Strand Hunt Construction, Inc., B-292415, September 9, 2003

B-292415 Sep 09, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest of corrective action taken in response to a post-award agency-level protest is denied where agency determined that it had made award on the basis of a technically noncompliant proposal. The Corps's action is based on its conclusion that corrective action is required. The Corps's review led it to conclude that Strand's proposal was noncompliant with two material RFP technical requirements. Strand asserts that the Corps lacks a reasonable basis to terminate its contract and begin the process anew because the firm that filed the agency-level protest was not prejudiced by the Corps's actions. The baghouse system is designed to remove particulate matter from each of the three existing coal-burning boilers at the CHPP facility. View Decision Strand Hunt Construction, Inc., B-292415, September 9, 2003 * REDACTED DECISION DIGEST Attorneys DECISION Strand Hunt Construction, Inc. protests the decision by the United States Army Corps of Engineers to terminate for convenience Strand's contract awarded under solicitation No. DACA85-02-R-0024, amend the RFP and conduct a new evaluation and make a "best value" determination based on the new offers. The Corps's action is based on its conclusion that corrective action is required, made in response to an agency-level protest which had challenged the award on a number of grounds, in particular that the Corps had waived or relaxed certain solicitation requirements solely for Strand. The Corps's review led it to conclude that Strand's proposal was noncompliant with two material RFP technical requirements, and that the solicitation did not accurately reflect the agency's actual minimum needs. Strand asserts that the Corps lacks a reasonable basis to terminate its contract and begin the process anew because the firm that filed the agency-level protest was not prejudiced by the Corps's actions. We deny the protest. The RFP, issued on October 1, 2002, sought proposals for the design and construction of the central heat and power plant (CHPP) facility upgrades at the Clear Air Force Station (AFS) in Alaska. The CHPP facility provides heat and electricity through steam turbine generators and its existing major equipment includes three coal-burning boilers with a mechanical ash handling system. The project includes the design and construction of a one-story building addition to the existing CHPP facility to house three baghouse collection systems and associated equipment. The baghouse system is designed to remove particulate matter from each of the three existing coal-burning boilers at the CHPP facility. RFP amend. 2, Secs. 01010-12, 01010-60. The RFP contemplated award of a fixed-price plus delivery incentive design/build contract and the proposal schedule included various optional fixed-price line items. RFP amend. 2, Proposal Schedule at 1-2, and Sec. 00800-13. Award was to be made on a "best value" basis with price and the non-price factors considered equally important. The RFP specified that the work must conform to the detailed performance and prescriptive based drawings and specifications, including baghouse specifications. As relevant here, under the heading "design criteria" the baghouse specifications required that (1) the maximum net pressure differential between manifolds (portions) of the baghouse should be 6 inches, and that (2) the minimum spacing between individual bags within the baghouse (bag-to-bag clearance) must be 2.5 inches. RFP amend. 2, Para. 2.10.4.a (2) at Sec. 01010-62. While this was not disclosed in the solicitation, the agency explains that the baghouse specifications were based on baghouses manufactured by [DELETED] and that many of the requirements were specific to the [DELETED] baghouse model. The agency also points out that the RFP did not state that a brand name (or brand name or equal) acquisition was contemplated. Contracting Officer's Statement at 3. [DELETED] proposals were submitted by the December 3 extended closing date. Of these, [DELETED] offerors, including H.C. Price, proposed a baghouse manufactured by [DELETED] while Strand's proposal was based upon a [DELETED] baghouse model. After an initial evaluation by the source selection evaluation board (SSEB), all [DELETED] proposals were included in the competitive range. By letters dated December 26, the agency commenced discussions with each competitive range offeror. In the letter to Strand, the agency noted, among other things, that: [t]he baghouse modules included in your proposal do not appear to meet the RFP requirements, including but not limited to: * * * * * The normal pressure drop through the baghouses as proposed is higher than allowed in the RFP, and the guaranteed pressure drop is even higher. Minimum bag-to-bag clearance is noted as 2", where the RFP requires 2.5". Agency Report (AR) exh. 36, Letter from the Contracting Officer to Strand, Dec.