B-310902, Ceres Environmental Services, Inc., March 3, 2008

B-310902 Mar 03, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Ceres Environmental Services, Inc., protests the use of negotiated procedures by the U.S. Army Corps of Engineers in soliciting offers to construct an intake canal as part of the Southeast Louisiana Urban Flood Control Project (SELA) under request for proposals (RFP) No. W912P8-07-R-0103. View Decision B-310902, Ceres Environmental Services, Inc., March 3, 2008 DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Ceres Environmental Services, Inc. File: B-310902 Date: March 3, 2008 Karl Dix, Jr., Esq., and John S. Tobey, Esq., Smith, Currie & Hancock LLP, for the protester. Amy Pereira, Esq., U.S. Army Corps of Engineers, for the agency. Paula J. Haurilesko, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that the agency improperly used negotiated procedures instead of sealed bidding procedures to solicit proposals to construct a drainage canal is denied where the agency reasonably concluded that the importance of completing the project justified an accelerated construction schedule and, as a consequence, necessitated consideration of non-price factors in selecting a proposal. DECISION Ceres Environmental Services, Inc., protests the use of negotiated procedures by the U.S. Army Corps of Engineers in soliciting offers to construct an intake canal as part of the Southeast Louisiana Urban Flood Control Project (SELA) under request for proposals (RFP) No. W912P8-07-R-0103. We deny the protest. The intake canal project is the final phase of the Dwyer Road project, a three-phase project under SELA.[1] Agency Report (AR), Tab A, Legal Memorandum, at 1. The first phase involved construction of a larger canal to discharge water from the pumping station to Lake Pontchartrain via the Inner Harbor Navigation Canal and was completed in 2003. Id. at 1-2. The second phase involves construction of a new pumping station to triple the pumping capacity of the old station. AR, Tab O, Affidavit of SELA Senior Project Manager, at 2. The pumping station project was disrupted by Hurricane Katrina and is still under construction. Comments on the AR, exh. 4, at 1. The final phase, and the subject of this protest, involves the construction of an intake canal under Dwyer Road to move water to the pumping station. AR, Tab O, Affidavit of SELA Senior Project Manager, at 2. The construction of the intake canal will complete the entire project. On October 26, 2007, the Corps issued the RFP for a fixed-price contract to construct the intake canal. RFP at 1, 6. The RFP contemplates awarding to the offeror whose proposal provides the best value to the government based on a trade'off between price and non-price factors. RFP sect. 00130, at 1. The RFP provides that non-price factors--past performance, technical approach, duration, personnel experience, project management, and small business subcontracting plan--combined, would be approximately equal to price. Id. at 1, 3-4; RFP amend. 2 at 2. Among the non'price factors, past performance and technical approach are approximately equal in value and are significantly more important than the other four non-price factors. Id. Under the technical approach evaluation factor, the RFP anticipates an assessment of each offeror's methodology for construction in proximity to power lines and the offeror's ability to manage multiple work crews. RFP sect. 00130, at 4. Under the duration evaluation factor, the RFP advises that proposals reducing the 1,172-day period of performance by 180 days or more will receive a higher rating under this evaluation factor than proposals that simply offer to meet the schedule. Id.; RFP amend. 1 at 2. The RFP also anticipates establishing a competitive range, and requiring offerors within that range to provide an oral presentation detailing their technical approach. In addition, the RFP advises that the agency could elect to hold discussions. RFP sect. 00130, at 5. Ceres contends that the Corps' decision to conduct this procurement using negotiated procedures, instead of using sealed bidding procedures, violates the Competition in Contracting Act (CICA). In this regard, Ceres disputes the agency's conclusion that the complexity of this procurement requires the agency to use non'price evaluation factors. Ceres also asserts that discussions are not needed for this procurement, and that the Corps failed to sufficiently document its decision to use negotiated procedures instead of sealed bidding. CICA requires the use of sealed bidding when: (1) time permits; (2) award will be based on price and other price-related factors; (3) discussions are not necessary; and (4) more than one bid is expected. 10 U.S.C. sect.