Nova Constructors LLC

B-410761 Jan 21, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Nova Constructors, LLC, of Okinawa, Japan, protests the terms of request for proposals (RFP) No. W912HV-14-R-0021, issued by the Department of the Army, Corps of Engineers, Japan Engineer District, for construction services to replace diesel fuel pumps and perform associated work at the Hakozaki fuel terminal, near Yokosuka, Japan. Nova argues that the RFP improperly restricts competition to firms having specific experience in Japan. We deny the protest. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. No party requested redactions; we are therefore releasing the decision in its entirety. Decision Matter of: Nova Constructors, LLC File: B-410761 Date: January 21, 2015 Carol L. O’Riordan, Esq., Pamela J. Bethel, Esq., and Anthony J. Marchese, Esq., O’Riordan Bethel Law Firm LLP; and Kenneth A. Martin, Esq., The Martin Law Firm, for the protester. Michaele J. Mandulak, Esq., Department of the Army, Corps of Engineers, for the agency. Paul N. Wengert, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that solicitation requirement that offerors show at least three highly-similar contracts performed in the same country as the place of performance at issue was an unjustifiable restriction on competition is denied where the record shows that the restriction is reasonably necessary to meet the agency’s needs. DECISION Nova Constructors, LLC, of Okinawa, Japan, protests the terms of request for proposals (RFP) No. W912HV-14-R-0021, issued by the Department of the Army, Corps of Engineers, Japan Engineer District, for construction services to replace diesel fuel pumps and perform associated work at the Hakozaki fuel terminal, near Yokosuka, Japan. Nova argues that the RFP improperly restricts competition to firms having specific experience in Japan. We deny the protest. BACKGROUND The Corps issued the RFP on October 3, 2014, seeking proposals to replace nine deteriorated diesel fuel pumps at Defense Fuel Supply Point Hakozaki; to dispose of approximately 1,500 liters of oily water and sludge in the existing tanks; and to perform incidental work to upgrade the electrical service, including providing new electrical buildings and new backup generators. Agency Report (AR) at 1; RFP Specifications at § 01 11 00. The specifications also include requirements for the contractor to handle and dispose of other toxic materials, particularly asbestos and lead. RFP Specifications at §§ 02 82 14.00 10, 02 83 13.00 20; Supplemental Agency Report (AR) at 7. The RFP specifies that all work--including the new pumps themselves‑-must comply with specific United States laws and regulations, and that the contractor is also responsible for identifying and complying with any applicable local laws and regulations.[1] RFP Specifications at § 01 35 26. Award is to be made to the firm submitting the lowest-priced technically acceptable proposal. Technical acceptability is to be determined under two factors, past experience and past performance. RFP at 12‑13. Under the past experience factor, offerors are to submit at least three examples for consideration. Id. at 12. These examples must show performance of a design-bid-build or design-build project that was valued at ¥500,000,000 or more; was new construction or renovation of a comparable fuel system project that included fuel pumping stations, piping, and electrical systems; was more than 50 percent complete (or fully complete) within the last 6 years; was performed in Japan; and was performed by the offeror as the prime contractor.[2] Id. at 13. Nova’s protest is focused on the requirement that the projects must have been performed in Japan. ANALYSIS Nova argues that the Corps lacks a valid basis to restrict competition to firms that have completed highly-similar projects in Japan under “design-bid-build” or “design-build” arrangements. Protest at 2-3. The firm argues that its parent company has successfully completed numerous similar fuel depot projects in the United States and elsewhere overseas. Supplemental Comments, exh. 8.3, Company Overview, at 12-14 (“Fuel Projects List”). The Corps maintains that it has a valid basis for the requirements. The agency explains that the requirement is for fueling equipment that will require high voltage connections to the Japanese electrical system, and will involve significant amounts of hazardous waste which must be handled and disposed of properly to prevent injury or environmental contamination. Supplemental AR at 8. The Corps further states that, since delayed or deficient performance could impair military operations, the requirement relates to national defense and warrants heightened standards.