GOVERNMENT OF THE DISTRICT OF COLUMBIA

CONTRACT APPEALS BOARD

PROTEST OF:

FORT MYER CONSTRUCTION CORPORATION

2237 33rd STREET, N.E.
WASHINGTON, D.C. 20018

Under Solicitation No. DCAM-16-CS-0084

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PROTEST

COMES NOW the Protester Fort Myer Construction Corporation, by and through its

undersigned counsel, and hereby files its Protest against the award of Solicitation No. DCAM-16-CS-

0084 by the Department of General Services to Gilbane Building Company.

1. Protester Fort Myer Construction Corporation (“Fort Myer”) is a Virginia corporation

with its principal place of business in the District of Columbia.

2. Fort Myer has been in operation since 1972, and is a Certified Business Enterprise in the

District of Columbia, possessing certifications as a longtime resident business, local business

enterprise, local manufacturing business enterprise and development enterprise zone business.

3. Fort Myer was one of two Offerors who submitted a response to a Request for Proposal

from the Department of General Services (DGS) relating to Solicitation No. DCAM-16-CS-0084,

Design Build Services for St. Eliazbeth’s East Campus Stage 1 Phase 1 Infrastructure Improvements.

4. On June 7, 2016, Fort Myer received an email from Mr. Jamar Spruill, Contract

Specialist from DGS, attaching correspondence from Mr. Yinka Alao, Associate Director of Contrating

and Procurement at DGS, informing Fort Myer that the project had been awarded to Gilbane Building

Company.

5. Fort Myer thus has standing to protest this award, as it was an Offeror and stands to be

awarded the project should this protest be sustained.

6. In its correspondence communicating the notice of award, Mr. Alao wrote, "The Gilbane
Building Company proposal was deemed most advantageous in accordance with the solicitation.”

7. On June 10, 2016, Fort Myer requested a debriefing from DGS, which was scheduled

for June 23, 2016. In attendance at the debriefing for DGS were Mr. Alao and Mr. William Pepek.

8. At the June 23, 2016 debriefing, Fort Myer learned that the Evaluation Committee

scored Fort Myer's proposal scored higher than that of the selected Offeror. Its technical proposal

earned 79.32 points, while the selected Offeror scored 77.39. Its price component earned 37 points

(which included Fort Myer’s 11 preference points for Local Business Enterprise (2 points); Longtime

Resident Business (5 points); Local Manufacturing Business Enterprise (2 points); Development

Enterprise Zone (2 points)) while the selected Offeror earned 32 points (including 0 preference points).

In total, the Fort Myer proposal package earned 116.32 points while the selected Offeror earned 109.39

points.

9. However, Mr. Alao (the source selection official) disregarded this analysis of the

Evaluation Committee and instead awarded the project to Gilbane Building Company.

10. At the debriefing Mr. Alao informed Fort Myer that the sole reason he disregarded the

findings of the Evaluation Committee was that he felt Fort Myer's price of $16,574,000.00 did not

compare favorably to Gilbane Building Company’s price of $6,600,000.00. In sum, he concluded that

acceptance of Fort Myer’s superior technical proposal and superior price score was not in the best

interests of the District of Columbia.

The Source Selection Official’s Decision Thwarts the Certified Business Enterprise Law

11. The purpose of preference points is to encourage and reward businesses that are

residents of the District of Columbia.

12. The City Council, in enacting the preference point legislation, made the conscious

decision to provide an advantage to such local businesses in the governmental procurement arena. By

giving preference points in Requests for Proposals and bid price percentage allowances for Invitations

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for Bids, the City Council anticipated and countenanced that more qualified and less expensive

contractors might lose procurements to local businesses.

13. In this matter, Fort Myer scored 1.93 points higher that Gilbane Building Company in

the technical portion of its proposal. In the price analysis, though, Fort Myer’s raw score of 26 was 6

points less than Gilbane Building Company’s score of 32. However, when Fort Myer’s 11 preference

points were added to its total, it surpassed Gilbane Building Company by 5 points, ultimately resulting

in a final score that was 6.93 points higher than Gilbane Building Company.

14. Put another way, the preference points achieved the result for which they were intended:

an advantage to a local contractor which, if left undisturbed, would have resulted in an award to that

local contractor.

15. By disregarding the scores awarded to the bidders (which scores, if followed would have

resulted in an award to Fort Myer based on the application of its preference points), in favor of a purely

monetary analysis, the source selection official, in effect, disregarded the applicability of D.C Code §

2–218.43, which it is specifically not permitted to do. The language of D.C. Code § 2–218.43 states,

“In evaluating bids or proposals, agencies shall award preferences as follows…”

16. In this case, Fort Myer did not receive the benefits of preference points because the

ultimate decision was based on the fact that Gilbane Building Company’s actual price was less than

Fort Myer’s actual price.

17. It was this lower actual price that the Department of General Services determined was

“most advantageous” to it. However, in making this determination, the Department of General

Services erred in limiting the definition of “advantage” to purely economic advantage. There was no

apparent evaluation of the worth of vindicating the goals of the District of Columbia certified business

program and awarding a procurement to a local business who committed to employ local

subcontractors and residents.

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 18. The Department of General Services, though, displayed an antipathy toward certified

businesses from the outset of this project by imposing a 200 point scale on bidders while making no

proportional adjustment to preference points, thereby diluting the effect such preference points would

have on the outcome of the procurement.

19. It is uncontroverted that the City Council intended that CBE’s under D.C. Code §2-

218.43(a)(2) would be entitled to procurement assistance for bids (in response to an Invitation For Bid,

or “IFB”) calculated on a 100 point scale, by using the term “percentage”, which intrinsically assumes

and assigns a 100 point scale. IFBs call for only numerical prices from bidders, including CBE’s. DGS

appears to accept those straightforward conclusions. Subsection (a)(1) of the CBE law, addressing

proposals rather than bids, establishes similar (but not exactly the same) advantages to CBE’s in similar

(but not exactly the same) categories as set forth in (a)(2). However, rather than using percentages, it

uses “points”, so as to be compatible with the scoring systems on proposals. Proposals contain not only

numerical prices, but also qualifications which are judged in terms of the values for technical and other

information. While this Subsection does not expressly make reference to a 100 point scale, it must

clearly be so by examining the context of the entire Section, as other portions of this Section assume

that “percentages” and “points” would be applied using equal scales. For example, Section (b) further

provides that “A certified business enterprise shall be entitled to any or all of the preferences provided

in this section, but in no case shall a certified business enterprise be entitled to a preference of more

than 12 points, or a reduction in price of more than twelve percent.” (Emphasis added.) Quite

obviously, the City Council made the scale of these terms equivalents.

The Source Selection Officer Abused His Discretion

20. The Department of General Services prepared a multi-faceted Request for Proposal that

demanded an evaluation of numerous technical and economic factors in an attempt to secure the best

value for the District of Columbia.

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 21. That rigorous evaluation, coupled with the remedial effects of the certified business

enterprise legislation, yielded a higher score for Fort Myer than Gilbane Building Company.

22. The Source Selection Officer completely disregarded this analysis and awarded the

procurement solely on the basis of raw price.

23. The utilization of price alone is an abuse of discretion.

24. Furthermore the utilization of raw price, as opposed to the price evaluation factors

outlined in the request for proposal, enhances that abuse of discretion, and in essence, results in the

Source Selection Officer rewriting the request for proposal.

25. The request for proposal broke down the price component of the submittal into five

factors – each with different point values. Inherent in this evaluation is the idea that certain pricing

components were more important to the Department of General Service than others, which, of course,

can yield a result where a bidder may obtain a higher total price score (but a higher total price) than

another bidder.

26. It must be assumed that the Department of General Services is rational and intended

what it wrote. By so dramatically reconstituting both the intent of the request for proposal and the

plain language of the request for proposal, the Source Selection Officer has abused his discretion.

27. The Department of General Services will undoubtedly argue that the Source Selection

Official has the ultimate authority to award the procurement to the entity “most advantageous to the

Department.” However, this authority must be exercised within the structure of the request for

proposal, otherwise the entire competitive bidding structure is violated. The request for proposal

becomes a mere suggestion that the Source Selection Official can disregard at his leisure. By utilizing

a factor (total price) that was not even considered in the request for proposal, the Source Selection

Official has abused his discretion.

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Evaluation of Pricing

28. It is the contention of Fort Myer that the request for proposal was unclear regarding the

proper means by which a successful bidder was to recoup its profit and overhead. Indeed, it felt the

scope of work for which it was bidding was unclear from its interpretation of the bid documents.

29. Fort Myer submitted questions to the Department of General Services regarding this

issue, but it was told that it should submit its scope of work “with qualifications”.

30. In doing so, Fort Myer submitted with its pricing, its anticipated profit and overhead for

the entirety of the project.

31. It did so based on the failure of the Department of General Services to provide sufficient

clarification.

32. As such, Fort Myer is uncertain whether the price difference between the two bidders is

accurate. To wit, did Gilbane Building Company submit a bid for the exact same work as Fort Myer;

did Gilbane Building Company similarly incorporate the totality of its profit and overhead in this

pricing?

33. A failure to consider properly the pricing, side-by-side, while basing the decision to

award solely on this raw price, is an abuse of discretion.

Fort Myer’s Technical Proposal Evaluation Was Flawed

34. In the debriefing, the Department of General Services noted certain areas in Fort Myer’s

technical proposal that were lacking.

35. While Fort Myer appreciated the constructive feedback, there were two factors in which

Fort Myer received a point reduction that was unmerited.

36. First, in the technical factor relating to economic development of Wards 7 and 8, Fort

Myer was awarded 8.45 of 15 points because it failed to delineate by labor hours, the exact trades in

which the residents of Wards 7 and 8 would be employed.

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 37. This was an impossible task because the request for proposal did not require the bidder

to estimate construction cost (which would require the estimation of labor, equipment and material) but

rather only a construction fee which is a broader, more generalized estimate of basic costs. The level

of detail demanded by the evaluators was not specifically found in the request for proposal nor could it

be fairly inferred from it.

38. In the key personnel component of the technical evaluation, Fort Myer was awarded

17.45 of 35 points in part because it represented that certain individuals would be committed 100% to

this project when those same individuals, at the time of the submission of the proposal, were committed

to other projects.

39. The Department of General Services assumed that Fort Myer was not being truthful in

its representation that its personnel would be committed, when, in fact, it reflected the commercial

reality of keeping vital personnel employed on projects during the year. Fort Myer had every intention

of moving those personnel to the instant project when the time came for work to begin. This should

have been the logical assumption, rather than a lack of honesty on the part of Fort Myer. Moreover, as

is its right, the Department of General Services could have requested clarification from Fort Myer

regarding this apparent discrepancy.

WHEREFORE, Protester Fort Myer Construction Corporation hereby requests the Contract

Appeals Board to sustain its Protest and direct the Department of General Services to award

Solicitation DCAM-16-CS-0084 to Fort Myer Construction Corporation.

Respectfully submitted,

FORT MYER CONSTRUCTION CORPORATION

Christopher A. Coppula /s/

D.C. Bar No. 459269
2237 33rd Street, N.E.
Washington, D.C. 20018
(202) 636-9535 (telephone)
(202) 635-5564 (facsimile)
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