ECC Infrastructure, LLC

Decision

Matter of: ECC Infrastructure, LLC

File: B-423143; B-423143.2

Date: January 27, 2025

DIGEST

Agency reasonably determined that protester’s proposal failed to comply with material solicitation requirements, thereby rendering the proposal ineligible for award.

ECC Infrastructure, LLC, of Burlingame, California, protests the Department of the Navy’s issuance of a task order to TPC-NAN Joint Venture, pursuant to request for proposals (RFP) No. N40192-24-R-2004, for the design and construction of waterfront repairs at Apra Harbor, Naval Base Guam. ECC challenges the agency’s evaluation of its proposal, including the agency’s assessment of deficiencies. Supp. Consolidated Protest at 8-27.[1]

We deny the protest.[2]

BACKGROUND

In May 2024, pursuant to subpart 16.5 of the Federal Acquisition Regulation, the agency issued the RFP to five contractors (including ECC) that were previously awarded waterfront multiple-award Navy construction contracts. See Agency Report (AR), Tab 3, RFP at 1; Tab15, RFP amend. 0007 at 11. The solicitation sought proposals for the design and construction of “a Waterfront Structure System . . . as specified throughout this RFP.” AR, Tab 3, RFP at 3. More specifically, the solicitation sought proposals for “repairs to the Admiral Glass Breakwater armor, repairs to rock revetment along Polaris Point . . . and repairs to the Sumay Cove Marina.” Tab 6, RFP Parts 2-5 at 10. Among other things, the RFP sought proposals for the “fabrication and installation [of] Concrete Armor Units (CAU) on the Glass Breakwater, revetment, shoreline stabilization, and marina slip repair and replacement.” Id. at 352. In this context, the applicable engineering system requirements (ESR) and performance technical specifications (PTS) contained various requirements and specifications including, of particular relevance here, multiple references to the use of “marine concrete.”[3] Id. at 363‑483.

For example, under the heading “Contractor-Furnished Concrete Mix Design,” the ESR states that precast concrete floats “shall conform to Unified Facilities Guide Specifications (UFGS) section 03 31 30, ‘Marine Concrete.’” Id. at 373. Similarly, under the heading “[Wave] Attenuator Material of Construction,” the ESR states: “Precast/prestressed concrete elements . . . shall conform to the Unified Facilities Guide Specifications (UFGS) Section 03 31 30, Marine Concrete, American Concrete Institute (ACI) Standard 318, Building Code Requirements for Structural Concrete.” Id. at 376.

Further, section H10 of the solicitation’s performance technical specifications (PTS) contains a paragraph with the heading “Marine Concrete,” stating:

The Designer of Record must utilize UFGS section 03 31 29, Marine Concrete with Service Life Modeling,[[4]] including the use of epoxy coated rebar, for the project specification covering concrete components used in waterfront superstructure, substructure, deck and mooring and berthing systems, unless noted otherwise.

Id. at 448.

Under the heading “Pile Caps,” section H10 of the PTS states: “Pile caps that are in contact with the water (including ground water), and water spray must meet the requirements of the ‘Marine Concrete’ paragraph . . . in this PTS Section.” Id. at 455. Similarly, under the heading “Curbs and Bullrails,” the solicitation states: “[c]urbs and bullrails must consist of reinforced concrete construction meeting the requirements of the “Marine Concrete” paragraph in this PTS Section.” Id. at 460.

The solicitation advised offerors that source selection would be based on a tradeoff between the following evaluation factors: technical approach, small business utilization/participation, past performance, and price.[5] With regard to evaluation under the technical approach factor, the solicitation stated that “[o]fferors will be evaluated based on their demonstrated technical capability, methodology, and understanding of the planning required for all major components of the work,” further noting that proposals “must be sufficiently detailed to demonstrate an understanding of, and an ability to comply with, the requirements of the RFP.” AR, Tab 15, RFP amend. 0007 at 43-44. Finally, the solicitation provided that the agency would assign confidence ratings based on its assessments of strengths/significant strengths, weaknesses/ significant weaknesses, uncertainties, and deficiencies in offerors’ proposals. As relevant here, the solicitation defined a deficiency to include “a material failure of a proposal to meet a Government requirement,” and stated that a proposal found to have a deficiency would be ineligible for award. Id. at 48.

On or before the July 2 closing date, proposals were submitted by ECC and TPC-NAN. ECC does not dispute the fact that its proposal did not commit to using either marine concrete or even any type of reinforced concrete.[6] Specifically, ECC states that it “decided not to propose a design that utilized reinforced concrete.” Comments at 7. Instead, ECC’s proposal stated that it would “collaborate on the concrete mix design” with its designer of record and subcontractors, and would adhere to certain “guidance” documents, including “EM1110-2-2000, Standard Practice for Concrete Structures (for Civil Works Structures).” [7] Comments, exh. 3, ECC Technical Proposal at 35.

Thereafter, the agency evaluated the proposals as follows:

Req. for Dismissal, exh. C, Debrief at 38.

In assigning a rating of “no confidence” to ECC’s proposal under the technical approach evaluation factor, the agency identified two deficiencies, including a deficiency based on the proposal’s failure to meet the solicitation requirements for marine concrete.[8] In assessing a deficiency regarding the marine concrete requirements, the agency stated:

[ECC’s] proposed design criteria uses EM 1110-2-2000 Standard Practice for Concrete for Civil Works Structures as guidance stating that there is no UFC specific to concrete for CAUs; however, the RFP design criteria requires the use of marine concrete for CAUs.

Req. for Dismissal, exh. C. Debrief at 33.

Thereafter, the agency selected TPC-NAN for issuance of the task order. This protest followed.[9]

DISCUSSION

ECC’s protest challenges virtually every aspect of the agency’s evaluation of ECC’s proposal, including the assessment of a deficiency for failing to comply with the solicitation requirements regarding marine concrete. In this regard, ECC asserts that “nothing in the Solicitation required ECC to use marine concrete,” maintaining that “use of marine concrete was discretionary,” and states that, based on ECC’s “20+ years of concrete experience,” it “decided not to propose a design that utilized reinforced concrete.” Comments at 2, 7-8. In this context, ECC asserts that any solicitation requirements for marine concrete were applicable only if a proposal offered reinforced concrete. Id. 7‑8. ECC also complains that, because the solicitation’s stated evaluation criteria did not “specifically” reference marine concrete, the agency was precluded from considering that matter in its evaluation of proposals. Supp. Consolidated Protest at 19. Overall, ECC asserts that the agency’s assessment of a deficiency due to ECC’s failure to propose marine concrete was based on “an imaginary requirement” and, therefore, constituted application of an unstated evaluation factor.[10] Id.

The agency first responds that, contrary to ECC’s allegations of an “imaginary requirement,” the solicitation clearly mandated use of marine concrete multiple times. As noted above, the ESR provided that the contractor-furnished concrete mix design for precast concrete “shall conform to Unified Facilities Guide Specifications (UFGS) section 03 31 30, ‘Marine Concrete.’” See AR, Tab 6, RFP Parts 2-5 at 373, 376-377. Similarly, the PTS stated that an offeror’s design “must utilize UFGS Section 03 31 29, Marine Concrete with Service Life Modeling” for concrete components used in the waterfront superstructure, substructure, deck and mooring and berthing systems. Id. at 448. More specifically, the solicitation directed the use of marine concrete for, among other things, wave attenuators, pile caps, and waterside curbs/bullrails. See id. at 376‑377, 455, 460. Further, the agency points out that the solicitation specifically advised offerors that the agency would evaluate each offeror’s proposed methodology, along with its demonstrated understanding of, and ability to comply with, the solicitation’s stated requirements. Finally, the agency notes that the solicitation warned offerors that a material failure to demonstrate compliance with a solicitation requirement would be assessed as a proposal deficiency, which would render the proposal ineligible for award. See AR, Tab 15, RFP amend. 0007 at 43-44, 48. Accordingly, the agency maintains that its evaluation of ECC’s proposal, specifically including its assessment of a deficiency for failing to comply with the solicitation’s marine concrete requirements, was reasonable, consistent with the terms of the solicitation, and properly formed a basis for excluding ECC’s proposal from further consideration. We agree.

In reviewing protests challenging an agency’s evaluation of proposals, our Office does not reevaluate the proposals or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency’s evaluation was reasonable and consistent with the solicitation’s evaluation criteria, as well as applicable statutes and regulations. See, e.g., Batelco Telecomms. Co. B.S.C., B‑412783 et al., May 31, 2016, 2016 CPD ¶ 155 at 3. Where a dispute exists as to a solicitation’s requirements, we begin by examining the plain language of the solicitation. TriWest Healthcare Alliance Corp., B‑415222.3 et al., May 2, 2019, 2019 CPD ¶ 152 at 12. Finally, while a solicitation must inform offerors of the basis for proposal evaluation by identifying the evaluation factors and their relative importance, a solicitation need not specifically identify each and every element an agency considers during an evaluation where such elements are intrinsic to, or reasonably subsumed within, the stated evaluation factors. Horizon Indus., Ltd., B‑416222, B-416222.2, July 11, 2018, 2018 CPD ¶ 235 at 6.

Here, based on our review of the record, we find no basis to question the agency’s evaluation of ECC’s proposal, including its assessment of a deficiency for failure to comply with the solicitation’s marine concrete requirements. First, as discussed above, there is no dispute that ECC “decided” not to propose any form of reinforced concrete, including marine concrete--despite the plain language of the solicitation’s multiple provisions mandating use of this material and referencing the applicable specifications. That is, the plain language of the solicitation repeatedly stated that an offeror’s proposal “must” use marine concrete for various portions of the project. ECC’s assertions to the contrary are inconsistent with those provisions and are therefore unreasonable.[11]

Further, ECC’s assertion that the agency was precluded from assessing a deficiency because the requirement to use marine concrete was not specifically referenced in the evaluation criteria is without merit. As noted above, the solicitation clearly stated that the agency would evaluate each offeror’s proposed methodology, along with its demonstrated understanding of and ability to comply with the solicitation’s requirements. As discussed above, the plain language of the solicitation required the use of marine concrete and, thus, an offeror’s failure to demonstrate its compliance with that requirement was reasonably subsumed within the stated evaluation criteria. In short, ECC’s failure to demonstrate compliance with the solicitation requirements regarding use of marine concrete constituted a valid basis for the agency to exclude ECC’s proposal from consideration, and none of ECC’s complaints provides a basis for sustaining its protest.

The protest is denied.

Edda Emmanuelli Perez
General Counsel