Caddell Constr. Co. v. United States
| Decision Date | 22 May 2013 |
| Docket Number | No. 13-20C,13-20C |
| Parties | CADDELL CONSTRUCTION CO., INC., Plaintiff, v. UNITED STATES, Defendant, DESBUILD INCORPORATED-REC INTERNATIONAL JOINT VENTURE, Defendant- Intervenor. |
| Court | U.S. Claims Court |
Redacted Version Issued for Publication: May 22, 2013 1
on the Administrative Record;
qualification; Percy
Dirk D. Haire, Fox Rothschild, LLP, Washington, D.C., for plaintiff. With him was Alexa Santora, Fox Rothschild, LLP, Washington, D.C.
Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her were Martin F. Hockey, Jr., Assistant Director, Jeanne F. Davidson, Director, Commercial Litigation Branch and Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division.
Lawrence M. Prosen, Thomas Hine, LLP, Washington, D.C., for intervenor.
Plaintiff Caddell Construction Co., Inc. (Caddell) filed a post-award bid protest in this court on January 10, 2013, challenging the United States Department of State'saward of a $156 million contract to intervenor Desbuild Incorporated-REC International Joint Venture (Desbuild-REC) for the construction of a new annex building at the United States Embassy in Moscow, Russia, pursuant to Solicitation No. SAQMMA-12-R-0117 (the Solicitation). Plaintiff alleges that, but for defendant's arbitrary and capricious evaluation of the proposals and violation of statutes and regulations in awarding the construction project to Desbuild-REC, Caddell would have been evaluated as the lowest-priced, technically acceptable offeror. Plaintiff seeks permanent injunctive relief, as well as damages, including bid preparation and proposal costs. The parties have filed, and fully briefed, cross-motions for judgment on the administrative record, and oral argument was held.
On January 31, 2012, defendant issued a "Notice of Solicitation of Submissions for Construction of the New Annex Office Building at U.S. Embassy in Moscow, Russia," (Pre-qualification Notice)2 via a posting on FedBizOpps.3 The Pre-qualification Notice explained that defendant was requesting submissions to pre-qualify offerors to construct an annex office building within the United States Embassy compound in Moscow. The Pre-qualification Notice indicated that "[t]he project solicitation will consist of two phases:" 1) Pre-Qualification of Offerors, and 2) Requests for Proposals from Pre-Qualified Offerors. In Phase I, defendant would determine which offerors pre-qualified for the contract, then, those firms which had pre-qualified would be invited to submit a Phase II proposal. The Pre-qualification Notice also stated:
DOS [Department of State] anticipates that a tradeoff process (see FAR 15.101-1) is in the best interest of the Government. The Government will consider award to other than the lowest price offer or other than the highest technically rated offer. DOS anticipates that evaluation of technical and past performance considerations will play a significant role in the selection process.
Defendant's January 31, 2012 posting on FedBizOpps listed Charles G. Krips4 as defendant's "Primary Point of Contact" for the procurement. The Pre-qualificationNotice instructed offerors to mail their Phase I submissions to "U.S. Department of State: Attn: Charles G. Krips," and to email Mr. Krips any requests for clarification.
The Pre-qualification Notice stated that three technical evaluation factors would be considered in Phase I: Factor 1: Joint Venture Agreement/Signed Statement of JV [Joint Venture] Intent and Description of Partnership (if applicable), Factor 2: Technical Project Experience and Past Performance, and Factor 3: Business Management Plan and Organization. Factor 2 was further broken down into two subfactors: Subfactor 2A: Technical Project Experience, and Subfactor 2B: Past Performance. Each factor was to be "evaluated on a pass/fail basis." An offeror that received a failing mark on any of the three technical factors would be disqualified from the competition, and would not be allowed to submit a Phase II offer or receive the contract award. The Pre-qualification Notice explained under Submission Requirements that offerors were responsible for submitting sufficient documentation for defendant to evaluate the offer under each technical factor, stating: "Only the information in the submission and any additional information obtained concerning past performance will be considered during the evaluation of the Offeror."5
Under Factor 1, Joint Venture Agreement/Signed Statement of JV Intent and Description of Partnership, offerors already organized as joint ventures, or who planned to form a joint venture for the project, were instructed to submit either a Joint Venture Agreement or a Statement of Intent to form a joint venture. Joint venture offerors were asked to "[d]escribe the relationship of the JV parties," "[i]dentify each JV party's role," and "[i]dentify the type and percentage of work assigned to each JV party." The Pre-qualification Notice stated that, for Factor 1: "If the offeror is organized as a Joint Venture, DOS will evaluate whether the roles and responsibilities of the JV parties have been adequately described." (emphasis in original). The Pre-qualification Notice further indicated that receiving a passing score on Factor 1, Joint Venture Agreement/Signed Statement of JV Intent and Description of Partnership, was required, if applicable, in order for defendant to review the remainder of the offeror's Phase I submission.
According to the Pre-qualification Notice, Subfactor 2A, Technical Project Experience, "is intended to evaluate the technical project experience of the Offeror and its JV partners, if applicable." Paragraph 2A.2 of the Pre-qualification Notice defined theterm "relevant projects" as "those projects similar in scope, complexity, and dollar value (USD), in that order of importance." Paragraph 2A.3 instructed offerors to "[s]ubmit three examples of relevant projects, either on-going or completed within the past five years, demonstrating the Offeror's technical capabilities necessary to perform the Project." (emphasis in original). In Paragraph 2A.4, offerors organized as a Joint Venture were instructed to (emphasis in original). According to the Pre-qualification Notice, because of applicable limits on subcontracting, project examples were intended to "demonstrate the Offeror's ability to self-perform at least 30-50% of the value of each project example," and, therefore, "[p]roject examples in which the Offeror only acted as a General Contractor or did not self-perform at least 30% of the work will not be considered relevant." The Pre-qualification Notice also stated: (emphasis in original).
Under Subfactor 2B, Past Performance, offerors were instructed, for any project in which they had been involved over the past five years, to identify and explain any of the following problems:
In addition, for any project listed under Subfactor 2A, Technical Project Experience, offerors were asked to identify any other type of performance problems. Offerors were also required to have three previous clients fill out "Past Performance Questionnaire" forms and to submit those three forms as references. The Pre-qualification Notice further indicated that defendant would gather information internally regarding offerors' compliance with Department of State criteria on previous projects. The Pre-qualification Notice stated that for Subfactor 2B, Past Performance:
DOS will evaluate the quality of the Offeror's past performance-based on information submitted for Factors 2B.1. DOS will evaluate the Offeror's record of compliance with Industrial Security and Construction Security requirements for Factor 2B.5 [Compliance with DOS Criteria] if such experience exists. DOS will evaluate the Offeror's record of project completion and close-out, its approach to problem and change resolution, and its responsiveness to issuesand problems raised by OBO [Bureau of Overseas Building Operations] for Factor 2B.5 if applicable. Additionally, DOS may gather information from other sources to assist in evaluating the quality of the Offeror's past performance.
(emphasis in original).
With regard to Factor 3, Business Management Plan and Organization, offerors were told to "provide a brief description of its business management plan for this project that addresses offeror's methodology for decision making, personnel management, team approach, quality assurance, etc. in the execution of the contract scope, schedule, and cost." In addition, offerors were instructed to "provide an organizational chart that clearly depicts organizational structure and describes the relationship of key positions for construction activities (including all consultants and QC [Quality Control] pe...
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