Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003

Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003 TITLE: Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003 BNUMBER: B-291402.3; B-291402.4 DATE: February 6, 2003 ********************************************************************** Phil Howry Company, B-291402.3; B-291402.4, February 6, 2003 Decision Matter of: Phil Howry Company File: B-291402.3; B-291402.4 Date: February 6, 2003 Kathleen C. Little, Esq., and Robert J. Rothwell, Esq., Vinson & Elkins, for the protester. Keith S. Francis, Esq., Department of the Army, and Laura Mann Eyester, Esq., and John Klein, Esq., Small Business Administration, for the agencies. Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest sustained where agency effectively determined small business, which submitted sole proposal on section 8(a) set-aside, to be nonresponsible based solely on what amounted to pass/fail evaluation of the protester's past performance, without referring the matter to the Small Business Administration under certificate of competency procedures. DECISION Phil Howry Company (PHC) protests the United States Army Corps of Engineers' decision not to award PHC the contract under request for proposals (RFP) No. DACW64-02-R-0008 for construction of a health care facility at the Port Isabel Service Processing Center in Los Fresno, Texas, and the subsequent cancellation of the RFP. We sustain the protests. BACKGROUND The RFP was issued as a section 8(a) set‑aside.[1] It provided for the award of a fixed‑price contract to the *responsible bona fide 8(a) Offeror Region 6 whose proposal, conforming to the Solicitation, is fair and reasonable, and has been determined to be the most advantageous to the Government, Past Performance, price, and other factors considered.* RFP S: 00120 P: 7.0. The RFP provided for three phases of evaluation: a proposal compliance review (to ensure that proposals met all pro forma requirements of the RFP), a quality evaluation (to evaluate past performance), and a price evaluation. RFP S: 00120 P: 2.0. Past performance and price were of equal importance. RFP S: 00120 P: 7.3. The sole *purpose* of the past performance evaluation was *to make an overall risk assessment of the Offeror's ability to perform the work required by the Solicitation. . . . The assessment represents the evaluation team's judgment of the probability of an Offeror successfully accomplishing the work required by the solicitation, based on the Offeror's demonstrated past performance.* RFP S: 00120 P: 2.2.2.1.1; see RFP S: 00110 P: 2.2.3.2. For past performance, offerors were required to *[p]rovide a list of at least five (5), but no more than ten (10), of the most relevant contracts performed for Government or commercial customers within the last 5 years involving construction of a 50-100 bed hospital or large clinic.* *Relevant* contracts were defined as *construction projects that would be considered similar in scope and magnitude to this project; vertical construction consisting of buildings with structural steel frame masonry exteriors and low slope single roofs, and within the range of $5,000,000 to $10,000,000.* RFP S: 00110 P: 2.1.1(a). Only one offeror, PHC, submitted a proposal. PHC's proposed price of $6,332,078 was approximately $2 million less than the Government estimate of $8,487,198. Agency Report (AR), Tab R, Memorandum for Record, at 2. However, PHC was not awarded the contract because its past performance was rated as *marginal/little confidence.* By letter dated September 11, 2002, the agency notified PHC that award would not be made to PHC. The letter explained that: [PHC's past performance information was for projects that were] significantly below the estimated range of $5 to $10 million for the cost of the work as set forth in Sec. 00110, Para. 2.1.1(a), . . . and did not involve medical construction. Based upon the foregoing, the technical evaluation panel determined that there is substantial doubt that your company will successfully perform the required work, and therefore, assessed the overall risk rating of marginal/little confidence. . . . Based on the above, the award of this project will not be made to your company.[2] AR, Tab T, Agency Letter to Howry (Sept. 11, 2002). On September 25, PHC filed a protest with this Office, primarily asserting that the rejection of its proposal constituted a de facto nonresponsibility determination, which must be referred to the Small Business Administration (SBA) under its certificate of competency (COC) procedures.