Marshall Company, Ltd..
B-311196, Apr 23, 2008
Marshall Company, Ltd., protests the award of a construction contract to Anthony & Gordon Construction Co. (A&G) under request for proposals (RFP) No. W912QR-06-R-0058, issued by the Army Corps of Engineers. Marshall contends that the agency should not have evaluated the offerors' option prices.
We deny the protest.
B-311196, Marshall Company, Ltd., April 23, 2008
Marshall Company, Ltd., protests the award of a construction contract to Anthony & Gordon Construction Co. (A&G) under request for proposals (RFP) No. W912QR-06-R-0058, issued by the Army Corps of Engineers.
The RFP, set aside for historically underutilized business zone (HUBZone) small businesses, provided for award of a fixed-price contract to design and construct a 120,000 square-foot controlled humidity warehouse with a 1,200 square'foot administrative area in
The RFP provided for a base period to design and construct the facilities, perform sitework, and install telephone and other OMAR-funded items; with six separate options for various paving upgrades and a building enlargement. RFP at 5-6. The RFP contained the standard clause 52.217-5 Evaluation of Options (Jul 1990), which stated:
Except when it is determined in accordance with [Federal Acquisition Regulation (FAR) sect.] 17.206(b) not to be in the Government's best interests, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s).
RFP at 13-14. The RFP further required that offerors' option pricing be good for 90 days after award of the contract. RFP at 7.
Marshall and A&G submitted proposals for evaluation. The source selection authority (SSA) rated both proposals good under the experience, past performance, and technical proposal information factors, and found there to be no qualitative difference between proposals under these factors. A&G's proposal, however, was found to be superior to
Where, as here, the solicitation includes a provision requiring the evaluation of options, such options must be evaluated [e]xcept when it is determined in accordance with FAR [sect.] 17.206(b) not to be in the Government's best interests to exercise the options. FAR sect. 52.217-5. FAR sect. 17.206(b) provides that it may not be in the government's best interests to evaluate options when there is a reasonable certainty that funds will be unavailable to permit exercise of the option.
Here, the contracting officer states that she fully intended to award the options as future funds become available and that there was a reasonable likelihood that the options would be exercised, as evidenced by a memorandum she prepared three months before award. Agency Report, Tab 4, Contracting Officer's Determination for Use of Option, at 1; Tab 9, Contracting Officer's Affidavit, para. 8. In support of these statements, the contracting officer explains that an additional $2 million has already been made available for options on this project, and she has provided documentation showing remaining funding authorities and the threshold limits available for this project. Agency Report, Tab 9, Contracting Officer's Affidavit, para. 7; Tab 11, Request Award Construction Funds, at 1.
The protest is denied.
Gary L. Kepplinger
 OMAR refers to Operations and Maintenance, Army Reserve.
 Although FAR Subpart 17.2 by its terms does not apply to construction contracts, we conclude that the agency is bound to follow the procedures of this subpart where, as here, the agency has incorporated into the solicitation FAR sect. 52.217-5 providing for the evaluation of options. Contractors NW, Inc., B-293050,