Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

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: AIC International, Inc. 

File: B-402652.2 

Date: June 28, 2010 

David P. Ledger, Esq., Cabot Mantanona LLP, and Shelly L. Ewald, Esq., Watt, Tieder, 

Hoffar & Fitzgerald, LLP, for the protester. 

David A. Rose, Rose Consulting LLC, for Guam Pacific International, LLC, an 

intervenor. 

Richard Huber, Esq., Department of the Navy, Naval Facilities Engineering 

Command, for the agency. 

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the 

General Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest challenging evaluation of protester’s proposal is denied where record shows 

evaluation was reasonable and consistent with solicitation. 

DECISION 

AIC International, Inc., of Hagatna, Guam, protests the rejection of its proposal and 

the award of contracts to Guam Pacific International, LLC (GPI), of Barrigada, 

Guam, and Overland Corporation, of Ardmore, Oklahoma, under request for 

proposals (RFP) No. N40192-10-R-2800, issued by the Department of the Navy, Naval 

Facilities Engineering Command, for the award of multiple contracts for new 
Page 2 B-402652.2 

 

construction, renovation, and repair of government facilities on Guam. The 

protester argues that the evaluation of its proposal was unreasonable.1

 

We deny the protest. 

BACKGROUND 

The RFP, which was set aside for small businesses, provided for the award of up to 

five indefinite-delivery/indefinite-quantity design/build contracts to the offerors 

whose proposals were determined to represent the best value to the government, 

with technical factors of significantly greater weight than price in the determination 

of best value. Technical factors (of equal weight) were offeror and lead design team 

experience; past performance; safety; workforce housing and logistics (WH&L); and 

technical approach (to performance of a specified seed project).2

 Price was to be 

evaluated on the basis of pricing for the seed project. 

Thirteen proposals were received by the November 24, 2009 closing date. Evaluation 

panels reviewed the technical and price proposals; technical ratings and rankings 

(along with seed project prices) were as follows: 

1

 In its initial protest, AIC also complained that the agency erred in awarding to GPI 

and Overland without investigating whether the firms were unusually reliant upon--

and thus, for size determination purposes, should have been treated as affiliated 

with--their large business subcontractors. The agency requested, and we granted, 

dismissal of this argument prior to submission of the agency report. In addition, the 

protester initially alleged that the agency had ignored price in its determination of 

best value. The agency persuasively rebutted this allegation in its report with 

documentation demonstrating that both the source selection board and the source 

selection authority had considered price in their trade-off determinations, and AIC 

abandoned this argument. 

2

 The seed project was for construction of a combat support vehicle maintenance 

facility at Andersen Air Force Base. 
Page 3 B-402652.2 

he ratings for the individual technical factors were as follows: 

Experience Perf. Safety W L Approach Overall 

T

Firm/Rank 

Past 

H&

Tech. 

 1. GPI E G S E G G 

 2. Niking Corp. G E E G S G 

 3. Bulltrack-Watts JV G G G G S G 

 4. Pacific West Builders G G S S G G 

 5. P&S Constr. G G G S S G 

 6. Overland E G S S S G 

 7. Offeror A G E S G M S 

 8. Offeror B G E G M S S 

 9. Offeror C G G S S S S 

10. AIC G G M S S S 

11. Offeror D G G M G M S 

12. Offeror E S E G M M S 

13. Offeror F G G S M M S 

Agency Memorandum of Law at 2-3. 

S 

 

A source selection board (SSB) reviewed the findings of the evaluation panels and 

determined that the proposals of GPI, Niking, Bulltrack-Watts, Pacific West, and P&

Rating3

Technical Ranking Overall Technical Seed Project Price

 1. GPI Good $12,959,699 

 2. Niking Corp. Good [deleted] 

 3. Bulltrack-Watts JV Good [deleted] 

 4. Pacific West Builders Good [deleted] 

 5. P&S Constr. Good [deleted] 

 6. Overland Good [deleted] 

 7. Offeror A Satisfactory [deleted] 

 8. Offeror B Satisfactory [deleted] 

 9. Offeror C Satisfactory [deleted] 

10. AIC Satisfactory $12,478,276 

11. Offeror D Satisfactory [deleted] 

12. Offeror E Satisfactory [deleted] 

13. Offeror F Satisfactory [deleted] 

3

 The rating scale used was excellent (E), good (G), satisfactory (S), and marginal 

(M). 
Page 4 B-402652.2 

ded 

d the 

rch 10, 2010.4 After receiving a 

ebriefing, AIC protested to our Office on March 29. 

ISCUSSION 

oposal 

represented the best value to the government; accordingly, the SSB recommen

award to these firms. The source selection authority (SSA) concurred in the 

recommendation and also decided to make a sixth award to Overland based on his 

finding that there were only slight technical differences between its proposal an

fifth-ranked offeror’s proposal. The SSA noted that in deciding to make a sixth 

award to Overland, he considered the lower-priced, lower-ranked proposals from 

AIC and Offerors A, C, D, and E, but determined that the cost savings associated with

those proposals did not outweigh the technical benefits of Overland’s proposal. The 

agency awarded contracts to the selected firms on Ma

d

D

AIC challenges the evaluation of its proposal. The protester argues that the pr

should have been rated more favorably under each of the evaluation factors. 

In reviewing a protest objecting to an agency’s evaluation, we will not evaluate the

proposals anew or substitute our judgment for that of the agency; rather, we will 

examine the record to determine whether the agency’s judgment was reasonable and 

in accord with the RFP evaluation criteria and with applicable procurement statutes

and regulations. Colson Servs. Corp., B-310971 et al., Mar. 21, 2008, 2008 CPD ¶

at 5. Although we do not specifically address all of AIC’s issues, we have fully 

considered all of them and find that they afford no basis on which to sustain 

protest; as explained below, the record here demonstrates

 85 

the 

 that the agency’s 

aluation was reasonable and consistent with the RFP. 

nt 

ev

 

First, the protester argues that its proposal should have received ratings of excelle

rather than good under the experience and past performance factors because the 

evaluators found strengths (i.e., the protester had considerable experience

cost, complex projects, and over half of its relevant projects had received 

performance ratings of excellent or outstanding), but no weaknesses in its proposal

under the factors. AIC also argues that it was unequal treatment for the evaluators 

to rate its proposal as merely good for past performance while rating the proposal of 

Niking Corporation as excellent, given that the evaluators found with regard to b

that “[m]ost of the relevant projects submitted as past performance received an 

Excellent or Outstanding client rating, while some of the projects received 

 on highoth 

an Above 

verage or Good client rating.” Protester’s Comments, May 3, 2010, at 9. 

 that 

 

A

In response, the agency explains that while the evaluators identified strengths in the 

protester’s proposal under the experience and past performance factors, they did not

identify significant strengths under either factor and did not find that the protester’s 

proposal had exceeded solicitation requirements; accordingly, they did not consider

the proposal to merit ratings of excellent. The protester has not demonstrated

4

 A task order for the seed project was issued to GPI. 
Page 5 B-402652.2 

 its 

the evaluators’ conclusions were unreasonable or inconsistent with the RFP’s 

evaluation factors. With regard to AIC’s allegation of unequal treatment vis-à-vis the

Niking Corporation, the protester misstates the evaluators’ finding pertaining to

own past performance. The evaluators did not find that “most” of the relevant 

projects submitted by the protester received ratings of excellent or outstanding, they 

found that “over half” of the protester’s relevant projects received such ratings. The

record shows that the evaluators consistently distinguished between the proposals 

of offerors (such as Niking) with ratings of excellent or outstanding on most of t

relevant projects, assigning these proposals overall past performance ratings of 

excellent, and the proposals of offerors with ratings of excellent or outstanding 

many, but not most, projects (such as the protester), assigning these proposals 

ratings of good. In s

heir 

on 

um, the record does not support the protester’s allegation of 

nequal treatment. 

afety 

stated 

rective action) over the 3-year 

eriod, which represented a significant weakness. 

f 

s on 

ide a reasonable time for the company 

 take remedial safety action.” Protest at 7. 

u

Next, AIC takes issue with the rating of its proposal as marginal under the s

factor. The RFP instructed offerors that they should furnish the following 

information for the 3 most recent years: DART rates,5

 Occupational Health and 

Safety Administration (OSHA) citations, and safety awards. The solicitation 

that a DART rate of 1 or less was considered very low; a rate of 1.1 to 2 was 

considered low; and rates of 2.1 to 3, 3.1 to 4, and greater than 4 were considered 

moderate, high, and very high, respectively. The evaluators assigned AIC’s proposal

a rating of marginal for the factor based on their findings that the protester’s DART

rates (2.93 for 2006, 1.62 for 2007, and 2.06 for 2008) ranged from low to moderate 

(and thus did not represent a strength), and that the protester had been issued nine

OSHA citations (for both serious and repeated non-serious violations that were of 

concern because they demonstrated ineffective cor

p

The protester argues that the evaluators unreasonably concluded that its receipt o

repeated citations for non-serious violations demonstrated ineffective corrective 

action. The protester points out that in two instances, it received repeat citation

either the same or successive days; AIC maintains that “[t]his pattern of OSHA 

having back to back inspections [did] not prov

to

First, we point out that the protester’s argument does not address one of the bases 

for the agency’s finding of significant weakness--i.e., that the protester had received 

three OSHA citations for serious offenses. Second, only two of the nine inspections 

 

5

 The acronym DART stands for “Days Away, Restricted or job Transferred.” DART 

rates reflect the number of incidents resulting in employees being off the job. The 

rate is calculated by dividing the number of incidents by the total number of hours 

worked by all employees during the calendar year, and then multiplying the quotient 

by 200,000. 
Page 6 B-402652.2 

he 

valuators’ findings pertaining to the protester’s OSHA citations were unreasonable. 

 they considered information pertaining to both partners of 

roposed joint ventures. 

, 

rs. 

r to the 

t of proposals. See

were performed within a day after another inspection, and the protester has 

furnished no evidence--nor is it apparent from the documentation provided by t

agency--that even in those two instances, the second citation was for the same 

violation as the first. In our view, the protester has not demonstrated that the 

e

AIC also complains that the evaluators failed to give it credit for the outstanding 

safety record of one of its proposed subcontractors. The protester contends that it 

was unequal for the evaluators to fail to consider information pertaining to proposed 

subcontractors given that

p

The RFP provided for the evaluation of only the offeror’s safety record; it neither 

provided for the evaluation of, nor requested information pertaining to, the safety 

records of proposed subcontractors.6

 The solicitation did provide, however, that in 

the event that the offeror was a joint venture for which no information was available

information for each joint venture partner was to be submitted. RFP at 25. Thus, it

was consistent with the terms of the solicitation for the evaluators to consider the 

safety records of proposed joint venture partners, but not proposed subcontracto

To the extent that the protester is arguing that the RFP should have provided for 

consideration of subcontractor safety information, its complaint is an objection to 

the terms of the solicitation, which, to be timely, should have been filed prio

closing date for receip Bid Protest Regulations, 4 C.F.R. 

 21.2(a)(1) (2010). 

d 

§

AIC further argues that the evaluators unfairly failed to give it credit for three safety

awards that it received in 2009. This argument is without merit because the recor

shows that the evaluators had a reasonable basis for excluding the awards from 

consideration--i.e., the awards were not received during the time period for which 

offerors’ safety records were to be evaluated. In this connection, the RFP instructed 

offerors to provide safety information “for the most recent three (complete) years

reported data,” RFP at 25, which, s

 of 

ince proposals were received in November of 

009, meant 2006, 2007, and 2008. 

fety 

d 

e 

 

2

In its comments on the agency report, the protester complains that the evaluators 

treated its proposal unequally by assigning it a rating of marginal under the sa

factor while assigning the proposals of Pacific West and Overland ratings of 

satisfactory. AIC maintains that it was unfair for the evaluators to have “punishe

[it] with a ‘marginal’ rating” for disclosing unfavorable information pertaining to 

OSHA citations, while rewarding Pacific West, which had failed to furnish required 

information regarding its OSHA citations, with a rating of satisfactory. Protester’s 

Comments at 11. Similarly, AIC argues that it was unfair for the evaluators to hav

6

 Moreover, the protester did not furnish such information in its proposal. 
Page 7 B-402652.2 

-

rated Overland’s proposal more favorably than its own given that the evaluators 

identified two significant weaknesses in Overland’s proposal pertaining to safetyi.e., the offeror had a very high DART rate in 2007, for which no explanation had 

been provided, and two Overland employees had been killed in a work-related traffic 

ccident in 2007. 

e 

, in 

fied 

nt 

se 

dentified no strengths to counterbalance their finding of significant 

eakness. 

he protest is denied. 

cting General Counsel 

a

The record demonstrates that the evaluators had a reasonable basis for assigning th

proposals of Pacific West and Overland more favorable ratings than the protester’s 

proposal under the safety factor. In addition to attributing a significant weakness to

Pacific West’s proposal for the omission of the offeror’s history of OSHA citations, 

the evaluators identified three strengths in the proposal under the factor; similarly

addition to attributing two significant weaknesses to Overland’s proposal for the 

offeror’s high 2007 DART rate and two work-related deaths, the evaluators identi

four strengths under the factor. Thus, the record shows that, with regard to the 

proposals of both Pacific West and Overland, the evaluators’ findings of significa

weakness were counterbalanced by findings of strength. This was not the ca

withregard to the protester’s proposal, however--in the protester’s case, the 

evaluators i

w

T

Lynn H. Gibson 

A