Structural Associates, Inc. v. United States

89 Fed. Cl. 735, 2009 WL 4609255
CourtUnited States Court of Federal Claims
DecidedDecember 3, 2009
DocketNo. 09-372C
StatusPublished
Cited by22 cases

This text of 89 Fed. Cl. 735 (Structural Associates, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Structural Associates, Inc. v. United States, 89 Fed. Cl. 735, 2009 WL 4609255 (uscfc 2009).

Opinion

OPINION

WIESE, Judge.

Plaintiff, SAI/Comfort, a joint venture between Structural Associates, Inc. and Comfort Systems USA (Syracuse), is a disappointed bidder in a procurement for the design and construction of military bar[738]*738racks for the United States Army Corps of Engineers (“the Corps” or “the agency”). Following the selection of three contractors in the initial phase of a Multiple Award Task Order Contract (“MATOC”), plaintiff now seeks to enjoin the performance of those task orders on the ground that the agency failed to conduct meaningful discussions, erroneously downgraded an element of plaintiffs proposal, and performed an improper best value analysis.

The ease is now before the court on the parties’ cross-motions for judgment on the administrative record. The parties have fully briefed the issues and the court heard oral argument on October 27, 2009. For the reasons announced at the conclusion of the oral argument and for those set forth below, we grant defendant’s cross-motion and direct the dismissal of plaintiffs complaint.

BACKGROUND

On February 5, 2009, the Corps issued a solicitation seeking proposals for the design and construction of unaccompanied enlisted pei’sonnel housing (“UEPH”) at Fort Drum, in Watertown, NY. The solicitation anticipated the award of up to three indefinite delivery/indefinite quantity (“IDIQ”) contracts to the responsible offerors whose proposals were determined to “conform! ] to the solicitation,” to be “fair and reasonable with regard to pricing for the initial task order,” and to offer “the best overall value to the Government, considering the price and non-price factors” set forth in the solicitation. More particularly, Section 2 of the solicitation described the award process as follows:

After the Government individually evaluates and rates each proposal, the Contracting Offieer/Source Selection Authority will compare proposals to determine which proposals represent the best value for award. Award of the first IDIQ and initial task order will be made to the Offeror whose proposal is determined to represent the best overall value to the Government based on the evaluated ratings from the proposal....
The Contracting Officer will award the subsequent contracts to the Offerors whose proposals are considered to represent the remaining best value to the Government based on the evaluated rating.

Proposals were to be evaluated on the basis of three factors: Performance Capability, Design Technical, and Price and Small Business Utilization, with Design Technical identified as the most important factor, followed by Performance Capability, then Price and Small Business Utilization. The solicitation further advised that “[a]ll evaluation factors, other than price, when combined, are considered significantly more important than the price.”

The solicitation directed offerors to submit a separate volume for each of the three evaluation factors. Volume I, addressing an offeror’s Performance Capability, was divided into subfactors including, inter alia, Organization and Technical Approach, Proposed Task Order Duration and Summary Schedule, Specialized Experience, Utilization of Small Business Concerns, and Past Performance. The solicitation provided that the first four subfactors would not be separately rated, but that the fifth subfactor, Past Performance, was to be rated for risk.

Under the subfactor Specialized Experience, offerors were directed to “demonstrate recent, relevant experience on similar projects” by describing projects that were “currently well underway” (defined as projects that were “designed and at least 50% construction progress completed”) or were “completed and turned over no longer than five (5) years preceding the date of this Solicitation.” The solicitation explained that an of-feror’s projects would be deemed similar to the instant procurement “if they are similar in complexity, in type, scope, or magnitude.” These criteria were in turn defined as consisting of the new construction of “apartment complexes, college dorms or their equivalent or similar commercial institution,” ranging from 24,000 to 175,000 square feet, with a construction value between $20 and $75 million and anti-terrorism and force protection features.

The solicitation specified that the submitted projects “do not have to include all of the criteria,” but advised that “projects that meet all of the criteria may be more highly [739]*739rated.” The solicitation additionally provided that the agency would “place greater value on projects performed as a prime contractor than as a subcontractor, depending upon overall role and relevancy considerations.”

Under the terms of the solicitation, evaluation of the proposals was to be carried out by a Source Selection Evaluation Board (“SSEB”) whose members were required to assign a consensus rating of “Excellent,” “Good,” “Acceptable,” “Marginal,” or “Unacceptable” for the Performance Capability and Design Technical aspects of each offeror’s proposal. The SSEB was additionally charged with assessing the risks “associated with each Offeror’s likelihood of success in performing the requirements stated in the [solicitation]” based on the offeror’s demonstrated performance on recent contracts. Offerors were accordingly to be given a Past Performance rating of “Neutral/Unknown Risk,” “Low Risk,” “Moderate Risk,” or “High Risk.” The solicitation informed offer-ors that the Corps intended to make the award without conducting discussions, but reserved the right to do so if the agency deemed it necessary.

Following review of the proposals by the SSEB, the Source Selection Authority (“SSA”) was in turn charged with determining which proposals represented the best value to the government and, based on that assessment, selecting contractors for award. The SSA was not, however, bound by the findings of the SSEB in making the final source selection decision.

Plaintiff submitted a proposal on March 13, 2009, expressing its intention to partner with various subcontractors in its performance of the contract. Pursuant to this strategy, plaintiff advised that SAI would be in charge of the overall project management, including scheduling, site management, and quality control, and that Comfort Systems would be responsible for trade-specific quality control and for mechanical, HVAC (heating, ventilation, air conditioning), plumbing, and fire protection construction. In addition, the proposal indicated that plaintiff intended to subcontract with QPK Design to provide architectural and structural design; M/E Engineering to provide plumbing, electrical, fire protection and HVAC design; AMEC Earth & Environmental to provide civil, environmental, and geo-technical engineering; and DEMCO New York Corp. to perform the project’s electrical work.

Consistent with the solicitation’s instructions, plaintiff described its collective experience in part as follows:

The Design/Build team of Structural Associates, QPK Design, and M/E Engineering has recently completed the $33 million Design/Build Aviation Facilities I at Ft. Drum, NY.

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Bluebook (online)
89 Fed. Cl. 735, 2009 WL 4609255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/structural-associates-inc-v-united-states-uscfc-2009.