Protest challenging the exclusion of the protester’s proposals from phase two of a design-build competition is denied, where the agency was not required to hold discussions with the protester regarding its past performance because it did not and could not establish a competitive range until phase two, and where the agency was not required to reconcile differences between the evaluations of the protester’s two proposals or the difference between its limited confidence past performance rating and its higher technical rating.
Intercontinental Construction Contracting Inc. protested its exclusion from two Army Corps of Engineers two-phase design-build procurements, arguing that the agency failed to engage in required discussions and unreasonably evaluated its proposal.
First, ICCI alleged the agency violated FAR 15.306 by failing to engage in communications with ICCI regarding negative past performance information. Specifically, ICCI argued 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 to exclude it from the competition. In response, the agency maintained that FAR 15.306 is inapplicable, because it did not and could not establish a competitive range until phase two, following the evaluation of proposed prices.
GAO agreed, explaining that 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. Rather, the contracting officer selects the most highly qualified offerors to submit phase two proposals, during which FAR part 15 procedures would apply.
The protester also alleged that the agency improperly considered past performance information from sources outside of its proposal, improperly considered projects with negative past performance information, and failed to consider any positive past performance information in PPIRS. In response, the agency explained that the RFP permitted it to consider information from other sources to evaluate past performance and that it reasonably considered the protester’s poor performance on smaller and less complex projects when assigning its overall limited confidence rating. GAO agreed, finding the RFP explicitly permitted the agency to rely on past performance information outside the proposals.
Finally, the protester complained that the agency failed to resolve the differences between the evaluations of its proposals for the two procurements. ICCI argued the record did not reconcile the different ratings assigned by the different SSEBs in their evaluations of ICCI’s past performance and technical approach, or the differences between the high adjectival ratings assigned for its technical approach and the limited confidence ratings assigned for its past performance.
In response, the agency maintained that the differences between the evaluators’ ratings were unremarkable and did not render the conclusions unreasonable, and that the contracting officer was not required to compare the evaluations and reconcile the differences.
GAO explained that it is not unreasonable for different SSEBs to reach different conclusions or assign different ratings when evaluating proposals, even when evaluating the same or similar proposals. Further, since both SSEBs assigned the same limited confidence rating to ICCI’s past performance, GAO concluded that the protester was not prejudiced by any alleged errors. GAO also found nothing incongruent about the evaluators’ conclusion that ICCI’s technical approach was outstanding or good, while finding its past performance warranted a limited confidence rating.
Intercontinental Construction Contracting Inc. is represented by Hal J. Perloff and Steven A. Neeley of Husch Blackwell LLP. The government is represented by Carlton A. Arnold, Department of the Army. GAO attorneys Charmaine A. Stevenson and Laura Eyester participated in the preparation of the decision.
