Unico Mechanical Corporation (W9127N-21-R-0005)

B-420355.5 Mar 24, 2023 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Unico Mechanical Corporation, a small business of Benicia, California, requests that we recommend the firm be reimbursed the reasonable costs of pursuing its protest. Unico challenged the award of a contract to McMillen, LLC, of Boise, Idaho, by the Department of the Army, United States Army Corps of Engineers, under request for proposals (RFP) No. W9127N-21-R-0005, which was issued for construction at Cougar Dam power plant in Lane County, Oregon. We grant the request in part and deny it in part. View Decision 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: Unico Mechanical Corporation‑-Costs File: B‑420355.5 Date: March 24, 2023 Jacob W. Scott, Esq., and Alexander Gorelik, Esq., Smith, Currie & Hancock LLP, for the protester. Elisabeth A. Dixon, Esq., and Judith E. Almerico, Esq., Department of the Army, for the agency. David A. Edelstein, Esq., and Alexander O. Levine, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Request that GAO recommend reimbursement of protest costs is granted where challenge to the agency’s waiver of Buy American Act requirements was clearly meritorious and the agency unduly delayed taking corrective action. 2. Request that GAO recommend reimbursement of protest costs is denied where the requester’s arguments regarding the evaluation of proposals were not clearly meritorious and are severable from the clearly meritorious protest argument. DECISION Unico Mechanical Corporation, a small business of Benicia, California, requests that we recommend the firm be reimbursed the reasonable costs of pursuing its protest. Unico challenged the award of a contract to McMillen, LLC, of Boise, Idaho, by the Department of the Army, United States Army Corps of Engineers, under request for proposals (RFP) No. W9127N‑21‑R‑0005, which was issued for construction at Cougar Dam power plant in Lane County, Oregon. We grant the request in part and deny it in part. BACKGROUND The procurement at issue here relates to the powerhouse at Cougar Dam, which relies on two 90 inch butterfly valves to shut off the flow of water to the generator turbines. Contracting Officer’s Statement (COS) at 1.[1] These valves, which were placed into service in the 1960s, have developed defects affecting their safety and reliability. Id. at 1‑2. On August 27, 2021, the agency issued the RFP, seeking to award a fixed‑price construction contract for the replacement of these valves and associated control systems. Id.; see Agency Report (AR), Tab 5a, RFP.[2] The RFP provided that award would be made on a best‑value tradeoff basis considering the following factors: price, past performance, work plan, and small business participation commitment. AR, Tab 8, RFP amend. 3 at 5, 9‑16. The RFP incorporated Federal Acquisition Regulation (FAR) clause 52.225‑9 and FAR provision 52.225‑10, which implement the Buy American Act, 41 U.S.C. § 8301‑8305. AR, Tab 14, RFP amend. 7 at 1‑6. Clause 52.225‑9(b)(1) generally requires the contractor to use only domestic construction material in performing the contract. If the agency determines that certain specified criteria are met, the agency can list specific material excepted from this requirement. FAR clause 52.225‑9(b)(2), (b)(3). Provision 52.225‑10(d)(3) provides that an agency may only award a contract based on a proposal that is compliant with the domestic material requirement, unless the agency determines that an exception applies and grants a waiver. The RFP here listed no exceptions. AR, Tab 14, RFP amend. 7 at 4. The agency received seven proposals, including proposals from McMillen and Unico. COS at 9. Of relevance to this request, McMillen’s proposal relied on the use of foreign materials for the project’s two 90 inch butterfly valves and one hydraulic power unit (HPU). McMillen requested that the agency waive the Buy American Act for these items. AR, Tab 16, McMillen Buy American Waiver Request at 2. The agency denied McMillen’s request and documented its rationale for doing so. AR, Tab 24, McMillen Buy American Waiver Denial at 2. During discussions, and at the agency’s request, McMillen submitted additional information in support of its request. See Supp. AR, Tab 1, McMillen Revised Pricing Proposal at 14‑15. The record does not contain any documentation of the agency’s analysis of this revised submission, or any indication that the agency affirmatively granted McMillen’s waiver request prior to contract award. The agency convened a source selection evaluation board (SSEB) to evaluate proposals. See AR, Tab 35, SSEB Final Report. The source selection authority (SSA) reviewed the SSEB’s conclusions and concurred with the ratings assigned to Unico and McMillen. Supp.