Jacobs Engineering Group, Inc.

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: Jacobs Engineering Group, Inc.

File: B-422853; B-422853.2; B-422853.3

Date: November 26, 2024

DIGEST

1. Protest arguing the agency unreasonably failed to consider evaluation sub‑criteria in priority order of importance is denied. Although the record does not demonstrate that the agency’s evaluation was consistent with the terms of the synopsis, the protester was not competitively prejudiced by the agency’s error.

2. Protester’s challenges to the agency’s evaluation of its proposal under multiple evaluation criteria are denied where the record demonstrates that the agency’s conclusions were reasonable, consistent with the terms of the synopsis, and adequately documented.

3. Protest challenging the agency’s evaluation of the protester’s past performance is denied where the record demonstrates that the agency’s evaluation was reasonable and consistent with the terms of the synopsis.

4. Protest challenging the agency’s selection of the top ranked firms is denied where the record demonstrates that the agency evaluated statements of qualification in a manner consistent with the terms of the synopsis and Federal Acquisition Regulation (FAR) subpart 36.6.

Jacobs Engineering Group, Inc., of Arlington, Virginia, protests the non-selection of its proposal and the selection of Burns & McDonnell Engineering Co., Inc., of Arlington, Virginia, Benham‑Stanley, LLC, of Jacksonville, Florida, and Merrick-RS&H Joint Venture, LLC, of Greenwood Village, Colorado, for negotiation of architect-engineering

(A-E) services contracts, pursuant to synopsis No. W9133L-24-R-6100. The Department of the Army, National Guard Bureau, issued the synopsis for vertical A-E services in support of Air National Guard and Army National Guard mission requirements located throughout the multi-vertical region.[1] The protester primarily argues the agency unreasonably evaluated its proposal under multiple evaluation criteria, ultimately resulting in the agency’s erroneous determination that the protester was not among the competition’s most highly rated firms.

We deny the protest.

BACKGROUND

The procurement was conducted pursuant to the Brooks Act, 40 U.S.C. §§ 1102-1104, and its implementing regulations, Federal Acquisition Regulation (FAR) subpart 36.6. Synopsis at 1.[2] The procedures for A-E procurements under the Brooks Act do not include a price competition; rather, the agency is required to select the most highly qualified firm(s) on the basis of demonstrated competence and qualifications and proceed to negotiate contracts with those firms at a fair and reasonable level of compensation. Nova Consulting, Inc., B‑419168.3, Aug. 19, 2021, 2021 CPD ¶ 288 at 2; see FAR subpart 36.6.

The Army issued the synopsis on November 9, 2023, seeking Standard Form 330 statements of qualification[3] for a wide variety of professional A-E services to meet the needs of the National Guard Bureau. The scope of facilities for which the Army requires A-E services include aircraft hangars, corrosion control facilities, aircraft maintenance facilities, vehicle maintenance facilities, support equipment maintenance facilities, administrative facilities, and others. Contracting Officer’s Statement (COS) at 1; Synopsis at 4. The agency anticipated awarding ten indefinite-delivery, indefinite‑quantity (IDIQ) contracts, seven of which would be set aside for small business, and three of which were unrestricted with respect to size. COS at 1. The contracts were to include a 5-year ordering period with a single 6-month option, and the contract ceiling value for the entire program was $225 million. Synopsis at 3.

The synopsis included the following primary evaluation criteria,[4] listed in descending order of importance, which would be used to determine the most highly qualified firms: (A) professional qualifications; (B) specialized experience and technical competence; (C) capacity to accomplish multiple task orders; (D) past performance; and (E) location in the general geographic area of the project and knowledge of the locality.[5] Synopsis at 4-8. Most of the evaluation criteria contained sub-criteria, which will be discussed in more detail below, as relevant to the protest.

Under each evaluation criterion and sub-criterion, the Army would assign proposals an adjectival rating and a corresponding color code. For criteria other than past performance, a proposal could receive an overall rating of outstanding, good, acceptable, marginal, or unacceptable.[6] Id. at 10. To merit a rating of outstanding, a proposal needed to “significantly exceed[] qualification requirements, demonstrate[] an exceptional approach and understanding of the requirements, [and] contain[] multiple strengths[,]” among other requirements. Id. To merit a rating of good, a proposal needed to “exceed[] qualification requirements, demonstrate[] a thorough approach and understanding of the requirements, and contain[] at least one strength[,]” among other requirements. Id. Under the past performance criterion, a proposal would receive a relevance rating ranging from very relevant to not relevant, and a confidence rating of either substantial confidence, satisfactory confidence, neutral, limited confidence, or no confidence. Id. at 10-11.

The record demonstrates that to select the most highly qualified firms, the Army evaluated proposals in two stages, a pre-selection stage and a final selection stage. COS at 3. As relevant to the protest, a pre-selection board evaluated a total of 15 proposals from firms competing for the unrestricted IDIQ contract awards, including Jacobs Engineering. AR, Tab 8c, Pre-Selection Board Report at 1. Each individual evaluator on the pre-selection board conducted an evaluation of proposals; the board then convened between April 1, 2024, and April 23, 2024, and provided a consensus list of firms that “held a reasonable chance of being selected as the most highly qualified by the [f]inal [s]election [b]oard.” Id. at 2. Jacobs Engineering’s proposal was one of 11 proposals recommended as highly qualified to the final selection board. AR, Tab 18, Final Selection Board Report at 1.

In the final selection stage, the final selection board evaluated proposals in a similar manner as the pre-selection board. In this regard, each board member independently evaluated the 11 highly qualified firms’ proposals; the board then convened between April 23 and April 30 and prepared consensus ratings and rankings. Id. The final selection board then conducted interviews with the 11 highly qualified firms between May 23 and May 28. Id. at 2; COS at 3. Following interviews, the final selection board reconvened between May 28 and May 31 to finalize ratings and rankings. See COS at 3. As a result of the interview process and final reconvening of the selection board, the board ranked Jacobs Engineering’s proposal 5th out of 11 firms in the unrestricted category. Id. at 4.

The board chairperson subsequently prepared a final selection report, including the board’s recommendations to the senior contracting official of the three highest ranked firms; each board member signed the final selection report, concurring in the report’s findings and recommendations. AR, Tab 18, Final Selection Report at 146. The senior contracting official ultimately approved the final selection board’s recommendations on August 5. Id.

The Army sent selection letters to offerors on August 7, and Jacobs Engineering was advised that its proposal was “among the most highly qualified” of the 15 proposals received but was “not the highest rated.” COS at 4; AR, Tab 9, Jacobs Engineering Non-Selection Notice at 1. Accordingly, Jacobs Engineering was not selected for further negotiations. The protester requested a pre-award debriefing, which the Army provided in written form on August 13. COS at 4; AR, Tab 10, Jacobs Engineering Debriefing at 1. From the debriefing letter, the protester learned it had received the following ratings under the evaluation criteria:

AR, Tab 10, Jacobs Engineering Debriefing at 4-15. This protest was then timely filed on August 19.

DISCUSSION

Jacobs Engineering challenges the Army’s evaluation of its proposal under multiple evaluation criteria, and additionally challenges the agency’s selection decisions of the top three ranked firms. For the reasons explained below, we find that though the agency misevaluated the protester’s proposal under criterion E (knowledge of location in general geographic area), which was the fifth and least important criterion, the protester cannot demonstrate it was competitively prejudiced by any error in this regard. Furthermore, we find the agency’s subsequent selection of the top three highest rated firms was reasonable. Though our decision does not address every argument raised by the protester, our Office has considered all arguments, and find that none affords a basis on which to sustain the protest.

At the outset, we note that in reviewing protests against an allegedly improper evaluation of firms’ qualification statements for A-E services, our Office examines the record to determine whether the agency’s judgment was reasonable and in accordance with the stated selection criteria and applicable procurement laws; we will not substitute our judgment for that of the agency evaluators. Nova Consulting, Inc., supra at 4. A protester’s disagreement with the agency’s evaluation, without more, does not show that it is unreasonable; however, we will question the agency’s conclusions where they are inconsistent with the synopsis criteria or applicable procurement statutes and regulations, where they lack adequate documentation, or where they are not reasonably based. Reid Planning, Inc., B-412942, July 8, 2016, 2016 CPD ¶ 202 at 4; Evergreen JV, B-418475.4, Sept. 23, 2020, 2020 CPD ¶ 301 at 6.

Furthermore, while we generally give little or no weight to reevaluations and judgments prepared in the heat of the adversarial process, post-protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review of the rationality of selection decision--so long as those explanations are credible and consistent with the contemporaneous record. Zantech IT Servs., Inc., B-422452 et al., June 26, 2024, 2024 CPD ¶ 158 at 15.

Evaluation of Jacobs Engineering under the Location in the General Geographic Area of the Project and Knowledge of the Locality Criterion (Criterion E)

Jacobs Engineering argues that the Army’s evaluation of its proposal under criterion E was flawed because, in assessing the proposal a rating of good, the agency failed to consider the order of importance of the three sub-criteria, inconsistent with the terms of the synopsis. Protest at 32-33. Specifically, the protester contends that the agency assessed ratings of outstanding to its proposal under the two most important sub‑criteria, but that the agency “fail[ed] to weigh” these ratings in priority order as required by the terms of the synopsis when it assessed the protester’s proposal an overall rating of good under this criterion. Id. at 33.

The Army contends that it reasonably assigned Jacobs Engineering’s proposal a rating of good, arguing that the rating was not determined by mechanically “adding and averaging the ratings of the sub-criteria,” but instead, was determined by using the sub-criteria as a guide while evaluating the totality of the primary criterion. Memorandum of Law (MOL) at 24-25. Furthermore, the agency maintains that even if it had erred in evaluating the protester’s proposal under criterion E, an upward adjustment to the protester’s rating would not have resulted in the protester being selected as one of the top three highest rated firms, because criterion E was the least important of the primary evaluation criteria. Id. at 10.

As previously mentioned, the synopsis generally provided that “[t]he selection criteria are listed below in descending order of importance (first by major criterion and then by each sub-criterion).” Synopsis at 4. Under criterion E, the synopsis included three sub‑criteria: (1) describe and demonstrate familiarity with design requirements in the locations covered by the contract; (2) submit information addressing the offeror’s methodologies for obtaining knowledge in various areas, including, for example, soil conditions, seismic conditions, and state/local building codes; and (3) describe the measures the offeror would take to adapt design details to local industry/construction trades standard practice. Id. at 9. The synopsis advised that the agency would evaluate proposals under criterion E based on an assessment by the board of each firm’s ability to effectively address the sub-criteria. Id.

The Army assigned Jacobs Engineering’s proposal a rating of outstanding under the first two sub-criteria, a rating of good under the third sub-criterion, and an overall rating of good for the criterion. AR, Tab 18, Final Selection Report at 91-92. The final selection report stated that overall, the protester “exceed[ed] the minimum requirements” under criterion E. Id. The report also detailed “strengths”[8] associated with each sub-criterion. Id. The contemporaneous record makes no mention of consideration of the priority of the sub-criteria in determining that the protester’s proposal merited a rating of good overall for this criterion. Rather, the rating assessed to each sub-criterion was listed, along with any strengths highlighted for the sub‑criterion, and the overall rating of good for the criterion was accompanied by the statement that the protester’s proposal “exceed[ed] the minimum requirements” for criterion E, without further analysis. Id. at 91.

In response to the protest, the agency included a declaration from the final selection board chairperson explaining how the Army conducted its evaluation. The chairperson explains that the board did not “mathematically add[] and averag[e] the ratings of the sub-criteria” to arrive at an overall criterion rating, but rather, it used the sub-criteria ratings as a guide while evaluating the totality of each primary criterion. AR, Tab 2a, Board Chair Decl. at 9. The board chairperson explains that the protester’s response under criterion E’s third sub-criterion was “too generic” to merit a higher rating, and that “[t]aken as a whole, [the protester’s] treatment of [c]riterion E exceeded the [c]riterion’s overall requirements but did not quite deserve the highest possible rating.” Id.

We find the Army’s evaluation of Jacobs Engineering’s proposal inconsistent with the stated selection criteria. The Army assigned Jacobs Engineering’s proposal a rating of outstanding for the top two sub-criteria which, according to the terms of the synopsis, were each more important than the third sub-criterion. The final selection report documents only the strengths associated with each sub-criterion and the overall criterion rating and makes no mention of how it considered the priority of the sub‑criteria in arriving at an overall rating for the criterion. In response to the protest, the agency provides that the protester’s response under the third sub-criterion was “too generic” to merit a higher rating. AR, Tab 2a, Board Chair Decl. at 9. While this may explain why the protester received a rating of good under the third sub-criterion, it does not sufficiently explain why the agency assessed an overall rating of good to the protester’s proposal for this criterion, where the protester received ratings of outstanding under the other two, more important, sub-criteria.[9] On this record, we cannot conclude that the agency’s evaluation was reasonable, because it has not been demonstrated that the agency meaningfully considered the priority of the sub-criteria in assessing the protester’s proposal an overall rating of good under this criterion.

The Army contends that even if it erroneously assessed Jacobs Engineering’s proposal a rating of good under criterion E, any error was non-prejudicial, because an improved rating under criterion E would not have resulted in the protester being rated among the top three firms. MOL at 10. As previously explained, the final selection board ranked Jacobs Engineering as the fifth highest-rated firm, with the top three highest-rated firms being selected for price negotiations. AR, Tab 18, Final Selection Report at 144. The Army explains that Jacobs Engineering and the third highest-rated firm, Merrick‑RS&H, both received an overall rating of good under criterion A (professional qualifications), the most important primary criterion.[10] 2nd Supp. COS at 2. However, the agency states that Merrick-RS&H had more sub‑criteria under criterion A rated as outstanding than Jacobs Engineering (five sub-criteria received a rating of outstanding for Merrick-RS&H, as opposed to four sub-criteria for Jacobs Engineering). Id.

The agency further explains that Jacobs Engineering’s proposal was not rated higher than Merrick‑RS&H’s for any individual sub-criterion under criterion A--that is, Merrick RS&H received ratings of outstanding and good for the exact same disciplines as Jacobs Engineering. Id.; see AR, Tab 18, Final Selection Report at 92‑94. The only exception was a single discipline, the fire protection engineer, for which Merrick-RS&H received a rating of outstanding, as opposed to Jacobs Engineering’s rating of good. AR, Tab 18, Final Selection Report at 82, 94.

The agency states that Merrick-RS&H’s proposal also received the same overall ratings as Jacobs Engineering’s proposal with respect to evaluation criteria B, C, and D. 2nd Supp. COS at 2; AR, Tab 2a, Second Board Chair Decl. at 1. Regarding criterion E, Merrick-RS&H’s proposal received an overall rating of outstanding, and an outstanding rating for each sub-criterion. 2nd Supp. COS at 3. Therefore, the Army concludes that even if Jacobs Engineering’s proposal was found to merit a rating of outstanding under criterion E overall, Merrick‑RS&H’s proposal “would still be superior to Jacobs [Engineering]’s proposal as a whole because of the strength of its proposal for [c]riterion A's sub-criteria.” AR, Tab 14a, Second Board Chair Decl. at 2.

Jacobs Engineering argues that it was prejudiced because if the Army had properly evaluated its proposal under criterion E, it would have had the same ratings as Merrick-RS&H across all primary evaluation criteria. Resp. to GAO Req. for Addl. Briefing and 2nd Supp. Protest at 11. The protester further contends that in this event, the agency would have been required to evaluate proposals under the secondary evaluation criteria identified in the synopsis, or alternatively, that its proposal was qualitatively superior to Merrick RS&H’s proposal under criteria A, despite Merrick-RS&H receiving superior ratings under the sub-criteria, and it therefore should have been ranked higher than Merrick-RS&H and selected for price negotiations. See id. at 12.

Competitive prejudice is an essential element of a viable protest. Where the record establishes no reasonable possibility of prejudice, we will not sustain a protest even if defects in the procurement were found. Millennium Eng’g & Integration Co., B‑417359.4, B-417359.5, Dec. 3, 2019, 2019 CPD ¶ 414 at 9.

Here, we find Jacobs Engineering cannot demonstrate competitive prejudice with respect to any potential evaluation error that the agency may have committed in its evaluation under criterion E. The Army has explained that Merrick-RS&H would still have had a higher rated proposal than Jacobs Engineering’s proposal, due to the strength of Merrick‑RS&H’s proposal under criterion A (the most important criterion), even if the protester’s proposal received an overall rating of outstanding under criterion E.[11] In this regard, the record demonstrates that the agency placed the most weight on firms’ evaluations under criterion A--this is entirely consistent with the terms of the synopsis, which stated that the synopsis criteria and sub-criteria were listed in descending order of importance.

Furthermore, and as we explain in greater detail below, we find the agency’s evaluation of the protester’s proposal under criterion A reasonable, and therefore find no basis to disturb the agency’s ratings in that regard. Therefore, we find that the agency has demonstrated that Merrick‑RS&H’s proposal would have been higher rated than Jacobs Engineering’s proposal under criterion A, the most important selection criterion.[12]

Accordingly, we find the protester cannot demonstrate it was competitively prejudiced by any potential error with the agency’s evaluation of the protester’s proposal under criterion E, and we deny this protest ground.[13]

Evaluation of Jacobs Engineering under the Professional Qualifications Criterion (Criterion A)

Jacobs Engineering also challenges the Army’s evaluation of its proposal under criterion A in multiple respects. We discuss a representative sample of the challenges below.

Agency’s Evaluation of Sub-Criteria in Order of Importance

Under criterion A, the synopsis required firms to submit personnel resumes for 11 different professional disciplines including, for example, project manager, architect, and civil engineer, among others. Synopsis at 5. Each of the 11 disciplines was considered an individual sub-criterion under criterion A. The synopsis required all “engineers and architects must have . . . a bachelor’s degree, professional registration in the role they are assigned in, and at least five years of relevant experience in the role they are assigned in.” Id. The synopsis advised that the agency’s evaluation would “consider education, registration, demonstrated experience, certifications, and longevity with the firm,” and that a firm that provided resumes with greater levels of discipline specific education, experience, certifications, and longevity with the firm will be considered more highly qualified than those with lesser levels. Id. at 6. The synopsis further provided that the professional disciplines were listed “in priority order based on anticipated workload and benefit to project success.” Id.

Jacobs Engineering argues that the Army failed to adhere to the synopsis’s requirement that the agency would evaluate the sub-criteria under criterion A in descending priority order, which required the agency to place more weight on the sub-criteria that were listed first in the synopsis. Protest at 16-18. In this regard, the protester argues that it received a rating of outstanding under three of the top four most important sub-criteria, and there is no evidence that the agency “evaluate[d] the professional disciplines in priority order” when assessing the protester’s proposal an overall rating of good under this criterion. Id. at 17.

The Army argues that its determination that Jacobs Engineering’s proposal merited a rating of good, as opposed to outstanding, under this criterion was within its discretion. MOL at 9. The agency contends that for criterion A, the synopsis did not indicate that “the relative importance of the sub-criteria was so pronounced that the ratings of the first sub-criteria would overwhelm the ratings of the subsequent sub-criteria.” Id.

The Army’s evaluation of Jacobs Engineering’s proposal under criterion A yielded the following results, listed in the same priority order as in the synopsis:

AR, Tab 18, Final Selection Report at 81-83. In assessing the protester’s proposal an overall rating of good for criterion A, the final selection report stated that the proposal “exceed[ed] the minimum requirement,” that the protester’s proposed personnel otherwise all met the minimum education, registration, and experience requirements, and that in conducting its evaluation, the agency gave additional consideration for higher levels of education, special certifications, additional registrations, and experience that exceeded the 5-year minimum requirement of the synopsis. See id. at 81.

For each discipline, the Army evaluators noted the strengths of personnel proposed based on the resumes submitted, including strengths in the aforementioned areas of education, years of experience, additional registrations and certifications, years of experience with the same firm, and others. See id. at 81-83. The contemporaneous documentation made no mention of the priority of disciplines, including whether or how the agency considered priority in determining that the protester’s proposal merited a rating of good overall under criterion A, despite the protester receiving three ratings of outstanding and one rating of good for the top four most important disciplines. Id. at 81‑82.

In response to this protest ground, the Army’s selection board chairperson explains that while the board determined Jacobs Engineering’s proposed personnel exceeded the synopsis requirements, meriting a rating of good, it did not necessarily significantly exceed the synopsis requirements in a manner that would have merited a rating of outstanding overall. The board chairperson notes that the protester received ratings of “good [] rather than outstanding [] for six of the eight architect and engineering disciplines,” while it was rated as outstanding for “two out of three non-architect and engineering disciplines.” AR, Tab 2a, Board Chair Decl. at 3. The chairperson explains that its decision to assign a rating of good to the protester’s proposal as opposed to a rating of outstanding under this criterion “was not based on a simple counting” of good versus outstanding ratings, but that it is “illustrative that [the protester’s] proposal received seven good [] sub-criteria ratings and only four outstanding [] sub-criteria ratings.” Id. The board chairperson further explains that “no discipline was of such importance that it overwhelmed the importance of the others[,]” and that while the two most important sub‑criteria received ratings of outstanding, “the balance of ratings was mixed and the relative importance of the first two sub-criteria did not elevate” the protester’s proposal to a level significantly exceeding the qualification ratings, as required to receive an overall rating of outstanding for criterion A. Id.

Based on our review of the record, we find the Army’s evaluation of Jacobs Engineering’s proposal under criterion A reasonable and consistent with the stated selection criteria. The synopsis provided that evaluation criteria were listed in descending order of importance, including the sub-criteria contained within each criterion. With regard to criterion A specifically, the synopsis additionally provided that the professional disciplines were listed in priority order based on the anticipated workload and benefit to project success. Though the contemporaneous record does not demonstrate that the agency considered the priority of the sub-criteria in determining the overall rating for criterion A, the agency’s post-protest explanations sufficiently fill in these previously unrecorded details and adequately explain the agency’s evaluation conclusions.

For example, the record demonstrates that the Army assigned ratings of outstanding to Jacobs Engineering’s proposal for the project manager, architect, and structural engineer disciplines (three of the top four disciplines, in terms of importance). The final selection report lists the strengths associated with each discipline, and concludes, without additional analysis, that the protester’s proposal exceeded the solicitation requirements--there is no discussion of the weight afforded to any discipline with respect to the overall criterion A rating. In response to the protest, however, the Army provides that the balance of ratings across all 11 required disciplines was mixed, and that the relative importance of the first two sub-criteria did not elevate the protester’s proposal in a manner that merited a rating of outstanding for criterion A. See AR, Tab 2a, Board Chair Decl. at 3. Furthermore, the board chairperson states that the board did not simply count the number of good versus outstanding ratings, and that no discipline was of such importance that it overwhelmed the importance of the others. We find these post-protest explanations to be consistent with the contemporaneous record, support the agency’s contemporaneous assessment of the protester’s proposal, and demonstrate that the agency considered the importance of the sub-criteria in the manner prescribed by the solicitation. Accordingly, this protest ground is denied.

Remaining Arguments Under Criterion A

Jacobs Engineering raises additional arguments concerning the Army’s evaluation of proposals under criterion A. For example, the protester challenges each discipline that the agency rated as good, arguing that it instead should have received ratings of outstanding for these sub-criteria. Protest at 21-24. Additionally, the protester argues that the agency improperly considered whether the protester could correlate the personnel proposed under criterion A with the previous experience example projects submitted under criterion B, which was not a stated evaluation criterion under criterion A. Comments & Supp. Protest at 8. The protester argues that the agency “focused heavily” on this correlation, despite it not being a criterion A evaluation consideration. Id. at 9. The protester also argues that with respect to the geotechnical engineer discipline, the agency applied an unstated evaluation criterion when evaluating the discipline because it compared the geotechnical engineer’s qualifications to an unknown “industry standard.” Comments & Supp. Protest at 29.

The Army argues that Jacobs Engineering’s positions are without merit. The Army contends that the protester’s disagreement with its ratings of good assessed to certain disciplines represents mere “difference of opinion with the [a]gency about the degree to which Jacobs[] [Engineering’s] proposal exceeded the [a]gency’s requirements.” MOL at 11. Regarding whether it considered the correlation of projects submitted under criterion B when it evaluated criterion A, the Army contends that its reference to those projects was done “for ease of reference,” and further notes that the protester’s proposal, in the relevant section pertaining to evaluation criterion A, also identified the criterion B projects on which its proposed personnel worked. Id. at 10. Furthermore, the Army argues that discipline specific experience was not a differentiator in its criterion A evaluation of the protester. Finally, the agency maintains that it did not apply an unstated evaluation criterion when it compared the protester’s geotechnical engineer’s qualifications to an “industry standard,” because this was “reasonably related” to the explicit synopsis requirements. Supp. MOL at 10, 13.

An agency is not required to document all “determinations of adequacy” or explain why a proposal did not receive a strength, weakness, or deficiency for a particular item. Zantech IT Servs., Inc., supra at 15. Furthermore, we have specifically concluded that an agency’s reliance on a post-protest declaration from technical evaluators is reasonable when the protester argues that the agency should have assessed additional strengths to the protester’s proposal precisely because agencies are not required to document all “determinations of adequacy.” See, e.g., Cognosante MVH, LLC, B‑418986 et al., Nov. 13, 2020, 2021 CPD ¶ 3 at 8.

As mentioned above, Jacobs Engineering challenges the Army’s assessment of a rating of good to each discipline for which it received that rating. We discuss some representative examples below.

As previously explained, under criterion A, the Army was to evaluate each discipline to consider the education, registration, demonstrated experience, certifications, and longevity of the firm. Synopsis at 6. Engineers and architects were required to have a bachelor’s degree, a professional registration in their assigned role, and at least 5 years of relevant experience; firms that exceeded the education, experience, certification, and longevity requirements in greater levels would be considered more highly qualified. Id. at 5-6. Firms submitted personnel resumes for the required disciplines in section E of their proposals that the agency used to conduct an evaluation based on the above‑stated requirements. Id. at 5.

Jacobs Engineering submitted resumes for each of its proposed personnel that highlighted the required information, also including cross-references to the projects its proposed personnel worked on that were submitted for criterion B. See, e.g., AR, Tab 5, Jacobs Proposal at 23-24. For the civil engineer discipline, for example, the protester provided two resumes. Id. One proposed engineer had a bachelor’s degree, 23 years of experience (including 18 with the firm), a professional registration in one state, and worked on two of the projects the protester submitted for criterion B. Id. at 24. The other civil engineer had a bachelor’s degree, 22 years of experience (including 21 with the firm), professional registrations in three states, a “NCEES” [National Council of Examiners for Engineering and Surveying] certification, and worked on two projects submitted under criterion B. Id. at 23.

The Army determined these personnel exceeded the synopsis’s requirements, meriting a rating of good. AR, Tab 18, Final Selection Report at 82. The selection report highlighted as strengths the years of experience each engineer possessed and the number of years each engineer had worked for the firm. The selection report also highlighted the number of projects submitted under criterion B that each engineer worked on, which as mentioned, was information provided by the protester in its proposal. Id. In its post-protest declaration, the Army explains that each engineer met but did not exceed the education requirements; that one engineer had registrations in three states but the other had registration in only one state; and that while one engineer reported a “NCEES” certification, this was not a license/registration or certification in itself. AR, Tab 2a, Board Chair Decl. at 3. The declaration also acknowledges the same highlights as the selection report, that is, the engineers’ years of experience and longevity with the firm. Id. On balance, the agency determined that these disciplines exceeded the synopsis requirements, but that they did not significantly exceed the requirements to merit a rating of outstanding. Id. at 4.

We find no basis to question the agency’s judgment in this regard. The Army’s documentation included consideration of what it determined to be the strengths of Jacobs Engineering’s proposed engineers. As explained above, the agency was not also required to document additional determinations of adequacy, or other qualifications that simply met the requirements of the synopsis. Further, the agency’s post‑protest explanations are consistent with the contemporaneous evaluation. The agency’s explanation as to why the protester’s proposed civil engineers exceeded, but did not significantly exceed, the solicitation requirements is reasonable: while the proposed engineers had high levels of experience and longevity with the firm, they had levels of education and registrations/certifications that only met or exceeded the synopsis requirements to a lesser degree. While the protester alleges the agency “cherry picked certain characteristics to focus on,” the record demonstrates the agency reviewed proposed disciplines across all criterion A requirements which supports the agency’s conclusion that this discipline merited a rating of good. Comments & Supp. Protest at 20. We find no basis to question the agency’s conclusion.

As another example, for the fire protection engineer discipline, the protester provided two resumes. AR, Tab 5, Jacobs Proposal at 31-32. One proposed engineer held a bachelor’s degree, 30 years of experience (including 23 with the firm), an additional credential, and worked on four of the projects the protester submitted for criterion B. Id. at 32. The other fire protection engineer held a bachelor’s degree, 22 years of experience (including 3 with the firm), an additional credential, and worked on two of the projects the protester submitted for criterion B. Id. at 31. The final selection report noted the strengths associated with these personnel, including years of experience and additional credentials, while also noting that one of the engineers’ “longevity with the current firm is three (3) years,” and assessed a rating of good to the sub-criterion. AR, Tab 18, Final Selection Report at 82.

We find no basis to question the agency’s assessment of a rating of good to the protester’s proposal under this sub-criterion. In response to the protester’s argument, the agency explains that both fire protection engineers possessed the minimum education requirement, and also explains that when considered with the engineers’ experience, registrations, and longevity with the firm, the protester’s proposal did not merit a rating of outstanding. AR, Tab 2a, Board Chair Decl. at 5. With education credentials that met the synopsis’s requirement, and one engineer possessing lesser longevity with the current firm, we find the agency’s conclusion that the protester’s proposal exceeded, but did not significantly exceed, the requirements of the synopsis to be reasonable. This protest ground is denied.[14]

We also find Jacobs Engineering’s argument that the Army improperly considered under criterion A whether the proposed personnel had worked on projects submitted under criterion B to be without merit. First, we disagree with the protester’s argument that the agency “relied heavily” on the correlation of projects submitted under criterion B; though the selection report mentioned projects that the proposed personnel worked on, there is nothing to suggest that the agency “relied heavily” on this correlation in assessing ratings under criterion A. In response to this argument, and consistent with the record, the contracting officer states that “[n]one of the good [] ratings [the protester] received for [c]riterion A sub-criteria were less than outstanding [] due to a lack of discipline specific experience.” COS at 8. The board chairperson confirms that for each discipline, the areas where the proposed personnel were found not to significantly exceed the synopsis requirements had nothing to do with the number of projects the protester could correlate to criterion B. AR, Tab 2a, Board Chair Decl. at 3-6. These post-protest arguments are consistent with the underlying record, and we accordingly find no basis to object to the agency’s conclusions in this regard. Accordingly, the protest ground is denied.

Finally, we find the Army did not apply an unstated evaluation criterion to the extent it considered “industry standards” in its evaluation of Jacobs Engineering’s proposed geotechnical engineer. In response to the protester’s argument that this engineer should have been assessed a rating of outstanding, the agency explains that it assessed a rating of good in part because based on “industry standards,” the proposed engineer did not significantly exceed the synopsis’s professional registration requirements. AR, Tab 2a, Board Chair Decl. at 5. In this regard, the final selection report noted that the geotechnical engineer received strengths for having 28 years of experience, including 27 with the firm, and a master’s degree, meriting a rating of good, but that the board did not consider as strengths the engineer’s registrations and certifications. AR, Tab 18, Final Selection Report at 82. Responding to the protest, the board chairperson further explains that the discipline did not merit a rating of outstanding because it did not demonstrate discipline specific registrations or credentials sufficient to merit such a rating, consistent with what is normally expected of engineers, or “by industry standards.” AR, Tab 2a, Board Chair Decl. at 5. The protester argues that the reference to industry standards was an unstated evaluation criterion that the agency improperly applied to the proposal.

In evaluating proposals, agencies may properly take into account specific matters that are logically encompassed by, or related to, the stated evaluation criteria, even if they are not expressly identified as evaluation criteria. Linc Gov’t Servs., LLC, B‑404783.2, B‑404783.4, May 23, 2011, 2012 CPD ¶ 128 at 6. The synopsis stated that the agency’s evaluation would consider, among other requirements, each discipline’s demonstrated registrations and certifications. Synopsis at 5. The synopsis further provided that the agency’s evaluation would be based on “an assessment by the board of the firm’s ability to effectively address the professional qualifications,” including registrations and certifications.

We find the agency’s explanation and reference to an industry standard, mentioned in documents prepared in response to the protest, is reasonable and consistent with the terms of the synopsis. Given that this procurement is for A-E services, the agency’s evaluation of an individual’s professional registrations and certifications as compared to the industry is logically encompassed by this requirement--indeed, it would be illogical to evaluate firms’ personnel for professional registrations and certifications that have no bearing on the A-E industry, and we find no basis to object to the agency’s evaluation and explanation in this regard.

Evaluation under Specialized Experience and Technical Competence Criterion (Criterion B)

Jacobs Engineering challenges the Army’s evaluation of its proposal under criterion B, specialized experience and technical competence, specifically with respect to sub‑criterion five, which required offerors to demonstrate experience in design-build bridging documents for military, government, or commercial facilities. Protest at 25. The protester argues that the agency failed to consider the narrative information the protester provided in section H of its proposal, which detailed its experience with the requirements of this sub-criterion. Id.

The Army argues that it was not required to consider the information identified by the protester. The agency contends that the synopsis “did not contemplate” that the agency would consider narrative information in section H of proposals for sub-criterion number five, rather, the synopsis allowed firms to supplement their experience only for sub-criteria six through ten. MOL at 19-20. Accordingly, the agency maintains this argument is contradicted by the plain language of the synopsis. Id. at 20.

Under criterion B, the synopsis instructed offerors to provide example projects that addressed the areas indicated by 10 different sub-criteria and, “[w]here indicated, include supplemental information in narrative form in Section H” of the proposal.[15] Synopsis at 6. The synopsis expressly stated that for sub-criteria six through ten, offerors should “include supplemental information in narrative form in Section H”; no such instruction was provided for sub-criteria one through five. Id. For sub-criterion five, the agency determined that Jacobs Engineering’s submitted project example 9 met the requirement, and that overall, Jacobs Engineering’s proposal merited a rating of outstanding under criterion B. AR, Tab 18, Final Selection Report at 85-86. The protester contends this rating was unreasonable because the agency failed to consider the additional information regarding sub-criterion 5 that the protester included in section H of its proposal.

We find the Army’s evaluation of Jacobs Engineering’s proposal under this criterion to be reasonable. The plain language of the synopsis instructed offerors to submit supplemental information in section H only for sub-criteria six through ten. The protester maintains that the agency did not consider the narrative information it provided for sub-criterion five, but the synopsis did not provide that narrative information be submitted for sub-criterion five. The protester does not respond to this specific aspect of the agency’s argument, instead maintaining generally that the agency “should have considered the information in section H.” Comments & Supp. Protest at 22. The protester’s argument fails to address the plain language of the synopsis, and the protester thus cannot demonstrate that the agency’s evaluation was unreasonable or inconsistent with the terms of the synopsis. This protest ground is denied.

Evaluation under the Past Performance Criterion (Criterion D)

Jacobs Engineering argues that the Army’s evaluation of its past performance under synopsis criterion D was unreasonable, because the agency improperly relied on ratings of marginal the protester received in contractor performance assessment reporting system (CPARS) reports. Protest at 26-27. The protester additionally maintains that the agency should not have considered the CPARS reports with the marginal ratings at all, because the reports were not credible. Comments & Supp. Protest at 24.

The Army contends that its evaluation of the protester’s past performance was well within its discretion. MOL at 23. The agency argues that though it mentioned and discussed the ratings of marginal that were contained in past CPARS reports in the final selection report, its evaluation of the protester’s past performance was based on the fact that the protester received a majority of ratings of either “satisfactory” or “very good.”[16] Id. at 22.

The synopsis provided that firms should submit past performance information for each of the ten projects the firms submitted under criterion B. Synopsis at 8. The synopsis further stated that the agency would consider the “recent and relevant ratings of past performance evaluations submitted in this proposal or from available databases,” and also explained that data “available to the [g]overnment through [the CPARS]” would be evaluated. Id.

The Army documented its consideration of Jacobs Engineering’s past performance for the ten projects submitted under criterion B, noting ratings of mostly very good or satisfactory. AR, Tab 18, Final Selection Report at 89. The agency also documented that it had identified three CPARS reports for the protester that contained ratings of marginal, one of which was an interim evaluation that had since been upgraded under the quality area to very good. Id. at 90. The agency also included a table that included the ratings across all relevant CPARS evaluation areas, and the percentage of ratings that were unsatisfactory, marginal, satisfactory, very good, or exceptional. Id. at 91. The agency explained that its rating of satisfactory confidence for the protester’s proposal was based on the following:

All 10 projects [submitted for criterion B] were recent. Eight (8) were [v]ery [r]elevant; and two (2) were [r]elevant. The majority of the CPARS ratings were [v]ery [g]ood or [s]atisfactory. While three (3) projects were identified with [m]arginal ratings . . . the most current [i]nterim [e]valuation for one (1) of the projects rated [q]uality as [v]ery [g]ood. While the [f]inal [e]valuation for two (2) projects received [m]arginal ratings, this was offset by overall percentage of [m]arginal ratings for [q]uality, [c]ost [c]ontrol, and [m]anagement being 0.35 [percent of the overall number of projects considered by the agency].

Id. at 91.

We find the Army’s evaluation of the protester’s past performance and assessment of a confidence rating of very relevant/satisfactory to be reasonable. Contrary to the protester’s assertions, the record demonstrates that the agency did not consider the ratings of marginal to have any effect on its assessment of the protester’s past performance; rather, the agency explicitly provided that the ratings of marginal were “offset,” because they comprised only 0.35 percent of the protester’s total overall CPARS report ratings. Instead, the agency explains that the rating of satisfactory confidence was based on the fact that the protester received a majority of either satisfactory or very good CPARS report ratings--enough to demonstrate that the agency had “[s]atisfactory [c]onfidence” that the protester would perform successfully. On this record, we find no basis to disturb this conclusion, and this protest ground is accordingly denied.

Agency’s Selection of Top Three Rated Firms

Jacobs Engineering challenges the Army’s selection of the top three rated firms, arguing that the Army failed to consider the underlying bases of the firms’ ratings, and to compare these bases among firms when determining its final rankings. Resp. to GAO Req. for Addl. Briefing and 2nd Supp. Protest at 3. In this regard, the protester argues that in comparing the competing firms to determine their relative rankings, the agency failed to conduct a qualitative analysis, and instead “merely and solely looked to adjectival ratings assigned to the offerors” to arrive at its rankings. Id. at 5. The protester argues that the “limited” contemporaneous record demonstrates the agency looked solely at the firms’ adjectival ratings, and that the agency’s post-protest explanations of its ranking of offerors do not sufficiently demonstrate the agency qualitatively compared offerors to arrive at its rankings. Id. at 6.

The Army contends that it reasonably considered information in the firms’ proposals to determine its ratings for each firm in a manner consistent with the terms of the synopsis and the procedures and requirements of FAR subpart 36.6. 3rd Supp. MOL at 2-3. The agency argues that the ratings assessed to each firm under each criterion and sub‑criterion were “meticulously catalogued” in the final selection report, and that the report otherwise complied with FAR subpart 36.6 in explaining the board’s recommendations to the agency’s selection authority. Id. at 8-10.

As stated above, our review of the record here is limited to determining whether the agency’s judgment was reasonable and in accordance with the stated selection criteria and applicable procurement laws. Nova Consulting, Inc., supra at 4. Further, post‑protest explanations that provide a detailed rationale for contemporaneous conclusions, and simply fill in previously unrecorded details, will generally be considered in our review as long as those explanations are credible and consistent with the contemporaneous record. Zantech IT Servs., Inc., supra at 15.

Furthermore, FAR subpart 36.6 prescribes that contracts for A-E services are selected in accordance with the procedures set forth in that subpart, rather than the solicitation or source selection procedures prescribed in FAR parts 13, 14, and 15. FAR 36.601-3(b). The agency’s evaluation board in these procurements is responsible for preparing for the selection authority a recommendation, “in order of preference, at least three firms that are considered to be the most highly qualified to perform the required services. The report shall include a description of the discussions and evaluation conducted by the board to allow the selection authority to review the considerations upon which the recommendations are based.” FAR 36.602-3(d).

Background Regarding Agency’s Selection of Firms

The synopsis provided that the Army would use the selection criteria to identify “the most highly qualified” firms, with the intention of awarding three IDIQ contracts in the unrestricted size category. Synopsis at 1, 3. For each selection criteria other than past performance, the synopsis provided that the agency’s evaluation would be “based on an assessment by the board of the firm’s ability to effectively address” the requirements of the criteria. Id. at 6, 7, 8, 9. Firms that were able to better address or “more effectively address[]” the selection criteria would be considered more highly qualified. Id. For example, under criterion A, firms would be evaluated “based on an assessment by the board of the firm’s ability to effectively address the professional qualifications” required by the synopsis, and a firm that could provide personnel resumes demonstrating greater qualifications would be considered more highly qualified. Id. at 6. The synopsis further advised that the selection criteria were listed in descending order of importance at both the criteria and sub-criteria levels. Id. at 4.

As explained above, the Army evaluated proposals in two stages. In the pre-selection stage, the pre-selection board narrowed from 15 to 11 the number of firms that the board determined to be among the most highly qualified. COS at 3. In the final selection stage, a final selection board convened to determine the three firms that were most highly qualified, and to then recommend to the selection authority those firms for price negotiations. Id. at 3-4. The agency prepared various documents to aid in its determination of the top three ranked firms, however, the agency explains that “the [f]inal [s]election [r]eport itself reflected the ultimate conclusions of the [f]inal [s]election [b]oard.” Id. at 4 n.3.

As part of its evaluation, the Army created a chart summarizing firms’ ratings and including notes regarding the strengths assessed to each proposal under each evaluation criterion and sub-criterion. AR, Tab 19, Summary of Ratings and Strengths. For example, for each of the sub-criteria under criterion A (professional qualifications), the chart noted the adjectival rating assessed to that sub-criterion, as well as the education, years of experience, relevant experience, and additional credentials for those proposed personnel. Id. For criterion B (specialized experience and technical competence), the chart recorded for each sub-criterion the adjectival rating and the number of projects with which the proposed personnel were involved. Id.

The final selection report reflected the findings of the Army’s summary ratings and strengths in additional detail. For each firm, the report contained the Army’s rating and a narrative of any strengths identified for each evaluation criterion and sub-criterion. For example, for the third ranked firm, Merrick-RS&H, under criterion A (professional qualifications), the agency documented its findings for each sub-criterion (i.e., professional discipline) and its overall rating for criterion A according to the synopsis’s requirements. See AR, Tab 18, Final Selection Report at 92-94. Under sub-criterion 1 of criterion A, the report noted that Merrick-RS&H’s project managers had 39 years and 23 years of experience, including 26 and 13 years with the current firm; one proposed manager had a master’s degree; and each proposed manager had various additional certifications.[17] See id. at 93. These strengths contributed to Merrick-RS&H receiving a rating of outstanding for that sub-criterion, and a rating of good overall for criterion A. See id. at 92-93. The agency documented its evaluation of each firms’ proposal in this manner, across all evaluation criteria and sub-criteria. See generally id.

At the end of the report, the board documented its ranking of the 11 firms from the final selection stage, noting that the firms “are ranked in the order established by consensus,” and recommended to the selection authority the top three firms to be considered for establishing IDIQ contracts. Id. at 144. Following the list of rankings, the report included a brief summary narrative that discussed some of the board’s considerations in selecting the top three firms. Id. at 144-145. For example, the report explained that Burns and McDonnell Engineering was the highest ranked firm because it had eight ratings of outstanding under the sub-criteria for criterion A, and the second highest rated firm, Benham-Stanley, LLC, had seven such ratings. Id. at 145. The report further explained that Merrick-RS&H was ranked third “because they have the most amount of [outstanding] ratings of the highest priority disciplines (e.g. five of the top eight disciplines were rated [outstanding]).”[18] Id. at 145. The report additionally stated that Merrick-RS&H received overall ratings of outstanding under criteria B, C, and E, and a rating of satisfactory confidence under criterion D, past performance. Id.

Jacobs Engineering’s Challenge to the Selection of Firms

Jacobs Engineering challenges the Army’s selection of the top three ranked firms on the basis that the agency did not consider the underlying bases of the ratings assessed to proposals under each evaluation criteria, and instead merely counted and compared the number of outstanding ratings assigned to the proposals in making its selection decision, specifically with respect to criterion A. Resp. to GAO Req. for Addl. Briefing and 2nd Supp. Protest at 5. The protester contends that the Army did not perform any meaningful comparison of offerors to arrive at its rankings by, for example, comparing how well each offeror demonstrated greater levels of professional qualifications under criterion A. Id. at 6. The Army maintains that its final selection report demonstrates that it considered the underlying bases of each rating it assessed to each firm in great detail, and that its final rankings and the brief summary that followed was reflective of this consideration. See 3rd Supp. MOL at 7-8. The agency further contends that in this regard, its documentation of its evaluation was consistent with the procedures of FAR subpart 36.6, which is distinct from the procedures of FAR part 15. Id. at 8-9.

Based on our review of the record, we find the Army’s selection of the highest rated firms reasonable, and consistent with the terms of the synopsis and the requirements of FAR subpart 36.6. First, the record demonstrates that the agency did consider the underlying information that served as the bases for the firms’ ratings when making its selection decisions. The chart summarizing the ratings and strengths assessed to each proposal provides a high-level summary of the rating each firm received under each criterion and sub-criterion, as well as brief notes explaining why a firm received a particular ranking. For example, as noted above, for each sub-criterion under criterion A, the chart recorded the strengths assessed for the professional qualifications identified in the synopsis for the proposed personnel. The findings reflected in the chart are corroborated by the final selection report, which included a detailed narrative explaining the agency’s findings with respect to each rating assessed. Thus, the record shows that the agency meaningfully considered the information that served as the underlying bases for its ranking of firms.

Jacobs Engineering argues that the brief summary provided in the final selection report, which mentioned the number of ratings of outstanding assessed to the top three ranked firms served as the sole basis of the agency’s comparison of offerors and selection decisions; we disagree. Focusing only on the section of the final selection report that highlighted certain aspects of the top three ranked firms’ proposals ignores the remainder of the final selection report, in which the agency meaningfully considered the qualitative merit of each firm’s proposal under the various evaluation criteria in the manner described above. The final selection report, and the other evaluation documents prepared by the agency such as the chart described above, evidence the fact that the agency compared the extent to which each firm demonstrated its ability to meet or exceed the various synopsis requirements when ranking firms. The record shows that the chart identified the strengths associated with each offeror’s proposal under the various criteria and the final selection report included narratives for each offeror describing the extent to which they each met requirements and received strengths. While the agency may have placed more weight on the evaluation of proposals under criterion A when it compared the proposals and selected the top three highest rated offerors, this was consistent with the evaluation scheme prescribed by the synopsis, which identified criterion A as the most important evaluation criterion.

Furthermore, the final selection report is otherwise consistent with the requirements of FAR subpart 36.6, as it contains a detailed description of the evaluation performed in a manner that allowed the selection authority to review all considerations on which the board’s recommendations were based.[19] The senior contracting official found no basis to disagree with the board’s recommendations, and we find no reason to object to the agency’s selection decisions in this regard. Accordingly, this protest ground is denied.

The protest is denied.

Edda Emmanuelli Perez
General Counsel

 

---