Protest challenging rejection of offeror’s proposal after the first phase of evaluation is denied. GAO found that the agency reasonably rejected the protester’s proposal because the protester failed to adequately address a key position required by the solicitation. The protester argued the agency should have conducted clarifications or discussions to clear up any confusion regarding the key position. But an agency is not required to conduct clarifications or discussions as part of the first evaluation phase of a design and build contract. The protester also claimed that the agency disparately evaluated proposals because other offerors failed to sufficiently address the same key position. GAO disagreed, finding that other offerors’ proposals were substantively distinguishable from the protester’s.
The Army Corps of Engineers issued a solicitation seeking design and build services for defense operations in Turkey. The solicitation contemplated a two phase evaluation. In the first phase, the Corps evaluated proposals under two factors: experience and management approach. The Corps intended to select the seven most highly qualified offerors to proceed to second evaluation phase.
Artek Construction Company submitted a proposal. The Corps rejected Artek’s proposal after phase 1 evaluation due to its marginal/high risk rating under the management approach factor. The Corps found that Artek’s management plan and organizational chart were “incomplete, confusing, and incorrect.” In particular, the Corps noted, Artek’s management approach did not adequately discuss a site superintendent position required by the solicitation. Artek protested the rejection of its proposal.
Artek contended that contrary to the Corp’s findings, its management plan was designed in accordance with the solicitation and it discussed the site superintendent position. Specifically, Artek contended that its plan included site superintendent who reported to a quality control manager and a foreman whose position was functionally equivalent to the site superintendent.
GAO, however, found that the Corps’ evaluation under the management factor was reasonable The solicitation required offerors to propose a site superintendent. That superintendent was to be the highest on-site manager, responsible for all construction activities. Artek’s proposal did not comply with this requirement because its organizational chart did not identify a site superintendent. While a site superintendent was mentioned in other places in the Artek’s proposal, the company’s management plan did not provide any information regarding the site superintendent’s roles and responsibilities. What’s more, where the superintendent was mentioned, the proposal indicated that the position was subordinate to the Quality Control manager, which contravened the solicitation.
Artek contended that if the Corps found the proposal confusing concerning the superintendent, then it should have engaged in clarification or discussions. But GAO reasoned that the provisions of FAR 15 regarding clarifications and discussions do not apply to phase 1 of design/build competition absent specific solicitation provisions to the contrary.
Artek also alleged that the Corps disparately evaluated offerors because other offerors also submitted organizational charts that did not identify the site superintendent as the highest level management position. But those offerors, unlike Artek, were allowed to move on to phase 2 of the competition.
GAO found no disparate treatment. The Corps’ evaluation was based on the entirely of the proposals, which reflected fundamentally different information. While Artek waded through the minutiae of various charts and evaluation findings, its arguments failed to establish that its proposal was fundamentally indistinguishable from other offerors’.
Artek is represented by Thomas O. Mason and Joseph R. Berger of Thompson Hine LLP. The agency is represented by Katherine D. Denzel, Leslie M. Reed, and Herbert J. Aldridge of the Army. GAO attorneys Paula A. Williams and Edward Goldstein participated in the preparation of the decision.
