Lloyd H. Kessler, Inc., B-284693, May 24, 2000

B-284693 May 24, 2000 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested a Fish and Wildlife Service (FWS) contract award for river dike renovations, contending that: (1) FWS' evaluation of proposals was inconsistent with the stated evaluation criteria; and (2) FWS improperly evaluated its past performance. GAO held that: (1) FWS' evaluation of proposals was inconsistent with the stated evaluation criteria; and (2) the protester was prejudiced by FWS' improper evaluation of its past performance. Accordingly, the protest was sustained, and GAO recommended that FWS: (1) amend the solicitation and request and evaluate revised proposals; (2) terminate the awardee's contract and make a new source selection decision; and (3) reimburse the protester for its protest costs. View Decision Matter of: Lloyd H. Kessler, Inc. File: B-284693 Date: May 24, 2000 DIGEST Attorneys DECISION Lloyd H. Kessler, Inc. protests the award of a contract to John L. Jersey & Son, Inc. under request for proposals (RFP) No. FWS1-00-P004(KH), issued by the Department of the Interior, United States Fish and Wildlife Service (USFWS), for river dike renovation/rehabilitation at the Ridgefield National Wildlife Refuge, Washington. Kessler protests that the agency did not adhere to the stated RFP evaluation factors and improperly used unstated significant subfactors in the evaluation, and improperly evaluated Kessler's past performance. We sustain the protest. The RFP, issued October 29, 1999, contemplated the award of a fixed-price construction contract. Contract performance cannot begin "until the eagle leaves its nest" in August 2000. RFP amend. 0002, at 1, 3. The RFP stated a best value evaluation plan under which "price and capability score are of equal importance." RFP at 53. The capability score was said to be based on 100 possible points divided between (1) experience of firm (30 points) and (2) past performance of firm (70 points). RFP at 45. The RFP's instructions for the preparation of responses to the past performance and experience factors stated that "OFFERORS SHOULD PROVIDE ONLY THE INFORMATION" requested by the RFP, that is, specified information about current contracts or contracts completed in the previous 2 years, including a brief description of the work performed and a point of contact. RFP at 46. The RFP stated that the agency would request performance information from the contract references to evaluate quality of performance, and may contact, and evaluate information received from, references other than those identified by offerors. RFP at 47. The RFP specified five criteria that would be considered in evaluating past performance. RFP at 45-46. The RFP stated no criteria that would be considered in evaluating experience, but noted that this evaluation would be based on existing and prior contracts. RFP at 45-47. The agency received 17 proposals by the December 14 closing date. Kessler's proposal offered the lowest price of $425,880 while Jersey's proposed price was $487,221. Under the agency's evaluation, Kessler's proposal received a score of 70 points while Jersey's proposal was one of the highest-rated proposals with a score of 90 points. Agency Report at 1; Tab 8, Evaluation Results. The agency's actual evaluation differed from that stated in the RFP in that the relative weights for experience and past performance were reversed and experience was assigned 70 points and past performance was assigned 30 points. Under this evaluation, the experience scores for Kessler and Jersey were 55 and 65 points, respectively, and the past performance scores were 15 and 25 points, respectively. /1/ Agency Report at 1, Tab 8, Evaluation Results. The scores for experience were based on the following three criteria and relative weights not stated in the RFP: (1) bioengineered slope protection, 40 of the possible 70 points; (2) wetland excavation, 15 points; and (3) rip-rap construction, 15 points. Agency Report, Tab 7, Evaluation and Award Determination Summary, at 1. Kessler's proposal received 25 of the possible 40 points for the bioengineered slope protection criterion, and received all of the combined 30 points available under the wetlands and rip-rap criteria. Supplemental Contracting Officer's Statement (Apr. 10, 2000) at 5. The agency evaluation stated that Kessler "apparently has average experience in bioengineering (2.5 projects as the engineers can find in the experience information given) slope protection but has good wetland excavation and rip-rap placement experience." Agency Report, Tab 7, Evaluation and Award Determination, at 2. Under past performance, Kessler's proposal provided the requested information on 16 contracts completed in the past 2 years. Agency Report, Tab 3, Kessler's Proposal, at 16-18.