TLT Construction Corporation, B-286226, November 7, 2000

B-286226 Nov 07, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Use of negotiated rather than sealed bidding procedures in procurement for demolition and construction services is proper where the agency. Allegation that it is improper for an agency to rely on information retrieved from an electronic database to evaluate a construction contractor's past performance. Is denied. There is no reason to question the validity of the past performance information. TLT also argues that the RFP's evaluation methodology is unreasonable. Offerors are required to submit technical and price proposals. Price will not be separately scored. The RFP provides that all factors and subfactors are of equal weight. That if a proposal is rated "No Go" under any subfactor. The proposal will not be acceptable. View Decision Matter of: TLT Construction Corporation File: B-286226 Date: November 7, 2000 DIGEST Attorneys DECISION TLT Construction Corporation protests the U.S. Army Corps of Engineers' use of negotiated procedures in soliciting offers for upgrading the D-Area barracks at Fort Bragg, North Carolina under request for proposals (RFP) No. DACA21-00-R-0030. TLT also argues that the RFP's evaluation methodology is unreasonable. We deny the protest. The RFP, issued August 11, 2000, contemplates the award of a fixed-price contract for the basic requirement and one option item. RFP Schedule and Sec. 52.216-1, at 12. Offerors are required to submit technical and price proposals. Section 52.0020-4101 lists the following technical factors to be evaluated on a "Go/No Go" basis: experience, past performance, effectiveness of management, and compliance with safety standards. Under the past performance area, the RFP also lists two subfactors: (a) timeliness and (b) quality. Price will not be separately scored. The RFP provides that all factors and subfactors are of equal weight, and that if a proposal is rated "No Go" under any subfactor, the proposal will not be acceptable. Award is to be made to the offeror submitting the technically acceptable, lowest-priced proposal whose price is determined to be fair and reasonable. Offerors are further advised to submit their best technical proposals and prices in their initial proposals, and that the agency intends to make award without conducting discussions. TLT contends that the agency's decision to use negotiated instead of sealed bid procedures violates the requirements established by the Competition in Contracting Act of 1984 (CICA). According to the protester, none of the exceptions listed in the statute for requiring the use of negotiated procedures are present here. For instance, the protester asserts that time permits for discussions, and that any concerns the agency might have regarding an offeror's performance could be easily addressed using sealed bids during a pre-award survey. TLT further argues that the agency has fulfilled a similar requirement using sealed bidding procedures. The protester also contends that the evaluation scheme announced in the solicitation--which provides that the agency will rely, among other things, upon information obtained from an electronic database to assess offerors' past performance--is arbitrary and capricious, because it does not guarantee TLT an opportunity to respond to alleged negative past performance information in that database. The protester argues that the announced approach will effectively preclude TLT from competing under this RFP. /1/ Under CICA, contracting agencies are required to determine the competitive procedure--competitive proposals (negotiation) or sealed bidding--that is best suited to the circumstances of a given procurement. 10 U.S.C. Sec. 2304(a)(1) (1994); Military Base Management, Inc., B-224115, Dec. 30, 1986, 86-2 CPD Para. 720 at 2. CICA does provide, however, that sealed bidding is to be used if (1) time permits, (2) award will be based on price, (3) discussions are not necessary, and (4) more than one bid is expected. 10 U.S.C. Sec. 2304(a)(2)(A). Thus, an agency need not solicit sealed bids if it reasonably determines that it must evaluate factors other than price, F & H Mfg. Corp., B-244997, Dec. 6, 1991, 91-2 CPD Para. 520 at 4, or that it will be necessary to conduct discussions with responding sources about their offers. TLC Sys. and King-Fisher Co., B-227842, B-227842.2, Oct. 6, 1987, 87-2 CPD Para. 341 at 3. Here, as explained more fully below, we think that the agency reasonably determined to use negotiated procedures instead of sealed bids. By way of background, the contracting officer (CO) explains that Fort Bragg is currently renovating hundreds of existing barracks. Agency Report (AR) exh. 5, CO Affidavit, Oct. 2, 2000 at Para. 3. This renovation program consists of six separate projects--the Smoke Bomb Hill Barracks, and five phases of the D-Area upgrade. Id.