency would evaluate price and an additional non-price factor (technical approach) both of which were to be evaluated in the context of a specific project. Id. at 850-851. The three nonprice factors combined were approximately equal in importance to price. Id.

The agency received 20 timely proposals, including ASFA's offer. AR, Tab 7, Source Selection Evaluation Board (SSEB) Report at 702; Contracting Officer's Statement (COS) at 1 ¶ 5. The evaluators assigned ASFA's proposal a rating of satisfactory confidence under the past performance factor and a rating of acceptable under the management approach factor. AR, Tab 7, SSEB Report at 703, 728, 731. Based on evaluation of phase one proposals, the contracting officer, who is also the source selection authority (SSA) for this procurement, selected six offerors “as the most highly qualified” and invited them to participate in phase two of source selection process. AR, Tab 8, Phase 1 Down Select Memorandum (Memo) at 814.

The SSA noted that all six of the selected offerors' proposals “received either 1) ratings of Substantial Confidence for Factor I--Past Performance, as well as ratings of Good or higher for Factor II--Management Approach; or 2) ratings of Satisfactory Confidence for Factor I--Past Performance, as well as ratings of Good or higher for Factor II--Management Approach.” AR, Tab 8, Phase 1 Down Select Memo at 814. Further, no offeror whose proposal “received a Substantial Confidence rating for Factor I had less than a Good rating for Factor II.” Id. Thus, the SSA explained, offerors, such as ASFA, whose proposals received a rating of satisfactory confidence or less under past performance and a rating of acceptable or less for management approach “were not among the most highly qualified Offerors.” Id.

On April 17, 2024, the agency notified ASFA that its proposal “has been determined to not be one of the most highly qualified proposals for advancement to Phase [two].” AR, Tab 9, Notice of Elimination from Competition at 838. After requesting and receiving a pre-award debriefing, ASFA filed this protest with our Office. COS at 13 ¶ 21.

DISCUSSION

The protester challenges the agency's evaluation of the firm's proposal under both phase one evaluation factors--past performance and management approach. Although we do not specifically address each of ASFA's arguments, we have considered them all fully and find that none provides a basis on which to sustain the protest.

Past Performance Evaluation

The protester challenges the agency's evaluation of the firm's past performance, arguing that the agency incorrectly counted the number of past performance projects ASFA submitted for work at military installations and applied an unstated evaluation criterion. Comments at 2-3. The agency maintains that it evaluated ASFA's proposal in accordance with the solicitation's terms and contends that ASFA submitted past performance contract references that were relevant, but none that were very relevant; thus, the firm's proposal merited a rating of satisfactory confidence, rather than substantial confidence. COS at 14-15 ¶¶ 28-31. For the reasons explained below, we find the agency's evaluation reasonable.

An agency's evaluation of past performance, which includes its consideration of the relevance, scope, and significance of an offeror's performance history, is a matter of discretion which we will not disturb unless the assessment is unreasonable or inconsistent with the solicitation criteria. BC Site Servs., LLC, B-420797.6, Feb. 1, 2024, 2024 CPD ¶ 34 at 4. The evaluation of past performance, by its very nature, is subjective, and we will not substitute our judgment for reasonably based evaluation findings. Intercontinental Const. Contr., Inc., B-415040 et al., Nov. 8, 2017, 2018 CPD ¶ 82 at 7. A protester's disagreement with the agency's judgment does not establish that an evaluation was unreasonable. APC Constr., LLC, B-419771, July 13, 2021, 2021 CPD ¶ 258 at 6.

For past performance, the solicitation required offerors to submit up to five projects that were at least 80 percent completed, performed within the past six years from the RFP's issuance date, and were similar in size and scope to the solicited services. RFP at 859. The solicitation also provided that “[a]dditional consideration may be given for projects that contain the following features”: (1) projects performed in Poland; and (2) projects demonstrating work “on military bases with the United States (US) Department of Defense (DOD) in the U.S. Army Corps of Engineers Europe District, Area of Responsibility (AORs) comprised of AFRICOM (Africa Command), EUCOM (European Command), and Israel.” Id. at 860-861. Further, the solicitation cautioned that the evaluators “may assess less relevancy” to past performance projects for which “one or more” of the evaluation criteria were “not verifiable.” Id. at 861.

The solicitation provided that the agency would first evaluate the relevancy of past performance projects to determine how the projects “compared to the scope, size, and magnitude of effort and complexities of this solicited MATOC.” RFP at 865. To be deemed very relevant, the RFP explained that a past performance project must have “involved essentially the same scope and magnitude of effort and complexities this solicitation requires,” whereas a relevant past performance project was defined as involving only “similar scope and magnitude of effort and complexities” as the solicitation. Id. at 857. The solicitation provided that “[p]rojects considered similar in scope . . . shall be DB or DBB construction of new horizontal or vertical facilities and/or major building renovations that may include but is not limited to: road and pavement repair, minor construction, excavation, plumbing, demolition, electrical, structural, mechanical, concrete work, and environmental (hazardous waste abatement and disposal) remedial work.” Id. at 860. The solicitation also established a price range for within which projects would be considered similar in size--i.e., magnitude. Id.

After determining the relevancy of an offeror's past performance projects, the agency would “review how well the Offeror performed” the projects. RFP at 865. Based on this performance confidence assessment of an “offeror's recent/relevant performance record,” the agency would assign a rating of substantial confidence to a proposal if “the Government has a high expectation that the offeror will successfully perform the required effort,” while the agency would assign a rating of satisfactory confidence if the agency had only “a reasonable expectation” of successful performance. Id. at 857.

The record shows that ASFA submitted five past performance projects. AR, Tab 6, ASFA Phase 1 Proposal at 402. Project 1 was for work at an elementary school and a high school, including replacement of interior and exterior doors, installation of a digital locking system, installation of a new lighting system in the multipurpose room and gymnasium, and disposal of demolition materials containing asbestos. Id. at 406-407. ASFA's proposal listed project 1's place of performance as “DODEA,[2] Ankara, Turkey.” Id. at 406. Project 2 was for a “Design-build project for renovation and modernization of an Air Passenger (PAX) Departures Terminal Building” that “serves as a passenger terminal for incoming, outgoing, and through flights” at “Incirlik Air Base, Turkey.” Id. at 410. Project 2 involved keeping “the existing building envelope and structural system to the maximum extent possible,” but demolishing and replacing “the interior spaces with new construction and infrastructure.” Id. Project 3 also was performed at a “DODEA Ankara, Turkey” school, consisting of “general repair to the following: Repair Light Poles; Replace Commissary Boiler; Install HVAC [heating, ventilation, and air conditioning] Shutoff; Provide Secondary Containment, Replace . . . Boundary Fence; Repair . . . Freight Yard/Ret[aining] Wall/Pavement; Repair Exterior Paint Gym.” Id. at 414. Project 4 was a “Design-build project for a partial renovation of an existing preschool . . . complex of two two-story classroom buildings” in Johvi, Estonia. Id. at 418. Project 5 was for “the design, construction, and renovation of Kannuka School Renovation in Sillamae, Estonia.” Id. at 422. Relevant here, unlike for projects 1 and 3, ASFA's proposal did not list either project 4 or 5 as being for a DODEA school. Id. at 406, 414, 418, 422.

The evaluators considered all five of ASFA's past performance projects relevant, but not very relevant. AR, Tab 7, SSEB Report at 728. Specifically, the evaluators considered projects 1, 2, and 3 relevant because they were “performed for USACE [U.S. Army Corps of Engineers] Europe District on a military base,” but did not consider the three projects very relevant as they were “not located in Poland.” Id. at 729. Similarly, the evaluators considered projects 4 and 5 relevant but not very relevant as they were performed in Europe, but not in Poland and not on military bases. Id. at 729-730. With respect to the quality of ASFA's past performance, the evaluators noted that the projects had ratings “ranging from Satisfactory to Very Good,” and had “zero subsatisfactory ratings.” Id. at 728, 730. Overall, the evaluators assigned ASFA's proposal a past performance rating of satisfactory confidence, as the evaluators had “a reasonable expectation that the Offeror will successfully perform.” Id. at 728.

The protester takes issue with the evaluators' finding that only three of the firm's projects were performed on military bases and maintains that ASFA's proposal showed “clearly that all five Projects were on the required military base.” Comments at 2. The agency explains that projects 1, 2, and 3 “were on military installations in Turkey,” but projects 4 and 5 “were not performed on military bases, despite ASFA checking that box on the Past Performance Overview sheet in its proposal.” COS at 14-15 ¶ 29, citing AR, Tab 6, ASFA Phase 1 Proposal at 404.

The record shows that while ASFA's proposal included a table listing its projects and indicating all five were performed at military installations, the substantive descriptions of projects 4 and 5 do not reflect that the work was performed at schools on DOD military installations, instead listing the two places of performance only as “Johvi, Estonia” and “Sillamae, Estonia.” AR, Tab 6, ASFA Phase 1 Proposal at 418, 422. This is in contrast to projects 1 and 3, which also involved work at schools, for which ASFA's proposal specifically indicated the place of performance was a DODEA school. Id. at 406, 414.

As our Office has repeatedly explained, it is an offeror's responsibility to submit a wellwritten proposal with adequately detailed information to allow for a meaningful review by the procuring agency. Bryan Constr., Inc., B-409135, Jan. 14, 2014, 2014 CPD ¶ 51 at 6. Here, contrary to the protester's contentions, ASFA's proposal claimed that all five of its projects were performed on military bases, but the projects' descriptions did not “clearly” show this to be the case. Compare AR, Tab 6, ASFA Phase 1 Proposal at 404 with id. at 406, 410, 414, 418, 422. Instead, the project descriptions reflected that one project was at an air base, two projects were at DODEA schools, and two projects were at schools that were not DODEA facilities. Id. at 406, 410, 414, 418, 422. This lack of consistency between what ASFA claimed in its project overview and the substantive project descriptions is especially problematic, given the solicitation's explicit cautioning that projects may be assessed as less relevant if one or more of the evaluation criteria was “not verifiable.” RFP at 861. Accordingly, we find the evaluators reasonably concluded that only three of ASFA's five projects were performed at DOD military installations. See e.g., BC Site Servs., LLC, supra at 6 (denying protest that agency should have relied on protester's proposal representation that a past performance contract was for “construction and maintenance items” rather than relying on the proposal's description of the work performed to conclude the contract was for only maintenance work and therefore not relevant).

The protester also contends the evaluators' conclusion--that ASFA's projects were not very relevant because they were not performed in Poland--constituted application of an unstated evaluation criterion as “[n]othing in the solicitation required performance in Poland to be very relevant.” Comments at 2-3. The agency responds that its evaluation was reasonable because Poland is where the “construction MATOC[s] will be performed.” COS at 14 ¶ 29.

Here, it is plainly evident from the RFP that the entirety of the solicited work is to be performed in Poland, with the inclusion of six pages of “Supplemental Conditions for Projects in Poland” addressing matters such as specialized visa requirements, Polandspecific military installation access procedures, temporary land transfer protocols for work to be performed on property owned by the Polish Ministry of National Defense, and Poland-specific taxation provisions. RFP at 937-942. Further, the solicitation explicitly stated that the evaluators may give additional consideration to projects performed in Poland, and, as noted above, the RFP defined a very relevant project as one that involved “essentially the same scope and magnitude of effort and complexities” as the solicitation, whereas a relevant project was one that involved only “similar” scope, magnitude, and complexity. Id. at 857, 860-861.

The protester's argument that consideration of whether a project was performed in Poland constituted application of an unstated evaluation criterion ignores the plain language of the solicitation, which established that past performance projects for work in Poland would merit additional consideration. Moreover, in evaluating proposals, agencies properly may take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even if they are not expressly identified as evaluation criteria. Linc Gov't Servs., LLC, B-404783.2, B404783.4, May 23, 2011, 2011 CPD ¶ 128 at 6. Here, the solicitation set forth that the agency would consider a project's complexity in assessing relevancy and included numerous countryspecific requirements for performance in Poland. Accordingly, we find the evaluators' reasonably considered projects performed outside of Poland to be less similar in terms of complexity, and therefore less relevant, to the solicited work.

The protester expresses its disagreement with the evaluators' judgment that ASFA's projects performed outside of Poland were less relevant, but such disagreement, without more, provides no basis for us to question the evaluation. The protester's past performance evaluation challenges are denied.[3] See e.g., Linc Gov't Servs., LLC, supra at 6 (denying challenge to assessment of significant weakness where agency reasonably considered lack of specialized experience at medical facilities to be encompassed in evaluation criteria for solicitation of repair and renewal of medical facilities); Clark Constr. Group, LLC, B-407334.2, B407334.3, Dec. 18, 2012, 2013 CPD ¶ 12 at 6 n.5.

Management Approach Evaluation

Next, the protester challenges the agency's assessment of two weaknesses to ASFA's proposal under the management approach factor. See generally Protest at 16-18. The agency maintains that it reasonably assessed the weaknesses consistent with the solicitation's stated evaluation scheme. See generally COS at 15-18.

When reviewing a protest challenging an agency's technical evaluation, our Office will not reevaluate proposals, but will examine the record to determine if the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Williams Bldg. Co., Inc., B-413262.2, B-413262.3, Nov. 15, 2016, 2017 CPD ¶ 103 at 5. A protester's disagreement with the agency's judgment, without more, is insufficient to establish that the agency acted unreasonably. APC Constr., LLC, supra at 8.

For management approach, the solicitation required offerors to submit “a narrative that demonstrates an understanding of the specific requirements associated with the design, construction, and administration responsibilities associated with projects for the U.S. Government issued under this MATOC.” RFP at 866. Offerors were required to address eight specific items in their narratives, including, among others, “the Offeror's knowledge of engineering, design and local permitting requirements in Poland, and the ability to independently coordinate with the host nation,” and “the team's quality control approach for design and construction.” Id. at 866-867. The solicitation established seven evaluation criteria. Id.at 867-868. Relevant here, one criterion related to an offeror's quality control processes and a second criterion related to an offeror's understanding and capability to perform construction projects in Poland. Id. at 868.

The record shows the evaluators assessed zero strengths, zero deficiencies, and two weaknesses for ASFA's proposed management approach. AR, Tab 7, SSEB Report at 731. The evaluators assessed one weakness related to ASFA's knowledge of design and construction in Poland, and a second weakness related to ASFA's “inadequate description of their Quality Control Plan.” Id. Overall, the evaluators concluded that ASFA's “proposal demonstrated an adequate approach and understanding of the requirements,” and assigned ASFA's proposal a rating of acceptable under the management approach factor. Id. The solicitation defined a rating of acceptable as: “Proposal meets requirements and indicates an adequate approach and understanding of the requirements, and risk of unsuccessful performance is no worse than moderate.” RFP at 858.

ASFA argues that both weaknesses were unreasonably assessed. In support of its arguments, the protester quotes from its proposal then asserts that the solicitation required nothing more than what was provided in the proposal. Protest at 16-18. We have reviewed the contentions and find the agency's evaluation to be unobjectionable, in this regard. As a representative example, we address the protester's challenge to the weakness assessed to ASFA's proposal related to the firm's description of its quality control plan.

As noted above, the solicitation required offerors to include in their proposals a description of their quality control approach and established a specific evaluation criterion to assess offerors' “capabilities and understanding of the contractually required quality control processes for both design and construction.” RFP at 867-868. Further, the solicitation provided the evaluation would specifically assess “the strength of the offeror's proposed approach to control and track revisions to the design.” Id. at 868.

The evaluators found that ASFA's proposal provided an “inadequate description of their Quality Control plan.” AR, Tab 7, SSEB Report at 731. Specifically, the evaluators noted that while ASFA “provided a general but acceptable approach for quality control for construction, they did not describe their QC [quality control] approach for design, and this is a weakness as DB projects may be performed under this MATOC.” Id.

The protester asserts that “ASFA's proposal described in detail the work of its Quality Control System Manager . . . and specifically described ASFA's ‘quality control approach for design and construction.'” Protest at 17; Comments at 5. Further, the protester claims “ASFA included in its submission its description of its ‘Quality Control Plan in detail showing the Quality Control System and inspection procedures for each Task Order.'” Id. The protester maintains that, under the solicitation, “[n]othing more is required,” and “[f]or USACE to say that ASFA ‘did not describe their QC approach for design' is unreasonable.” Protest at 17; Comments at 6. The agency responds that “this aspect of the Proposal was determined to be a weakness as the QC plan was generally minimal and lacking details.” Memorandum of Law (MOL) at 34.

Our review of the record finds reasonable the agency's assessment of a weakness for ASFA's quality control plan related to design work. Specifically, the record shows that ASFA proposed to “be responsible for the [DELETED], and the coordination of [DELETED],” and committed to providing project design “in accordance with the technical requirements of the Scope of Work of the relevant Task Order” as well as applicable building codes. AR, Tab 6, ASFA Phase 1 Proposal at 446. ASFA's proposal also includes a multi-paragraph description of the role of the firm's proposed quality control system manager (QCSM), as noted by the protester in its argument. Id. at 453-454. The proposal specifies, however, that the QCSM “is in charge of the construction quality control,” meaning that the description of this individual's role , no matter how detailed, is not germane to whether ASFA provided sufficient detail regarding its quality control plan related to design work. Id. at 453 (emphasis added).

Similarly, section 8 of ASFA's proposal, describing the firm's quality control system, includes discussion of the firm's construction quality control system organization and a three-phased system by which “ASFA assures that the construction, [DELETED], complies with [DELETED].” AR, Tab 6, ASFA Phase 1 Proposal at 455-456. The extent of the discussion in this section of ASFA's proposal that could be considered related to design work quality control, however, is encapsulated only in the following statement:

ASFA will also be responsible for the [DELETED], and the coordination of [DELETED]. ASFA will, [DELETED], correct or revise any errors or deficiency in its drawings, specifications, and other non-construction services.

Id. at 456.

While not cited to by the protester, in reviewing the record, we noted that the section of ASFA's proposal discussing “Designer of Record and Criteria for Selection of Designer of Record”--section 4.3--includes a statement that the designer of record will check all design submittals “to ensure” that: (1) “the design [DELETED]”; (2) “the design projects [DELETED]”; (3) “[DELETED]”; (4) “[DELETED]”; (5) “the [DELETED]”; and (6) “[DELETED].” AR, Tab 6, ASFA Phase 1 Proposal at 447. Other than providing this checklist for design submittals, section 4.3 of ASFA's proposal does not further address the firm's quality control plan related to design work. Moreover, the protester does not cite to, nor did our review find, any discussion in ASFA's proposal of the firm's “approach to control and track revision to the design,” which the solicitation established as a specific element of the quality control evaluation criterion. RFP at 868.

In sum, while the protester expresses its disagreement with the agency's assessment of ASFA's quality control approach for design work, ASFA cannot cite to any portion of its proposal that provides the information the evaluators found to be missing. Nor does the protester explain how the agency's evaluation of the firm's quality control plan was inconsistent with the solicitation's evaluation criteria. The protester's disagreement, without more, is insufficient to establish that the evaluation was unreasonable, and we deny ASFA's management approach evaluation challenges accordingly.[4] See e.g., Williams Bldg. Co., supra at 8 (denying challenge of assessment of weaknesses for failing to provide sufficient detail where argument expressed only protester's disagreement with level of detail required by the solicitation).

The protest is denied.

Edda Emmanuelli Perez
General Counsel

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