HBI-GF, JV

B-415036 Nov 13, 2017 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights HBI-GF, JV, of Tampa, Florida, protests the exclusion of its proposal from the competitive range by the Department of the Army, Corps of Engineers, under request for proposals (RFP) No. W912EP-17-R-0008, for the construction of cutoff walls at the Herbert Hoover Dike (HHD) embankment, at Lake Okeechobee in Florida. The protester challenges the agency's decision to exclude HBI-GF due to an organizational conflict of interest (OCI), and alleges that the agency's OCI analysis was flawed. 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. This version has been approved for public release. Decision Matter of:  HBI-GF, JV File:  B-415036 Date:  November 13, 2017 David S. Black, Esq., Terry L. Elling, Esq., Gregory R. Hallmark, Esq., and Elizabeth N. Jochum, Esq., Holland & Knight LLP, for the protester. Christopher Lambert, Esq., Department of the Army, for the agency. Eric M. Ransom, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency's exclusion of a joint venture firm from participation in a procurement is denied where the agency reasonably determined that one member of the joint venture, through its involvement in a second joint venture, assisted in the preparation of specifications used by the agency in the solicitation, giving rise to an organizational conflict of interest.  DECISION HBI-GF, JV, of Tampa, Florida, protests the exclusion of its proposal from the competitive range by the Department of the Army, Corps of Engineers, under request for proposals (RFP) No. W912EP-17-R-0008, for the construction of cutoff walls at the Herbert Hoover Dike (HHD) embankment, at Lake Okeechobee in Florida.  The protester challenges the agency's decision to exclude HBI-GF due to an organizational conflict of interest (OCI), and alleges that the agency's OCI analysis was flawed. We deny the protest.  BACKGROUND The agency issued the RFP on April 3, 2017, anticipating the award of a contract for heavy construction services to complete over six miles of cutoff walls at the HHD embankment, from South Bay to Lake Harbor, Florida.  The work is to be completed in four phases, and involves the construction of temporary earthen work platforms, the installation of a cutoff wall, performance testing, and site restoration.  The RFP included extensive and detailed technical specifications and construction plans for the work. HBI-GF is a joint venture of Hayward Baker, Inc., and Gannett Fleming, Inc.  As relevant here, Gannett Fleming is also a part of Gannett Fleming/GEI Consultants Joint Venture (GF-GEI).  On March 29, 2016, the agency issued GF-GEI a task order under contract W912EP-17-R-0008, to conduct a "Type II Independent External Peer Review (IEPR), Safety Assurance Review (SAR)" for the design phase of the cutoff wall construction project that is the subject of the current RFP.  Agency Report (AR), Tab 7c, Task Order, at 2.  The contract under which the task order was issued explains that: [IEPRs or SARs] will include a review of the design and construction activities prior to the initiation of physical construction and periodically thereafter until construction activities are completed on a regular schedule sufficient to inform the Chief of Engineers on the adequacy, appropriateness, and acceptability of the design and construction activities for the purpose of assuring public health, safety, and welfare. AR, Tab 7b, Contract, at 14. As part of the IEPR, GF-GEI selected personnel, including a geotechnical engineer, to review HHD project design documents such as the construction plans and technical specifications.  The IEPR team ultimately submitted more than 80 comments on the design phase of the HHD project, and prepared findings and lessons learned based on their review.  GF-GEI's final IEPR report was submitted to the agency on September 26, 2016, and included records of all IEPR comments and the agency's responses. Proposals in response to the RFP, including the proposal of HBI-GF, were received on June 6, 2017.  On June 20, the agency advised HBI-GF that it had identified a potential OCI concerning Gannett Flemming's participation in the IEPR as a part of the GF-GEI joint venture, and requested HBI-GF's response.[1]  On June 29, HBI-GF submitted its review of the organizational and consultant conflicts of interest under Federal Acquisition Regulation (FAR) subpart 9.5 and Gannett Flemming's role in performance of the IEPR for the project, which concluded that the IEPR did not create a conflict of interest with respect to this RFP.  On July 24, the agency elected to create a competitive range of the most highly rated proposals.  On that date, the agency notified HBI-GF that it was being exclude...