Comptroller General

of the United States

United States Government Accountability Office

Washington, DC 20548 

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: Burchick Construction Company 

File: B-400342 

Date: October 6, 2008 

D. Matthew Jameson III, Esq., Peter H. Schnore, Esq., and Patrick R. Malone, Esq., 

Babst Calland Clements Zomnir, P.C., for the protester. 

David A. Levine, Esq., Blumling & Gusky, LLP, for Massaro Corporation, the 

intervenor. 

Kenneth MacKenzie, Esq., Department of Veterans Affairs, for the agency. 

Peter D. Verchinski, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Agency failed to conduct meaningful discussions in a negotiated procurement, where 

discussions conducted with offerors were limited to cost proposals and did not

identify significant weaknesses or deficiencies that the agency had identified in the 

protester’s technical proposal. 

DECISION 

Burchick Construction Company protests the award of a contract to Massaro 

Corporation under request for proposals (RFP) No. VA-101-07-RP-0043, issued by the 

Department of Veterans Affairs (VA) for the construction of an ambulatory care 

center and related work. Burchick challenges VA’s evaluation of the firm’s technical 

proposal, conduct of discussions, and source selection decision. 

We sustain the protest. 

The RFP provided for the award of a fixed-price contract for the construction of a 

new ambulatory care center and associated support systems and for minor 

demolition work at the VA Pittsburgh Health Care System, H. J. Heinz Division,

Pittsburgh, Pennsylvania. Award was to be made on a “best value” basis, considering 

price and the following four technical evaluation factors (listed in descending order 

of importance): past performance, construction management, schedule, and small 
business participation.1

 Offerors were informed that the technical factors, when 

combined, were of equal weight to price. RFP at 7. 

Instructions for the preparation of proposals were provided for each evaluation 

factor. For example, with respect to the past performance factor, offerors were 

instructed to demonstrate corporate construction experience on a minimum of four 

projects consisting of ambulatory clinics, hospitals, or projects of similar size, scope, 

and complexity. As another example, with respect to the construction management 

factor, offerors were instructed to demonstrate the relevant experience of key 

project personnel, such as the project manager. RFP at 5-6. 

The agency received five proposals, including Burchick’s and Massaro’s, which were 

evaluated by the agency’s technical evaluation board (TEB). Burchick’s and 

Massaro’s technical proposals received the following point scores:

2

 

Evaluation Factor Burchick Massaro 

Past Performance (40 points) 22 25.4 

Construction Management (30 pts.) 14.4 19 

Schedule (20 pts.) 14.4 14.4 

Small Business Participation (10 pts.) 0 8.5 

TOTAL (100 pts.) 50.8 67.3

Agency Report (AR), Tab 3, Price Negotiation Memorandum, at 6-7.3 

Buchick’s lower technical point scores reflected the evaluators’ judgment that the 

firm’s proposal contained “weaknesses” in a number of regards. Id. at 7. 

Specifically, under the most important past performance factor (for which 

Burchick’s proposal only received 22 of 40 available points), the evaluators 

concluded that Burchick had provided “detailed information on only one project, the 

OB/GYN Surgery Center, which could be classified as either Clinic Construction or 

 1

 Subfactors were also identified for the past performance and construction 

management evaluation factors. For example, one of the past performance 

subfactors was “awards received on projects completed within the last 5 years.” 

RFP at 8. 

2

 The evaluators assigned point scores for each offeror’s proposal under each 

technical evaluation factor and subfactor. 

3

 During the protest, VA informed our Office and the parties that it had improperly 

assigned too many points to the awardee’s proposal under the small business

participation factor, and that Massaro’s proposal should have received only 6 points

(2.5 fewer points) under this evaluation factor. Supplemental AR, Tab 12, 

Supplemental Declaration of VA Project Manager, at 1. 

Page 2 B-400342 
Hospital Construction Experience”; in addition, the TEB was concerned that

Burchick “did not provide any information on awards received [on projects 

completed within the last five years].” See AR, Tab 4, Declaration of VA Project 

Manager, at 1. Under the construction management factor (for which the TEB 

assigned only 14.4 of 30 available points), the evaluators noted that Burchick’s 

proposal 

did not include qualifications for anyone to fill the capacity as a 

project manager and this was considered a weakness. Although, 

quality control was mentioned in the technical proposal little to no

information was provided as to how Burchick manages the quality 

control process.

AR, Tab 3, Price Negotiation Memorandum, at 7. With respect to the small business

participation factor (for which Burchick’s proposal received none of the 10 available 

points), the evaluators found that Burchick, a large business concern, had “presented 

no small business participation in management, [that the firm’s] subcontracting plan

did not exceed any goals, and past performance did not meet all established goals.” 

Id.

Based upon the TEB’s evaluation of initial proposals, the contracting officer 

determined that all offerors were qualified to perform the project; the contracting 

officer also decided that the agency would not conduct discussions with the offerors

with respect to the firms’ technical proposals, because “none of the offerors could 

materially improve its technical proposal.” Contracting Officer’s Statement, Tab 6, 

at 2. However, because all of the initial proposals exceeded the government’s 

estimate and available funding, the contracting officer decided to conduct

discussions with the firms with respect to only their price proposals. AR at 4. 

Accordingly, the contracting officer “discussed the [architect-engineer’s] cost 

estimate for each line item, including a comparison [of] the [architect-engineer’s] 

estimate with the offeror’s cost proposal, the areas in which each offeror’s cost

could be improved and other issues such as project phasing and scheduling, which 

could impact the cost.” Id. The agency received revised price proposals, to which 

VA assigned point scores ranking the firm’s price proposals from lowest to highest. 

Burchick’s proposal, which offered the lowest price of $36,686,000, was assigned all 

of the 100 available points. Massaro, which offered the next lowest price of 

$38,530,000, was assigned 95 points. The agency added the firms’ technical and price 

point scores to determine which firm’s proposal reflected the best value (the highest

combined technical/price score). Massaro’s combined score was calculated to be 

Page 3 B-400342 
162.3, while Burchick’s combined score was 150.8.4

 AR, Tab 3, Price Negotiation 

Memorandum, at 11. Award was made to Massaro based on its higher combined

score, and following a debriefing, Burchick filed this protest.

5

Burchick complains that VA did not conduct meaningful discussions with Burchick, 

given that VA did not apprise the firm of, or provide it with the opportunity to

address, significant evaluated weaknesses in its technical proposal. The protester 

contends that it could have resolved the agency’s concerns with the firm’s proposal 

had the firm been provided with discussions concerning its technical proposal. 

VA argues that the scope and extent of discussions to be conducted with offerors is

“a matter of contracting officer judgment” and that agencies are not required to 

discuss every area in which a proposal can be improved. In this regard, VA contends 

that the agency was not required to conduct discussions with respect to Burchick’s 

technical proposal, given that the contracting officer concluded that the firm could 

not have materially improved its technical proposal. AR at 6-7. 

 

We agree with VA that a procuring agency has considerable discretion in determining 

whether and how to conduct discussions in a negotiated procurement under Federal 

Acquisition Regulation (FAR) Part 15. However, where, as here, discussions are 

conducted, they must at a minimum identify deficiencies and significant weaknesses 

in the proposals of each competitive range offeror. FAR § 15.306(d)(3); Multimax, 

Inc., et al., B-298249.6 et al., Oct. 24, 2006, 2006 CPD ¶ 165 at 12; PAI Corp., B-298349, 

Aug. 18, 2006, 2006 CPD ¶ 124 at 8. Discussions must be “meaningful,” that is, 

sufficiently detailed so as to lead an offeror into the areas of its proposal requiring 

amplification or revision. Smiths Detection, Inc., B-298838, B-298838.2, Dec. 22, 

2006, 2007 CPD ¶ 5 at 12; Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD ¶ 203 

at 8. 

We find that VA did not conduct meaningful discussions with Burchick, since the 

agency limited its discussions to the firm’s cost proposal and did not identify any of

the agency’s significant concerns with Burchick’s technical proposal that resulted in 

the firm’s proposal receiving only 50.8 points out of 100 possible points.

6

 In 

 4

 As noted above, the agency now acknowledges that Massaro’s combined point 

score should have been 159.8, because the agency assigned too many points to

Massaro’s proposal under the small business participation factor. 

5

 Another firm had a higher combined point score than Massaro, but that firm’s

proposed price exceeded the funds available for award. AR at 5. 

6

 An agency may limit discussions to price alone, and not conduct technical 

discussions, only where a proposal contains no significant technical weaknesses or 

deficiencies. See FAR § 15.306(d)(3); Metron Corp., B-227014, June 29, 1987, 87-1 

(continued...) 

Page 4 B-400342 
particular, the protester’s proposal received only 22 of 40 available points under the 

past performance factor, based upon the agency’s judgment that Burchick had 

provided detailed information on only one relevant project, where the solicitation 

requested a minimum of four projects. Similarly, Burchick’s proposal received only 

14.4 of 30 available points under the construction management factor, based upon 

the agency’s conclusion that Burchick had failed to identify a project manager and to 

detail its quality control plan, as required by the RFP. Burchick’s proposal received 

no points under the small business participation factor, because the agency found 

that Burchick had essentially not provided the required small business participation 

plan. Given the significant reductions in Burchick’s technical point score associated 

with these identified concerns, and the importance to the agency of the omitted 

information, we find that these concerns can only be considered to be significant 

weaknesses or deficiencies, and that the agency’s failure to identify them during 

discussions was inconsistent with its obligation to conduct meaningful discussions. 

We also do not agree with VA that Burchick could not have materially improved its 

proposal if discussions were conducted with the firm with respect to the evaluated 

concerns in its technical proposal. The protester has explained that it could have 

addressed each of the agency’s concerns that resulted in Burchick’s technical 

proposal being downgraded. For example, with respect to the evaluation of the 

firm’s past performance, Burchick contends that it identified 37 other healthcare 

projects in its technical proposal, which the protester could have detailed if the firm 

had been asked in discussions. Protester’s Comments at 4. With respect to the 

identity of its project manager and to its proposed quality control plan under the 

construction management factor, Burchick states that, had it received discussions, 

the firm would have clarified the identity of its project manager and provided further 

detail with respect to its quality control plan.7

 Id. at 6-7. With respect to the small 

business participation factor, Burchick states that it could have further explained the 

firm’s proposed teaming relationship with a service-disabled veteran-owned small 

business.

In sum, we find that VA failed to conduct meaningful discussions with Burchick, 

because the agency failed to identify significant weaknesses or deficiencies in the 

firm’s technical proposal. We also find a reasonable possibility that Burchick was

prejudiced by the agency’s failure to conduct meaningful discussions, given that 

 

(...continued) 

CPD ¶ 642 at 5; Sperry Corp., B-220521, Jan. 13, 1986, 86-1 CPD ¶ 28 at 5-6. That is 

not the case here. 

7

 Burchick contends that its proposed “project executive” was the firm’s project

manager, although the firm did not use that precise title for that individual. Burchick 

states that it would have clarified that person’s role, if discussions on technical 

issues had been conducted. Protester’s Comments at 6-7. 

Page 5 B-400342 
Burchick offered the lowest price and could have addressed these concerns in its 

technical proposal such that it may have been found to offer the best value to the 

agency.8

 

The protester also alleges that the agency may have unreasonably evaluated its 

proposal in retaliation for Burchick’s current contract claim that the firm filed 

against VA with the U.S. Court of Federal Claims. The protester, however, presents 

no evidence supporting this allegation other than its inference based upon the 

protester’s belief that its technical proposal was evaluated unreasonably. 

Government officials are presumed to act in good faith, and a protester’s assertion 

that contracting officials were motivated by bias or bad faith must be supported by 

convincing proof; we will not attribute unfair or prejudicial motives to procurement 

officials on the basis of inference or supposition. Shinwha Elecs., B-290603 et al., 

Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6. Burchick has not provided convincing proof 

of bias or bad faith on the part of VA, and we are not prepared to say on this record

that the flaws in the selection process were motivated by bias. 

The protest is sustained.9

 8

 Our Office will not sustain a protest unless the protester demonstrates a reasonable 

possibility of prejudice, that is, unless the protester demonstrates that, but for the 

agency's actions, it would have had a substantial chance of receiving the award. 

McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. 

Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). 

9

 The protester also challenges the agency’s evaluation of its technical proposal and 

source selection decision. We need not address these contentions, given our 

recommendation to reopen the competition and make a new selection decision. 

Nevertheless, and although not specifically challenged by the protester, we note that

the agency’s selection decision is based upon a mechanical comparison of the firms’ 

technical and price point scores, which is not a valid substitution for the qualitative 

assessment of the technical differences of the proposals or of the benefits associated 

with a proposal’s additional cost. See FAR § 15.308; Midland Supply, Inc., B-298720, 

B-298720.2, Nov. 29, 2006, 2007 CPD ¶ 2 at 5; Opti-Lite Optical, B-281693, Mar. 22, 

1999, 99-1 CPD ¶ 61 at 5. Point scores are but guides to intelligent decision making; 

the propriety of a price/technical tradeoff turns not on the difference in point scores

and ratings per se, but on whether the agency’s judgment concerning the significance 

of the difference is reasonable and adequately justified in light of the evaluation 

scheme. See Shumaker Trucking and Excavating Contractors, Inc., B-290732, 

Sept. 25, 2002, 2002 CPD ¶ 169 at 8. In this regard, in order for our Office to be able 

to perform a meaningful review, the record must contain adequate documentation 

showing the bases for the evaluation conclusions and source selection decision. 

Southwest Marine, Inc.; American Sys. Eng’g Corp., B-265865.3, B-265865.4, Jan. 23, 

1996, 96-1 CPD ¶ 56 at 10. 

Page 6 B-400342 
We recommend that VA conduct discussions with the offerors with respect to their 

technical proposals, obtain and evaluate revised proposals, and make a new source 

selection decision. If a firm other than Massaro is selected for award, the agency 

should terminate Massaro’s contract and make award to that other firm. We also

recommend that Burchick be reimbursed the reasonable costs of filing and pursuing 

the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2008). 

Burchick should submit its claim for costs, detailing and certifying the time 

expended and costs incurred, with the contracting agency within 60 days after 

receipt of this decision. 4 C.F.R. § 21.8(f)(1). 

Gary L. Kepplinger 

General Counsel 

Page 7 B-400342