TITLE:  Lloyd H. Kessler, Inc., B-284693, May 24, 2000
BNUMBER:  B-284693
DATE:  May 24, 2000
Lloyd H. Kessler, Inc., B-284693, May 24, 2000


Matter of: Lloyd H. Kessler, Inc.

File: B-284693

Date: May 24, 2000

Jan D. Sokol, Esq., Stewart Sokol & Gray, for the protester.

James L. Weiner, Esq., and Alton E. Woods, Esq., Department of the Interior,
for the agency.

Henry J. Gorczycki, Esq., and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.


Agency is required to disclose in the solicitation a subfactor to evaluate a
particular type of experience under the experience factor where the
subfactor constitutes 40 percent of the technical evaluation.


Lloyd H. Kessler, Inc. protests the award of a contract to John L. Jersey &
Son, Inc. under request for proposals (RFP) No. FWS1-00-P004(KH), issued by
the Department of the Interior, United States Fish and Wildlife Service
(USFWS), for river dike renovation/rehabilitation at the Ridgefield National
Wildlife Refuge, Washington. Kessler protests that the agency did not adhere
to the stated RFP evaluation factors and improperly used unstated
significant subfactors in the evaluation, and improperly evaluated Kessler's
past performance.

We sustain the protest.

The RFP, issued October 29, 1999, contemplated the award of a fixed-price
construction contract. Contract performance cannot begin "until the eagle
leaves its nest" in August 2000. RFP amend. 0002, at 1, 3. The RFP stated a
best value evaluation plan under which "price and capability score are of
equal importance." RFP at 53. The capability score was said to be based on
100 possible points divided between (1) experience of firm (30 points) and
(2) past performance of firm (70 points). RFP at 45.

The RFP's instructions for the preparation of responses to the past
performance and experience factors stated that "OFFERORS SHOULD PROVIDE ONLY
THE INFORMATION" requested by the RFP, that is, specified information about
current contracts or contracts completed in the previous 2 years, including
a brief description of the work performed and a point of contact. RFP at 46.
The RFP stated that the agency would request performance information from
the contract references to evaluate quality of performance, and may contact,
and evaluate information received from, references other than those
identified by offerors. RFP at 47. The RFP specified five criteria that
would be considered in evaluating past performance. RFP at 45-46. The RFP
stated no criteria that would be considered in evaluating experience, but
noted that this evaluation would be based on existing and prior contracts.
RFP at 45-47.

The agency received 17 proposals by the December 14 closing date. Kessler's
proposal offered the lowest price of $425,880 while Jersey's proposed price
was $487,221. Under the agency's evaluation, Kessler's proposal received a
score of 70 points while Jersey's proposal was one of the highest-rated
proposals with a score of 90 points. Agency Report at 1; Tab 8, Evaluation

The agency's actual evaluation differed from that stated in the RFP in that
the relative weights for experience and past performance were reversed and
experience was assigned 70 points and past performance was assigned 30
points. Under this evaluation, the experience scores for Kessler and Jersey
were 55 and 65 points, respectively, and the past performance scores were 15
and 25 points, respectively. [1] Agency Report at 1, Tab 8, Evaluation

The scores for experience were based on the following three criteria and
relative weights not stated in the RFP: (1) bioengineered slope protection,
40 of the possible 70 points; (2) wetland excavation, 15 points; and (3)
rip-rap construction, 15 points. Agency Report, Tab 7, Evaluation and Award
Determination Summary, at 1. Kessler's proposal received 25 of the possible
40 points for the bioengineered slope protection criterion, and received all
of the combined 30 points available under the wetlands and rip-rap criteria.
Supplemental Contracting Officer's Statement (Apr. 10, 2000) at 5. The
agency evaluation stated that Kessler "apparently has average experience in
bioengineering (2.5 projects as the engineers can find in the experience
information given) slope protection but has good wetland excavation and
rip-rap placement experience." Agency Report, Tab 7, Evaluation and Award
Determination, at 2.

Under past performance, Kessler's proposal provided the requested
information on 16 contracts completed in the past 2 years. Agency Report,
Tab 3, Kessler's Proposal, at 16-18. The agency based its past performance
evaluation of Kessler on one of these contracts--a previous contract for
dike repair with this agency--and two other contracts not identified in
Kessler's proposal. Agency Report, Tab 5, Performance Evaluations. The
agency evaluation identified adverse comments concerning Kessler's
performance that resulted in a below-average score; however, the score was
increased to an average score of 15 out of 30 points because the agency did
not give Kessler the opportunity to respond to the reports of adverse past
performance. Agency Report, Tab 7, Evaluation and Award Determination, at 3.

The agency's cost/technical tradeoff analysis concluded that the concerns
arising from reports of adverse past performance for Kessler were not worth
the cost savings of Kessler's lower price. Id. The agency determined that
Jersey's proposal, as the lowest priced of the most highly rated proposals,
represented the best value. Id. at 4, 6.

On February 4, 2000, the agency awarded the contract to Jersey. This protest
followed. The agency suspended performance of Jersey's contract pending
resolution of the protest.

Kessler protests the agency's failure to adhere to the RFP's stated
evaluation weights and the use of unstated experience subfactors in the

It is fundamental that offerors must be advised of the bases upon which
their proposals will be evaluated. H.J. Group Ventures, Inc., B-246139, Feb.
19, 1992, 92-1 CPD para. 203 at 4. In particular, contracting agencies are
required by statute and regulation to clearly set forth in the solicitation
all evaluation factors and significant subfactors that will affect contract
award and their relative importance. 41 U.S.C. sect. 253a(b)(1) (1994); Federal
Acquisition Regulation sect. 15.304(d). An agency may not give importance to
specific factors, subfactors, or criteria beyond that which would reasonably
be expected by offerors. Kumasi Ltd./Kukawa Ltd. et al., B-247975.7 et al.,
May 3, 1993, 93-1 CPD para. 352 at 6; Republic Realty Servs., Inc., B-242629,
May 7, 1991, 91-1 CPD para. 446 at 5. Contracting officials do not have the
discretion to announce in the solicitation that they will use one evaluation
plan and then follow another without informing offerors of the changed plan
and providing them an opportunity to submit proposals on that basis. Kumasi
Ltd./Kukawa Ltd.,
et al., supra at 7. A solicitation that does not set forth a common basis
for evaluating offers, which ensures that all firms are on notice of the
factors for award and can compete on an equal basis, is materially
deficient. The Faxon Co., B-227835.3, B-227835.5, Nov. 2, 1987, 87-2 CPD
para. 425 at 4.

Here, contrary to the terms of the RFP, the agency considered experience to
be the most important technical factor comprising over two-thirds of the
capability score. The agency also states that the single subfactor,
bioengineered slope protection, is the key consideration in the overall
evaluation of experience, "as it will make or break this project," Agency
Report, Tab 7, Evaluation and Award Determination Summary, at 1 (italics in
original). Consistent with this statement, bioengineered slope protection,
though the term does not appear anywhere in the RFP, is the single-most
important technical criterion, carrying more weight in the unstated
evaluation plan--40 out of 100 overall capability points--than past
performance, which was stated to be the most important evaluation factor, or
the weight assigned in the solicitation to the entire experience factor.
This is a significant evaluation subfactor that, by statute and regulation,
must be clearly stated in the RFP along with its relative importance, even
assuming it was considered reasonably related to the general experience
factor stated in the RFP. See Kumasi Ltd./Kukawa Ltd., et al., supra, at 6
(subfactor four times more important than reasonably apparent from the RFP
must be disclosed in RFP); Devres, Inc., B-224017, Dec. 8, 1986, 86-2 CPD
para. 652 at 3 (subfactor worth more than any other technical factor is
cf. Bulova Techs., LLC, B-281384, B-281384.2, Feb. 3, 1999, 99-1 CPD para. 99,
at 7-8 (agencies can properly take into consideration specific, albeit not
expressly identified, experience in making qualitative distinctions between
competing proposals, so long as the specific experience is logically
encompassed by or related to the RFP's requirements and stated basis for

The RFP did not otherwise indicate that "bioengineered slope protection" had
the overwhelming significance given in the evaluation. As noted, this term
is not mentioned anywhere in the RFP. The term appears in the Evaluation and
Award Determination, which identifies this requirement as contract line item
number (CLIN) 11 in the RFP, which is "Furnishing and Placing Fabric Slope
Protection." [2] Agency Report, Tab 7, Evaluation and Award Evaluation, at
1; see RFP Bid Schedule at 1. Neither the estimated quantity for this CLIN
and its associated price (as judged from the protester's and awardee's
proposals), nor the description of this requirement in the statement of work
indicates a level of significance approaching the weight accorded to
bioengineered slope protection in the agency's evaluation. RFP at C-108-16;
Agency Report, Tabs 3 and 4, Proposals, Bid Schedule at 1.

The agency concedes that the actual relative weights of the evaluation
factors were not consistent with that stated in the RFP, but asserts that
Kessler was not prejudiced by this evaluation because Kessler's relative
ranking would not improve if the weights announced in the RFP had been used.
The agency's arguments do not consider the fact the proposals were prepared
without offerors knowing either the overwhelming significance of experience
generally, or bioengineered slope protection specifically, in the
evaluation, such that it cannot be said that offerors had a reasonable
opportunity to compete on this basis.

In this regard, Kessler prepared its proposal under the stated RFP
evaluation plan whereby experience was the least important technical factor.
As instructed by the RFP, Kessler provided only a brief description of the
work performed under its prior contracts, and did not specifically identify
any work involving bioengineered slope protection. Agency Report, Tab 3,
Kessler's Proposal, at 16-18. Even so, the agency was able to determine that
Kessler "apparently has average experience" under this subfactor. Agency
Report, Tab 7, Evaluation and Award Determination, at 2. Kessler states
that, had it known when preparing its proposal that experience would be
worth 70 percent of the capability score, and that bioengineered slope
protection was of prime importance in the evaluation, it would have placed
greater emphasis on experience in the contents of its proposal, and
specifically would have emphasized its experience providing bioengineered
slope protection. Protester's Comments at 9-10. Although the agency
evaluation determined that Kessler performed bioengineered slope protection
on "2.5 projects as the engineers can find in the experience information
given", [3] Agency Report, Tab 7, Evaluation and Award Determination
Summary, at 2, Kessler states that all of its projects involved this type of
work and it would have provided this and other experience information, had
the agency stated that experience and this subfactor were as significant as
they were evaluated. Protester's Supplemental Comments at 11.

Given that Kessler has relevant experience, it is reasonable to conclude
that Kessler's score could increase considerably if the firm is permitted to
submit a proposal with the knowledge of the actual importance of experience
generally, and of bioengineered slope protection specifically. [4] Because
the agency used an evaluation plan not apparent from the RFP, the offerors,
including Kessler, did not have the opportunity to compete on a common
basis, so there is at least a reasonable possibility that Kessler's
lowest-priced proposal will be selected for award if the actual evaluation
factors and subfactors are disclosed. [5] We therefore find that Kessler was

We recommend that the agency amend the solicitation to state the agency's
proposal requirements and evaluation plan, request and evaluate revised
proposals, and make a new source selection decision. [6] If a proposal other
than Jersey's is selected for award, the agency should terminate the
contract previously awarded to that firm. We also recommend that the
protester be reimbursed the reasonable cost of filing and pursuing its
protest, including attorneys' fees. 4 C.F.R. sect. 21.8(d)(1) (2000). The

protester should submit its claim for costs, detailing and certifying the
time expended and cost incurred, with the contracting agency within 60 days
after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States


1. The agency also assigned risk ratings based on the offerors' present and
past performance. Kessler's rating was high risk and Jersey's rating was low
Agency Report, Tab 7, Evaluation and Award Determination, at 2-3.

2. In its Supplemental Report, the agency references other RFP work items
not included in CLIN 11 that constitute "bioengineering." Supplemental
Report at 2. However, the award document states that CLIN 11 was the "more
weighted item" in the evaluation because it encompasses "bioengineered slope
protection." Agency Report, Tab 7, Evaluation and Award Determination, at 1.

3. As stated, Kessler's proposal did not identify bioengineered slope
protection work. Neither the evaluation record nor the agency's responses to
this protest demonstrates how the agency made its determination in this
regard as to Kessler's proposal or any other proposal. We also question what
.5 of a project means for purposes of this evaluation and how that could be
determined. No other offeror was noted to have experience on fractions of a

4. It is possible that, under such circumstances, Kessler's capability score
could increase from 70 to 85 points from the evaluation of bioengineered
slope protection alone, which would place its lowest-priced proposal
extremely close to the highest-rated proposals, including Jersey's, thus
changing the underlying basis upon which the agency's cost/technical
tradeoff determination and source selection decision was made.

5. We note that, even beyond the agency's failure to disclose the actual
evaluation plan in the RFP, the documentation supporting the evaluation is
minimal, such that it would be difficult to determine the reasonableness of
the evaluation, even if the RFP were not defective. The little documentation
that does exist indicates that the agency unequally evaluated offerors under
the bioengineered slope protection subfactor, in that, although the
experience under the other subfactors for Kessler and another offeror were
evaluated as good, that offeror had "minimal" bioengineered slope protection
experience compared to Kessler's "average" experience, but nevertheless
received a considerably higher experience score than Kessler. Agency Report,
Tab 7, Evaluation and Award Determination Summary, at 2, 5.

6. Kessler also contests its past performance evaluation. While we do not
decide whether the past performance evaluation was improper, the record
reflects some problems that should be appropriately addressed when the
agency reopens discussions. Specifically, the record reflects that the
agency contacted only 1 of the 16 references listed in Kessler's proposal (a
USFWS contract), and while the agency alleges that the other references
declined to comment on Kessler's performance, there is no documentation
supporting this statement, and Kessler has submitted evidence that no such
contacts were made. The other two references considered by the agency were
for contracts apparently completed more than 3 years before the evaluation,
although the RFP requested information only on contracts performed in the
last 2 years. In addition, Kessler has vigorously disputed the accuracy of
the negative comments regarding its past performance, and the agency states
that Kessler was not given the opportunity to respond to these negative
comments. Since such matters should be raised, where, as here, discussions
are to be conducted, the agency can now afford Kessler an opportunity to
respond to any negative comments regarding its past performance.